The “Third Maritime Safety Package” or the so called “Erica III” was proposed by the European Commission in 2005. Several Member States, including the UK, believed that the Commission proposals would jeopardize their maritime interests.
Since the European Parliament has reinserted the majority of the amendments from its first reading that were not included in the Council common positions and the Council has not accepted the European Parliament’s second reading amendments, the Council has decided to convene the conciliation committee.
Last December, at a meeting of the conciliation committee, the Council and the European Parliament reached an agreement on the third maritime package. Coreper has therefore suggested that the Council adopt the several legislative proposals in the form of the joint texts as an "A" item at a forthcoming meeting. Hence, at its February meeting, the Justice and Home Affairs Council adopted, without debate, all the legislative acts which are part of the third package on maritime safety, in accordance with joint texts on which agreement was reached, behind closed doors, with the European Parliament.
On 11 March, the European Parliament approved the conciliation agreement bringing the "Erika III" package to conclusion. The European Parliament has made changes to the Council common positions that made a substantial difference to the content of the legislation. In fact, this package is another victory of the European Parliament which, during the negotiations, was able to include stricter rules despite Member State’s opposition.
The draft directive amending directive 2002/59/EC establishing a Community vessel traffic monitoring and information system is intending to incorporate further measures to enhance ship safety as well as to harmonise implementation of plans of places of refuge by the Member States. According to the European Commission as well as the European Parliament the decision of whether to harbour ships in distress should be left to independent authorities. The Council, taking into account several Member States fear of financial risks, has rejected the possibility of establishment of an independent authority in charge of providing assistance when accidents happened and with the capability of imposing independent decisions on where ships should be taken in for rescue as well as repair operations. The European Parliament rapporteur, Dirk Sterckx, has said “that there should be no margin of discretion for Member States in applying this decision on places of refuge and that an independent authority should be set up to designate ports of refuge for vessels in distress.” Moreover, whereas the MEPs believe that the lack of evidence of financial security must not be taken into account when deciding whether to accommodate a ship in distress as well as the accommodation in a place of refuge should not be limited to insured ships the Member States wanted to have the possibility of refusing assistance to ships that lack sufficient financial guarantees. Nevertheless, the European Parliament was able to include in the adopted text a provision under which the EU Member States would be required to designate a competent independent authority responsible for the accommodation of ships in distress, whether insured or not. Such authority will have the power to take independent decisions on the acceptance of a ship in need of assistance in a place of refuge.
The text agreed on the Draft Directive on port State control set up a new inspection system aiming at ensuring that a maximum of vessels calling at ports in the Member States are inspected. The Commission’s has proposed to include in the Draft Directive a permanent ban from Community waters of ships which have been detained three times following inspections at a Community port. However, the Council believes that a permanent ban is not proportional therefore, as regards to substandard ships, it agreed that access of these ships to Member States' ports will be indefinitely refused. But, this indefinite access refusal might be lifted after 36 months.
Under the agreed text substandard vessels may be refused access to Member States' ports for a period of three months. If the ship can prove it meets strict safety requirements the "refusal of access" order can be lifted after a period of three months. This period will increase to 12 months in the event of a second access refusal. A third refusal of access can be lifted only after 24 months. After that, if the ship continues to fail safety inspections, access refusal will be permanent, both for ports and anchorage zones within the Community.
During the negotiations, the MEPs were able to include in the Erika package a permanent ban on substandard vessels despite of strong opposition from the Council which had preferred a temporary ban on the use of substandard vessels in EU ports. The European Parliament has also ensured that the inspection requirements will also apply to vessels calling at offshore anchorages and not solely at ports.
The Draft Regulation on the liability of carriers of passengers by sea and inland waterways in the event of accidents is aimed at creating a Community regime of uniform liability for the carriage of passengers by sea and inland waterways. It incorporates the 2002 Athens Convention relating to the carriage of passengers and their luggage by sea into Community legislation. The Draft Directive would introduce a compulsory insurance to cover passengers in the event of shipping accidents.
Whereas the Council has rejected the European Parliament readopted amendments to step up the mechanisms proposed to harmonise compensation levels on the amounts to be paid to passengers in case of accidents.
The conciliation committee approved text has changed the Commission proposal. As regards the scope, the Commission has proposed to extend the application of the Athens Convention to international and domestic carriage by inland waterways but it was rejected by the Council and the Parliament.
The European Parliament has convinced the Council that the Regulation will apply to international carriage not just from the date of the entry into force of the Athens Convention for the Community, which is uncertain, but not later than December 2012.
The Regulation harmonises the compensation to be awarded to passengers in case of accidents, carriers will have to pay up to €2,587 for lost or damaged luggage and up to €460,000 in the case of physical harm or death caused by fault or neglect. The right for an advance payment in the event of death or injury of a passenger is also included.
During the negotiations, MEPs were able to extend the Regulation’s scope to national maritime transport instead than just international traffic. The European Parliament has also ensured that the regulation will applies not just to class A ships but also to smaller vessels (class B).
For national traffic, Member States may decide to postpone application of the Regulation to class A vessels until December 2016 and to class B vessels until December 2018.
The Draft Directive establishing fundamental principles governing the investigation of accidents in the maritime transport sector which amends Directives 1999/35/EC and 2002/59/EC is intending to improve maritime safety by establishing Community guidelines on technical investigations to be taken following maritime casualties and incidents. The Council introduced changes to the Commission proposal as it agrees that mandatory investigations should take place only in case of very serious casualties and incidents. Under the text agreed investigations are automatic only for very serious casualties. However, the MEPs have convinced the Council that, in the other serious cases, a preliminary assessment will have to be made to enable the investigative body to decide whether or not to undertake a safety investigation.
It should be recalled that Member States have been unable to reach an agreement on the other two proposals: the proposal concerning the obligations of flag states and the proposal on civil liability and the financial guarantees of shipowners. In fact, last April the majority of the member states agreed at the Transport Council that there was no need for Community legislation in this area. However, France, during its presidency, has reopened the negotiations on both the draft Directive on flag state requirements and the draft Directive on civil liability.
Last December, the Transport Council adopted two common positions on these proposals which were deadlocked until now. France has managed to seal an agreement in the Council which paved the way to final agreement with the European Parliament. The UK government was unable to secure a rejection of these proposals. The European Parliament has made clear that it would only negotiate on the complete package with these two amended proposals included. The MEPs promised not to touch the Council common positions on the last two texts as part of the deal obtained on the other proposals.
Under the proposal for a Directive on compliance with flag state requirements the International Maritime Organisation conventions on flag state obligations would be turned into Community law and consequently it would transfer the Member States competence in these areas to the Community. Obviously, several member states were not in favour of transferring International Maritime Organisation (IMO) conventions into Community law.
In parallel to the common position, the Council adopted a declaration on maritime safety which is not legally binding but represents a clear political commitment on the part of the Member States to ensure a rapid implementation of the international conventions on maritime safety and the rules of the IMO on the flag State and on the audit.
The Council's common position is focused on the requirement for Member States to submit their maritime administration to the IMO auditing process. In order to harmonise the auditing procedures the common position provides for an obligation to request regularly an IMO auditing of the administration and to publish the outcome of the audit. Under the compromise text the Member State’s administrations of are required to hold an audit every seven years in accordance with the IMO rules. Moreover, the provision of the Directive will expire once the IMO Audit Scheme becomes mandatory for all Member States, either automatically eight years after the entry into force of the Directive or earlier upon decision of the Commission through the comitology procedure.
Member States would be required to check that a ship complies with international rules before allowing it to operate under their flags. Member States are required to ensure that vessels which fly their flag and have been detained in the context of a port State inspection are brought into compliance with the necessary IMO ship safety requirements. Member States may decide which measures have to be carried out to ensure that the ship concerned complies or is brought into compliance with the applicable international rules and regulations.
The Council has also provided for a mandatory reporting on the performance to the Commission by Member States that are on the black list or, for two consecutive years, on the grey list of flag States established by the Paris Memorandum of Understanding on Port State control.
Although the UK Government has deemed the “weakened proposal” not consistent with the principles of better regulation it has decided to agree to it since the majority of the other Member States have accepted it.
The draft Directive on civil liability and the financial guarantees of shipowners is aiming at introducing a Community civil liability regime. The agreed text of the Directive no longer concerns the civil liability of shipowners, but the obligation for shipowners to have an insurance covering possible maritime claims. The draft Directive requires that all vessels flying the flag of a Member State and all ships entering a maritime area under the jurisdiction of a Member State must be insured. This insurance must be at the maximum levels for limited liability, those set by the 1996 Convention of the International Maritime Organisation on the Limitation of Liability for Maritime Claims (LLMC). The provision removing the ceiling of liability established in the LLMC has been dropped otherwise Member States would have been obliged by Community law to breach the LLMC limits.
The Commission has proposed to introduce a system of mandatory state certification for all ships. Member States would be therefore obliged to validate the insurance of every ship on its register and issue a certificate attesting that insurance is in place. According to Jim Fitzpatrick the administrative costs for the Member States to issue verification certificates to its merchant fleet and to third country ships calling at the ports of Community Member States has been removed. Member States would be required to obtain proof of insurance from ships flying their flag or entering their maritime territory. The port state control authorities will verify the certificates required by the Directive. If a ship is not carrying a certificate, it may be detained or expelled. Moreover, the Member States agreed that a system of financial penalties for the breach of this requirement should be introduced. The administrative burden on the Member States has been reduced comparing to the Commission original proposal.