Directive (EU) 2024/3099 of the European Parliament and of the Council of 27 November 2024 amending Directive 2009/16/EC on port State control (Text with EEA relevance)
Directive (EU) 2024/3099 of the European Parliament and of the Councilof 27 November 2024amending 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, C/2023/876, 8.12.2023, ELI: http://data.europa.eu/eli/C/2023/876/oj.,After consulting the Committee of the Regions,Acting in accordance with the ordinary legislative procedurePosition of the European Parliament of 10 April 2024 (not yet published in the Official Journal) and decision of the Council of 18 November 2024.,Whereas:(1)Directive 2009/16/EC of the European Parliament and of the CouncilDirective 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (OJ L 131, 28.5.2009, p. 57). sets out rules on the system for port State control inspections, whereby eligible ships calling at Union ports are inspected to check whether the competence of the crew on board and the condition of the ship and its equipment comply with the requirements of international conventions on the safety of life at sea, on the protection of the marine environment and on living and working conditions on ships of all flags.(2)Directive 2009/16/EC is based on the pre-existing voluntary agreement of the Paris Memorandum of Understanding on port State control signed on 26 January 1982 (the "Paris MoU") and the notions of a shared inspection burden, risk-based targeting of ships for inspections, harmonised inspections and the sharing of inspection results.(3)Since Directive 2009/16/EC entered into force, there have been changes in the international regulatory environment, in particular in the Paris MoU and the International Maritime Organisation (IMO), and technological developments. Those changes as well as the experience gained from the implementation of Directive 2009/16/EC should be taken into account.(4)A number of international conventions have been ratified by the Member States and have entered into force since 2011. Those are the International Convention for the Control and Management of Ships’ Ballast Water and Sediments adopted on 13 February 2004 (the "BWM Convention") and the Nairobi International Convention on the Removal of Wrecks adopted on 18 May 2007 (the "Nairobi Convention").Those international conventions should therefore be included in the list of Conventions covered by Directive 2009/16/EC, to allow them to be enforced as part of the port State control system.(5)To allow for an up-to-date and harmonised system of port State control, it is necessary to have a swifter way to update the list of international conventions enforced by port State control without the need to amend Directive 2009/16/EC in its entirety. Therefore, once an agreed level of ratification is reached for an international Convention, thus triggering its entry into force, and following its adoption by the State signatories of the Paris MoU as a relevant instrument, the list of Conventions referred to in Directive 2009/16/EC should be updated by the Commission.(6)The Hong Kong International Convention for the safe and environmentally sound recycling of ships adopted on 15 May 2009 (the "Hong Kong Convention") will enter into force on 26 June 2025. Directive 2009/16/EC should provide for the enforcement of that Convention.(7)International agreements and conventions in fisheries, such as the Cape Town Agreement of 2012 on the Implementation of the Provisions of the 1993 Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977 (the "Cape Town Agreement"), the International Labour Organisation Convention 188 on Work in Fishing of 2007 and the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel of 1995 (STCW-F) can improve the safety of fishing vessels and the working and living conditions of the fishermen on board and create a more level international playing field in that sector.(8)Due to their small size, most fishing vessels in the Union operate in territorial waters and are not likely to be inspected in foreign ports. That means that, in general, only larger fishing vessels of 24 metres in length and over, considering length as defined in the Cape Town Agreement, which are also the fishing vessels most often subject to international conventions, are likely to engage in international waters and call at ports other than those in the country where they are registered and therefore to be subject to port State control. As the majority of the international conventions applicable to larger fishing vessels are different from those that are currently enforced through port State control and to avoid undesirable spill-over effects onto the current port State control system, a parallel and separate system of port State control for fishing vessels should be established.(9)However, due to the patterns of fishing, not all Member States are visited by such larger fishing vessels. Therefore, for those Member States that wish to carry out such inspections, a voluntary system which is parallel and separate from the current port State control regime should be established to provide flexibility in the way that standards are developed in port State control. Such a system of port State control for fishing vessels of 24 metres in length and over can therefore be developed organically by Member States, the State signatories of the Paris MoU and the Commission without incorporating such vessels into the current Paris MoU, in order to enhance cooperation on port State control across the Union ports that receive such vessels and to enhance safety in the fishing industry, including the health and safety of the fishermen on board. To that end, a separate module for the existing inspection database should be developed. Such a voluntary system could help Member States in the context of the ratification procedure of the Cape Town Agreement and prepare for its entry into force, as authorised by Council Decision 2014/195/EUCouncil Decision 2014/195/EU of 17 February 2014 authorising Member States to sign, ratify or accede to the Cape Town Agreement of 2012 on the Implementation of the Provisions of the Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977 (OJ L 106, 9.4.2014, p. 4)., in order to establish the highest practicable standards for the safety of larger fishing vessels.(10)The fair share mechanism provides for a distribution of the inspection burden among the State signatories of the Paris MoU. Each State signatory is allocated a certain number of inspections. That number represents its inspection commitment or "fair share", which is to be carried out each year. The eligibility of a ship for inspection is primarily determined by the length of time since the last inspection, in conjunction with the ship risk profile, which establishes the intervals between inspections as well as the scope of the inspections. Priority II ships may be inspected while Priority I ships must be inspected.(11)Member States should be permitted not to carry out a certain number of "Priority" inspections without impacting compliance with their inspection commitment. For some Member States, the number of Priority ships that actually call at their ports during a given year can either exceed or be less than the allocated inspection commitment. An alternative method of compliance to the fair share mechanism for those (over-burdened or under-burdened) Member States was found to be inflexible, and it is therefore necessary to align the provisions concerned with those of the Paris MoU.(12)Member States are also allowed to postpone inspections of ships under certain circumstances, provided that the ship is inspected in the next port of call or within 15 days. That possibility should be adapted so that all Member States have the possibility to avail themselves of it. Certain categories of ships which are perceived to present a higher risk, and which are therefore eligible for an expanded inspection, are required to notify their estimated time of arrival at a port 72 hours in advance of their arrival. However, after a number of years, it was concluded that that obligation was too burdensome on operators and added no value as the information about the estimated time of arrival is already more easily available to the national authorities in the THETIS database. On that basis, the Paris MoU abolished the pre-arrival notification obligation and Directive 2009/16/EC should therefore be aligned accordingly.(13)Under normal circumstances, inspections of Priority II ships are not mandatory, but optional. However, Member States which do not receive enough calls of ships that are eligible for inspection to fulfil their annual commitment need to inspect Priority II ships in order to reach their annual inspection commitment. Since, for those Member States, those inspections become de facto mandatory inspections, more flexibility for inspections of Priority II ships might be needed, specifically for such Member States. Therefore, it should be possible for such Member States to postpone those inspections provided that they justify such postponement.(14)If an inspection is not performed due to extraordinary and unforeseen circumstances that render it impossible to carry out an inspection, such as a natural disaster, pandemic, public health emergency or terrorist attack, it should not be counted as a missed inspection. Those circumstances should be duly justified and reported to the Commission.(15)Over the last decade and despite increases in the number of vessels calling at Union ports, including the short sea shipping transport of goods between main ports in Member States and ports situated in geographical Europe or in non-European countries on the Mediterranean and the Black Sea, the safety profile of ships calling at Union ports has improved. Port State control inspections are being increasingly used to enforce environmental laws, such as in relation to sulphur emissions or the safe and environmentally sound recycling of ships. In that regard, the Union, in line with its commitments related to the protection of the marine environment, should continue exerting its leadership in a sector regulated both at European and international level. However, the ship risk profile devised prior to 2009 had different priorities and is not fully adapted to focussing on the inspection effort on the least environmentally performing ships. Therefore, the ship risk profile should be updated to reflect environmental issues by attaching more importance to the environmental performance of ships.(16)After the IMO has concluded the revision of its carbon intensity indicator (CII), the Commission should assess the suitability of that CII as an environmental parameter used for the determination of a risk profile of a ship under Directive 2009/16/EC and consider a legislative proposal, as appropriate.(17)A new methodology was adopted under the Paris MoU in 2019, establishing high, medium and low performance lists, as an alternative to the white, grey and black lists of flag States. When adopting the relevant implementing acts, special attention should be paid to that methodology, which establishes a categorisation of flag States. The implementation, under this Directive, of that methodology should ensure fairness, in particular with respect to the way flag States with small fleets are treated.(18)Since port State control officers need time to prepare and carry out inspections, it is important to ensure that sufficient time is available. That is particularly relevant in the case of expanded inspections, and also for inspections of ro-ro passenger ships in regular service, where the operation of the vessel can be considered.(19)Due to the scope of expanded inspections, they should be carried out by at least two port State control inspectors. Where that is not possible for objective reasons, such as the specificities of the port (limited staff, problems of accessibility), because the notice for the arrival was too short or because the expanded inspection becomes necessary due to unexpected or overriding factors, the reasons should be duly recorded.(20)Digitalisation is an essential aspect of technological progress in the area of data collection and communication, with a view to helping to bring down costs and making efficient use of human resources. The number of ships currently carrying electronic certificates is on the rise and is expected to increase. Therefore, the effectiveness of port State control should be enhanced by making greater use of electronic certificates, to allow for more ship-focussed and better prepared inspections.(21)Port State control has been increasing in complexity as new inspection requirements are added, either under Union law or by the IMO as testimony to the close interlinkage between health, safety, security and social considerations. There is therefore a need to ensure the upskilling and reskilling of port State control officers and to continuously develop their training. That will enable the competent authorities of the port States to verify compliance with applicable international conventions on maritime safety and security, on protection of the marine environment and on living and working conditions on-board, in respect of the ships calling at their ports. In conducting such monitoring activities, the port State is not to interfere with the competences of the flag State, as set out in Directive 2013/54/EU of the European Parliament and of the CouncilDirective 2013/54/EU of the European Parliament and of the Council of 20 November 2013 concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention, 2006 (OJ L 329, 10.12.2013, p. 1)..(22)Flag State administrations of Member States are required, in line with Directive 2009/21/EC of the European Parliament and of the CouncilDirective 2009/21/EC of the European Parliament and of the Council of 23 April 2009 on compliance with flag State requirements (OJ L 131, 28.5.2009, p. 132)., to have a quality management system in order to help Member States to further improve their performance as flag States and to ensure a level playing field between administrations. A similar requirement for the port State control administrations should allow Member States to certify that the organisation of those administrations, as well as their policies, processes, resources and documentation, is appropriate to achieve the objectives of this Directive. To ensure that Member States have sufficient time to implement that requirement, the certification of that quality management system should be aligned with the usual audit interval for the system that already exists under Directive 2009/21/EC.(23)In order to allow for the application of Directive 2009/16/EC to be brought up to date to allow Member States to fulfil their obligations under international law in accordance with that directive, 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 updating the list of Conventions within the scope of Directive 2009/16/EC and amending the list of procedures and guidelines relating to port State control adopted under the Paris MoU. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-MakingOJ L 123, 12.5.2016, p. 1.. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.(24)In order to ensure uniform conditions for the implementation of the provisions of Directive 2009/16/EC concerning the list of Conventions within its scope, the conditions for the application of Annex VII on expanded inspections, the uniform set of safety and security guidelines and procedures, as well as the requirements for electronic certificates, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the CouncilRegulation (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 the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13)..(25)In view of the full monitoring cycle of visits to Member States by the European Maritime Safety Agency (EMSA) to monitor the implementation of Directive 2009/16/EC, the Commission should evaluate the implementation of that Directive for the first time no later than 5 years after the date of transposition of this amending Directive and report to the European Parliament and the Council thereon. Member States should cooperate with the Commission to gather all information necessary for that evaluation. Subsequent evaluations should take place at 5 year intervals.(26)Since the objectives of this Directive cannot be sufficiently achieved by the Member States because of the international nature of maritime transport but can rather, by reason of the network effects of Member States acting together, 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.(27)In order not to impose a disproportionate administrative burden on landlocked Member States, a de minimis rule should allow such Member States to derogate from the obligation to transpose and implement this Directive, as long as they meet certain criteria.(28)Directive 2009/16/EC should therefore be amended accordingly,HAVE ADOPTED THIS DIRECTIVE: