Directive 2014/90/EU of the European Parliament and of the Council of 23 July 2014 on marine equipment and repealing Council Directive 96/98/EC (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee^f1,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure^f2,

Whereas:

The global dimension of shipping calls for the Union to apply and support the international regulatory framework for maritime safety. The international maritime safety conventions require flag States to ensure that the equipment carried on board ships complies with certain safety requirements as regards design, construction and performance, and to issue the relevant certificates. To that end, detailed performance and testing standards for certain types of marine equipment have been developed by the International Maritime Organization (IMO) and by the international and European standardisation bodies.

The international instruments leave a significant margin of discretion to the flag administrations. In the absence of harmonisation, this leads to varying levels of safety for products which the competent national authorities have certified as complying with those conventions and standards; as a result, the smooth functioning of the internal market is affected as it becomes difficult for the Member States to accept equipment certified in another Member State to be placed on board ships flying their flags without further verification.

Harmonisation by the Union resolves these problems. Council Directive 96/98/EC^f3 thus laid down common rules to eliminate differences in the implementation of international standards by means of a clearly identified set of requirements and uniform certification procedures.

There are various other instruments of Union law which lay down requirements and conditions, inter alia, in order to ensure the free movement of goods within the internal market or for environmental purposes, for certain products which are similar in nature to equipment used on board ships but which do not meet the international standards – which may substantially differ from the internal legislation of the Union and are in constant evolution. Those products cannot therefore be certified by the Member States in accordance with the relevant international maritime safety conventions. Equipment to be placed onboard EU ships in accordance with international safety standards should therefore be regulated exclusively by this Directive, which should in any event be considered the lex specialis; furthermore, a specific marking should be established to indicate that equipment bearing that mark complies with the requirements laid down in the relevant international conventions and instruments which have entered into force.

As well as setting out detailed performance and testing standards for marine equipment, the international instruments sometimes allow for measures that deviate from the prescriptive requirements but which, under certain conditions, are suitable to satisfy the intent of those requirements. The International Convention for the Safety of Life at Sea (SOLAS), 1974, allows for alternative designs and arrangements which could be applied by individual Member States acting under their own responsibility.

Experience in the implementation of Directive 96/98/EC has shown that it is necessary to take additional measures in order to enhance the implementation and enforcement mechanisms of that Directive and simplify the regulatory environment while guaranteeing that IMO requirements are applied and implemented in a harmonised way across the Union.

Requirements should therefore be established for marine equipment to meet the safety standards laid down in the applicable international instruments, including the relevant testing standards, in order to ensure that equipment which complies with those requirements can circulate unimpeded within the internal market and be placed on board ships flying the flag of any Member State.

In order to allow for fair competition in the development of marine equipment, every effort should be made to promote the use of open standards in order to make them available freely or at a nominal charge, and permissible to all to copy, distribute and use for no fee or at a nominal fee.

Decision No 768/2008/EC of the European Parliament and of the Council^f4 lays down common principles and reference provisions intended to apply across sectoral legislation in order to provide a coherent basis for revision or recasts of that legislation. That Decision constitutes a general framework of a horizontal nature for future legislation harmonising the conditions for the marketing of products and a reference text for existing legislation. That general framework provides appropriate solutions to the problems identified in the implementation of Directive 96/98/EC. It is therefore necessary to incorporate the definitions and reference provisions of Decision No 768/2008/EC into this Directive by making the adaptations which are required by the specific features of the marine equipment sector.

In order to provide market surveillance authorities with additional, specific means to facilitate their task, an electronic tag could supplement or replace the wheel mark in due time.

The responsibilities of the economic operators should be laid down in a way which is proportionate and non-discriminatory for those economic operators who are established within the Union, taking into account the fact that a significant proportion of the marine equipment falling within the scope of this Directive may never be imported and distributed in the territory of the Member States.

Given that marine equipment is placed on board ships at the time of their construction or repair all over the world, market surveillance becomes particularly difficult and cannot be effectively supported by border controls. Therefore, the respective obligations of Member States and of economic operators within the Union should be clearly specified. Member States should ensure that only compliant equipment is installed on board ships flying their flags and that this obligation is fulfilled through issuance, endorsement or renewal of the certificates of such ships by the flag State administration under the international conventions, as well as through national market surveillance arrangements in place in accordance with the Union market surveillance framework laid down in Chapter III of Regulation (EC) No 765/2008 of the European Parliament and of the Council^f5. Member States should be supported in fulfilling those obligations by the information systems made available by the Commission for the assessment, notification and monitoring of bodies authorised to carry out conformity assessment tasks, the sharing of information in relation to approved marine equipment, applications withdrawn or refused, and non-compliance of equipment.

In the first instance, the affixing of the wheel mark to the marine equipment by the manufacturer or, where relevant, the importer should be the guarantee pursuant to their obligations under this Directive that the equipment is compliant and may be placed on the market with a view to being placed on board an EU ship. Thereafter, certain provisions are necessary for the safe continuation and applicability of the wheel mark after it has been affixed and for the effective discharge of the task of national market surveillance authorities. The manufacturer or, where relevant, the importer or the distributor, should be obliged to provide the competent authorities with full and truthful information in relation to the equipment it has wheel marked to ensure that marine equipment remains safe. The manufacturer should be obliged to cooperate with market surveillance authorities, including as regard standards against which it has manufactured and certified equipment, and should also exercise due diligence in relation to marine equipment it places on the market. In this regard, a manufacturer located outside the Union should appoint an authorised representative in order to ensure cooperation with competent national authorities.

Compliance with international testing standards could best be demonstrated by means of conformity assessment procedures such as those laid down in Decision No 768/2008/EC. However, only those conformity assessment procedures which meet the requirements of the international instruments should be made available to manufacturers.

In order to ensure a fair and efficient procedure when examining suspected non-compliance, the Member States should be encouraged to take all measures conducive to an exhaustive and objective evaluation of the risks;. if the Commission is satisfied that this condition has been met, it should not be obliged to repeat that evaluation when reviewing the restrictive measures adopted by the Member States as regards non-compliant equipment.

When performing its investigative duties with regard to notified bodies, the Commission should keep Member States informed and should cooperate with them as far as possible, taking due account of its independent role.

When the surveillance authorities of a Member State consider that marine equipment covered by this Directive is liable to present a risk to maritime safety, to health or to the environment, they should carry out evaluations or tests in relation to the equipment concerned. In cases where a risk is detected, the Member State should call upon the economic operator concerned to take the appropriate corrective action, or even to withdraw or recall the equipment concerned.

The use of marine equipment not bearing the wheel mark should be allowed in exceptional circumstances, especially when it is not possible for a ship to obtain equipment bearing the wheel mark in a port or installation outside the Union or when equipment bearing the wheel mark is not available in the market.

It is necessary to ensure that the attainment of the objectives of this Directive is not impaired by the absence of international standards or serious weaknesses or anomalies in existing standards, including testing standards, for specific items of marine equipment falling within the scope of this Directive. It is also necessary to identify the specific items of marine equipment which could benefit from electronic tagging. Moreover, it is necessary to keep up to date a non-essential element of this Directive, namely the references to standards as referred to in Annex III, when new standards become available. The power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should therefore be delegated to the Commission in respect of the adoption, under certain conditions and on an interim basis, of harmonised technical specifications and testing standards and in order to amend those references. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

In order to meet the objectives of this Directive, the international instruments should be uniformly implemented in the internal market. It is therefore necessary, for each item of marine equipment for which the approval of the flag State is required by the international conventions, to identify in a clear and timely way the design, construction and performance requirements as well as the associated testing standards laid down in the international instruments for that equipment, and to adopt common criteria and procedures, including timeframes, for the implementation of those requirements and standards by notified bodies, Member State authorities and economic operators, including any operator responsible for placing equipment on board an EU ship. It is also necessary to ensure that the attainment of the objectives of this Directive is not impaired by shortcomings in the applicable technical specifications and testing standards or in cases where the IMO has failed to produce appropriate standards for marine equipment falling within the scope of this Directive.

The international instruments, with the exception of testing standards, should automatically apply in their up-to-date version. In order to mitigate the risk that the introduction of new testing standards into Union legislation causes disproportionate difficulties for the Union fleet and for economic operators, from the standpoint of clarity and legal certainty, the entry into force of such new testing standards should not be automatic but, rather, should be explicitly indicated by the Commission.

In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council^f6.

In order to facilitate a harmonised, rapid and simple implementation of this Directive, implementing acts adopted pursuant to this Directive should take the form of Commission Regulations.

In line with established practice, the committee referred to in this Directive can play a useful role in examining matters concerning the application of this Directive raised either by its chair or by a representative of a Member State in accordance with its rules of procedure.

When matters relating to this Directive, other than its implementation or infringements, are being examined, for example, in a Commission expert group, the European Parliament should, in line with existing practice, receive full information and documentation and, where appropriate, an invitation to attend meetings.

The Commission is assisted by the European Maritime Safety Agency, in accordance with Regulation (EC) No 1406/2002 of the European Parliament and of the Council^f7, in the effective implementation of relevant binding legal acts of the Union and in the performance of the tasks therein entrusted to the Commission.

The competent authorities and all economic operators should make all possible efforts to facilitate written communication in accordance with international practice, with a view to finding common means of communication.

Since the objectives of this Directive, namely to enhance safety at sea and the prevention of marine pollution through the uniform application of the relevant international instruments relating to equipment to be placed on board ships, and to ensure the free movement of such equipment within the Union, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that article, this Directive does not go beyond what is necessary in order to achieve those objectives.

The measures to be adopted represent a major modification of the provisions of Directive 96/98/EC and therefore, in the interests of clarity, that Directive should be repealed and replaced by this Directive,

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