4 Marine equipment
| (34574)
17992/12
+ ADDs 1-2
COM(12) 772
| Draft Directive on marine equipment and repealing Directive 96/98/EC
|
| Legal base | Article 100(2) TFEU; co-decision; QMV
|
| Document originated | 17 December 2012
|
| Deposited in Parliament | 21 December 2012
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| Department | Department for Transport
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| Basis of consideration | EM and Minister's letter of 28 January 2013
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| Previous Committee Report | None
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| Discussion in Council | Possibly June 2013
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
4.1 Equipment carried on board ships is required to conform
to the safety regulation and approval standards provided for in
Conventions adopted by the International Maritime Organization
(IMO).
4.2 To provide a harmonised interpretation and
implementation of the IMO approval standards for marine equipment
across Member States and to ensure a free movement of equipment
within the EU Directive 96/98/EC on marine equipment (MED) was
introduced in 1996. When developed the MED sought to harmonise
the testing standards applied to marine equipment across the EU,
which resulted in Member States being required to mutually recognise,
without prejudice, equipment approved by another Member State.
The underlining objective of this was to promote free movement
of marine equipment within the EU.
The document
4.3 With this draft Directive the Commission
is now proposing a new measure to replace the current MED. Based
on the experience gained by Member States, certain weaknesses
in the area of implementation and enforcement of the current MED
have been identified. The proposed Directive would provide for
a number of solutions to optimise the effectiveness of the MED.
Many of these measures are minor technical changes which act
to simplify procedures and requirements. The proposal is accompanied
by the Commission's impact assessment and an executive summary
of the assessment.
4.4 One significant weakness with the current
Directive is the delay in implementation of IMO standards (due
to the time taken to update the annexes of the Directive and then
transpose these annexes into national laws). The current MED
includes within its annexes lists of marine equipment which are
required to be type approved and the required testing standards.
The annexes are updated annually to align the current MED with
any revision of the testing standards agreed at IMO. The process
of updating these annexes and then transposing them into national
law creates an inherent delay in the application of IMO requirements
within the EU. In order to remove this delay the Commission is
proposing removal of the annexes and the need for national transposition
by replacing the annexes with Commission implementing or delegated
acts.
4.5 Other significant changes within the draft
Directive are:
- empowerment of the Commission,
on its own initiative, to set "testing standards", by
adding it to the bodies that can set "testing standards"
— this is explained in its impact assessment as empowering
the Commission to act when it deems that the IMO has "failed"
to do so; and
- addition of the Ballast Water Management Convention
(BWMC) to the scope of the Directive — the Convention was
adopted by the IMO in February 2004, however it has not yet been
ratified by the required number of countries (30 States, representing
35% of world merchant shipping tonnage) and has not yet entered
into force. By including the BWMC within the scope of the proposed
Directive the approval of ballast water management systems would
become mandatory for EU ships ahead of the international requirement
for type approval.
The Government's view
4.6 In his Explanatory Memorandum the Parliamentary
Under-Secretary of State, Department for Transport (Stephen Hammond),
first recalls that during the discussions which led to the current
MED it was identified that direct application of the IMO type
approval framework by the Member States in the absence of Community
harmonisation had led to significant barriers to the free movement
of goods, mostly stemming from:
- the broad discretion left by
the IMO instruments to the flag State;
- introduction of additional national requirements;
and
- divergences in the certification methods.
4.7 He adds that at the same time, the resulting
divergences in national regulations had led to uneven degrees
of safety and environmental protection. The Minister continues
that while there is still a need to ensure harmonisation, the
proposed Directive would extend the scope of the current MED and
the Government considers that certain aspects of the draft Directive
do not fully respect the principle of subsidiarity. He explains
that, in relation to the proposed empowerment of the Commission
to set "testing standards", the Government considers
that this is a potential subsidiarity issue, as such standards
need to be agreed on a global basis to ensure Member States are
not disadvantaged by having to meet EU rules, which are potentially
stricter than those applied internationally.
4.8 The Minister also raises an issue of competence
creep. While noting that the Government supports the need to amend
the current MED to enhance its implementation and enforcement,
he says that:
- it is considering its position
on the Commission's proposal;
- it would appear that some of the proposed measures
go beyond enhancing the current MED and indicate a Commission
intention to extend its competence; and
- the Government considers this could jeopardise
the UK's independence and freedom to act at the IMO.
4.9 The Minister then discusses three other areas
of potential concern. First, in relation to replacement of existing
technical annexes of the MED with Commission delegated acts, thus
shifting the responsibility for implementation of testing standards
from Member States to the Commission, he says that:
- the Government acknowledges
the need to speed up transposition of IMO testing standards;
- it is normal, however, for IMO standards to include
an element of discretion in the implementation by individual Member
States;
- when such discretion is in place the Government
does not consider that it is appropriate for transposition and
interpretation of an international requirement to be left exclusively
to the Commission; and
- the Government would prefer the alternative solution,
considered in the Commission's impact assessment, for Member States
to directly transpose IMO requirements into their national laws.
4.10 The second possible concern is the potential
subsidiarity issue noted above.
4.11 Thirdly, on the addition of the BWMC to
the scope of the Directive, despite harmonised approval being
provided for within the IMO, the Minister says that:
- the Government considers this
would place EU ships at a competitive disadvantage to the rest
of the world fleet;
- in addition, the IMO has in place a harmonised
process for the approval of ballast water management systems at
international level;
- therefore, by including approval of ballast water
management systems, the proposed Directive would create an additional
tier of type approval and so an additional burden on industry;
and
- this is a particular concern for the UK as one
of the largest manufacturers of ballast water management systems
is based in the UK.
4.12 The Minister also says that the Government
notes that the proposed Directive does not provide a mechanism
for the approval of Alternative Design Arrangements, limiting
the scope for flexible application of international conventions
to the detriment of UK business. He explains that, in particular:
- the draft Directive does not
reflect the IMO provision for the inclusion of Alternative Design
Arrangements, an international measure which allows deviation
from the prescriptive requirements of the IMO's Safety of Life
at Sea Convention through the satisfactory demonstration of equivalent
provision of equipment or systems that fulfill the intended objective
of the regulation;
- this omission would place EU flag administrations,
ships and equipment manufacturers at a competitive disadvantage
to their third country counterparts as they would be unable to
make use of equivalent arrangements permitted in international
conventions.
4.13 The Minister tells us that the Government's
checklist for analysis on the proposal will be submitted to us
shortly. In his letter he explains that given the significance
of the draft Directive and the lack of evidence in the Commission's
impact assessment, he cannot be certain that it will not be significantly
detrimental to UK interests — so the Government is carrying
out further analysis of the potential impacts the proposal may
have on UK industry. He adds that the Government is at the very
early stages of the process, that once he has further evidence
of the impact of the proposal he will update us and that he will
be seeking an agreed Government position in its European Affairs
Committee in the near future.
Conclusion
4.14 Although we recognise the case for continued
harmonisation in the EU of the implementation of the IMO's marine
equipment standards, we note the significant reservations outlined
by the Minister and agree in particular that the Commission may
be exceeding its competence. We will await the additional information
he promises us before considering the draft Directive further.
Meanwhile it remains under scrutiny.
4.15 But, in the meantime, there is a failure
in the scrutiny procedure we wish to raise with the Minister.
He draws to our attention a potential subsidiarity issue, which
is a matter on which, given sufficient time, we might have wished
to recommend the House to adopt a Reasoned Opinion by virtue of
Protocol (No 2) of the EU Treaties. However, the deadline for
a Reasoned Opinion in this case is 15 February and in practical
terms, given the very late arrival of the Government's Explanatory
Memorandum and the lack of detail on this point contained within
it, it is not possible for us to prepare and adopt a draft Reasoned
Opinion for consideration by the House in time. Accordingly, we
remind the Government again of the eight-week timetable for Parliament
to consider the adoption of Reasoned Opinions, and of the requirement
that the Government's Explanatory Memorandum should be submitted
within ten working days of the deposit of the EU document. We
ask the Minister for a full explanation of the delay in this case.
If this is not satisfactory we will consider inviting the Minister
to give evidence to us — the operation of the Reasoned Opinion
procedure is the central means by which National Parliaments monitor
the compliance of Commission legislative proposals with the principle
of subsidiarity.
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