8463/14
COM (2014) 119
EXPLANATORY MEMORANDUM ON EUROPEAN UNION DOCUMENT
Proposal for a COUNCIL DECISION on the position to be adopted on behalf
of the European Union at the International Maritime Organization during the
93rd session of the Maritime Safety Committee on the adoption of
amendments to SOLAS Regulations II-2/1, 2/3, 2/9.7, 2/13.4, 2/18, 2/20-1,
2/29, chapter III, the Life Saving Appliances Code and the 2011 Enhanced
Survey Programme Code
Submitted by the Department for Transport
24 April 2014
SUBJECT MATTER
1.
The European Commission has issued a proposal for a Council Decision
on the position to be adopted, on behalf of the European Union, at the
International Maritime Organization (IMO) with respect to the adoption of:
a) Amendments to SOLAS regulations II-2/3 and II-2/9.7 concerning fire
resistance of ventilation ducts for new ships;
b) Amendments to SOLAS regulation II-2/13.4 concerning additional means
of escape from machinery spaces for new passenger and cargo ships;
c) Amendments to SOLAS regulation II-2/18 concerning helicopter landing
areas on ro-ro passenger ships for new ships;
d) Amendments to SOLAS chapter III and associated requirements for
periodic servicing and maintenance of lifeboats and rescue boats for all
ships.
e) Amendments to the Life-Saving Appliances (LSA) Code concerning
lifejackets Reference Test Devices (RTDs) - with associated Revised
Recommendations on testing of life-saving appliances and Guidelines for
validating the construction of a completed adult reference test device
f)
Amendments to SOLAS regulation II-1/29 concerning requirements for
steering gear trials
g) Amendments to the 2011 Enhanced Survey Programme (ESP) Code,
mainly to bring this in line with practices of the classification
societies/Recognized Organizations.
2.
The Commission considers the adoption of these amendments to come
under exclusive EU competence, which the Union has acquired pursuant to
Article 3(2) TFEU, in so far as the adoption of international instruments at stake
may affect or alter the scope of EU rules.
3.
Whilst the EU is not a member of the IMO and is not party to the IMO
instruments that are to be amended, under Article 218(9) of TFEU the Member
States are not authorised to assume obligations likely to affect EU rules unless
they are authorised to do so by means of a Council Decision.
4.
These amendments will be adopted at the 93rd session of the IMO
Maritime Safety Committee (MSC 93) to be held between 14th and 23rd May 2014.
SCRUTINY HISTORY
5.
None for this document.
MINISTERIAL RESPONSIBILITY
6.
The Secretary of State for Transport has lead responsibility.
INTEREST OF THE DEVOLVED ADMINISTRATIONS
7.
Regulation of merchant shipping is not a devolved matter under the UK’s
devolution settlements and no devolved administration interests arise. The
devolved administrations have therefore not been consulted in the preparation of
this EM.
LEGAL AND PROCEDURAL ISSUES
8.
Article 4(2)(g) of the TFEU lists transport as an area of shared competence
between the Union and the Member States.
9.
Where the IMO remit, through its founding Convention, relates to maritime
transport, safety of shipping and prevention of marine pollution, the EU has
exclusive competence only to the extent that the relevant provisions of the IMO
Convention or legal instruments adopted in the implementation thereof affect
common rules established by the EU. When Union rules exist but are not
affected, in particular in cases of Community provisions establishing only
minimum standards, the Member States have competence, without prejudice to
the competence of the Union to act in this field.
10.
The Council Decision is not a proposal for legislation.
i.
Legal basis
Treaty on the Functioning of the European Union Article 100(2) in
conjunction with Article 218(9)
ii.
European Parliament Procedure
The consent of the European Parliament is not required.
iii.
Voting procedure
Qualified majority voting
iv.
Impact on United Kingdom Law
While the Council Decision would not have a direct impact on UK
Legislation, the adoption of the proposed changes to the IMO
Conventions and Codes may result in some amendments being
required to UK Legislation.
v.
Application to Gibraltar
While the Council decision would not have a direct impact on
Gibraltar, the adoption of the proposed changes to the IMO
Conventions and Codes may result in some amendments being
required to Gibraltar Legislation.
vi.
Fundamental rights analysis
No issues of fundamental rights arise.
APPLICATION TO THE EUROPEAN ECONOMIC AREA
11.
The measure is not applicable to the EEA.
SUBSIDIARITY
12.
As the proposal falls within an area of exclusive EU competence subsidiarity
does not apply.
POLICY IMPLICATIONS
13.
The Government supports the adoption of all the IMO amendments being
put forward, which are relatively minor and would have no significant impacts on
the UK. Member states of the IMO must apply the SOLAS Convention rules to
ships on international voyages but the EU has elected to also apply some of them
to domestic passenger ships.
14.
For three of the measures (listed as d), e), g) in Subject Matter above) the
relevant EU legislation requires compliance with the provisions of SOLAS as
amended, (by direct reference to a SOLAS regulation), and so the amendments
to SOLAS have a direct impact on the obligations under EU legislation. For these
the Government accepts that a Council Decision is required.
15.
For three of the measures (listed as a), b), and f), in Subject Matter) the
relevant EU legislation has “copied out” the provisions of SOLAS and applied
them to domestic passenger ships. Therefore for these the Government does not
see a direct impact between the amendment to SOLAS and EU legislation, as
there will have to be a separate legislative process within the EU to apply the
amendments to SOLAS to domestic passenger ships. As such the Government
has argued that these measures should not be included in the Council Decision
as this would have the potential to set a precedent for Council authorisation being
required before EU Member States on a much wider range of IMO Measures.
16.
The final measure (listed as c) in Subject Matter) is referenced in EU
legislation with the caveat “as revised per 1 January 2003” and therefore the
Government feels this should be treated in the same way as the “copy out”
measures, because notwithstanding the further amendment to SOLAS, EU
legislation would continue to require compliance to the 2003 text of SOLAS until
separate legislative action has occurred within the EU.
17.
The Government has raised these points during discussions of the
Shipping Working Party on 22nd April. Our arguments were accepted but the
overall view is that (as well as applying certain SOLAS provisions to all domestic
passenger ships) Directive 2009/45/EC also requires Class A domestic passenger
ships to comply with SOLAS as a whole. Therefore it is considered that a direct
impact on EU law exists for any change to SOLAS relevant to passengers ships.
18.
Member States agreed that there should be no extension of competence
to passenger ships on international voyages as a result of Directive 2009/45 on
safety rules and standards for passenger ships relating to domestic passenger
ships. There was clarification that the need for the Council Decision was not due
to any EU competence over SOLAS as such, but due to use of SOLAS to provide
the safety standards for domestic passenger ships within the EU, which do not fall
under the scope of SOLAS. In recognition of this, text has been added to follow
to Article 2 of the Decision “…to the extent that they fall under the exclusive
competence of the Union.” The Government accepts that this offers
acknowledgement that there is some extent to which the amendments do not fall
under the exclusive competence of the Union.
19.
As such, the Government agrees with the necessity for the proposed
Council Decision, and has no remaining concerns with the content of the Articles
of the Decision.
20.
However, the Government is concerned that the recitals have not been
updated to reflect the direct effect associated with Class A passenger ships and
as such continue to refer to the “copy out” provisions as a basis for Council
Decision for some of the Amendments. The Government considers that this
creates risk of a precedent that the Commission will try to propose Council
Decisions in cases where an action at IMO does not have direct effect on EU
Law. We therefore intend to abstain on this proposal unless it is possible to
secure amendment of the recitals to recognise that there is no extension of
competence to passenger ships on international voyages as a result of Directive
2009/45 on safety rules and standards for passenger ships relating to domestic
passenger ships.
CONSULTATION
21.
Throughout the stages of negotiation within the IMO about the proposed
amendments, relevant UK stakeholders have been engaged on the formation of UK
lines as is normal practice for the preparation of the UK Delegation to IMO.
IMPACT ASSESSMENT
22.
No Impact Assessment has been produced for the proposed Council
Decision. The Council Decision is not in relation to a proposal for legislation. The
Council Decision is one of procedure (under Article 218(9) TFEU) such that the
Council will authorise the EU Member States on behalf of the EU to conclude on
amendments to the IMO instruments that affect EU legislation
23.
The proposed amendments are: amendments to fire protection,
amendments to the maintenance and testing of lifeboats and life saving appliances,
provision of alternative methodologies for steering gear trails, and the
harmonisation of inspection regimes with current industry practice. The Government
is of the view that the associated costs and burden to Government and industry are
minor.
24.
The Commission has not produced its own Impact Assessment
FINANCIAL IMPLICATIONS
25.
The costs to the UK of the proposed Council Decision are considered
minimal.
TIMETABLE
26.
The timing for consideration at the Council of Ministers is not known.
However, the Council Decision needs to be adopted by 14th May in order to provide
Member States with a mandate to participate in the relevant deliberations of the
MSC session on 14th to 23rd May.
Stephen Hammond MP
Parliamentary Under Secretary of State for Transport
Department for Transport