THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European
Community,
Having regard to Regulation (EC) No
725/2004 of the European Parliament and of the Council of 31 March 2004 on
enhancing ship and port facility security (1), and in particular Article
9(4) thereof,
Whereas:
(1) In order to monitor the
application by Member States of Regulation (EC) No 725/2004 the Commission
should conduct inspections starting six months after the entry into force of
that Regulation. The organisation of inspections under the supervision of
the Commission is necessary to verify the effectiveness of national quality
control systems and maritime security measures, procedures and structures.
(2) The European Maritime
Safety Agency established by Regulation (EC) No 1406/2002 of the European
Parliament and of the Council (2), should provide the Commission with
technical assistance in the performance of the latter's inspection tasks in
respect of ships, relevant companies and Recognised Security Organisations.
(3) The Commission should
coordinate the schedule and preparation of its inspections with the Member
States. The Commission's inspection teams should be able to call upon
qualified national inspectors, where available.
(4) Commission inspections
should be carried out according to a set procedure, including a standard
methodology.
(5) Sensitive
information relating to inspections should be treated as classified
information.
(6) The measures
provided for in this Regulation are in accordance with the opinion of the
Committee instituted by Article 11(1) of Regulation (EC) No 725/2004,
(1) OJ L 129, 29.4.2004, p. 6.
(2) OJ L 208, 5.8.2002, p. 1. Regulation as
last amended by Regulation (EC) No 724/2004 (OJ L 129,
29.4.2004, p. 1). Chapter I Subject-matter and definitions
Article 1 Subject-matter
This Regulation lays down procedures for conducting
Commission inspections to monitor the application of Regulation (EC) No
725/2004 at the level of each Member State and of individual port
facilities and relevant companies.
The inspections
shall be conducted in a transparent, effective, harmonised and
consistent manner
Article 2 Definitions
For the purposes of this Regulation the following
definitions shall apply:
1.
`Commission inspection’ means an examination by Commission inspectors of
Member States' national maritime security quality control systems,
measures, procedures and structures, to determine compliance with
Regulation (EC) No 725/2004;
2.
`Commission inspector’ means a person fulfilling the criteria set out in
Article 7 employed by the Commission, or employed by the European
Maritime Safety Agency or a national inspector, mandated by the
Commission to participate in Commission inspections;
3. `national inspector’
means a person employed by a Member State as a maritime security
inspector, and qualified according to the requirements of that Member
State;
4. `Committee’ means the
Committee instituted by Article 11(1) of Regulation (EC) No 725/2004;
5. `objective evidence’
means quantitative or qualitative information, records or findings
pertaining to security or to the existence and implementation of a
requirement laid down in Regulation (EC) No 725/2004, which are based on
observation, measurement or test and which can be verified;
6. `observation’ means a
finding made during a Commission inspection and substantiated by
objective evidence;
7.
`non-conformity’ means an observed situation where objective evidence
indicates the non-fulfilment of a requirement laid down in Regulation
(EC) No 725/2004 that requires corrective action;
8. `major non-conformity’
means an identifiable deviation that poses a serious threat to maritime
security that requires immediate corrective action and includes the lack
of effective and systematic implementation of a requirement laid down in
Regulation (EC) No 725/2004;
9.
`focal point’ means the body designated by each Member State to serve as
a contact point for the Commission and other Member States and to
facilitate, follow up and inform on the application of the maritime
security measures laid down in Regulation (EC) No 725/2004;
10. `relevant company’
means an entity that has to appoint a Company Security Officer, Ship
Security Officer or Port Facility Security Officer, or is responsible
for the implementation of a Ship Security Plan or Port Facility Security
Plan, or has been appointed by a Member State as a Recognised Security
Organisation;
11. `test’ means
a trial of maritime security measures, where intent to commit unlawful
action is simulated for the purpose of testing efficiency in the
implementation of existing security measures.
Chapter II General requirements
Article 3 Cooperation of Member States
Without prejudice to Commission responsibilities,
Member States shall cooperate with the Commission in the accomplishment
of its inspection tasks. The cooperation shall be effective during the
preparatory, control and reporting phases.
Article 4 Exercise of Commission powers
1. Each Member State shall ensure
that Commission inspectors are able to exercise their authority to
inspect the maritime security activities of any competent authority
under Regulation (EC) No 725/2004 and of any relevant company.
2. Each Member State shall
ensure that, upon request, Commission inspectors have access to all
relevant security related documentation and in particular:
(a) the national programme
for the implementation of Regulation (EC) No 725/2004 referred to in
Article 9(3) of that Regulation;
(b) data supplied by the
focal point and monitoring reports referred to in Article 9(4) of
Regulation (EC) No 725/2004.
3.
Wherever Commission inspectors encounter difficulties in the execution
of their duties, the Member States concerned shall by any means within
their legal powers assist the Commission to accomplish in full its
task.
Article 5 Participation of national inspectors in Commission
inspections
1. Member States shall endeavour to
make available to the Commission national inspectors able to participate
in Commission inspections, including the related preparatory and
reporting phases.
2. A national
inspector shall not participate in Commission inspections in the Member
State where he is employed.
3.
Each Member State shall provide the Commission with a list of national
inspectors on whom the Commission may call to participate in a
Commission inspection. That list shall be updated, at least by the end
of June each year, and for the first time within eight weeks of the
entry into force of this Regulation.
4. The Commission shall
communicate to the Committee the lists referred to in the first
subparagraph of paragraph 3.
5.
Where the Commission considers that the participation of a national
inspector is necessary in a particular Commission inspection, it shall
request information from Member States as to the availability of
national inspectors for the conduct of that inspection. Such requests
shall normally be made eight weeks in advance of the inspection.
6. The expenses arising
from the participation of national inspectors in Commission inspections
shall, in compliance with Community rules, be met by the
Commission.
Article 6 Technical assistance from the European Maritime Safety
Agency in Commission inspections
1. In providing the Commission with
technical assistance pursuant to Article 2(b)(iv) of Regulation (EC) No
1406/2002, the European Maritime Safety Agency shall make technical
experts available to participate in Commission inspections, including
the related preparatory and reporting phases.
2. The Commission shall
communicate to the Committee a list of the technical experts from the
European Maritime Safety Agency on whom it may call to participate in an
inspection.
Article 7 Qualification criteria and training for Commission
inspectors
1. Commission inspectors shall have
appropriate qualifications, including sufficient theoretical and
practical experience in maritime security. This shall normally include:
(a) a good understanding of
maritime security and how it is applied to the operations being
examined;
(b) a good working
knowledge of security technologies and techniques;
(c) a knowledge of
inspection principles, procedures and techniques;
(d) a working knowledge of
the operations being examined.
2. In order to qualify for
Commission inspections, Commission inspectors shall have successfully
completed training to carry out such inspections. In the case of
national inspectors the training necessary for them to act as Commission
inspectors shall:
(a) be
accredited by the Commission;
(b) be initial and
recurrent;
(c) ensure a
standard of performance adequate for the purposes of controlling whether
security measures are implemented in accordance with Regulation (EC) No
725/2004.
3. The Commission
shall ensure that Commission inspectors fulfil the criteria set out in
paragraphs 1 and 2.
Chapter III Procedures for the conduct of commission inspections
Article 08 Notice of inspections
1. The Commission shall give at
least six weeks notice of an inspection to the focal point of the Member
State in whose territory it is to be conducted. In response to
exceptional events, this period of notice may be reduced. Member States
shall take all necessary steps to ensure that notification of an
inspection is kept confidential in order to ensure that the inspection
process is not compromised.
2.
The focal point shall be notified in advance of the intended scope of a
Commission inspection.
Where a port facility is to
be inspected and the inspection is to include ships at that port
facility during the inspection, the focal point shall be informed in the
notice.
3. The focal point
shall:
(a) inform the relevant
competent authorities in the Member State of the inspection, and
(b) notify the Commission
of those relevant competent authorities.
4. The focal point shall
advise the Commission at least 24 hours in advance of the inspection the
name of the flag State and the IMO number of ships expected to be at a
port facility notified under the second subparagraph of paragraph 2
during the inspection.
5. Where
the flag State is a Member State, the Commission shall, where
practicable, inform the focal point of that Member State that the ship
may be inspected when at the port facility.
6. Where the inspection of
a port facility in a Member State is to include a ship of that Member
State as flag State, the focal point shall liaise with the Commission to
confirm whether or not the ship will be at the port facility during the
inspection.
7. Commission
inspections shall be carried out under the auspices of the Member State
of the port facility exercising control and compliance measures under
Regulation 9 of the special measures to enhance maritime security of the
SOLAS Convention when either:
(a) the flag State of the
ship is not a Member State; or
(b) the ship was not
included in the information provided pursuant to paragraph 4.
8. When notice of an
inspection is given to the focal point, a pre-inspection questionnaire
may also be communicated for completion by the relevant competent
authority or authorities, together with a request for the documents
referred to in Article 4(2).
The notice shall also
specify the date by which the completed questionnaire and documents
referred to in Article 4(2) shall be returned to the
Commission.
Article 09 Preparation of inspections
1. Commission inspectors shall
undertake preparatory activities in order to ensure efficiency, accuracy
and consistency of inspections.
2. The Commission shall
provide the focal point with the names of the Commission inspectors
mandated to conduct the inspection, and other details as appropriate.
3. For each inspection the
focal point shall ensure that a coordinator is designated to make the
practical arrangements associated with the inspection activity to be
undertaken.
Article 10 Conduct of inspections
1. A standard methodology shall be
used to monitor the application by Member States of the maritime
security requirements laid down in Regulation (EC) No 725/2004.
2. Member States shall
ensure that Commission inspectors are accompanied at all times during
the inspection.
3. Where a ship
at a port facility is to be inspected and the flag State of the ship is
not the Member State of the port facility, the Member State of the port
facility shall ensure that the Commission inspectors are accompanied by
an officer of an authority referred to in Article 8(2) of Regulation
(EC) No 725/2004 during the inspection of the ship.
4. Commission inspectors
shall carry an identity card authorising them to carry out inspections
on behalf of the Commission. The Member States shall ensure that
Commission inspectors are able to obtain access to all areas required
for inspection purposes.
5. A
test shall only be performed after notification to and agreement with
the focal point on its scope and purpose. The focal point shall
undertake any necessary coordination with the competent authorities
concerned.
6. Without prejudice
to Article 11, the Commission inspectors shall, wherever appropriate and
practicable, deliver an informal oral summary of their observations on
the spot. The focal point shall be informed promptly of any major
nonconformity with Regulation (EC) No 725/2004 identified by a
Commission inspection, prior to completion of an inspection report in
accordance with Article 11.
Article 11 Inspection report
1. Within six weeks of completion
of an inspection, an inspection report shall be communicated by the
Commission to the Member State.
2. Where a ship has been
inspected during the inspection of a port facility, the relevant parts
of the inspection report shall also be sent to the Member State that is
the flag State, if different from the Member State in which the
inspection took place.
3. The
Member State shall inform the inspected entities of the relevant
observations of the inspection.
4. The report shall detail
the observations of the inspection, identifying any non-conformity or
major non-conformity with Regulation (EC) No 725/2004. It may contain
recommendations for corrective action.
5. When assessing the
implementation of Regulation (EC) No 725/2004, one of the following
classifications shall apply to each of the observations of the report:
(a) in conformity;
(b) in conformity, but
improvement desirable;
(c)
non-conformity;
(d) major
non-conformity;
(e) not
applicable;
(f) not
confirmed.
Article 12 Response from the Member State
1. Within three months of the date
of dispatch of an inspection report, the Member State shall submit to
the Commission in writing a response to the report which:
(a) addresses the
observations and recommendations; and
(b) provides an action
plan, specifying actions and deadlines, to remedy any identified
deficiencies.
2. Where the
inspection report does not identify any nonconformity or major
non-conformity with Regulation (EC) No 725/2004, no response shall be
required.
Article 13 Action by the Commission
1. The Commission may take any of
the following steps in the event of non-conformity or major
non-conformity with Regulation (EC) No 725/2004 and following receipt of
the response of the Member State:
(a) submit comments to the
Member State or request further explanation to clarify all or part of
the response;
(b) conduct a
follow-up inspection to check the implementation of corrective actions,
the minimum notice for such a followup inspection being two weeks;
(c) initiate an
infringement procedure in respect of the Member State concerned.
2. Where a follow-up
inspection of a ship is to be conducted, the Member State that is the
flag State shall, where possible, inform the Commission of the ship's
future ports of call, so the Commission can decide where and when to
carry out the follow-up inspection.
Chapter IV General and final provisions
Article 14 Sensitive information
Without prejudice to Article 13 of Regulation (EC) No
725/2004, the Commission shall treat sensitive inspectionrelated
materials as classified information.
Article 15 Commission inspection programme
1. The Commission shall seek advice
from the Committee on the priorities for the implementation of its
inspection programme.
2. The
Commission shall inform the Committee on a regular basis about the
implementation of its inspection programme and about the results of the
inspections.
Article 16 Informing Member States of major non-conformity
If an inspection discloses major non-conformity with
Regulation (EC) No 725/2004 which is deemed to have a significant impact
on the overall level of maritime security in the Community, the
Commission shall inform the other Member States immediately after
communicating the inspection report to the Member State
concerned.
Article 17 Review
For the first time by 31 December 2006 and regularly
thereafter the Commission shall review its system of inspections and in
particular the effectiveness of that system.
Article 18 Entry into force
This Regulation shall enter into force on the
twentieth day following its publication in the Official Journal of the
European Union.
This Regulation shall be binding
in its entirety and directly applicable in all Member States.
Done at Brussels, 10 June 2005.
For the Commission
Jacques BARROT
Vice-President