Directive 2013/38/EU of the European Parliament and of the Council of 12 August 2013 amending Directive 2009/16/EC on port State control Text with EEA relevance
Directive 2013/38/EU of the European Parliament and of the Councilof 12 August 2013amending Directive 2009/16/EC on port State control(Text with EEA relevance)THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,Having regard to the proposal from the European Commission,After transmission of the draft legislative act to the national parliaments,Having regard to the opinion of the European Economic and Social CommitteeOJ C 299, 4.10.2012, p. 153.,After consulting the Committee of the Regions,Acting in accordance with the ordinary legislative procedurePosition of the European Parliament of 2 July 2013 (not yet published in the Official Journal) and decision of the Council of 22 July 2013.,Whereas:(1)On 23 February 2006, the International Labour Organisation (ILO) adopted the Maritime Labour Convention, 2006 (MLC 2006), desiring to create a single, coherent instrument embodying as far as possible all up-to-date standards of existing international maritime labour Conventions and Recommendations, as well as the fundamental principles to be found in other international labour conventions.(2)Council Decision 2007/431/ECOJ L 161, 22.6.2007, p. 63. authorised Member States, in the interests of the European Community, to ratify MLC 2006. Therefore, Member States should ratify it as soon as possible.(3)Member States, when performing port State control inspections in accordance with Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State controlOJ L 131, 28.5.2009, p. 57. in relation to matters covered by Conventions which they have not yet ratified and which stipulate that every ship is subject to control by officers duly authorised when in a port of another contracting State or Party, should make every effort to comply with procedures and practices under those Conventions and should thus refrain from making reports relevant to port State control to the International Maritime Organisation (IMO) and/or the ILO. Member States which have not yet ratified an international convention covered by Directive 2009/16/EC at the time of its entry into force should make every effort to establish similar conditions on board their ships in accordance with the requirements of that Convention.(4)In order to ensure a harmonised approach to the effective enforcement of international standards by Member States when performing both flag and port State control inspections and to avoid friction between international and Union law, Member States should aim at ratifying the Conventions by the date on which they enter into force, at least those parts thereof falling under Union competence.(5)MLC 2006 sets out maritime labour standards for all seafarers regardless of their nationality and of the flag of the ships on which they serve.(6)For the purposes of Directive 2009/16/EC, it is preferable, rather than the terms "seafarer" and "crew" being defined, that those terms be understood in each instance in accordance with the way in which they are defined or understood in the relevant international conventions. In particular, for any matters relating to the enforcement of MLC 2006, the term "crew" should be understood as referring to "seafarer" as defined in MLC 2006.(7)For any matters covered by this Directive relating to the enforcement of MLC 2006, including for ships for which the International Safety Management Code is not applicable, references in Directive 2009/16/EC to "company" should be understood to mean "shipowner" as defined by the relevant provision of MLC 2006, since the latter definition better fits the specific needs of MLC 2006.(8)A substantial part of the MLC 2006 standards is implemented within Union law by means of Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006OJ L 124, 20.5.2009, p. 30. and Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST)OJ L 167, 2.7.1999, p. 33.. Those MLC 2006 standards which fall within the scope of Directive 2009/13/EC or Directive 1999/63/EC are to be implemented by the Member States in line with those Directives.(9)As a matter of general principle, the measures adopted to give effect to this Directive should under no circumstances constitute grounds justifying a reduction by Member States in the general level of protection of seafarers on board ships flying the flag of a Member State under the applicable Union social law.(10)MLC 2006 contains enforcement provisions defining the responsibilities of States performing port State control obligations. In order to protect safety and to avoid distortions of competition, Member States should be allowed to verify compliance with the provisions of MLC 2006 by any ship calling at their ports and anchorages, irrespective of the State whose flag it flies.(11)Port State control is governed by Directive 2009/16/EC, which should include MLC 2006 among the Conventions the implementation of which is verified by Member States’ authorities in their ports.(12)Member States, when performing port State control inspections in accordance with Directive 2009/16/EC, should take into account the provisions of MLC 2006 which stipulate that the maritime labour certificate and the declaration of maritime labour compliance are to be accepted as prima facie evidence of compliance with the requirements of MLC 2006.(13)The law of the Union should also reflect the procedures set out in MLC 2006 with regard to the handling of onshore complaints relating to the matters dealt with in MLC 2006.(14)In order to ensure uniform conditions for the implementation of Directive 2009/16/EC, implementing powers should be conferred on the Commission. The Commission should be entitled to adopt implementing acts: to implement a methodology for the consideration of generic risk parameters relating in particular to the flag State criteria and company performance criteria; to ensure uniform conditions for the scope of expanded inspections, including the risk areas to be covered; to ensure uniform application of the procedures for the control and security checks of ships; to set up a harmonised electronic format for the reporting of complaints related to MLC 2006; to implement harmonised procedures for the reporting of apparent anomalies by pilots and port authorities or bodies and of follow-up actions taken by Member States; and to establish the detailed arrangements for publication of information on companies with a low and very low performance, the criteria for aggregating the relevant data and the frequency of updates. This is a highly technical exercise to be carried out in the framework of the principles and criteria which have been established by that Directive. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powersOJ L 55, 28.2.2011, p. 13..(15)Implementing acts relating to the methodology for the consideration of generic risk parameters concerning in particular the flag State criteria and company performance criteria, to the reports from pilots and port authorities or bodies, including harmonised procedures for the reporting of apparent anomalies by pilots and port authorities or bodies and of follow-up actions taken by Member States, and to the detailed arrangements for the publication of information on companies with a low or very low performance, should not be adopted by the Commission where the committee referred to in this Directive delivers no opinion on the draft implementing act presented by the Commission.(16)When establishing implementing rules, the Commission should specifically take into account the expertise and experience gained with the inspection system in the Union and build upon the expertise of the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, in its up-to-date version ("Paris MOU").(17)The implementing rules, including references to Paris MOU instructions and guidelines, should not compromise the exercise of the professional judgment of inspectors or of the competent authority and the flexibility provided for in Directive 2009/16/EC.(18)The inspection database referred to in Directive 2009/16/EC should be adapted and developed in line with the amendments introduced by this Directive or changes adopted within the context of the Paris MOU.(19)The Paris MOU seeks to eliminate the operation of sub-standard ships through a harmonised system of port State control, comprising coordinated inspection of ships calling at ports, including Member States’ ports, in the Paris MOU Region. Those inspections are aimed at verifying that ships meet international safety, security and environmental standards, and that seafarers have adequate living and working conditions, in conformity with the international conventions in force. When inspections are carried out and when reference is made to Paris MOU instructions and guidelines, account should be taken of the fact that those instructions and guidelines are developed and adopted to ensure consistency and to guide inspections with a view to facilitating the greatest possible degree of convergence.(20)The inspection of on-board living and working conditions of seafarers and of their training and qualifications, to verify that these comply with the requirements of MLC 2006, requires the necessary level of training for inspectors. The European Maritime Safety Agency and Member States should promote the issue of training for inspectors for the purposes of reviewing compliance with MLC 2006.(21)In order to allow the Commission to update the relevant procedures swiftly, thereby contributing to the achievement of a global level playing field for shipping, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amendments to Annex VI to Directive 2009/16/EC containing the list of the "Instructions" adopted by the Paris MOU, with a view to keeping the procedures applicable and enforceable in the territory of the Member States, in line with those agreed upon at international level and in compliance with the relevant Conventions. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.(22)Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.(23)Directive 2009/16/EC should therefore be amended accordingly.(24)According to Article VIII, MLC 2006 is to come into force 12 months after the date on which there have been registered ratifications by at least 30 Members of the ILO with a total share in the world gross tonnage of ships of 33 per cent. This condition was fulfilled on 20 August 2012, and MLC 2006 enters into force on 20 August 2013.(25)This Directive should enter into force on the same date as MLC 2006,HAVE ADOPTED THIS DIRECTIVE: