EC on port State control - Main contents

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dossier	COM(2023)271 - Amendment of Directive 2009/16/EC on port State control.
document	COM(2023)271
date	June 1, 2023

Article 1

Amendments to Directive 2009/16/EC

Directive 2009/16/EC is amended as follows:

(1) Article 2 is amended as follows:

(a) in point 1 the following points (i) and (m) are added:

‘(l) International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWM Convention);

(m) Nairobi International Convention on the Removal of Wrecks (Nairobi Convention).’

(b) point 3 is deleted.

(2) Article 3 is amended as follows:

(a) paragraph 4 is replaced by the following:

‘4. Fishing vessels below 24 meters overall, warships, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive.’

(b) the following paragraph 4a is added:

‘4a. Member States may carry out port state control inspections of fishing vessels of above 24 metres length overall. The Commission shall adopt implementing acts establishing the modalities of such a specific port state control regime for fishing vessels above 24 meters length overall. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(2).’

(3) in Article 5, the following paragraph 2a is inserted:

‘2a. Inspections of Priority II ships carried out by Member States when its annual inspection commitment has been exceeded by more than 150% shall not be taken into account in the calculation of the annual inspection commitment of Member States parties to the Paris MOU.’

(4) Article 6 is replaced by the following:

‘Article 6

Modalities of compliance with the inspection commitment

A Member State which fails to carry out the inspections required in Article 5(2)(a), complies with its commitment in accordance with that provision if such missed inspections do not exceed 10 % of the total number of Priority I ships calling at its ports and anchorages, irrespective of their risk profile.

Notwithstanding the percentages of missed inspections referred to in the first subparagraph, Member States shall prioritise inspection of ships, which, according to the information provided by the inspection database, call at ports within the Union infrequently.

Notwithstanding the percentages of missed inspections referred to in the first subparagraph, for Priority I ships calling at anchorages, Member States shall prioritise inspection of ships with a high risk profile, which, according to the information provided by the inspection database, call at ports within the Union infrequently.’

(5) In Article 7, paragraph 2 is replaced by the following:

‘2. A Member State, in which the total number of calls of Priority I and Priority II ships is less than 150% of the inspection share referred to in Article 5(2) point (b), shall be regarded as complying with its annual inspection commitment, if that Member State carries out inspections of two thirds of Priority I and II ships of the total number of Priority I and II ships calling at its ports and anchorages.’,

(6) in Article 8, paragraphs 1 and 2 are replaced by the following:

1. A Member State may decide to postpone the inspection of a Priority I or Priority II ship in the following circumstances:

(a) if the inspection may be carried out at the next call of the ship in the same Member State, provided that the ship does not call at any other port in the Union or the Paris MOU region in between and the postponement is not more than 15 days; or

(b) if the inspection may be carried out in another port of call within the Community or the Paris MOU region within 15 days, provided the State in which such port of call is located has agreed in advance to perform the inspection.

2. Where an inspection is not performed on a Priority I or Priority II ship for operational reasons, it shall not be counted as a missed inspection, provided that the reason for missing the inspection is recorded in the inspection database and the following exceptional circumstances occur:

(a) in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment; or

(b) the ship call takes place only during night time (as provided for in Article 2(10)). In this case Member States shall take the measures necessary to ensure that ships which call regularly during night time are inspected as appropriate.’

(7) the following Article 8a is inserted:

‘Article 8a

Force majeure

Failure to carry out an inspection for force majeure reasons shall not be counted as a missed inspection provided that the missed inspection and the reasons for not carrying it out are documented and recorded in the inspection database.’

(8) Article 9 is deleted;

(9) In Article 10(2) the following is added

‘(c) Environmental parameters

Environmental parameters shall be based on the Carbon Intensity Indicator of the ship and the number of deficiencies relating to MARPOL, AFS, BWM Convention, CLC 92, Bunkers Convention and Nairobi Conventions in accordance with Annex I, Part I.3 and Annex II.’

(10) In Article 14, paragraph 4 is replaced by the following:

‘4. An expanded inspection shall be carried out by no less than two port State control officers. The scope of an expanded inspection, including the risk areas to be covered, is set out in Annex VII. The Commission shall adopt by means of implementing acts detailed measures to ensure uniform conditions for the application of Annex VII. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(2).’;

(11) In Article 14a, paragraph 4 is replaced by the following:

‘4. Article 11 point (a) and Article 14 shall not apply to ro-ro passenger ships and high-speed passenger craft on a regular service inspected under this Article.’

(12) Article 16 is amended as follows:

(a) Paragraph 1 is replaced by the following:

‘1. A Member State shall refuse access to its ports and anchorages to any ship which:

- flies the flag of a State which falls into the low performance list, adopted in accordance with the Paris MOU on the basis of information recorded in the inspection database and published annually by the Commission, and has been detained more than twice in the course of the preceding 36 months in a port or anchorage of a Member State or of a State signatory of the Paris MOU, or

- flies the flag of a State which falls into the high or medium performance list, adopted in accordance with the Paris MOU on the basis of information recorded in the inspection database and published annually by the Commission, and has been detained more than twice in the course of the preceding 24 months in a port or anchorage of a Member State or of a State signatory of the Paris MOU.

The first subparagraph of this Article shall not apply to the situations referred to in Article 21(6).

The refusal of access shall be applicable as soon as the ship leaves the port or anchorage where it has been the subject of a third detention and where a refusal of access order has been issued.’;

(b) Paragraph 3 is replaced by the following:

‘3. Any subsequent detention in a port or anchorage within the Union shall result in the ship being refused access to any port and anchorage within the Union. This third refusal of access order may be lifted after a period of 24 months has passed from the issue of the order and only if:

- (a) the statutory and classification certificates of the ship are issued by an organisation or organisations recognised under Regulation (EC) No 391/2009 of the European Parliament and of the Council ²⁹

- (b) the ship is managed by a company with a high performance according to Annex I, Part I.1, and

- the conditions listed in paragraphs 3 to 9 of Annex VIII are met.

Any ship not meeting the criteria specified in this paragraph, after a period of 24 months has passed from the issue of the order, shall be permanently refused access to any port and anchorage within the Union.’

(c) paragraph 4 is replaced by the following:

‘4. Any subsequent detention of a vessel flying the flag of a State listed in the medium or low performance list, as published in the annual report of the Paris MOU, in a port or anchorage within the Union after the third refusal of access shall result in the ship being permanently refused access to any port and anchorage within the Union.’

(d) The following paragraph 4a is inserted:

‘4a. If a ship flying the flag of a State listed in the high performance list is detained in a port or anchorage after the third or any subsequent refusal of access and, at the time of the first subsequent ship/port interface in an EU port, the statutory and classification certificates of the ship are issued by an organisation or organisations recognised under Regulation (EC) No 391/2009 and evidence is provide that an on-board visit by the classification society has taken place prior to the issuance of such certificates, the ship shall be refused access to any port or anchorage for a period of 24 months.

If at the time of the first ship/port interface the statutory or classification certificates are not issued by an organisation or organisations recognised under Regulation (EC) No 391/2009 the ship shall be permanently refused access to any port and anchorage.’

(13) In Article 21, paragraph 4 is replaced by the following:

‘4. Member States shall take measures to ensure that access to any port or anchorage within the Union is refused to ships referred to in paragraph 1 which proceed to sea:

(a) without complying with the conditions determined by the competent authority of any Member State in the port of inspection; or

(b) which do not comply with the applicable requirements of the Conventions by not calling into the indicated repair yard.

The refusal of access order shall be lifted after a period of 12 months has passed. The refusal of access order shall become applicable from the date of its issuing.

Such refusal shall be maintained until the owner or operator provides evidence to the satisfaction of the competent authority of the Member State where the ship was found defective, demonstrating that the ship fully complies with all applicable requirements of the Conventions.’

(14) In Article 22, paragraph 7 is replaced by the following:

‘7. In cooperation with Member States and taking into account the expertise and the experience gained in the Union and under the Paris MOU, the Commission shall develop a professional development and training programme for port State control inspectors. This training programme shall take account of the widened scope of port State control as well as improvements in the scope and forms of training.

In cooperation with the Member States, the Commission shall on a continuous basis identify and provide new training needs to amend the curricula, syllabi and content of the professional development and training programme for inspectors, especially as regards new technologies and in relation to the additional obligations arising from the relevant instruments.’

(15) Article 24 is amended as follows:

(a) paragraph 2 is replaced by the following:

‘2. Member States shall take the appropriate measures to ensure that the information on the actual time of arrival and the actual time of departure of any ship calling at their ports and anchorages, together with an identifier of the port concerned, is transferred within three hours of the departure to the inspection database through the Union maritime information exchange system ‘SafeSeaNet’ referred to in Article 3 point (s) of Directive 2002/59/EC. Once they have transferred such information to the inspection database through SafeSeaNet, Member States are exempted from the provision of data in accordance with points 1.2 and 2(a) and (b) of Annex XIV to this Directive.’

(b) paragraph 3 is replaced by the following:

‘3. Member States shall ensure that the information related to inspections performed in accordance with this Directive is transferred to the inspection database as soon as the inspection report is completed or the detention lifted.

Within 72 hours, Member States shall ensure that the information transferred to the inspection database is validated for publication purposes. The inspection report shall be validated before its transfer to the database by a port State control inspector who was not part of the team that carried out the inspection.’

(16) the following article 24a is inserted:

‘Article 24a

Electronic certificates

1. The Commission shall, in close cooperation with the Member States, adopt implementing acts laying down the functional and technical specifications for a harmonised reporting interface, validation tool and central repository/database for electronic versions of the certificates listed in Annex IV and referred to in Article 13(1). Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(2).’

2. The Member States may use the harmonised reporting interface, validation tool and central repository/database for electronic versions of the certificates to facilitate the transition of their ship registers to electronic certificates.

3. Ships flying the flag of a State that issue such electronic certificates shall have this reflected in the ship risk profile (SRP) as set out in Annexes I and II.

4. The Member State shall be responsible for ensuring the submission of data elements in compliance with the applicable legal and technical requirements, The Member State shall remain responsible for the data and the validity of the information and the certificates, as well as for updating any information that has changed after the submission to the central database.’

(17) Article 25 is replaced by the following:

‘Article 25

Exchange of information and cooperation

Each Member State shall ensure that its port authorities or bodies and other relevant authorities or bodies provide the competent port State control authority with the following types of information in their possession:

(a) information concerning ships which have failed to notify any information according to the requirements of this Directive, Directive 2002/59/EC and to Directive (EU) 2019/883 of the European Parliament and of the Council ³⁰, as well as, if appropriate, with Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security,

(b) information concerning ships which have proceeded to sea without having complied with Article 7 of Directive (EU) 2019/883 on port reception facilities,

(c) information concerning ships which have been denied entry or expelled from port on security grounds,

information on apparent anomalies in accordance with Article 23.’

(18) Article 30 is replaced by the following:

‘Article 30

Monitoring of compliance and performance of Member States

In order to ensure the effective implementation of this Directive and to monitor the overall functioning of the Union’s port State control regime in accordance with Article 2(b) point (i) of Regulation (EC) No 1406/2002, the Commission shall collect the necessary information and carry out visits to Member States.

Each Member State shall develop, implement, and maintain a quality management system for the operational parts of the port State-related activities of its administration. Such quality management system shall be certified in accordance with the applicable international quality standards.’

(19) in Article 30a is replaced by the following:

‘Article 30a

Delegated acts

The Commission shall be empowered to adopt delegated acts in accordance with Article 30b, to amend Article 2(1) to amend the list of Conventions set out in Article 2(1) once such Conventions have been adopted as a relevant instrument by the Paris MoU and to amend Annex VI in order to add and/or update the list of procedures and guidelines relating to port State control adopted by the Paris MOU set out in that Annex.’

(20) in Article 31 the following is inserted:

‘4. Amendments to the relevant instruments listed in Article 2 point 1 may be excluded from the scope of this Directive pursuant to Article 5 of Regulation (EC) No 2099/2002.’

(21) Article 33 is replaced by the following:

‘Article 33

Implementing rules

When establishing the implementing rules referred to in Articles 2(2) 3(4a), 10(3), 10(4), 14(4), 15(3), 18a(7), 23(5) 24a(6) and Article 27 in accordance with the procedures referred to in Article 31(2), the Commission shall take specific care that those rules take into account the expertise and experience gained with the inspection system in the Union and build upon the expertise of the Paris MOU.’

(22) Article 35 is replaced by the following:

‘Article 35

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.’

(23) Annex I is amended in accordance with Annex I to this Directive.

(24) Annex II is replaced by the text in Annex II to this Directive.

(25) Annex III is deleted.

(26) Annex IV is replaced by the text in Annex III to this Directive.

(27) Annex V is replaced by the text in Annex IV to this Directive.

(28) Annex VIII is replaced by the text in Annex V to this Directive.

Article 2

Transposition

1. Member States shall adopt and publish, by [OP: Please insert a date: one year from the date of entry into force of this amending Directive] the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.

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.

Article 3

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 4

Addressees

This Directive is addressed to the Member States.