8 Marine equipment
| (34574)
17992/12
+ ADDs 1-2
COM(12) 772
| Draft Directive on marine equipment and repealing Directive 96/98/EC
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| Legal base | Article 100(2) TFEU; co-decision; QMV
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| Department | Transport
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| Basis of consideration | Minister's letter of 30 May 2013
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| Previous Committee Reports | HC 86-xxx (2012-13), chapter 4 (30 January 2013) and HC 86-xxxi (2012-13), chapter 3 (6 February 2013)
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| Discussion in Council | Possibly 10 June 2013
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared, scrutiny waiver granted and further information requested
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Background
8.1 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).
8.2 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.
8.3 With this draft Directive the Commission
has proposed 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.
8.4 When we considered this proposal earlier
this year, we said that, although we recognised the case for continued
harmonisation in the EU of the implementation of the IMO's marine
equipment standards, we noted the significant reservations outlined
by the Government and agreed in particular that the Commission
might be exceeding its competence. We said we would await additional
information promised us before considering the draft Directive
further. Meanwhile it remained under scrutiny.[20]
The Minister's letter
8.5 The Parliamentary Under-Secretary of State,
Department for Transport (Stephen Hammond), writes to tell us
that:
- the draft Directive has been
examined article-by-article by Member States during a number of
Council working group meetings during the Irish Presidency;
- many of the Government's initial concerns have
been addressed in subsequent drafts of the text, with particularly
good progress during discussions on 21 May;
- one further meeting of this group is scheduled
ahead of the 10 June Transport Council and it is expected that
the pace of discussions during this meeting will also be extremely
fast; and
- the Presidency has reaffirmed its desire to reach
a general approach at the Council.
8.6 The Minister reminds us that:
- the Government supports, in
general, the need to amend the current MED to enhance its implementation
and enforcement;
- the proposed measure provides a number of potential
solutions to optimise the effectiveness of the instrument; and
- some of the proposed measures could, however,
go beyond enhancing the current MED and indicate an intention
by the Commission to extend its involvement in this field, which
potentially could jeopardise the UK's independence and freedom
to act at the IMO.
8.7 The Minister then says that working group
negotiations that have taken place to date indicate a number of
concerns from other Member States (also in line with Government
concerns), particularly with regard to:
- addition of the Ballast Water
Management Convention to the scope of the Directive;
- empowering the Commission, on its own initiative,
to set "testing standards" through the use of delegated
acts;
- failure to provide a mechanism for the approval
of Alternative Design Arrangements;
- the use of electronic tags; and
- the addition of patent requirements.
8.8 He says that, additionally, the Government
has concerns with the proposal for the Commission to update the
Directive (using delegated acts) to amend the list of international
conventions which would require the flag State's approval of equipment
to be placed on board ships flying its flag — its concern
on this issue is that it could bypass national ratification processes
and is outside the scope of Article 290 TFEU, which sets the criteria
for using delegated acts. The Minister continues by elaborating
on some of the issues, as follows:
Addition of the Ballast Water Management Convention
to the scope of the Directive
8.9 The Minister says that:
- the Government has opposed
this requirement to prevent an additional tier of type approval
and therefore an additional burden on the UK maritime industry;
- during negotiations the Commission and Presidency
have so far agreed to exclude this Convention from the proposal,
provided that it does not become ratified by the required 35%
of shipping tonnage; and
- this addresses the Government's concern on this
specific Convention — it has, however, wider concerns regarding
the automatic inclusion of international conventions.
Amending the list of international conventions
by means of delegated acts
8.10 On those wider concerns the Minister says
that:
- the Commission's text would
not only place the UK maritime industry in a commercially disadvantageous
position, but would also have the potential for a shift in the
balance of competence claimed by the Commission, as it would move
the responsibilities for implementation of international conventions
from Member States to the Commission;
- some improvement has been secured in negotiations,
namely the text has been amended so that it will be only applicable
to the international conventions in force;
- the Government remains, however, concerned because
the amended provision still appears to allow the Commission to
add conventions which the UK may not necessarily have ratified,
so making such conventions binding upon the UK;
- therefore, if the text remains unchanged, the
wording would appear to be outside the authority granted by Article
290 TFEU;
- during the working group discussion on 21 May,
the Presidency indicated, however, that it could be flexible on
deleting this provision, depending on subsequent discussions ahead
of the Council; and
- the Government will
continue to push for this deletion.
Empowering the Commission to set "testing
standards", in instances where the IMO has "failed"
to act, through the use of delegated acts
8.11 The Minister tells us that:
- the Government's concern here
has been to ensure Member States are not put at a disadvantage
by having to meet potentially stricter EU rules, especially due
to the inflexible nature of delegated acts, which require a qualified
majority to oppose and cannot be modified (they can only be accepted
or rejected);
- during working group discussions, some Member
States proposed to remove the Commission as a body setting standards
for marine equipment;
- in the latest draft of the proposal, the Presidency
has, however, sought to find a compromise, by changing delegated
acts to implementing acts, which would give Member States a significant
voice in the setting of these standards; and
- although the Government would have preferred
to have deleted this provision entirely, it considers this development
an acceptable compromise.
8.12 The Minister continues that:
- eight Member States (including
the UK) have also expressed concern with regard to empowering
the Commission, in delegated acts, to set testing standards in
the absence of standards developed by the IMO;
- the latest text refers to the
use of implementing rather than delegated acts; and
- the Government considers that this compromise
is acceptable.
Replacement of current 'Wheelmark' logo[21]
by use of electronic tags.
8.13 The Minister says that:
- the Government has argued against
this change and has resisted the proposal to lay down technical
standards for such tags in delegated acts;
- it could accept electronic tags being used in
addition to the Wheelmark, but it could not accept text which
would allow for their use instead of the Wheelmark;
- it is of the opinion that as the Commission's
impact assessment does not provide any costs associated with this
technology, it should form the basis of a separate impact analysis
and Commission proposal if required; and
- after extensive discussion, the Presidency has
now agreed to delete this provision in its entirety from the next
draft of the proposal.
Patent requirements
8.14 In relation to the provision to provide
a certified copy of a patent when applying for a conformity assessment,
the Minister says that:
- the MED says, in Article 1,
that "The purpose of this Directive shall be to enhance safety
at sea and the prevention of marine pollution through the uniform
application of the relevant international instruments relating
to equipment ... to be placed on board ships for which safety
certificates are issued by or on behalf of Member States pursuant
to international conventions and to ensure the free movement of
such equipment within the Community";
- the Government does not believe that including
patent requirements is appropriate for this present proposal;
- the Commission's impact assessment claims there
would be no impact on SMEs in this respect;
- the Government believes, however, that the proposal
would impose an unjustifiable, additional, significant cost and
workload on the maritime industry;
- it is its position, therefore, that if this requirement
is to be included, it should be re-examined by the Commission
taking into account the associated financial burden; and
- in the latest working group discussions, the
Presidency has agreed to delete all references to the patent within
the text, which is a significant step forwards.
A mechanism for the approval of Alternative Design
Arrangements
8.15 The Minister tells us that:
- the UK and a number of other
Member States requested the inclusion of a mechanism for the approval
of Alternative Design Arrangements;
- the Commission has noted the request and informed
Member States that consultation will be needed with European Maritime
Safety Agency;
- it does not, however, at this time appear favourable;
- the Presidency is currently working on a compromise
solution which the Government will not see until the next draft
of the text is issued; and
- provisional indications are that this compromise
could be acceptable, but the Government will need to analyse the
text when it is released.
8.16 Turning to the provision in the draft Directive
that power to be conferred on the Commission to issue delegated
acts should be for an indeterminate period of time, the Minister
says that:
- the Government has resisted
this;
- it is a horizontal issue between the institutions
and there is widespread support for the Government's position
amongst Member States; and
- in negotiations the text has been amended so
that the power to adopt delegated acts would be conferred on the
Commission for a period of five years only.
8.17 The Minister tells us that more information
on a range of other issues has been requested, such as:
- definition of "placed
on board";
- clarification on exclusion of testing standards
from the requirements of application in their up-to-date version;
- clarification of the obligation that would be
placed on manufacturers to make a sample of their product (at
their own expense) available to the market surveillance authorities
of a Member State; and
- clarification regarding what penalties might
be levied upon manufacturers who refuse to comply with a demand
to provide samples, especially on legitimate grounds of disproportionate
financial costs or protection of their solvency.
8.18 The Minister continues that:
- further clarification has been
achieved on some of these these issues and some further textual
changes have been proposed;
- for example, the text now states that a manufacturer
must provide samples to market surveillance authorities "when
reasonable and practicable";
- the Government considers that this also helps
avoid penalties for manufacturers who refuse to comply on cost
grounds; and
- on other areas listed, the Government is waiting
to see the Presidency's next draft proposal, which it expects
to resolve its queries.
8.19 The Minister concludes that:
- unfortunately, the remaining
negotiations are not expected to be concluded in time for our
final meeting before the Council and outstanding issues may not
be resolved until the Council itself;
- he appreciates that we will want to hold the
draft Directive under scrutiny until the outcome of further discussions
is known; and
- he would like, however, us to give a waiver,
in terms of of paragraph (3)(b) of the Scrutiny Reserve Resolution
of 17 November 1998, to allow the Government to support an acceptable
deal, provided such a deal can be achieved at the Transport Council
on 10 June.
Conclusion
8.20 We are grateful to the Minister for this
account of where matters stand on this draft Directive. As the
Minister anticipates we are not prepared yet to clear this proposal
from scrutiny. However, we are prepared to give him the waiver
he seeks if an acceptable deal is on offer at the forthcoming
Transport Council. But that is on the condition that the deal
includes:
- deletion of the provision in
relation to listing of international conventions;
- inclusion of the expected limitations on the
use of delegated acts;
- deletion of the patent requirements and provision
of manufacturers' samples proposals;
- inclusion of an acceptable Alternative Design
Arrangements compromise; and
- adequate responses on the remaining issues mentioned
to us.
8.21 We look forward to hearing the outcome of
the Transport Council and meanwhile the document remains under
scrutiny.
20 See headnote Back
21
The Wheel Mark (Mark of Conformity) is for EU regulatory marking
of all marine equipment, as defined in the Marine Equipment Directive. Back
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