Outstanding issues concerning the conduct of Commission inspections in the Member States in the field of maritime security

Rrpusr-tc or Esrorutn MnRrnur Aou r ursrnATroN Mr Henrik Hololei t0.07.20t7 Our ref. 5-6-2120ll Directorate - General for Mobility and Transport European Commission Rue de Mot 28, 1/101 B-1049 Brussels BELGIUM Outstanding issues concerning the conduct of Commission inspections in the Member States in the field of maritime security Dear Mr Hololei We would like to inform you of several issues concerning the conduct of Commission inspections in the field of maritime security that pertain to the rules of procedure provided for in Commission Regulation (EC) No 32412008 of 9 April 2008 (hereinafter the Inspection Regulation). We invite the Commission to an open exchange of views on the highlighted issues and to form a clearly defined opinion on each of them. Communication of sensitive information Article 14 of the Inspection Regulation stipulates that the Commission shall treat sensitive inspection-related materials as classified information. It is the practice of the Commission to classiff the notice of inspection given pursuant to Article 8 of the Inspection Regulation as EU Restricted, whereas the same and related information is communicated via unsecure channels such as e-mail. Given the fact that Article 8(1) of the Inspection Regulation already requires the Member States to 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, it is our opinion that there is no real need to treat the information exchanged prior to the inspection as classified. This view is supported by Article 13(1) of Regulation (EC) No 72512004 according to which only inspection reports and the answers of the Members States thereto shall be secret. Valge 4 I 11413 Tallinn Estonia l+372 620 5500 I [email protected] / www.vta.ee Registry Code70002414 Purpose of maritime securitv inspection Article 2.1 of the Inspection Regulation defines ooCommission inspection" as following: 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 72512004 and implementation of Directive 20051651EC. In accordance with the established requirements, the objective of the maritime security inspections organized by the Commission ought to be ascertaining the compliance of the activities of the maritime administrations of Member States with the applicable requirements. However, the findings of the inspections carried out have not been documented in such a manner as to reveal the non-compliance of the activities of the Member States. In many cases inspection by the Commission can be considered as a parallel audit. Consequently, any documented non-conformity ought to clearly and unambiguously refer to the particular instance of non-conformrty discovered at a maritime administration of a Member State. Methods of verifying compliance There have been cases where the Commission inspection team asks the Member States to perform a type of inspection in order to verify that the Member States or RSOs on behalf of the Member States can actually perform the inspections, although it is not scheduled to be carried out or the ship has not been targeted for a DAO inspection. This contradicts the international and national legislative acts, where the verification regime is set up and puts an additional burden to ships' crew, ports/port facilities and the Member States Administrations, as well as on RSOs. Even the "shadowing" of national inspectors during scheduled verifications involves a great deal of controversy and the Member States who have not delegated verification activities to RSOs arc at a disadvantage in this respect. This, in turn, raises questions with regard to ensuring the consistency of inspections as required by Article 9(1) of the Inspection Regulation. If however, the Commission sees merit in conducting these irregular verifications for the sole purpose of Commission inspections, the relevant rules of procedure must be detailed in the Inspection Regulation. Informing Member States of non-conformities and communicating the leqal basis European Commission has reflected in its maritime security inspection reports views and positions that Estonia has not fully agreed with. In these cases, Estonia has asked the Commission's legal services written opinion regarding the implementation of the Directive 20051651F;C and Regulation (EC) No 72512004. Official legal interpretation of the Directive is essential to achieve correct and uniform implementation of the Directive by all Member States. Without the legal interpretation Member States are unable to respond correctly to the Commission's report and to propose an action plan to address deficiencies, if the occulrence of deficiencies is not yet confirmed by both parties. As our objectives are identical - ensuring maritime security - it is important to achieve common understanding and make sure that the standpoints of each party are clear and unambiguous to all. Therefore we hope that the Commission provides a comprehensive reasoning (with reference to particular requirement that has been determined to be not fulfilled) to every non-conformity stated in the inspection report, and if needed, further explains its viewpoints. Subjective opinion andlor interpretation of Commission inspectors should not be read as the established requirements. The Commission's approach to closing non-conformities is unclear. After Commission inspection, Estonia has had long correspondence with the Commission regarding the interpretation of certain regulations. This correspondence led to the closing of non- conformities and therefore Estonian Maritime Admiration was in the opinion that Commission accepted our view and argumentation. Unfortunately, in the next Commissions inspection, same issues from a slightly different angle were raised and reflected in the report as non-conformities. Procedure described above is confusing and does not provide Member States certainty and clear guidance on the implementation of regulations. In our view, all non-conformities identified during the inspections, should be dealt with in substance until final conclusion it reached. Yours Sincerely, Rene Arikas Director General Merily Must +372 6205 731 [email protected] Helin Tamm +372 6205 721 [email protected]