European Scrutiny Committee Contents

5 Carriage of passengers and luggage by sea



COM(10) 686

Amended draft Council Decision concerning the accession of the European Union to the Protocol of 2002 to the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974

Legal baseArticles 100(2) and 218 TFEU; assent; QMV
Basis of considerationMinister's letter of 24 March 2011
Previous Committee ReportsHC 428-xiii (2010-11), chapter 5 (19 January 2011) and HC 428-xviii (2010-11), chapter 3 (2 March 2011)
Discussion in Council31 March 2010
Committee's assessmentPolitically and legally important
Committee's decisionNot cleared; further information requested


5.1 In November 2002 the Athens Protocol was adopted by the International Maritime Organization (IMO) to amend the 1974 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (to which the UK is a State Party). The Protocol introduces compulsory insurance to cover passengers on ships and raises the limits of liability. It also introduces other mechanisms to assist passengers in obtaining compensation, based on well-accepted principles applied in existing liability and compensation regimes dealing with environmental pollution. These include replacing the fault-based liability system with a strict liability system for shipping related incidents (backed by the compulsory insurance requirement) and introducing the right of direct action against the insurer.

5.2 The Protocol has a provision allowing Regional Economic Integration Organizations, such as the EU, to become Contracting Parties to the Protocol.

5.3 The Protocol has provisions on jurisdiction and the recognition and enforcement of judgements, in respect of which the EU has internal rules under Council Regulation (EC) No 44/2001, thereby giving it an exclusive external competence in respect of at least part of the subject matter of the Protocol.

5.4 In June 2003 the Commission proposed a draft Decision to authorise the (then) Community to become a party to the Protocol and to make the required declaration of competence in relation to the exclusive competence provisions. In July 2003 a previous Committee cleared that draft Decision from scrutiny.[24]

5.5 Negotiations on the draft Decision were suspended in December 2003 because Spain had questioned the arrangements for communicating with the competent authorities in Gibraltar. This matter was resolved in 2008 when a system of 'post-boxing' was put in place for communications between Spanish and Gibraltar authorities.

5.6 To expedite ratification of the Protocol by the EU and the Member States, Regulation (EC) No 392/2009 was adopted. It extended the requirements of the Protocol, including compulsory insurance requirements for international voyages, to domestic carriage by sea within a single Member State on board ships of a certain category and, if a Member State so decides, to all domestic sea-going voyages and introduced a number of supplementary measures intended to further enhance the provision of compensation to passengers. The Regulation applies from the date of the entry into force of the Athens Convention for the EU, and in any case from no later than 31 December 2012.[25]

5.7 This present draft Decision is a revised version of the Commission's 2003 proposal. The amended draft Decision:

  • takes account of the IMO Reservation and Guidelines for Implementation of the Athens Convention adopted by the Legal Committee of the IMO in October 2006, of adoption of Regulation (EC) No 392/2009 and of the Treaty of Lisbon;
  • sets out the basis for the EU's competence in respect of the Athens Convention;
  • authorises the Council to conclude the Protocol on behalf of the EU and defines the basis upon which Member States are able to become parties to the Protocol in their own right, as regards those areas which are within Member State competence;
  • provides for the EU, at the time of its accession, to make the required declaration to the Secretary-General of the IMO specifying the matters governed by the Protocol, in respect of which competence has been transferred to the EU by its Member States, which are signatories or parties to the Protocol, and any other relevant restrictions as to the scope of that competence; and
  • contains a provision on timing, which requires Member States to become a party to the Protocol on 31 December 2011, whilst the preamble indicates that Member States should deposit their instruments of ratification or accession simultaneously.

5.8 When we considered this proposal, in January 2011, we heard from the Government about a number of matters it was pursuing during working party negotiations. We said that before considering the draft Decision further we wished to have an account of any progress in those negotiations on a number of matters including the question of who should make the IMO Reservation and an additional legal base (Article 81 TFEU).

5.9 In early March 2011 we heard, on the matter of the IMO reservation, that:

  • the Government considered the making of the IMO Reservation to be a matter of shared competence;
  • this position had been recently confirmed by the Commission—it was its view that both the EU and its Member States needed to make the IMO Reservation when becoming party to the Protocol;
  • there was, however, a supplementary concern that, if the EU were to make the IMO Reservation and this included sections 1.10 and 1.11 on certification, Member States might in fact be conceding competence in this area;
  • whilst this did not appear to be the Commission's intention, such an incidental transfer of competence would not be acceptable;
  • in practice, moreover, it was the UK and other Member States that would issue and accept the certification as part of their civil liabilities and Port State Control functions—such a role would not be carried out by the EU institutions;
  • more practically, there was potential for difficulties to arise for ships operating outside the EU in relation to the certification issued by Member States that had not ratified, or acceded to, the Protocol; and
  • it was unclear how non-EU states would interpret the EU's IMO Reservation, but in the Government's opinion the EU's IMO Reservation would not validate certificates issued by such Member States, whereas insurance certificates issued by UK authorities would be valid providing the UK had made the IMO Reservation when ratifying the Protocol.

5.10 In relation to an additional legal base for the draft Decision we heard that:

  • the Government, with support from another Member State, had suggested that Article 81 TFEU should be cited as an additional legal base for the sake of legal certainty;
  • this was on the grounds that Article 81 relates to judicial cooperation in civil matters and Recital 5 of the draft Decision indicates that Article 10 of the Protocol (which relates to rules on jurisdiction) would take precedence over the relevant internal rules of the EU;
  • the Government therefore considered that the Protocol to Title V TFEU (on the position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice) applies, so that the UK would have an option whether to opt in or opt out of the proposal;
  • the latest draft of the proposal contained a footnote about Article 81as a legal base, but further discussion on this matter was unlikely to take place until the Committee on Civil Law Matters had issued a legal opinion, which was due in late February 2011; and
  • there was some recognition that there was a technical problem here that needed to be resolved to reflect the UK and Ireland's position in respect of the area of freedom, security and justice.

5.11 We were reminded that the Government considered that the Protocol to Title V of the TFEU (on the position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice) applied, so that the UK had an option whether to opt-in to the proposal or not. We heard, however, that it had not generally been the practice of the Government to assert the opt-in in cases such as this, which relate to measures to which exclusive external competence applied as a result of an internal exercise of EU competence.

5.12 We said that:

  • we were unsure as to how the Government saw the IMO Reservation problem being resolved — we fully supported its concern not unnecessarily to concede competence in this field, and looked forward to a further update on this aspect of the negotiation;
  • the circumstances in which the UK asserts the opt-in Protocol applies to international agreements was a matter which we were scrutinising in relation to other documents — so we wanted in due course for confirmation of the proposed legal base and the Government's approach to the opt-in Protocol; and
  • in the meantime, the document remained under scrutiny.[26]

The Minister's letter

5.13 The Parliamentary Under-Secretary of State, Department for Transport (Mike Penning), first reminds us that:

  • the UK and other like minded Member States considered the making of the IMO Reservation to be a matter of shared competence;
  • the difficulty, however, was that the text of the IMO Reservation had been constructed in 2006 before Regulation (EC) No 392/2009 was negotiated; and
  • whilst it was recognised that the EU might have competence to make the IMO Reservation, it does not have exclusive competence on all the matters within the Reservation itself.

The Minister continues that:

  • to address this complexity the Government proposed that the draft Council Decision should make it clear that both the EU and the Member States should make the IMO Reservation, when becoming party to the Protocol;
  • in addition it proposed that language should be inserted in the recitals that make it clear that the EU's IMO Reservation should not be interpreted as altering the current division of competence which exists between the EU and the Member States in relation to certification and the controls by states authorities; and
  • the Government's proposals have been accepted.

5.14 Turning to the matter of opt-ins the Minister says that:

  • at present the Government is considering its position on the application of the UK's opt-in to international agreements where the EU has exclusive external competence and will be writing to us and the Lords EU Committee in the near future setting out its position; and
  • in respect of the draft Council Decision the Government is continuing to press for the inclusion of an Article 81 TFEU legal base, but the matter may not be finally resolved until the meeting of the Transport Council on 31 March 2011, at which the Presidency is hoping to achieve adoption of the proposed Decision.


5.15 We are grateful to the Minister for his account of where matters stand on this amended draft Decision. We note that one of the two matters that were outstanding, the IMO Reservation issue, has been resolved satisfactorily. We note also that the question of an additional legal base, Article 81 TFEU, has not been resolved and may be dealt with only at the Transport Council on 31 March 2011.

5.16 In these circumstances, although we do not yet wish to clear this document from scrutiny, we are content, in accordance with sub-paragraph (3)(b) of the Scrutiny Reserve Resolution of 17 November 1998, if the Government votes in favour of the draft Decision at the Transport Council. However, we wish to have a report from the Minister of the outcome of the Council discussion on this matter. And, if Article 81 TFEU is cited as a legal base, we would wish to examine the question of a UK opt-in.

24   (24691) 10979/03: see HC 63-xxx (2002-03), chapter 14 (16 July 2003). Back

25   (27323) 6827/06 and (29040) 14302/07: see HC 34-xxxvi (2005-06), chapter 7 (19 July 2006) and HC 16-iv (2007-08), chapter 24 (28 November 2007). Back

26   See headnote. Back

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