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The EU: maritime safety and pollution control

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This article from BIMCO comes at no better time and we urge all involved directly or indirectly with the industry, safety and the environment to study same and coment.

The EU: maritime safety and pollution control

By Sir Robert Coleman*

If the foundation for EU maritime policy is undoubtedly the regulatory framework for the market in maritime transport services, it has rapidly been followed by the adoption of a highly developed regime designed to ensure the safety of maritime operations, not least to reduce and manage pollution of the sea and the environment in general.

This third article in a series on EU maritime law and policy summarises the development of this regime which continues to develop to this day and is likely to continue into the future.

Among the reasons behind this development is the fact that, even before the liberalisation process was under way, and as we have already seen in the first article of this series, by reason of its geography and need to import large quantities of oil, Europe was and remains exposed, especially in its Atlantic approaches, to a high risk of catastrophic environmental damage. Unfortunately, on several occasions, starting with the grounding of the Amoco Cadiz in 1978, this risk has turned into a disastrous reality for the EU with important impacts in both the natural and political worlds. It first led to the Council rapidly adopting an action programme on the control and reduction of oil pollution at sea as part of the EU’s then relatively new environmental policy.

The most important concrete result of this programme was the establishment of an EU information system on hydrocarbons discharged at sea permitting, among other things, a co-ordinated response to major incidents. This system has been developed over the years and continues to function in an effective manner1. Also the members states, individually and collectively in the International Maritime Organization (IMO) and also through the Paris Memorandum on port State control, agreed in 1982, sought to respond to the challenge. But the sequence of major accidents continued, and once the EU became responsible for the legal regime guaranteeing access for all EU ship operators to trades in all European waters, inevitably the EU itself had to assume its share of responsibility for ensuring maritime safety in those same waters.

First major step The first major step was taken in 1993 with the adoption by the Commission of a first programme of action to improve maritime safety in its communication on a common policy on safe seas2. The programme was rapidly approved in principle by the Council and the European Parliament and included legislation reflecting international standards on a broad range of subjects including dangerous or polluting goods bound for or leaving Community ports; common rules and standards on classification societies; safety management of roll-on/roll-off passenger ships; safety standards for all passenger ships3; enforcement of seafarers’ working hours; and marine equipment.

But while this programme was still under way, further major accidents involving the Erika in 2000 and the Prestige in 2002 led to the programme’s acceleration, strengthening and amplification. Measures have included reinforcement of rules on port state control and classification societies; accelerated phasing out of single hull tankers; improvements in traffic monitoring; the creation of a European Maritime Safety Agency and stricter rules on compensation and liability, including criminal responsibility. In May 2004, the Commission launched a broad consultation on the need to adopt a new package of legislative measures, which it proposed in November 2005, to complete for the time being the maritime safety framework, including most significantly the responsibilities of flag states. These were adopted, though subject to numerous amendments, in 2009.

Of these measures, all of which are considered in greater detail on the website, two merit particular comment here.

The creation of EMSA Perhaps the most important innovation resulting from the two oil tanker sinkings was the accelerated creation and functioning of the European Maritime Safety Agency. The arrival on the European scene of such an organisation would add a new dimension to EU maritime activities by giving it the specialised administrative and technical capacity to become involved in the application and further development of its maritime safety regime which the Commission would have almost certainly found impossible to provide on its own.

The Agency was originally set up to provide technical and scientific advice and a high level of expertise to both the Commission and the members states in order to help them properly ensure the application of legislation on maritime safety and pollution; to monitor its implementation; and to evaluate its effectiveness4. In order to carry out the Agency’s functions effectively, its officials visit the members states and report on their findings to the Commission and the other members states. Some of the key areas in which the Agency has been engaged are strengthening port state control, assessing classification societies and the establishment and management of vessel traffic monitoring and information systems. The latter involved the creation of SafeSeaNet, a network which allows relevant administrations in the members states to access and exchange a range of information on ship and cargo movements as well as maritime incidents in EU waters. Reporting by administrations under the system became obligatory in 2009.

In addition, in late 2003, the Agency was given additional responsibilities for oil pollution response, complementing Member State responsibilities; for maritime security; and for ensuring proper standards for seafarers’ training in third countries5.

The oil pollution response mission led to the rapid preparation of an Agency action plan which focused on operational assistance, co-operation, co-ordination and information, with the Agency seeking to develop itself as an accessible centre of knowledge on all aspects of marine pollution associated with shipping. The operational assistance has included the a number of stand-by contracts under which the Agency finances the equipment of specialised vessels to supplement the response capacity of the member states in the Baltic, the Atlantic and the Mediterranean and from 2009 the Black Sea. From 2007, under Directive 2005/35/EC on ship sourced pollution, it has been supplemented by the deployment of a satellite imaging system known as CleanSeaNet for the detection and tracking of illegal discharges6.

The last few years have seen continuing development and integration of EMSA’s information systems. Long Range Identification and Tracking (LRIT) has been implemented in the EU by a single Data Centre at the Agency and it is also currently hosting the international LRIT message handling service under an agreement with the IMO. A considerable effort has been made to develop tools allowing information from different sources to be combined and displayed in an integrated fashion allowing it to be used more effectively and efficiently, for example, for the purposes of assessing ships under the risk criteria of the port state control system.

The regulation under which EMSA operates is currently being amended. The political agreement reached this Spring and currently being formalised includes an extension of its responsibilities, including a role in response to pollution from offshore oil and gas installations and the provision of vessel positioning and earth observation data to facilitate measures taken against piracy and intentional unlawful acts affecting maritime transport.

Legally binding obligations The legislation on the responsibilities of member states as flag states, which creates binding obligations for them under EU law to participate in the IMO’s audit system, marks in many ways the completion of the overall structure of the EU’s regulatory system concerning maritime administration, especially on safety.

Historically, the foundation for the legal regulation of vessels and their operations has been the power of sovereign states to set and enforce rules in relation to ships flying their flags, especially when they are on the high seas. The role of port or coastal states was essentially a complementary one addressing the effects of a ship’s operation on their territories. Paradoxically, the Union first approached maritime safety not by systematically and directly addressing the member states’ responsibilities as flag states, but by a step by step process in which the emphasis has been at least as much, and probably more, on their role as port states, especially in the field of enforcement. One reason for this emphasis has been the need to address the reality of a highly international, indeed globalised shipping industry, with the incidental advantage of ensuring a degree of equivalence of treatment of vessels whatever their flags and ownership. But it has become increasingly clear that an enduring weakness of the maritime safety regime is the failure of some flag states, within and outside the EU, to fulfil all their responsibilities, as shown by the detention rates of the Paris Memorandum7. In addition, the current system has become very complex, with multiple layers of responsibility and administrative intervention. A thorough implementation of flag state responsibilities could hold out the prospect of simplifying the system, by reducing the impact of formalities and interventions at other levels in relation to vessels flying the flags of states which are known to be doing their jobs properly.

Many member states were unenthusiastic about the creation of legally binding obligations under EU law concerning their performance as flag states, not least because of the implications for the extension of EU competence within the IMO. The final outcome in December 2008 was a compromise in which the legislation was focused more narrowly on the existing international regime8, with the Council seeking to limit the effect of the adoption of the proposals on member states’ own competences in the IMO. Nevertheless it is important to note that member states will have an obligation under EU law to subject their maritime administrations every seven years to an IMO audit and are committed to joint action to make the IMO regime mandatory for all.

Broader EU environmental policies The maritime sector has also continued to be affected by broader EU environmental policies.

For example, action has been taken, based on standards contained in the IMO’s MARPOL Convention, Annex VI, to limit the sulphur in marine diesel; to address the disposal of hazardous waste which can include ship-breaking9; and to phase out the use of certain marine paints containing biocides.

Also, in 2005, the Commission proposed the adoption of a directive to implement a broad “thematic” strategy on marine pollution through a long term programme of diagnosis and actions carried out by competent authorities in the member states and under the European regional seas conventions. This was agreed late in 2007 and formally adopted in 200810. The strategy will produce results only in the medium to long term but it is clearly possible that some of these will have implications for shipping in EU waters.

Recently, the emphasis has been primarily on the problem of reducing emissions of green house gases, notably carbon dioxide, not least in the context of the United Nations Framework Convention on Climate Change. In December 2008, Council and Parliament agreed a global, legally binding target of a 20% reduction in emissions from 2013 levels to be realised by 2020 for all sectors not included in the Union’s emissions trading system. Shipping was thus included11. The Union’s negotiating position for the UN’s Copenhagen Conference in December 2009 included an offer to reduce shipping’s emissions from 2005 levels by 20% by 202012. Discussions are currently being held on the possibility of increasing these targets to 30%.

The means for achieving these goals have been left open for the time being but possibilities include new levies or taxes or emissions trading, possibly to be negotiated in the framework of the IMO. In early 2012, the Commission launched a consultation on how the EU might adopt measures to reduce green house from ships in the absence of an adequate international agreement on the subject, announcing its intention to make proposals before the end of the year.

As regards sulphur emissions, the EU is currently adopting legislation to implement the amendments to MARPOL Annex VI adopted by the IMO in 2008 strengthening restrictions on emissions of sulphurous and nitrous oxides. Binding measures are proposed for sulphur to be reduced progressively from the current level of 4.5% to 3.5% by 2012 and 0.5% by 2020. Stricter standards are also included for Sulphur Emission Control Areas (SECAs), namely the Baltic and the Channel, and for passenger ships: sulphur is to be reduced to 0.1% by 2015 in SECAs and by 2020 for passenger ships generally. Current discussions are focussing on the realism of the SECA provision and the need to avoid negative effects on short sea shipping possibly leading to a shift of traffic to road haulage.

Even if the difficulties of the current economic climate seem recently to have slowed the adoption of new safety and anti-pollution measures by the EU, the reality and scale of the risks associated with shipping in European waters are likely to ensure that the topic will remain an important priority in the medium and long term. ll

Notes 1 See Council Decision 2007/779/EC, OJ L314/9 of 1.12.2007. 2 COM(93)66 final of 24.2.1993 3 These were being reviewed by the Commission when, early in 2011, the grounding of the Concordia on the Italian coast raised the political priority of the issue, the Commission announcing its intention to decide on any necessary initiatives, if possible, before the end of the year. 4 Regulation (EC) 1406/2002 establishing the European Maritime Safety Agency, OJ L208/1 of 5.8.2002. 5 Regulation (EC) 724/2004, OJ L129/1 of 29.4.2004. 6 Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, OJ L255/11 of 30.9.2005. 7 See Annual Reports of the Paris Memorandum of Understanding. The Reports for the last 10 years show significant improvements in the performance of most member states, especially of those with the most important registers. 8 Directive 2009/21/EC of 23 April 2009 on compliance with flag state requirements, OJ L131/132 of 28.5.2009 9 In March 2012, the Commission proposed the adoption of a new regulation for the early implementation of the provisions of the IMO’s 2009 Hong Kong Convention for the safe and environmentally sound recycling of ships, though in some respects imposing more stringent requirements on EU flagged vessels and ship owners. 10 Directive 2008/56/EC, OJ L164/19 of 25.6.2008. 11 Decision 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of member states to reduce their green house gas emissions to meet the Community’s green house gas reduction commitments up to 2020, OJ L140/136 of 5.6.2009. 12 Council Conclusions on EU position for the Copenhagen Climate Conference (7-18 December 2009), 21 October 2009.

Sir Robert Coleman is BIMCO’s EU Liaison Officer.

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