LegalizeCommission Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures for conducting Commission inspections in the field of maritime security (Text with EEA relevance)
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.
This Regulation also lays down procedures for the monitoring by the Commission of the implementation of Directive 2005/65/EC jointly with the inspections at the level of Member States and port facilities in respect of ports as defined in Article 2(11) of this Regulation.
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:
‘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 and implementation of Directive 2005/65/EC. It may include inspections of ports, port facilities, ships, competent authorities for maritime security or companies, as defined in Annex I to Regulation (EC) No 725/2004. It may also include inspections of recognised security organisations, as defined in Annex I to Regulation (EC) No 725/2004 and in Annex IV to Directive 2005/65/EC relative to recognised security organisations;
‘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, listed by the Member States or by the EFTA States;
‘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;
‘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 or Directive 2005/65/EC, which are based on observation, measurement or test and which can be verified;
‘observation’ means a finding made during a Commission inspection and substantiated by objective evidence;
‘non-conformity’ means an observed situation where objective evidence indicates the non-fulfilment of a requirement laid down in Regulation (EC) No 725/2004 or Directive 2005/65/EC that requires corrective action;
‘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 or Directive 2005/65/EC;
‘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 and the port security measures laid down in Directive 2005/65/EC;
‘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;
‘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;
‘port’ means the area within the boundaries defined by Member States under Article 2(3) of Directive 2005/65/EC and notified to the Commission under Article 12 thereof;
‘provisional corrective measure’ means a temporary measure or range of measures aimed at limiting to the maximum extent practicable the impact of a major non-conformity or a non-conformity identified during the conduct of an inspection before full correction can take place;
‘classified information’ means identified or identifiable information obtained during the conduct of inspection activities, disclosure of which may lead to a breach of security, classified in accordance with the provisions of Commission Decision (EU, Euratom) 2015/444 (5) or in accordance with relevant national legislation of the Member States;
‘sensitive but non-classified information’ means inspection related material or information obtained during the conduct of inspection activities, disclosure of which may lead to a breach of security and which can only be shared on a need-to-know basis;
‘not confirmed’ means a finding made during a Commission inspection which indicates non-fulfilment of Regulation (EC) No 725/2004 or Directive 2005/65/EC but is not substantiated by objective evidence;
‘Committee’ means the Committee established by Article 11(1) of Regulation (EC) No 725/2004;
‘representative of a flag State’ means a member of the competent authorities of the Member State whose flag the ship is flying or, if nominated by that Member State, a representative of a recognised security organisation.
CHAPTER II
GENERAL REQUIREMENTS
Article 3
Cooperation of Member States
Member States shall take all necessary steps to ensure that notification of an inspection:
(a) is kept under strict measures of security to guarantee its non-disclosure in order not to compromise the inspection process; and
(b) is communicated to relevant parties on a need-to-know basis.
Article 4
Exercise of Commission powers
Each Member State shall ensure that, upon request, Commission inspectors have timely access to relevant security documentation necessary for the performance of the inspection duties, and in particular to:
(a) the national programme for the implementation of Regulation (EC) No 725/2004 referred to in Article 9(3) of that Regulation;
(b) the most recent updates of data supplied by the focal point and monitoring reports referred to in Article 9(4) of Regulation (EC) No 725/2004;
(c) the outcome of the Member State's monitoring of the implementation of port security plans;
(d) relevant ship, port and port facility security assessments, and relevant ship, port and port facility security plans, records of training drills and exercises for ship and port and port facility while Commission is conducting inspections;
(e) notifications by the Member States of the decisions referred to in Article 3(3) of Regulation (EC) No 725/2004 taken after the mandatory security risk assessment;
(f) any guideline, instruction or procedure, issued by the Member State for the implementation of Regulation (EC) No 725/2004 and Directive 2005/65/EC.
Article 5
Participation of national inspectors in Commission inspections
That list shall be updated, at least by the end of June each year.
Article 6
Technical assistance from the European Maritime Safety Agency in Commission inspections
In providing the Commission with technical assistance pursuant to Article 2(2)(b) 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.
Article 7
Qualification criteria and training for Commission inspectors
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;
(e) an awareness of health, safety and security requirements for working in a maritime environment;
(f) a knowledge of the main legal requirements applicable in the field of maritime security.
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 and Directive 2005/65/EC.
CHAPTER III
PROCEDURES FOR THE CONDUCT OF COMMISSION INSPECTIONS
Article 8
Notice of inspections
Commission may communicate to the focal point, in parallel to the notice of the inspection, a pre-inspection questionnaire for completion by the competent authority, along with a request for any relevant documentation. The completed questionnaire and any requested documentation shall be submitted to the Commission at least 2 weeks before the inspection is scheduled to begin.
The notice period provided for in the first subparagraph may be reduced to not less than 2 weeks provided that the Commission acts in response to an exceptional event which may have significant impact on the overall level of maritime security in the European Union and that the Commission consulted the focal point concerned prior to giving the notice. In that case the second subparagraph shall not apply.
Where a port facility is to be inspected, the focal point shall be informed in the notice whether:
(a) the inspection is to include ships at that port facility, or elsewhere in the port, during the inspection; and
(b) the inspection will include monitoring of the port under Article 13(2) of Directive 2005/65/EC.
For the purposes of point (b) ‘monitoring’ means verifying whether or not the provisions of Directive 2005/65/EC have been implemented by Member States and by the ports in their territory that have been notified to the Commission under Article 12 of Directive 2005/65/EC. In particular, monitoring means verifying that all provisions of Directive 2005/65/EC have been taken into account in the conduct of the port security assessments and the establishment of the port security plans and that the measures established thereunder are consistent with the provisions adopted under Regulation (EC) No 725/2004 for the port facilities located in the ports concerned.
The focal point shall:
(a) inform the relevant competent authorities in the Member State of the inspection;
(b) notify the Commission of those relevant competent authorities.
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 1974 International Convention for the Safety of Life at Sea as amended (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 of this Article.
Article 9
Preparation of inspections
Article 10
Conduct of inspections
The inspections shall be carried out in a way which impedes as little as possible the fluidity of the commercial operations. In order to achieve this, whenever appropriate and with the prior agreement of the flag State and of the master of the ship, an inspection of a ship that has commenced in port may continue after the ship has left port.
If a ship subject to an inspection is serving international scheduled services between two or more Member States, the inspection may also relate to the operations of embarkation and disembarkation applied to passengers and vehicles at each end of the voyage. In such a case, the Commission shall notify the Member State's focal point of the port of arrival in accordance with Article 8(1).
The relevant focal point shall be informed promptly of any major non-conformity with Regulation (EC) No 725/2004 or Directive 2005/65/EC identified by a Commission inspection, prior to completion of an inspection report in accordance with Article 11 of this Regulation.
However, in cases where a Commission inspector carrying out the inspection of a ship finds a major non-conformity requiring action under Article 16, the Team Leader shall inform immediately in writing the relevant focal points.
Article 11
Inspection report
When assessing the implementation of Regulation (EC) No 725/2004 and Directive 2005/65/EC in accordance with this Regulation, the findings shall be classified in one of the following categories:
(a) in conformity;
(b) in conformity, but improvement desirable;
(c) non-conformity;
(d) major non-conformity;
(e) not confirmed.
The report may contain recommendations for corrective action.
Article 12
Response from the Member State
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.
Article 13
Action by the Commission
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 or Directive 2005/65/EC 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 or monitoring to check the implementation of corrective actions, the minimum notice for such follow-up being two weeks;
(c) initiate an infringement procedure in respect of the Member State concerned.
CHAPTER IV
GENERAL AND FINAL PROVISIONS
Article 14
Confidentiality of information
In accordance with existing rules applicable, when conducting inspections in the field of maritime security, the Commission shall take the appropriate measures to protect classified information to which it has access or which is communicated to it by Member States. Member States shall take equivalent measures in accordance with their relevant national legislations.
Sensitive but non-classified information may be exchanged between Member States and the Commission, provided that they protect that information in accordance with the requirements applicable to guarantee its confidentiality.
Article 15
Commission inspection programme
Inspection reports shall normally be made available to the Committee:
(a) as soon as the Member State's response under Article 12(1) has been received; and
(b) when the file is closed.
Article 16
Informing Member States of major non-conformity
If an inspection discloses a major non-conformity with Regulation (EC) No 725/2004 or Directive 2005/65/EC which is deemed to have a significant impact on the overall level of maritime security in the Union and that cannot be immediately addressed at least by corrective measures of a provisional nature, the Commission shall inform the other Member States after having notified that major non-conformity to the Member State concerned.
Once a major non-conformity notified to the other Member States under this Article has been corrected to the satisfaction of the Commission, the Commission shall immediately inform the other Member States.
Article 17
Review
The Commission shall regularly review its system of inspections and in particular the effectiveness of that system.
Article 18
Repeal
Regulation (EC) 884/2005 is repealed.
Article 19
Entry into force
This Regulation shall enter into force on the 20th 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.
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