Explanatory Memorandum to COM(2023)269 - European Maritime Safety Agency - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)269 - European Maritime Safety Agency. |
|---|---|
| source | COM(2023)269 |
| date | 01-06-2023 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The first building blocks of the European maritime safety policy were laid at the beginning of the 1990s, following the Aegean Sea (1992) and Brear (1993) oil tanker accidents. With growing international trade, and the deepening of EU’s internal market, shipping activities in Europe and in the waters surrounding Europe have increased. At the same time, the risks of shipping activities were acknowledged, underlining the need for stronger European action on maritime safety. Rules on port State control and the classification societies (ROs) were already introduced in the nineties. EU-level efforts in the field underwent significant acceleration following the Erika (1999) and the Prestige (2002) oil tanker accidents. By causing extremely high-cost damage to the environment, as well as to the fishery and tourism sectors, these accidents highlighted the need to upgrade the EU legal framework on maritime safety and the need for practical measures to prevent and respond to pollution. The Erika oil tanker accident led to the maritime safety package proposals Erika I (COM (2000) 142) and Erika II (COM (2000) 802). These respectively comprised a set of short-term measures and a set of more complex, long-term actions aimed at enhancing European maritime safety policy.
In particular, Erika II envisaged the establishment of the European Maritime Safety Agency (EMSA) (‘the Agency’) to support the Commission and EU Member States with the application and monitoring of EU legislation in the field of maritime safety, as well with the evaluation of its effectiveness. EMSA was then established by Regulation (EC) No 1406/2002 of 27 June 2002, with the purpose of ensuring a ‘high, uniform and effective level of maritime safety and prevention of pollution by ships within the Community’.
Following the adoption of its founding Regulation, successive amendments progressively expanded the Agency’s objectives and tasks to adapt its activities to EU maritime policy developments. Regulation (EC) No 1406/2002 has been modified five times since 2002, mainly due to changes to the EU's maritime legislation.
EMSA was subject to an external evaluation in 2017, which concluded that while its objectives, activities and outputs are adequate, changes to its mandate may be required to adapt it to developments in legislation, the sector and emerging political priorities.
Furthermore, the European Green Deal announced in December 2019 has emphasised the need to accelerate the transition to a zero pollution and climate-neutral economy, including through the shift to sustainable mobility with significant shifts towards cleaner fuels and a more sustainable maritime sector transport. This new strategy built upon the rules introduced in 2012 on sulphur content of the marine fuels1 and the monitoring, reporting and verification of CO2 emissions in 20152. To deliver on this, the Commission adopted in December 2020 its Sustainable and Smart Mobility Strategy, which included the revision of EMSA’s founding Regulation (“Action 77” of the accompanying Action Plan to the Strategy3).
The Agency’s mandate needs to be revised for the following reasons: (1) it does not properly reflect EMSA’s current scope of activities due to the evolving needs of the maritime sector and the new EU regulatory framework in the area; (2) the administrative and financial provisions of the mandate do not reflect the latest EU regulatory framework on agencies governance; and (3) the Agency is facing stretched resources to fulfil both its current tasks and the new tasks and activities arising from the needs of the sector, such as the green transition, or legislative developments, such as the new maritime safety package.
The proposed revision of EMSA’s mandate aims to: (1) better anchor and reflect the current tasks and objectives of the Agency in its founding Regulation so that it is legally mandated to fulfil these and support the Member States and the Commission with the necessary technical, operational and scientific assistance to ensure maritime safety and security, and the green and digital transition of the sector; (2) ensure that EMSA’s founding Regulation is future proof by allowing enough flexibility to incorporate new tasks that address the evolving needs of the maritime sector; and (3) ensure that the Agency has adequate human and financial resources to fulfil its role.
Since 2002, when the original founding Regulation was adopted, several developments have taken place in the maritime sector. As a result, the Agency’s founding Regulation has been amended five times, with the amendment in 2013 making a distinction between core and ancillary tasks which has become obsolete. Moreover, rules on the administrative and financial governance of EU Agencies have also been amended since the last substantial amendment of the Agency’s founding act in 2013. This obsolete structure of the mandate combined with the need to incorporate and reflect EMSA’s new tasks in the areas of maritime safety, sustainability, decarbonisation, security and cybersecurity, surveillance and assistance in crises management call for a new EMSA Regulation to replace its founding Regulation.
A new Regulation will also help to clarify the structure of the legal act (e.g. by removing the distinction between core and ancillary tasks, and introducing new tasks in each strand of the Agency’s action). As a result, the new Regulation will maintain the tasks that are already reflected in the previous mandate of the Agency while reflecting the new tasks and updating the administrative and financial provisions, aligning them with the new framework.
• Consistency with existing policy provisions in the policy area
The Regulation mandates EMSA to assist Member States and the Commission technically and operationally in a broad range of activities emanating from various pieces of maritime legislation.
On maritime safety, the Regulation reflects EMSA’s assistance to the Commission and the Member States with the implementation of Directive 2009/21/EC on compliance with flag State requirements, Directive 2009/16/EC on port State control, and Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector. The revision takes into account the Commission’s new proposals to amend these three Directives. Moreover, the Regulation also has links with EU legislation on passenger ship safety and registration, notably Directive 2009/45/EC on safety rules and standards for passenger ships and Council Directive 98/41/EC on the registration of persons sailing on board passenger ships operating to or from ports of the Member States of the Community. The Agency should continue to develop relevant databases and tools that support the implementation of these Directives and continue to actively assist in the overall safety of passenger ships. Furthermore, the Regulation proposes the continuation of the Agency’s assistance with implementing the rules on ’recognised organisations’, under Regulation (EC) No 391/2009 on common rules and standards for ship inspection and survey organisations as well as with Directive 2014/90/EU on Marine Equipment and with Directive (EU) 2022/993 on the minimum level of training of seafarers.
In the area of sustainability, the Agency should continue and expand its assistance with the implementation of the new proposed rules on ship-source pollution4 and on the introduction of penalties for infringements, while continuing to support the implementation of the complementary Directive (EU) 2019/883 on port reception facilities for the delivery of waste from ships. The proposal also mandates the Agency to continue to support Directive 2008/56/EC establishing a framework for Community action in the field of marine environmental policy (the Marine Strategy Framework Directive) and Directive (EU) 2016/802 on reducing the sulphur content of certain liquid fuels. Finally, the proposal reflects the Agency’s current work to support the implementation of Regulation (EU) No 1257/2013 on ship recycling.
In the area of decarbonisation of shipping, the Agency is expected to support the Commission and the Member States in the implementation of new rules on the use of renewable and low-carbon fuels in maritime transport and those stemming from the extension of the EU Emissions Trading System to maritime transport5. Such activities will be added to the services the Agency already provides and it will continue to be required to provide to the Commission and the Member States support in relation to the implementation of Regulation (EU) 2015/757 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport.
In the area of security the Regulation proposes the continuation of the assistance that the Agency is offering to the Commission with the implementation of Regulation (EC) No 725/2004 on enhancing ship and port facility security.
In terms of ship positioning monitoring and surveillance at sea, the proposal is consistent with the tasks that the Agency already delivers in the implementation of Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system.
Finally the proposal is consistent with the tasks given to the Commission under Regulation (EU) 2019/1239 establishing a European Maritime Single Window environment (EMSWe) mandating the Agency to continue assisting the Commission in these tasks.
• Consistency with other Union policies
The proposal supports the implementation of the Union’s policy and political priorities as reflected in the European Green Deal, the Sustainable and Smart Mobility Strategy and the “Fit for 55” package. It is also in line with recent actions announced on the area of maritime security and the new Communication of the European Commission and the High Representative adopted on an enhanced EU Maritime Security Strategy to ensure a peaceful use of the seas and safeguard the maritime domain against new threats6.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Title VI (Articles 90-100) of the Treaty on the Functioning of the Union (TFEU) establishes the EU’s prerogative to make provisions for the Common Transport Policy and therefore the EU has the right to act under the Treaty by establishing the European Maritime Safety Agency. Pursuant to Article 100(2) TFEU, the Union legislator may lay down appropriate provisions for sea transport. Article 91(1)(a) TFEU provides that the Union has competence in the field of transport to lay down common rules applicable to international transport. In view of this, the proposed Regulation would be based on Article 100(2) TFEU, which has served as legal basis for Regulation 1406/2002.
• Subsidiarity (for non-exclusive competence)
The principle of subsidiarity is fully respected given that there is a need for an EU intervention in order to assist the Member States and the Commission to attain the required level of maritime safety, maritime security and the protection of the marine environment within the EU.
Furthermore, the effectiveness of the Agency's activities has been acknowledged since the establishment of the Agency in 2002 and it is acknowledged that there is a need for the establishment of a decentralized EU Agency assisting the Commission and the Member States in the relevant policy areas since without EMSA many of the tasks emanating from EU legislations in the maritime domain either could not be delivered at the same level of quality or there is a risk of duplication of efforts among the Member States.
• Proportionality
The proposal is proportionate as it is the only way for the necessary changes in the Agency’s mandate to come about.
EU-level action does not intend to replace national actions or authorities nor to question their relevance. The proposal does not include new tasks for the Agency except the ones that the Agency already has undertaken in the previous years to assist the Commission and the Member States in the implementation of the relevant policy areas, as well as the new tasks emanating from the Fit for 55 package and the maritime package. Therefore, the proposal aims to reflect better, in legal terms, the current situation.
• Choice of the instrument
Given that this proposal aims to replace an existing Regulation, a Regulation is considered to be the most appropriate instrument.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The EMSA mandate underwent two external evaluations, respectively in 2008 and in 2017. The former provided an overall positive assessment of the Agency, concluding that it had “filled a gap in the maritime safety area in the European Union”7. It presented a set of 11 recommendations, which the 2017 evaluation found to be fully implemented. The latter, focusing on the 2013-2016 period, re-confirmed the previous study’s overall positive assessment of the Agency, concluding that EMSA was a key contributor to “a safer and more secure maritime environment as well as to the increased ability of Member States to prevent and to respond to Marine Pollution”8.
Notwithstanding these overall positive assessments, the 2017 evaluation highlighted that, going forward, an enhanced mandate would likely become necessary, allowing EMSA to better support the Commission and Member States, and, indirectly, the maritime industry. Overall, the 2017 evaluation concluded that “a discontinuation or a reduction of EMSA’s mandate would have significant, negative impacts on maritime safety and security in Europe”9.
A specific assessment of the cost effectiveness and cost efficiency of EMSA’s oil pollution response services was also conducted in 201710. The latter found that EMSA adequately fulfilled its mandate of providing oil pollution operational assistance and support. Specifically, the Agency’s activities in this regard were found to be cost-effective if compared to the economic consequences that would result from a lack of capacity on its part to respond to an oil spill and preventing it from reaching the shoreline. The assessment provided a set of recommendations to improve the operational response.
Finally, the Commission undertook a Fitness Check of the 2009 EU Maritime Transport Strategy (2018)11. This review underlined EMSA’s contribution to the EU’s involvement in maritime transport, stemming from providing training, capacity-building, technical assistance and common databases. In particular, the report highlighted EMSA’s added value in terms of its role in hosting and promoting the development of EU-level systems, such as SafeSeaNet, THETIS and, though to a lesser extent, the European Maritime Casualty Information Platform (EMCIP) database for accident investigation. Against this background, the Fitness Check recommended to continue building on EMSA’s capacities, with a focus on promoting and investing in EMSA’s digital systems, applications and databases.
• Stakeholder consultations
Contents
- An Open Public Consultation, organised by the Commission, which ran from 28 March 2022 to 20 June 2022. However, there was low stakeholder input with answers submitted by only 15 respondents.
- Two targeted stakeholder surveys to gather specific information, one on the list of possible tasks to be included in the new mandate, with 122 replies mainly from Member States authorities, and the other on the cost estimations about savings from conducting tasks at EU level instead of individual Member States. The first online survey ran from March 2022 to April 2022 and the second was conducted from November 2022 to December 2022.
- A total of 26 targeted interviews were conducted with EU level representatives of key stakeholders organised by the consultant in charge of the external support study, running intermittently from January 2022 to July 2022, to fill specific information requests.
- The contractor of the support study conducted also two workshops with experts of the maritime sector on 13 December 2021 and 4 March 2022 to consult on various aspects of the revisi0n.
- Additional targeted consultation activities organised by the Commission in order to consult the Member States on the policy measures and to validate the progress of the revision. These activities took place in the context of two meetings of the EU Committee on Safe Seas and the Prevention of Pollution from Ships (2 June 2022 and 29 November 2022) and a workshop with the Maritime Directors from Member States on 17 May 2022.
- The opinions of stakeholders were coherent with the need to reflect better the current tasks of the Agency in its mandate, which was found by the majority to be outdated, especially in the areas of sustainability, decarbonisation and digitalization of the maritime sector.
• Collection and use of expertise
The proposal builds on an external support study which looked into the problems of the current mandate of the Agency and the tasks which have to be reflected properly while a bigger part was dedicated on the tasks which would need to be further expanded so that the Agency supports better the Member States and the sector with the future challenges, especially the green and digital transitions of the sector.
• Impact assessment
The proposal envisages changes to EMSA’s founding Regulation stemming solely from obligations that have either already been introduced or have been proposed by other pieces of legislation and therefore need to be better reflected in legal terms. It also reflects EMSA’s current tasks that are not specifically mentioned in its mandate, despite now constituting a bigger part of its deliverables.
Although the revision was initially planned to be covered by an impact assessment, it eventually became clear that the preferred policy objective, also by stakeholders, was not to fundamentally change the role of the Agency by turning it into a regulatory-type of Agency, but rather to better reflect its current role and the tasks that it has undertaken on the basis of the flexibility mechanisms that are already included in its mandate.
The above considerations led to the conclusion that there were no policy options, with materially different solutions, to be considered in an impact assessment and the alignment with the baseline of the tasks either emanating from other pieces of legislation or already undertaken by the Agency, thanks to the flexibility provided in its mandate, was considered more appropriate. Therefore, in line with the Commission's better regulation guidelines, a fully-fledged impact assessment has not been carried out.
Nonetheless, the proposal is accompanied by a Commission staff working document providing background information on the Agency and explaining the reasons behind the need to amend its founding Regulation and expand its tasks, and setting out the proposed resources to be allocated to each of them.
The staff working document describes the clear need to update and upgrade the mandate to better reflect what the agency is doing now and what it should do in the coming years in line with EU priorities and the needs of both Member States and the sector.
• Fundamental rights
The revision as such does not have any direct impacts on fundamental rights. The data collected by and for the Agency are statistical data, while any data collected for seafarers are anonymised. Therefore, Article 8 of the Charter of Fundamental Rights (“protection of personal data”) is not affected. Other fundamental rights are not impacted either by the proposal.
4. BUDGETARY IMPLICATIONS
This legislative proposal would have an impact on the budget and staff needs of the Agency as currently provided for in the Multiannual Financial Framework (MFF) and which are insufficient for the tasks the Agency should carry out. It is estimated that an additional budget of EUR 50.997 million and 33 additional posts would be needed for the remainder of the period of the Multiannual Financial Framework (MFF) to ensure that the Agency has the necessary resources to enforce its revised mandate. The tasks for the Agency reflected in this legislative proposal therefore require additional financial and human reinforcements compared to the resources earmarked in the adopted Multiannual Financial Framework 2021-2027, which provides for a 2% yearly increase of the EU contribution to the Agency.
The budgetary impact of the additional financial resources for the Agency will be offset through a compensatory reduction from programmed spending under Heading 1 and should also stabilise the resource needs of the Agency over the period 2021-2027. The Agency has also committed on a plan for internal redeployment covering some of the needs to reinforce the tasks proposed by this proposal through internal reshuffling of 7 posts. Before suggesting any further extension of tasks requiring additional resources, the Commission, with the assistance of the Agency, will continue to screen EMSA's activities and resources to ensure also for the future that all possibilities for redeployment within the Agency are used.
The detailed calculations related to the budgetary implications and the human and administrative resources required for this proposal are integrated in the legislative financial statement.
The budget impact described in this section and in the annexed legislative financial statement includes the complete budget impact of the new Regulation establishing EMSA repealing Regulation (EC) no 1406/2002, and also the budget impact of (i) revision of Directive 2009/21/EC on Flag State requirements; (ii) the revision of Directive 2009/16/EC on port State control; (iii) the revision of Directive 2009/18/EC on accident investigation; and (iv) revision of Directive 2005/35/EC on ship-source pollution. The budget impact of the latter four proposals is described in more detail in each of the respective legislative financial statements.
The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The monitoring and evaluation of the Agency’s mandate would largely be performed by the applicable mechanisms under this Regulation. Article 41 provides for an evaluation which will assess, in particular, the impact, effectiveness and efficiency of the Agency and of its working practices and may address the possible need to modify the structure, operation, field of action and tasks of the Agency, and the financial implications of any such modification. Further to this evaluation, the Commission will draw data through its representation in the Agency’s Management Board meetings and its supervision, along with the Member States, of the Agency’s work.
• Detailed explanation of the specific provisions of the proposal
This section comments on and explains the main provisions of the new EMSA Regulation, when necessary in relation to amendments to the original text of Regulation (EC) No 1406/2002.
Article 1 to 2: An article on subject matter and scope has been introduced together with a separate article on the objectives of the Agency. These two Articles are reflecting the previous Article 1 on objectives which have been revised to reflect new tasks of the Agency in the areas of sustainability, decarbonisation, digitalisation, surveillance and maritime awareness.
This new chapter describes the tasks of the Agency by abolishing the distinction between core and ancillary and instead follows a thematic approach from horizontal support up to tasks in the areas of maritime safety, sustainability, decarbonisation, security and cybersecurity, maritime surveillance and crises, digitalization and simplification and visits and inspections.
Article 3 includes the flexibility existing in Article 2 in the previous mandate in order for the Agency to be able to assist with technical and operational assistance the Commission and the Member States in any tasks falling under the competences of the Agency. The Articles include assistance to the Commission in preparing new legislation but also to any other piece of legislation assigning tasks to the Commission for which it might need the assistance of the Agency, corresponding to the tasks under Article 2 (2) points (a) to (d) of the previous mandate. It also includes operational and technical assistance to the Member States for any tasks falling under its objectives corresponding to Article 2 (3) points (a) and (b) of the previous mandate. This Article is meant to provide flexibility to the mandate and render it future proof to new tasks that might emanate from future legislation in the area of needs of the sector.
Article 4 includes the tasks of the Agency in the area of maritime safety, retaining the ones prescribed in Article 2 i points (c) and (e) of the previous mandate. It also reflects the activities of the Agency in other pieces of legislation notably the flag and port State control as they are proposed to be amended, the passenger ship safety legislation, the recognized organizations including Article 2(3)(c) of the previous mandate, the marine equipment Directive and the work on autonomous ships.
Article 5 includes the tasks of the Agency in the area of sustainability, retaining the ones of Article 2 (3)(d), (f),(g) and Article 2a (2) points (a) and (e) of the previous mandate. It also reflects the changes emanating in the new proposed Directive on Ship Source pollution and the current work of the Agency for the port reception facilities, the sulphur and NOx emissions and the ship recycling legislation.
Article 6 includes the tasks of the Agency in the efforts to decarbonize shipping, amending and further expanding on the task of Article 2a(2)(b) of the previous mandate. It includes the work of the Agency for the FuelEU Maritime Regulation, for the extension of the Emission Trading System (ETS) to shipping and for the Monitoring Reporting Verification (MRV) legislation while it mandates the Agency to continue supporting the Commission and the Member States’ efforts to reduce greenhouse gases from shipping both in the EU and in EU-led efforts at IMO.
Article 7 includes the tasks of the Agency in the area of maritime security and cybersecurity, reflecting the task of Article 2(2)(b) of the previous mandate while reflecting the engagement of the Agency in the effort to develop resilience against cybersecurity threats.
Article 8 includes the tasks of the Agency in the area of maritime surveillance and maritime crises, reflecting the tasks of Article 2 i points (a), (b) and (i) and Article 2a(2) points (c) and (d) of the previous mandate. The Article proposes also the 24/7 maritime awareness center of the Agency which has played already a crucial role in assisting during periods of crises.
Article 9 includes the tasks of the Agency in the area of digitalization and simplification, reflecting the task of Article 2(4)(d) and Article 2a(2) points (a) and (b) of the previous mandate. It reflects also the tasks of the Agency in assisting the Commission in the implementation of the European Maritime Single Window environment (EMSWe).
Article 10 reflects the previous Article 3 on the visits and inspections that Agency should conduct. It provides also flexibility to allow for the assistance of the Agency with any other inspections in the maritime transport area for which the Commission might need such assistance.
CHAPTER III OTHER TASKS OF THE AGENCY REGARDING INTERNATIONAL RELATIONS AND EUROPEAN COAST GUARD COOPERATION:
Article 11 reflects the tasks of Article 2(4)(h) and Article 2(5) of the previous mandate while it reflects the broader assistance of the Agency to the Commission and the European External Action Service with regards to third countries.
Article 12 repeats Article 2b of the previous mandate and Article 13 reflects and regulates the communication activities of the Agency.
CHAPTER IV and CHAPTER V (Articles 14 to 26) sets out the rules on the organisation of the Agency. The rules are based on Regulation (EC) No 1406/2002. The changes introduced to the rules in this Chapter are due to the implementation of the Joint Statement of the Commission, the European Parliament and the Council on decentralised agencies and the Common Approach (2012). The main changes include the introduction of a flexibility mechanism when it comes to various requests for assistance or implementation of certain tasks that allows first for a reflection and analysis by the management board of the available human and financial resources in the context of the annual and multi-annual programming (Article 17) and an executive board (Article 21) while the previous administrative board is renamed into management board. In particular:
Article 14 defines the structure of the Agency. Articles 15 to 20 set out the composition, functions and the working methods of the Management Board. They are developed based on Articles 10 to 14 of Regulation (EC) No 1406/2002 and the common approach. Article 17: 'annual and multi-annual work programmes' is a new, separate article on work programmes deemed useful for clarity in accordance with the Joint Statement.
Article 21 sets out the rules for the Executive Board, which supports the Management Board and prepares its meetings.
Articles 22 to 23 set out the appointment procedure and the responsibilities of the Executive Director and is based on Articles 15 and 16 of Regulation (EC) No 1406/2002 and the common approach.
Article 24 is a repetition of Article 17 of the previous mandate.
CHAPTER VI (Articles 25 to 29) includes the financial provisions. These provisions have been adapted to the latest financial regulations12. Changes in the financial provisions compared to Regulation (EC) No 1406/2002 are due to the implementation of the common approach and the currently applicable financial rules for EU decentralised agencies. The changes introduced as regards the budget procedures and the presentation of accounts and discharge are minor. The main amendment in comparison to the previous mandate is in Article 26, which would allow the Agency to charge fees for certain tasks. It will be up to the Agency to decide at a later stage, once this Regulation is applicable, whether it will use this option or not while the establishment of the amount of the fee for the services to third countries and the industry shall be made by an implementing act as further prescribed in Article 33.
CHAPTER VII (Articles 30 to 31) includes the staff rules.
Chapter VIII (Articles 32 to 45) includes general and final provisions. Changes compared to Regulation (EC) No 1406/2002 are due to the implementation of the common approach and adaptations to more recent legislation. The majority of these provisions was already included in Regulation (EC) No 1406/2002. The new Articles 33 and 34 on the comitology are necessary for the implementation of the fees possibility.
This Chapter also includes transitional provisions (Article 43) to enable a proper transition from the previous mandate to the new one without interruption of service for EMSA.