Legal provisions of COM(2023)270 - Amendment of Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)270 - Amendment of Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the ... |
|---|---|
| document | COM(2023)270  |
| date | June 1, 2023 |
Contents
Article 1 - Amendments to Directive 2009/18/EC
(1)In Article 1, paragraph 2 is replaced by the following:
‘2.Investigations pursuant to this Directive shall not have the aim of determining liability or apportioning blame. However, Member States shall ensure that the marine safety investigation Authority (hereinafter referred to as the ‘investigation authority’) does not refrain from fully reporting the causes of a marine casualty or incident because fault or liability may be inferred from the findings.’
(2)Article 2 (2) is amended as follows
(a)point (b) is replaced by the following:
‘(b) ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and pleasure craft unless they are used for commercial purposes.’
(b)Point (d) is deleted
(3)Article 3 is replaced by the following:
‘Article 3
Definitions
For the purposes of this Directive:
‘1.‘IMO Casualty Investigation Code’ shall mean the Code of the international standards and recommended practices for a safety investigation into marine casualty or marine incident annexed to Resolution MSC.255(84) of the IMO Maritime Safety Committee, in its up-to-date version;
2. ‘IMO Guidelines to assist investigators in the implementation of the Casualty Investigation Code’ shall mean the guidelines adopted in the IMO Assembly by Resolution A.1075(28) on 4 December 2013;
3.the following terms shall be understood in accordance with the definitions contained in the IMO Casualty Investigation Code:
(a)‘marine casualty’;
(b)‘very serious marine casualty’;
(c)‘marine incident’;
(d)‘marine safety investigation’;
(e)‘marine safety investigation Authority’;
(f)‘marine safety investigating State’;
(g)‘substantially interested State’;
(h)‘serious injury’;
4. ‘IMO guidelines on the fair treatment of seafarers in the event of a maritime accident’ shall mean the guidelines as annexed to Resolution LEG.3(91) of the IMO Legal Committee of 27 April 2006 and as approved by the Governing Body of the International Labour Organisation in its 296th session of 12 to 16 June 2006;
5.the terms ‘ro-ro ferry’ and ‘high-speed passenger craft’ shall be understood in accordance with the definitions contained in Article 2 of Directive (EU) 2017/2110 25 ;
6.‘Voyage data recorder’ (hereinafter referred to as ‘VDR’) shall be understood in accordance with the definition contained in Resolution MSC.333(90) of the IMO Maritime Safety Committee in its up-to-date version;
7.‘safety recommendation’ shall mean any proposal made, including for the purposes of registration and control, by:
(a)the investigation authority of the State conducting, or leading, the safety investigation on the basis of information derived from that investigation; or where appropriate,
(b)the Commission, acting on the basis of an abstract data analysis and the results of safety investigations carried out;
8.‘length of a fishing vessel’ shall be understood in accordance with the definition contained in Article 2 of Regulation (EU) 2017/1130 26 ;
9. ‘fatal injury’ means an injury which is sustained by a person in an accident and which results in his or her death within 30 days of the date of the accident.’
(4)Article 4 is amended as follows:
(a)in paragraph 1, point (a) is replaced by the following:
‘(a) independent of criminal or other parallel investigations held to determine liability or to apportion blame and that investigation authorities are able to report on the results of a marine safety investigation without direction or interference from any persons, organisations or parties who may be affected by its outcome.’
(b)in paragraph 2, point (b) is replaced by the following:
‘(b) coordination of the activities of their respective investigation authorities to the extent necessary to attain the objective of this Directive.’
(5)Article 5 is replaced by the following:
‘Article 5
Obligation to investigate
1.Each Member State shall ensure that a safety investigation is carried out by the investigation authority referred to in Article 8 after very serious marine casualties:
(a)involving a ship flying its flag, irrespective of the location of the casualty;
(b)occurring within its territorial sea and internal waters as defined in UNCLOS, irrespective of the flag of the ship or ships involved in the casualty; or
(c)involving a substantial interest of the Member State, irrespective of the location of the casualty and of the flag of the ship or ships involved.
2.In the case of a fishing vessel of less than 15 metres in length, the investigation authority shall carry out a preliminary assessment of the very serious marine casualty to determine whether or not to conduct a safety investigation.
Where the investigation authority decides not to undertake a safety investigation of a very serious marine casualty involving a fishing vessel of less than 15 metres the reasons for that decision shall be recorded and notified in accordance with Article 17(3).
3.In the decisions referred to in paragraph 2, the investigation authority shall take into account the evidence available as well as the potential for the findings of the safety investigation to lead to the prevention of future casualties and incidents. In the case of any other marine casualty or incident, the investigation authority shall decide whether or not to undertake a safety investigation.
4.The scope and practical arrangements for the conduct of safety investigations shall be determined by the investigation authority of the lead investigating Member State in cooperation with the equivalent authorities of the other substantially interested States, in such manner as appears to it most conducive to achieving the objective of this Directive, and with a view to preventing future casualties and incidents.
5.When carrying out safety investigations, the investigation authority shall follow the IMO Guidelines to assist investigators in the implementation of the Casualty Investigation Code. Investigators may depart from these guidelines where this can be justified as necessary, in their professional judgement to achieve the aims of the investigation. The Commission may adapt the guidelines for the purposes of this Directive, taking into account any relevant lessons drawn from safety investigations, in accordance with the procedure referred to in Article 19.
6.When deciding if a marine casualty or incident occurring alongside, moored or in dock, involving shore or port workers, occurred “directly in connection with the operations of a ship” and therefore is subject to a safety investigation, particular consideration shall be given to the involvement and relevance of the ship’s structure, equipment, procedures, crew and ship management to the activity being undertaken.
7.A safety investigation shall be started without delay after the marine casualty or incident occurs and, in any event, no later than two months after its occurrence.
8.If in the course of a marine safety investigation it becomes known or is suspected that an offence is committed under Articles 3, 3bis, 3ter or 3quarter of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, the investigation authority shall immediately inform the maritime security authorities of the Member State or Member States and of any third country concerned are informed.’
(6)Article 6 is replaced by the following:
‘Article 6
Obligation to notify
A Member State shall require, in the framework of its legal system, that its investigation authority be notified without delay, by the responsible authorities and/or by the parties involved or both, of the occurrence of all casualties and incidents falling within the scope of this Directive.’
(7)Article 7 is amended as follows:
(a)in paragraph 1, the third subparagraph is replaced by the following:
‘The conduct of parallel safety investigations into the same marine casualty or incident shall be strictly limited to exceptional cases. In such cases, Member States shall notify the Commission of the reasons for conducting such parallel investigations. Member States conducting parallel safety investigations shall cooperate with each other. In particular, the investigation authorities involved shall exchange any pertinent information gathered in the course of their respective investigations, in particular in order to reach, as far as possible, shared conclusions.’
(b)the following paragraph 1a is inserted:
‘1a.During the conduct of the marine safety investigation, substantially interested States should assist to the extent practical, the marine safety investigating Member State(s) with access to relevant information for the marine safety investigation. The investigator or investigators carrying out a marine safety investigation should also be granted access to Government surveyors, coastguard officers, ship traffic service operators, pilots and other marine personnel of the substantially interested State.’
(8)Article 8 is replaced by the following:
‘Article 8
Marine safety investigation Authorities
1.Member States shall ensure that marine safety investigations are conducted under the responsibility of an impartial, permanent marine safety investigation Authority, endowed with the necessary powers, with sufficient means and financial resources and by suitably qualified investigators, competent in matters relating to marine casualties and incidents to undertake marine safety investigations into marine casualties and marine incidents.
Neither the appropriate appointment of investigators with necessary specialist skills to form part of a marine safety investigation on a temporary basis, nor the use of consultants to provide expert advice on any aspect of a marine safety investigation are precluded.
In order to carry out a safety investigation in an unbiased manner, the investigation authority shall be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it.
Landlocked Member States which have neither ships nor vessels flying their flag will identify an independent focal point to cooperate in the investigation pursuant to Article 5(1)(c).
2.The investigation authority shall ensure that individual investigators have a working knowledge of, and practical experience in, those subject areas pertaining to their normal investigative duties. Additionally, the investigation authority shall ensure ready access to appropriate expertise, as necessary.
3.The activities entrusted to the investigation authority may be extended to the gathering and analysis of data relating to maritime safety, in particular for prevention purposes, insofar as these activities do not affect its independence or entail responsibility in regulatory, administrative or standardisation matters.
4.Member States, acting in the framework of their respective legal systems, shall ensure that the investigators of its investigation authority, or of any other investigation authority to which it has delegated the task of marine safety investigation, where appropriate in collaboration with the authorities responsible for the judicial inquiry, be provided with any information pertinent to the conduct of the marine safety investigation and therefore be authorised to:
(a)have access to any relevant area or casualty site as well as to any ship, wreck or structure including cargo, equipment or debris;
(b)ensure immediate listing of evidence and controlled search for and removal of wreckage, debris or other components or substances for examination or analysis;
(c)require examination or analysis of the items referred to in point (b), and have free access to the results of such examinations or analysis;
(d)have free access to, copy and have use of any relevant information and recorded data, including VDR data, pertaining to a ship, vessel traffic service recordings, voyage, cargo, crew or any other person, object, condition or circumstance;
(e)have free access to the results of examinations of the bodies of victims or of tests made on samples taken from the bodies of victims;
(f)require and have free access to the results of examinations of, or tests made on samples taken from, people involved in the operation of a ship or any other relevant person;
(g)interview witnesses in the absence of any person whose interests could be considered as hampering the safety investigation;
(h)obtain survey records and relevant information held by the flag State, the owners, classification societies or any other relevant party, whenever those parties or their representatives are established in the Member State;
(i)call for the assistance of the relevant authorities in the respective States, including flag-State and port-State surveyors, coastguard officers, vessel traffic service operators, search and rescue teams, pilots or other port or maritime personnel;
5.The investigation authority shall be enabled to respond immediately on being notified at any time of a casualty, and to obtain sufficient resources to carry out its functions independently. Its investigators shall be afforded status giving them the necessary guarantees of independence.
6.The investigation authority may combine its tasks under this Directive with the work of investigating occurrences other than marine casualties on condition that such investigations do not endanger its independence.
7.By [date of transposition] each Member State shall develop, implement and maintain a quality management system for its investigation authority. Such quality management system shall be certified in accordance with the applicable international quality standards.’
(9)in Article 9 point (a) is replaced by the following:
‘(a) all witness evidence and other statements, accounts and notes taken or received by the investigation authority in the course of the safety investigation;’
(10)Article 10 is amended as follows:
(a)paragraph 1 is replaced by the following:
‘1.Member States shall, in close cooperation with the Commission, establish a permanent cooperation framework enabling their respective investigation authorities to cooperate among themselves to the extent necessary to attain the objective of this Directive.’
(b)paragraph 3 is amended as follows:
(a)the introductory paragraph and point (a) are replaced by the following:
‘3.Within the permanent cooperation framework, the investigation authorities in the Member States shall agree, in particular, upon the best modalities of cooperation in order to:’
‘(a) Enable investigation authorities to share installations, facilities and equipment for the technical investigation of wreckage and ship’s equipment and other objects relevant to the safety investigations, including the extraction and evaluation of information from VDRs and other electronic devices.’
(b)Points (h) and (i) are replaced by the following:
‘(h) promote cooperation with the investigation authorities of third countries and with the international maritime accidents investigation organisations in the fields covered by this Directive;
(i) provide investigation authorities conducting safety investigations with any pertinent information.’
(11)Article 14 is replaced by the following:
‘Article 14
Accident reports
1.Safety investigations carried out under this Directive shall result in a published report presented in a format defined by the competent investigation authority and in accordance with the relevant sections of Annex I.
2.Investigation authorities shall make every effort to make the report referred to in paragraph 1, including its conclusions and any possible recommendations, available to the public, and especially to the maritime sector, within 12 months of the date of the casualty. If it is not possible to produce the final report within that time, an interim report shall be published within 12 months of the date of the casualty.
3.The investigation authority of the lead investigating Member State shall send a copy of the final or interim report to the Commission. The investigating authority shall take into account the possible technical observations of the Commission on final reports not affecting the substance of the findings for improving the quality of the report in the way most conducive to achieving the objective of this Directive.’
(12)Article 15 is amended as follows:
(a)paragraph 1 is replaced by the following:
‘1.Member States shall ensure that safety recommendations made by the investigation authorities are duly taken into account by the addressees and, where appropriate, are given an adequate follow-up in accordance with Union and international law.’
(b)paragraph 2 is replaced by the following:
‘2.Where appropriate, an investigation authority or the Commission shall make safety recommendations on the basis of an abstract data analysis and of the overall results of safety investigations carried out.’
(13)in Article 16, first paragraph is replaced by the following:
‘Without prejudice to its right to give an early alert, the investigation authority of a Member State shall, at any stage of a safety investigation, if it takes the view that urgent action is needed at Union level to prevent the risk of new casualties, inform the Commission without delay of the need to give an early alert.’
(14)Article 17 is amended as follows:
(a)The following new paragraph 2a is inserted:
‘2a.Member States shall notify the Commission on all marine casualties and incidents in accordance with the format in Annex II. In the case of fishing vessels of less than 15 metres in length only the reporting of very serious marine casualties is required.’
(b)paragraph 3 is replaced by the following:
‘3.The investigation authorities of the Member States shall notify all very serious marine casualties to EMCIP. The Member States may decide upon and nominate the competent national authority or authorities to report on all other marine casualties and incidents. When the Commission is aware of a marine casualty or incident, it shall also report thereon to EMCIP.’
(15)the following new Article 17a is inserted:
‘Article 17a
Training and operational support
1.The Commission shall facilitate the development of capacities as well as the sharing of knowledge within and between the investigation authorities through the provision of training on new legal and technological developments, specific techniques and tools and technologies relating to ships, their equipment and operations.
2.Upon request of the investigation authorities of the Member States, and assuming that no conflict of interest arises, the Commission shall provide operational support to these Member States in the conduct of their safety investigations. Such support include the provision of specialised analytical tools or equipment, as well as expertise.’
(16)Article 19 is replaced by the following:
‘Article 19
Committee procedure
1.The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Regulation (EC) No 2099/2002 of the European Parliament and of the Council. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2.Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.’
(17)in Article 20 the fourth paragraph is replaced by the following:
‘Amendments to the IMO Casualty Investigation Code may be excluded from the scope of this Directive pursuant to Article 5 of Regulation (EC) No 2099/2002.’
(18)Article 23 is replaced by the following:
‘Article 23
Implementation review
The Commission shall by [OP: Please insert a date: ten years from the date of entry into force of this amending Directive] submit a report to the European Parliament and the Council on the implementation of, and compliance with, this Directive.’
(19)in Article 24, the following paragraph 3 is added:
‘3. Commission Regulation (EU) No 1286/2011 is repealed.’
Article 2 - Transposition
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2.Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.