02 April 2009
Our Ref.: KRF-1722139/18217
Overview of some key European Union maritime issues
Backcloth
Developments in the European Union over the next months must be seen on the backcloth of the elections in June of a new European Parliament and the formation of a new European Commission in the autumn.
The current European Commissioner in charge of transport, former Italian MEP Antonio Tajani, took that seat in June 2008. Even though we cannot be certain, several sources have suggested that Tajani stands a good chance of continuing as Transport Commissioner also in the “new Commission”.
Several of the active MEPs in the European Parliament’s Transport Committee will not seek re-election and others may not be re-elected, so inevitably, we will see several new faces there.
Main maritime issues
In January 2009 the Czech Republic took over the Presidency of the Council from France, to be followed by Sweden in July 2009. However, due to the landlocked position of the Czech Republic, Sweden has already taken over coordinating tasks for maritime issues. This arrangement is not unusual for the maritime policy area.
In brief, the main issues on the maritime front and of interest to INTERTANKO are:
· Climate change - emissions from ships in general and Greenhouse Gases (GHG) (CO2) in particular
· The final adoption of the Third Maritime Safety Package
· Follow-up actions to the Blue Paper on an integrated maritime policy for the European Union including:
o The Maritime Transport Strategy for the period 2008-2018
o A Communication on a European maritime transport space without barriers
· A European initiative on ship recycling
· Implementation of the Competition Rules for Tramp Shipping
· Revision of the ship-source pollution directive (criminal sanctions)
· The impact of the post Erika Court Case and the EU Waste Framework directive on oil spills at sea
· The new Union for the Mediterranean
· EU Baltic Sea Strategy
Climate Change - Emissions from ships in general and GHG (CO2) in particular
The issue of climate change mitigation in the shipping sector has been subject to further EU scrutiny this year with the EU institutions – including EU Member States - finally setting a deadline for IMO action on the issue. While negotiating a revised emissions trading scheme (ETS) for Europe, the European political institutions agreed that the shipping sector would most probably be included in the EU-ETS by 2013 unless the IMO has taken appropriate action by the end of 2011. The European Commission is starting to analyse policy options, should the IMO not meet this deadline, and an independent study has therefore been commissioned to aid this process.
The European Commission has also formally outlined its views on shipping and climate change in advance of this year's United Nations Framework Climate Change Convention (UNFCCC) meeting in Copenhagen, December 2009 (COP 15). In the January 2009 'Copenhagen Communication', the European Commission highlighted its desire to include emissions from maritime transport in the overall national reduction targets set in the U.N.'s Copenhagen agreement, though this policy was later rejected by European Environments minsters on 2nd March. Furthermore, the Commission stated that global measures should be used to reduce the climate impact of shipping to below 2005 levels and that a global emission trading scheme for maritime transport emissions may be a viable solution by which to achieve such emissions reductions. However, March’s European Council meeting among Heads of States did not yield any further details on the EU’s climate change position. Discussions between Member States will now resume in June’s European Council meeting.
Third Maritime Safety Package
Following intensive negotiation with the European Parliament in the so-called conciliation procedure, the French EU Presidency managed to secure in December 2008 a breakthrough on the Third Maritime Safety Package. The European Parliament adopted the package in March after the Council had already approved the negotiated deal. After publication in the Official Journal, the Directives and Regulations will soon become European law. Subsequently the focus will be on implementation, something which in most cases will require adaptations to national laws in most Member States. It is expected that there will be considerable cooperation among Member States, the Commission and EMSA in this substantial process.
The Third Maritime Safety Package now consists of a total of eight new proposals. With respect to the ones on which INTERTANKO has been the most active, the outcome is briefly as follows:
The Directive on the insurance of shipowners for maritime claims, formerly known as the Civil Liability Directive. The text has been significantly watered down and has therefore become more acceptable – for owners as well as P&I. It is also worth noting that in connection with the adoption of this Directive increased pressure is now being put on EU Member States to ratify and adequately implement all relevant IMO conventions. Pending final adoption the main provisions of the directive are:
· All vessels flying the flag of an EU Member State must have appropriate insurance.
· All vessels, regardless of flag, must have appropriate insurance when the ship enters a port under a Member State's jurisdiction, or, if so decided by a Member State, when the ship is operating in its territorial waters.
· The amount of insurance for each ship has been aligned with the ceilings laid down in the LLMC 1996.
· Vessels must carry an insurance certificate and make it available for inspection by the port state. In the absence of an insurance certificate vessels may face sanctions, including being expelled and denied access to any other European port.
· The Directive does not affect the regimes established according to other international Conventions, namely the CLC Convention, the HNS Convention, the Bunker Oil Convention and the Wrecks Removal Convention, as well as the Regulation transposing the Athens Convention into Community law.
· In a separate document the Council of Ministers (Member States) has declared its commitment to the ratification and application of relevant international conventions.
It is always interesting to see what was not adopted:
· The final version does not include a provision for a system of States issuing certificates evidencing compliance by the shipowner.
· There was originally a proposal that the barring of limitation for liability (under Article 4 of 1996 LLMC) should not apply to ships flying the flag of a State which is not a contracting party to the 1996 LLMC. In such cases the shipowner was supposed to lose his right to limit liability if it was proved that the damage resulted from his personal act or omission, committed with intent to cause such damage or through gross negligence.
· Nor does the final version contain the proposal that owners flying the flag of a third country should have in place financial guarantees/insurance for civil liability not less than double the applicable limits under the 1996 LLMC (International Convention on the Limitation of Liability for Maritime Claims.
· The European Commission stated when it introduced the 3rd Maritime Safety Package that it also sought a mandate for negotiating with the IMO for the revision of the 1996 LLMC, in order to review the level at which shipowners lose their right to limit their liability. Furthermore, the Commission had stated that it intended to work for “improvements” to be made to the 1992 Civil Liability for Oil Pollution Damage. The original communications did not contain specific legislative wording on these issues and the final Directive does not include these issues.
· There is no longer any provision regarding abandonment of seafarers. (ILO issue)
Directive on compliance with flag State requirements. This and the maritime insurance draft directives proved to be the most controversial measures in the 3rd Maritime Safety Package. The main “problem” with Flag State draft was the issue of “competence” which the Member States to a large extent wished to retain and not transfer this competence to Brussels. The final version requires i.a:
· A Member State has to ensure that a ship under its flag complies with the applicable international rules and regulations before it is allowed to operate. The safety records of such a ship has to be verified, if necessary through consultation with the losing Flag State.
· The relevant Maritime Administration shall be subject to an IMO audit at least every seven year. The outcome of the audit shall be published.
· A quality management system has to be developed (and certified) for the relevant maritime administration.
· Member States which appear on the Paris MOU black list, or on its Grey list for two consecutive years shall provide the European Commission with a report on their flag State performance by four months after the publication of the Paris MOU report. The report has to identify and analyse the main reasons for the lack of compliance.
· The final version does not withdraw Member States’ ability to make exceptions to IMO rules, nor does it refer to any observer status for the European Commission with IMO in the auditing process. The reference to Flag State synergies has been dropped.
As regards the Directive on vessel traffic monitoring and information systems (VTMS) a major achievement seen from INTERTANKO's point of view is that lessons have been learned from the poor handling of the Prestige accident and the Spanish refusal to grant the vessel a place of refuge. The VTMS directive contains a number of important measures but in short it has been decided that:
· Member States shall draw up plans for the accommodation of ships in need of assistance (Article 20).
· "Member States shall designate one or more competent and permanent authorities which have the required expertise and the power, at the time of the operation, to take independent decisions on their own initiative concerning the accommodation of ships in need of assistance" (Article 20).
· Furthermore, even though the absence of insurance should not exonerate a vessel from being admitted to a place of refuge, it must at the same time be guaranteed that ports will receive compensation for any damage incurred. The Commission has been asked to present a report on different policy options to ensure this by the end of 2011 (Article 20).
· The shipper has an obligation to provide the master or operator with detailed information regarding any dangerous goods to be transported (Article 12). (Dragos Rauta has a special responsibility regarding this wording. The justification quoted in Mr. Sterckx’ Report states: “It is important to make clear that it is the shipper who is principally responsible for providing correct information on the cargo to the master or operator of the ship”. The text refers to IMO Resolution MSC 150(77), following an INTERTANKO suggestion).
· The annex dealing with SafeSeaNet states that the system shall comply with the requirements of the Directive concerning confidentiality of information (Annex III, item 4)
· Seafarers should be able to rely on fair treatment in the event of a maritime accident (Article 19)
With respect to the Port State Control Directive, which on the whole will mirror changes also undertaken to the Paris MoU, a risk-based inspection regime has been agreed. The new system seeks to ensure that all ships calling at ports and anchorages within the Community are regularly inspected. At the same time inspection should concentrate on substandard ships identified through a set of objective criteria, while quality ships, meaning those which have satisfactory inspection records and/or which fly the flag of a state complying with the Voluntary International Maritime Organisation (IMO) Member State Audit Scheme, should be rewarded by undergoing less frequent inspections.
Under the new inspection regime, the intervals between periodic inspections on ships depend on their risk profile, which is determined by certain generic and historical parameters. For high-risk ships this interval should not exceed six months. Furthermore, such high risk ships may be denied entry to the ports and anchorages of Member States. Even the permanent banning of a ship is possible under certain conditions (most importantly after the fourth detention (Recital 21).
The 1995 PSC Directive (95/21/EC) contained an article to the effect that pilots should report on deficiencies about which they learn when engaged in their normal duty. The revised text (Article 23) retains much of the same wording, but now refers to apparent anomalies rather than deficiencies.
We suggested that the charterer should be named in the list of ships that are banned from EU ports. This is now included for ships carrying liquid or solid cargoes in bulk - Annex XIII (g).
Finally, a very thoroughly revised previous directive on Recognised Organisations (ROs) has resulted in a new Regulation targeted at the activities of the ROs directly and a Directive mainly addressing the parameters for EU flag state delegation of statutory power to ROs. The Regulation will put stringent requirements on transparency and class' self regulation. The Regulation also contains wording (Art 10) requiring ROs to harmonise standards and to mutually accept each other's equipment certificates where this can be done without jeopardising safety. This particular requirement has caused some concern, which also led INTERTANKO and the Round Table to put down a marker in the form of a letter to the EU Member States and the Commission.
"Blue Paper" on a Future Maritime Policy
The so-called "Blue Paper" on a Future Maritime Policy and its European Commission Action Plan for the period 2007-2009 has led to an array of more or less specific policy initiatives, some of them with potentially high relevance to tanker shipping.
The maritime policy includes initiatives in many areas including some of less direct relevance for tanker shipping, such as marine spatial planning, the mapping of the oceans, maritime surveillance, R&D and many others. However, of particular relevance to INTERTANKO members are the two following initiatives:
a) Strategic goals and recommendations for the EU's maritime transport policy until 2018
On 21 January 2009 the European Commission published a Communication stipulating its strategic goals and recommendations for the EU's maritime transport policy until 2018. This policy paper is widely understood to be the cornerstone of the EU's activities in this field for the next decade. According to the Commission, its analysis and recommendations already take into account the implications for maritime transport of the current financial and economic crisis.
This document does not contain groundbreaking new ideas. However, it provides a good overview of the Commission's priorities for the maritime sector until 2018. The Commission clearly puts a strong emphasis on making maritime transport safer, more secure and more environmentally friendly, while at the same time staying competitive. The Commission also reiterates its demands for more concerted EU action in international fora, such as the IMO and ILO. The Maritime Strategy Communication will therefore set the scene for more specific EU initiatives in the coming years. First examples of this are the Communication on a European maritime transport space without barriers and the Communication on a comprehensive climate change agreement in Copenhagen, which calls for the inclusion of shipping in the emissions trading system unless satisfactory and timely agreement is reached in the IMO.