21 Maritime safety
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8463/14
COM(14) 119
| Draft Council Decision on the position to be adopted at the International Maritime Organization during the 93rd session of the Maritime Safety Committee on the adoption of amendments to SOLAS Regulations II-2/1, 2/3, 2/9.7, 2/13.4, 2/18, 2/20-1, 2/29, chapter III, the Life Saving Appliances Code and the 2011 Enhanced Survey Programme Code
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| Legal base | Articles 100(2) and 218(9) TFEU; —; QMV
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| Document originated | 1 April 2014
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| Deposited in Parliament | 4 April 2014
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| Department | Transport
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| Basis of consideration | EM of 24 April 2014
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| Previous Committee Report | None
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| Discussion in Council | Probably before 14 May
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared; further information requested
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Background
21.1 Transport is an area of shared competence between the EU
and the Member States. Where the International Maritime Organization
(IMO) remit, through its founding Convention, relates to maritime
transport, safety of shipping and prevention of marine pollution,
the EU has exclusive competence only to the extent that the relevant
provisions of the IMO Convention or legal instruments affect EU
common rules or alter their scope. When EU rules exist but are
not affected, in particular in cases of establishing only minimum
standards, the Member States have competence, without prejudice
to the competence of the EU, to act in this field.
21.2 Whilst the EU is not a member of the IMO and is not party
to IMO instruments that are to be adopted or amended, Member States
are not allowed to assume obligations likely to affect EU rules
unless they are authorised to do so by means of a Council Decision.
21.3 The IMO's International Convention for the Safety of Life
at Sea, 1974, (the SOLAS Convention), which entered into force
in May 1980, is generally regarded as the most important of all
international treaties concerning the safety of merchant ships.
The 1974 version includes the tacit acceptance procedure, which
provides that an amendment shall enter into force on a specified
date unless, before that date, objections to the amendment are
received from an agreed number of Parties. As a result the 1974
Convention has been updated and amended on numerous occasions.
The Convention in force today is sometimes referred to as SOLAS,
1974, as amended.
21.4 The main objective of the SOLAS Convention is to specify
minimum standards for the construction, equipment and operation
of ships, compatible with their safety. Flag States are responsible
for ensuring that ships under their flag comply with its requirements,
and a number of certificates are prescribed in the Convention
as proof that this has been done. Control provisions also allow
Contracting Governments to inspect ships of other Contracting
States if there are clear grounds for believing that the ship
and its equipment do not substantially comply with the requirements
of the Convention — this procedure is known as port State
control.
The document
21.5 The Commission presents this draft Council Decision on the
position to be adopted, on behalf of the EU, at the IMO with respect
to amendments to:
· SOLAS
Regulations II-2/3 and II-2/9.7 concerning fire resistance of
ventilation ducts for new ships;
· SOLAS
Regulation II-2/13.4 concerning additional means of escape from
machinery spaces for new passenger and cargo ships;
· SOLAS
Regulation II-2/18 concerning helicopter landing areas on ro-ro
passenger ships for new ships;
· SOLAS
chapter III and associated requirements for periodic servicing
and maintenance of lifeboats and rescue boats for all ships;
· the
Life-Saving Appliances (LSA) Code concerning lifejackets Reference
Test Devices (RTDs), with associated Revised Recommendations on
testing of life-saving appliances and Guidelines for validating
the construction of a completed adult reference test device;
· SOLAS
Regulation II-1/29 concerning requirements for steering gear trials;
and
· the
2011 Enhanced Survey Programme (ESP) Code, mainly to bring this
in line with practices of the classification societies/Recognized
Organizations.
21.6 The Commission considers the adoption of these
amendments to come under exclusive EU competence.
21.7 The amendments are to be adopted at the 93rd
session of the IMO Maritime Safety Committee (MSC 93) to be held
between 14 and 23 May.
The Government's view
21.8 The Parliamentary Under-Secretary of State,
Department for Transport (Stephen Hammond) tells us that the Government
supports the adoption of all the IMO amendments being put forward,
which are relatively minor and would have no significant impacts
on the UK.
21.9 The Minister says that member states of the
IMO must apply the SOLAS Convention rules to ships on international
voyages but that the EU has elected to also apply some of them
to domestic passenger ships. He then discusses the proposed IMO
amendments in three groups. First, in relation to the amendments
concerning lifeboats and rescue boats, life-saving appliances
and the ESP Code, the Minister says that:
· the
relevant EU legislation requires compliance with the provisions
of SOLAS as amended (by direct reference to a SOLAS Regulation)
and so these amendments to SOLAS have a direct impact on the obligations
under EU legislation; and
· for
these the Government accepts that a Council Decision is required.
21.10 Next, in relation to the amendments concerning
fire resistance of ventilation ducts, escape from machinery spaces
and steering gear trials, the Minister says that:
· the
relevant EU legislation has "copied out" the provisions
of SOLAS and applied them to domestic passenger ships;
· therefore
for these the Government does not see a direct impact between
the amendment to SOLAS and EU legislation, as there will have
to be a separate legislative process within the EU to apply the
amendments to SOLAS to domestic passenger ships; and
· as
such the Government has argued that these measures should not
be included in the Council Decision as this would have the potential
to set a precedent for Council authorisation being required before
Member States could act on a much wider range of IMO measures.
21.11 As for the amendment relating to helicopter
landing areas the Minister says that:
· this
is referenced in EU legislation with the caveat "as revised
per 1 January 2003"; and
· the
Government feels this should be treated in the same way as the
"copy out" measures, because notwithstanding the further
amendment to SOLAS, EU legislation would continue to require compliance
to the 2003 text of SOLAS until separate legislative action has
occurred within the EU.
21.12 The Minister tells us that:
· the
Government has raised these points during discussions by the Council's
Shipping Working Party on 22 April;
· its
arguments were accepted, but the overall view is that (as well
as applying certain SOLAS provisions to all domestic passenger
ships) Directive 2009/45/EC also requires Class A domestic passenger
ships to comply with SOLAS as a whole;
· therefore
it is considered that a direct impact on EU law exists for any
change to SOLAS relevant to passenger ships;
· Member
States agreed that there should be no extension of competence
to passenger ships on international voyages as a result of Directive
2009/45/EC on safety rules and standards for passenger ships relating
to domestic passenger ships;
· there
was clarification that the need for the Council Decision was not
due to any EU competence over SOLAS as such, but due to use of
SOLAS to provide the safety standards for domestic passenger ships
within the EU, which do not fall under the scope of SOLAS;
· in
recognition of this "to the extent that they fall under the
exclusive competence of the Union" has been added to Article
2 of the draft Council Decision; and
· the
Government accepts that this offers acknowledgement that there
is some extent to which the amendments do not fall under the exclusive
competence of the EU.
21.13 The Minister continues that:
· the
Government agrees with the necessity for the proposed Council
Decision and has no remaining concerns with the content of the
Articles of the Decision;
· it
is, however, concerned that the recitals have not been updated
to reflect the direct effect associated with Class A passenger
ships and as such continue to refer to the "copy out"
provisions as a basis for a Council Decision for some of the IMO
amendments;
· the
Government considers that this creates risk of a precedent that
the Commission will try to propose Council Decisions in cases
where an action at the IMO does not have direct effect on EU Law;
and
· it
therefore intends to abstain on this proposal unless it is possible
to secure amendment of the recitals to recognise that there is
no extension of competence to passenger ships on international
voyages as a result of Directive 2009/45/EC.
21.14 The Minister adds that:
· throughout
the stages of negotiation within the IMO about the proposed amendments,
relevant UK stakeholders have been engaged on the formation of
UK lines, as is normal practice for the preparation of the UK
Delegation to the IMO; and
· the
Government is of the view that the associated costs and burden
to Government and industry of the amendments are minor.
Conclusion
21.15 We note that the Government has secured
improvements to the substantive part of this draft Council Decision,
so negating the scope for competence creep. However, given the
continuing issue of the unacceptable recitals, we only clear this
proposal from scrutiny on the understanding that the Government
will abstain if this issue is not resolved.
21.16 We also ask the Minister to inform us whether
the challenge by Germany to the use of Article 218(9) TFEU as
a legal basis in pending case C-399/12 is relevant to this proposal.
In this case Germany is arguing that this Article cannot be applied
in relation to the representation of the Member States in bodies
of international organisations in which only the Member States
participate by virtue of separate international treaties.
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