Fitness Check of the Passenger Ship Safety Legislation Fitness Check Mandate Directorate General/Unit: DG MOVE/Unit D.2 Planned start date: 01/02/2014 Planned completion date: 30/04/2015 DATE/VERSION: Functional mailbox: 23/09/2014 /V-3 MOVE_EVALUATIONS@ec.europa.eu Contact person(s): Massimiliano Esposito (tel. 67552, email: massimiliano.esposito@ec.europa.eu) Evaluation function: Sylvie Barel (tel. 99783, email: sylvie.barel@ec.europa.eu ) Aleksandra Ivanova (tel. 80965, email: aleksandra.ivanova@ec.europa.eu ) External contractor: Tractebel Engineering Budget line: 06.020300 1. PURPOSE 1.1. INTRODUCTION In December 2012, the European Commission announced the launch of the Regulatory Fitness and Performance Programme (REFIT). REFIT emphasises the importance of EU regulation effectively and efficiently pursuing only those public policy objectives which are clearly best achieved at the EU level. According to the Communication, the programme will identify, assess, adopt, and monitor the implementation of, initiatives which will result in significant regulatory cost reduction or simplification. A second communication related to REFIT ("Results and next steps") released in October 2013 identifies a number of policy areas, in which a regulatory fitness check should be conducted. One of these areas is the "Passenger Ship Safety Legislation". The Commission's 2010 Communication on Smart Regulation introduced "Fitness checks" as comprehensive policy evaluations assessing whether the regulatory framework for an entire policy sector is fit for purpose. The Fitness Checks' aim is to identify excessive administrative burdens, overlaps, gaps, inconsistencies and/or obsolete measures which may have appeared over time, and
to help to identify the cumulative impact of legislation. Their findings should serve as a basis for drawing policy conclusions on the future of the relevant regulatory framework. 1.2. PURPOSE OF THE FITNESS CHECK ON THE PASSENGER SHIP SAFETY LEGISLATION The purpose of this Fitness Check (FC) is to assess if the current legislative framework for Passenger Ship Safety is fit for purpose and if its objectives are relevant and are being met in an efficient and effective manner. The framework consists of a package of legislation (see section 3.1), the objectives of which can be summarized as follows: (a) ensuring a uniform high safety level for all passenger ship types and (b) eliminating any barriers in the transfer of ships and in cabotage services in the internal market. In addition, this FC aims to assess the potential for simplifying and streamlining the existing framework: to focus the EU rules on essential requirements so that implementation and compliance can be improved and to eliminate potential overlap of duties under different pieces of legislation. Depending on the outcome of this Fitness Check, the Commission will decide on the appropriate next steps. 1.3. JUSTIFICATION The EU legislation on Passenger Ship Safety has been put in place mainly as "reaction" to accidents, over the time period of 15 years. This has created a regulatory framework that is fragmented, varies in terms of its coverage; it has some inconsistencies and certain unclear definitions. These weaknesses have resulted in additional work to the administrations of Member States and unnecessary administrative burden to ship manufacturers, owners and operators. In addition, past evaluations, inspections carried out by the European Maritime Safety Agency (EMSA), and stakeholders' feedback have indicated that (a) the legislative framework at EU level does not provide a uniform high safety level for all passenger ship types and (b) interpretation of EU and international rules by Member States sometimes differs, leadings to obstacles to the transfer of ships between Member States (see section 4.2). Therefore DG MOVE has initiated a more systematic fitness check of the legislative framework in place. 2. POLICY AREA/REGULATORY FRAMEWORK SUBJECTED TO THE FITNESS CHECK 2.1. BACKGROUND/CONTEXT In recent years, the European Union and its Member States have put efforts in improving the maritime safety legislation and promoting high-quality standards. In 2009 the co-legislators adopted the third maritime package that aimed to improve the effectiveness of the existing measures on maritime safety; however, it did not include measures on passenger ship safety. The 2011 White Paper for the future of transport "Roadmap to a Single European Transport Area Towards a competitive and resource efficient transport system", recognises the need to modernise the current EU passenger ship safety legislative framework. Passenger ships play an important role in the mobility of EU citizens, given that 23 out of 28 Member States are coastal countries, with 4 being island states. In average, it is estimated 350 million people pass every year through EU ports. The safety of passenger ships is regulated at three levels. For ships engaged in international voyages, including between two EU Member States, the Safety of Life At Sea Convention (SOLAS Convention) is applicable. It is administered by the International Maritime Organisation (IMO), a UN body, and has
been ratified by all EU Member States. The EU regulatory framework on the safety of passenger ships transposes agreed international rules at EU level and also in many instances further develops them. The most extensive legislative EU instrument is Directive 2009/45/EC regulating steel ships and High- Speed Craft (HSC) engaged in domestic voyages; on the other side, for non-steel ships navigating domestically neither international nor EU legislation applies, i.e. it has been left to national administrations to establish the rules. The overall EU legislation on passenger ship safety is described in section 3.1. 2.2. OBJECTIVES The overall objectives of the EU legislation on passenger ships is to improve the level of safety of life on passenger ships sailing in EU waters, and to remove potential barriers to the internal market, including the transfer of ships and trade between Member States. A uniform safety level of passenger ships can be reached through the improvement of the safety of ships and through more efficient rescue and search operations. On the other hand, the internal market of passenger ships may be further developed by assuring the same level of safety regardless the area of operation and by allowing for mutual recognition of certificates and national decisions. These specific objectives can be expressed in the following operational objectives: - Extend the applicability of international rules to non-covered areas (domestic waters); - Ensure proportionality of rules; - Improve the survivability of ro-ro ships; - Ensure that decisions and certificates are mutually recognised; - Ensure that the number of passengers does not exceed an allowed number; - Develop a verification and control mechanism; - Ensure that needs of passengers with reduced mobility are addressed; - Ensure the availability of information on passengers in case of accident; - Develop a system for cooperation between Member States. While major accidents involving passenger ships on domestic routes in EU waters are fortunately rare, a proactive and precautionary approach to passenger ship safety has been advocated by the Commission to date. However, this triggered for some legislation to a high number of exemptions leading to a piecemeal situation. In addition, external representation of Union interests in the IMO have been hampered by the fact that Member States (and owners/operators) feel a constant threat of having to apply requirements for passenger ships regulated by international conventions (if not agreed by a committee otherwise) to theoretically the smallest passenger ships navigating in sheltered waters. 2.3. INTERVENTION LOGIC The diagram below shows how the EU legislation on passenger ship safety covered by the FC was expected to interact and to achieve its objectives.
Link to a policy measure Inputs of the intervention Results Effects of the intervention Impacts International rules (SOLAS convention, HSC code, Stockholm agreement) System for cooperation and coordination between Member States DIRECTIVE 2009/45/EC on safety standards and rules Controlled applicability of additional requirements as well as equivalents and exemptions Mutual recognition of certificates and national decisions DIRECTIVE 2003/25/EC on stabilityrequirements Definition of sea areas and respective rules for operation Standards for construction, equipment, operation and maintenance of ships, depending on the type of the ship and its area of operation Uniform level of safety proportional to risks Internal market: Level playing field between EU ports and passenger ships and increased mobility DIRECTIVE 1999/35/EC on mandatory surveys Certification, survey/inspection obligations to the host and flag state Obligation to competent authorities to check the compliance with rules and apply penalties, if necessary Safer ships through compliance with improved safety measures and requirements Safety: Uniformlevel of safety for all passenger ships within the EU DIRECTIVE 98/41/EC on persons' registration on board of ships Standards for safety operations, including provisions for people with disabilities More efficient handling of aftermath of ship accidents, incl. search and rescue Obligation to count/register all persons (passengers and crew) on board The inputs of the intervention translate in the following outputs (not represented in the diagram above) listed per following result: 1. Resulting in "Mutual recognition of certificates and national decisions": - Issuance of Passenger Ship Safety Certificate using standard format; - Issuance of HSC Safety Certificate and Permit to Operate HSC; - Issuance of certificate confirming compliance of ro-ro passenger ship with specific stability requirements; - Recognition by Member States of decisions taken by another Member State regarding a ship's safety. 2. Resulting in a "Uniform level of safety proportional to risks": - Limited and approved exemptions; - Limited and approved additional requirements for local circumstances; - List of passenger ship classes per sea area; - List of wave heights per sea area; - Alignment with international rules of voyages not under their scope. 3. Resulting in "Safer ships through compliance with improved safety measures and requirements":
- Extension of scope of international rules, in terms of coverage in Member States domestic waters and safety measures (for class A ships); - Safe access for persons with reduced mobility; - Number of people on board is within permitted number; - Conformity of ro-ro passenger ships with additional stability requirements; - Conformity of passenger ships with safety requirements for construction, equipment, operation and maintenance depending on type of ship and its area of operation (class); - Prevention of operation of deficient, endangering or non-complying ships; - Initial verification of ships and companies; - Initial survey of ships' compliance with safety requirements; - Regular/periodical specific survey and additional survey; - Random checks of systems for registration of passengers; - System of penalties and enforcement. 4. Resulting in "More efficient handling of aftermath of ship accidents, including search and rescue": - Increased survivability of ro-ro passenger ships; - Count of passengers and crew, recording of personal data and registration of information; - Approved system for registration, in line with standard functional criteria; - Appointment of registrar; - Ships fitted with voyage data recorder and access to information is granted. 3. FITNESS CHECK 3.1. SCOPE OF THE FITNESS CHECK The FC covers all EU Flag States 1 and EEA countries. The following legislation will be looked at: - Directive 2009/45/EC on safety rules and standards for passenger ships establishes a legal framework laying down harmonised safety rules and standards for passenger ships in domestic traffic. It is applicable to all steel ships, and to HSC. It aims to improve the safety of maritime passenger transport and to remove potential barriers to the transfer of ships between Member States. This Directive incorporates the provisions of the SOLAS convention establishing detailed technical requirements for vessel construction, stability, fire protection 1 A flag state is the country or territory authorising the registry of a seagoing vessel.
and life-saving equipment. It also includes specific access and public information requirements for persons with reduced mobility or disabilities. Member States may adopt additional safety requirements if justified by local circumstances, permit the use of equivalent standards, adopt exemptions from the provisions of this Directive under certain operating conditions, or adopt safeguard measures in exceptional dangerous circumstances. The Directive distinguishes between four different classes of passenger ships depending upon their navigation areas, defined by wave heights, distance to a place of refuge and distance to coasts. HSC are categorised in accordance with the provisions of the High-Speed Craft Code established by the IMO. - Directive 2003/25/EC on specific stability requirements for ro-ro passenger ships lays down a uniform specific stability requirements for ro-ro passenger ships. The Directive establishes the means of addressing the destabilising impact of an accumulation of water on the vehicle deck to improve the survivability of passenger vessels in the case of collision damage, and provides a high level of safety for the passengers and the crew. It implements what is required at the international level under SOLAS '90 requirements, enhancing the standards further according to the so-called 'Stockholm Agreement. On 1 January 2009, the SOLAS '90 requirements have been replaced at international level by the SOLAS 2009 requirements which have not yet been implemented in EU law. - Directive 1999/35/EC on a system of mandatory surveys for the safe operation of regular roro ferry and high-speed passenger craft services foresees rules for safe operation of ro-ro ferries and HSC services to or from of EU ports. It provides the Member States a right to conduct, participate in or cooperate with any investigation of maritime casualties or incidents on these services. This Directive addresses the Member States in their capacity as host states and gives them the right to check whether the ships conform to certain harmonised requirements for certification and survey by the flag state. The uniform safety standards should apply to all ro-ro ferries and HSC providing regular services (both on international voyages and on domestic voyages) in navigation areas beyond 20 miles from a coast line. Member States have a possibility to extend the scope of application of the Directive to ships operating also in navigation areas within 20 miles from a coast line. - Directive 1998/41/EC on the registration of persons sailing on board passenger ships, aims to ensure that search and rescue and the aftermath of any accident which may occur can be dealt with effectively. The Directive gives provisions on counting and registration of passengers and crew on board of passenger ships operating to and from the EU ports. In additions it outlines main legal issues related to passenger ships involved in marine accidents in waters for which Member States bear responsibility under the 1979 International Convention on Maritime Search and Rescue. The following legislative acts are not directly included in the FC, but have links with the legislation mentioned above: - Directive 2009/16/EC on port state control, which aims to reduce substandard shipping in the waters under the jurisdiction of Member States by increasing compliance with international and relevant EU legislation on maritime safety, maritime security, protection of the marine environment, on-board living and working conditions of ships of all flags;
- Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector; - Regulation 392/2009 on the liability of carriers of passengers by sea in the event of accidents; this regulation refers to the navigation areas defined in the Directive 2009/45/EC. At the international level, the EU passenger ship safety legislation is related mainly to the following instruments: - SOLAS - the 1974 International Convention for the Safety of Life at Sea (the 1974 SOLAS Convention); - the 1966 International Convention on Load Lines; - the International Code for Safety of High Speed Craft; - the International Management Code for the Safe Operation of Ships and for Pollution Prevention. 3.2. MAIN EVALUATION QUESTIONS The fitness check will address the six following evaluation criteria: coordination, relevance, effectiveness, efficiency, EU added value and coherence. The questions below summarise for each criterion the approach that will be taken in the fitness check. Coordination To what extent are the four directives working together as a framework for passenger ship safety? Relevance To what extent is the passenger ship safety legislation relevant and proportional to the risks? Effectiveness To what extent has the passenger ship safety legislation resulted in a common safety level and in a more integrated internal market? Has the legislation had any unintended impacts or collateral effects? Efficiency To what extent have the costs of the instruments for addressing the safety on passenger ships been reasonable and proportionate to the risks they cover? European Added Value: What is the added value of setting safety standards through EU legislation? Coherence: While looking at the legislative framework at all three levels (international, EU, national), are there any gaps, overlaps or inconsistencies in terms of coverage?
4. DATA AND MONITORING PROVISIONS 4.1. MONITORING PROVISIONS The legislation in place on passenger ship safety does not foresee specific provisions for monitoring and data collection. The main source of data occurs via the regular visits by EMSA to check on the implementation of the Directives in the Member States. Regarding the collection of data on accidents, Directive 2009/18/EC on marine accident investigation, entered into force in June 2011, represents the main provisions for reporting obligations on marine casualties (serious and not). This implies obligation for Member States to populate the European Marine Casualty Information Database, managed by EMSA. As gradually filling up, this database should become a source for better accident statistics (also per passenger ship type, following further analysis by EMSA). Additional information can be get from the SafeSeaNet and THETIS information systems, managed by EMSA. 4.2. PREVIOUS EVALUATIONS AND OTHER REPORTS - Passenger Ship Safety Legislative review Evaluation report, April 2011 Studio Legale Grimaldi e Associati; http://ec.europa.eu/transport/facts-fundings/evaluations/doc/2011_passenger_ship_safety.pdf - Impact Assessment Support Study on the Passenger Ship Safety Legislative Review, COWI final report, October 2012; - Impact Assessment Support Study, Summary of targeted Stakeholder Consultation, COWI report, August 2012; - Public consultation on a review of EU passenger ship safety legislation (13/04/2012-5/07/2012) Questionnaire and summary report: http://ec.europa.eu/transport/modes/maritime/consultations/2012-07-05-passenger-shipsafety_en.htm - EMSA reports on the inspection visits to assess the functioning of the systems in place to control the number of persons on board of passenger ships (Directive 98/41/EC) operating to or from ports of the Member States of the Union in Italy, Greece, Estonia, Spain and the Netherlands. 4.3. INFRINGEMENTS, COMPLIANCE AND COMPLAINS There have been 71 infringement cases of which 35 for Directive 2009/45/EC, 12 for Directive 1998/41/EC, 13 for Directive 1999/35/EC, and 11 for Directive 2003/25/EC. Most of these infringements are related to late transposition. There have been two complaints on overcrowding of passenger ships during summer season (Directive 1998/41/EC). Furthermore, the Commission has received a total of about 40 requests by Member States for exemptions and 4 requests for equivalencies to the technical requirements of Directive 2009/45/EC.
4.4. SG MEETINGS The Steering Group is expected to meet at least three times: 1. to approve the mandate and the Terms of Reference for the external study, 2. to discuss the progress so far including the interim report of the external study and input from EMSA, and 3. to discuss the draft Fitness check report. 5. STAKEHOLDERS CONSULTATION Member States, industry, maritime associations have already been formally consulted on the shortcomings of the legislation in place on passenger ship safety in the course of 2011-2013 within the framework of the ex post evaluation and studies through questionnaires, public on-line consultations and individual visits in Member States. Within the context of the REFIT initiative, the results from existing evaluations, studies and consultations will be complemented with specific target consultations of Member States, the Commission's Passenger Ship Safety expert group and stakeholders including questionnaires and case studies. Industry organisations will be consulted via dedicated meetings. When? How?/Who? Within the Commission: 2014 and early 2015 Steering group and Inter-service consultation Member States: April-May 2014 June-July 2014 Oct.-Nov. 2014 Other: Sept Dec 2014 2014 and early 2015 Questionnaires development Questionnaires distribution to Member States Passenger Ship Safety Expert group Case studies in the context of external study Bilateral and multilateral meetings with key stakeholders 6. PLANNING Steering Group set up March 2014 Validation of Fitness Check mandate April 2014 Validation of ToR of external study June 2014 Signature of external contract August 2014 Kick off external contract September 2014 Finalisation of external study February 2015 Draft Fitness Check Report (SWD/Communication) February 2015 ISC launched March 2015
Final Fitness Check Report (SWD/Communication) and Follow-up April 2015 7. OTHER RELEVANT INFORMATION/REMARKS NA