Regulation (EC) No 391/2009 of the European Parliament and of the CouncilShow full title

Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (Recast) (Text with EEA relevance)

Article 1U.K.

This Regulation establishes measures to be followed by organisations entrusted with the inspection, survey and certification of ships for compliance with the international conventions on safety at sea and prevention of marine pollution, while furthering the objective of freedom to provide services. This includes the development and implementation of safety requirements for hull, machinery and electrical and control installations of ships falling under the scope of the international conventions.

Article 2U.K.

For the purpose of this Regulation the following definitions shall apply:

(a)

‘ship’ means a ship falling within the scope of the international conventions [F1and “United Kingdom ship” means a ship registered under Part II of the Merchant Shipping Act 1995];

(b)

[F2‘international conventions’ means the International Convention for the Safety of Life at Sea of 1 November 1974 (SOLAS 74) with the exception of chapter XI-2 of the Annex thereto, the International Convention on Load Lines of 5 April 1966 and the International Convention for the Prevention of Pollution from Ships of 2 November 1973 (MARPOL), together with the protocols and amendments thereto, and the related codes of mandatory status F3... with the exception of paragraphs 16.1, 18.1 and 19 of part 2 of the IMO Instruments Implementation Code, and of sections 1.1, 1.3, 3.9.3.1, 3.9.3.2 and 3.9.3.3 of part 2 of the IMO Code for Recognized Organizations, in their up-to-date version;]

(c)

‘organisation’ means a legal entity, its subsidiaries and any other entities under its control, which jointly or separately carry out tasks falling under the scope of this Regulation;

(d)

‘control’ means, for the purpose of point (c), rights, contracts or any other means, in law or in fact, which, either separately or in combination confer the possibility of exercising decisive influence on a legal entity or enable that entity to carry out tasks falling under the scope of this Regulation;

(e)

‘recognised organisation’ means an organisation recognised in accordance with this Regulation;

(f)

‘authorisation’ means an act whereby [F4the Secretary of State] grants an authorisation or delegates powers to a recognised organisation;

(g)

‘statutory certificate’ means a certificate issued by or on behalf of [F5the Secretary of State] in accordance with the international conventions;

(h)

‘rules and procedures’ means a recognised organisation’s requirements for the design, construction, equipment, maintenance and survey of ships;

(i)

‘class certificate’ means a document issued by a recognised organisation certifying the fitness of a ship for a particular use or service in accordance with the rules and procedures laid down and made public by that recognised organisation;

(j)

‘location’ means the place of the registered office, central administration or principal place of business of an organisation.

Textual Amendments

Article 3U.K.

1.[F6Organisations which wish to be recognised under this Regulation] shall submit a request for recognition to the [F7Secretary of State] together with complete information on, and evidence of, the organisation’s compliance with the minimum criteria set out in Annex I and on the requirement and its undertaking that it shall comply with the provisions of Articles 8(4), 9, 10 and 11.

2.The [F8Secretary of State] shall carry out assessments of the organisations for which the request for recognition was received in order to verify that the organisations meet and undertake to comply with the requirements referred to in paragraph 1.

3.The [F9Secretary of State] shall F10... refuse to recognise organisations which fail to meet the requirements referred to in paragraph 1 or whose performance is considered an unacceptable threat to safety or the environment on the basis of the criteria laid down in accordance with Article 14.

Textual Amendments

Article 4U.K.

1.Recognition shall be granted by the [F11Secretary of State]F12....

2.Recognition shall only be granted to organisations which meet the requirements referred to in Article 3.

3.Recognition shall be granted to the relevant legal entity, which is the parent entity of all legal entities that constitute the recognised organisation. The recognition shall encompass all legal entities that contribute to ensuring that that organisation provides cover for their services worldwide.

4.The [F11Secretary of State]F13... may limit the recognition as regards certain types of ships, ships of a certain size, certain trades, or a combination thereof, in accordance with the proven capacity and expertise of the organisation concerned. In such a case, the [F11Secretary of State] shall state the reasons for the limitation and the conditions under which the limitation shall be removed or can be widened. The limitation may be reviewed at any time.

5.The [F11Secretary of State] shall draw up and regularly update a list of the organisations recognised in accordance with this Article. That list shall be published [F14in Merchant Shipping Notice 1672 (M+F)].

Textual Amendments

Article 5U.K.

Where the [F15Secretary of State] considers that a recognised organisation has failed to fulfil the minimum criteria set out in Annex I or its obligations under this Regulation, or that the safety and pollution prevention performance of a recognised organisation has worsened significantly, without, however, it constituting an unacceptable threat to safety or the environment, it shall require the recognised organisation concerned to undertake the necessary preventive and remedial action within specified deadlines to ensure full compliance with those minimum criteria and obligations and, in particular, remove any potential threat to safety or the environment, or to otherwise address the causes of the worsening performance.

The preventive and remedial action may include interim protective measures when the potential threat to safety or the environment is immediate.

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Textual Amendments

Article 6U.K.

[X11.In addition to the measures taken under Article 5, the [F17Secretary of State] may F18... impose fines on a recognised organisation:

  • (a)whose serious or repeated failure to fulfil the minimum criteria set out in Annex I or its obligations under Articles 8(4), 9, 10 and 11,

    (a)or

  • whose worsening performance

reveals serious shortcomings in its structure, systems, procedures or internal controls; or

(b)which has deliberately provided incorrect, incomplete or misleading information to the [F17Secretary of State] in the course of its assessment pursuant to Article 8(1) or otherwise obstructed that assessment.]

2.Without prejudice to paragraph 1, where a recognised organisation fails to undertake the preventive and remedial action required by the [F17Secretary of State], or incurs unjustified delays, the [F17Secretary of State] may impose periodic penalty payments on that organisation until the required action is fully carried out.

3.The fines and periodic penalty payments referred to in paragraphs 1 and 2 shall be dissuasive and proportionate to both the gravity of the case and the economic capacity of the recognised organisation concerned, taking into account, in particular, the extent to which safety or the protection of the environment has been compromised.

They shall be imposed only after the recognised organisation [F19has] been given the opportunity to submit their observations.

The aggregate amount of the fines and periodic penalty payments imposed shall not exceed 5 % of the total average turnover of the recognised organisation in the preceding three business years for the activities falling under the scope of this Regulation.

[F204.(a)A recognised organisation may appeal to the court against a decision by the Secretary of State to require a recognised organisation to pay a fine or periodic penalty payment;

(b)An appeal must be brought within the period of 28 days beginning with the date on which the recognised organisation is notified of the Secretary of State's decision under Article 6(1) or (2);

(c)On appeal, the court may–

(i)allow the appeal and cancel the fine or periodic penalty payment;

(ii)allow the appeal and reduce the fine or periodic penalty payment;

(iii)dismiss the appeal and increase the fine or periodic penalty payment;

(iv)dismiss the appeal;

(d)An appeal–

(i)is to be a re-hearing of the Secretary of State's decision to impose a fine or a periodic penalty payment; and

(ii)may be determined having regard to matters of which the Secretary of State was unaware;

(e)Sub-paragraph (d) has effect despite any provision of rules of court;

(f)In this paragraph, a reference to “the court” is a reference–

(i)in England and Wales, to the county court;

(ii)in Scotland, to the Sheriff; and

(iii)in Northern Ireland, to a county court;

(g)But–

(i)the county court in England and Wales, or a county court in Northern Ireland, may transfer proceedings under this paragraph to the High Court; and

(ii)the sheriff may transfer proceedings under this paragraph to the Court of Session.]

Editorial Information

Textual Amendments

Article 7U.K.

1.The [F21Secretary of State] shall withdraw the recognition of an organisation:

(a)whose repeated and serious failure to fulfil the minimum criteria set out in Annex I or its obligations under this Regulation is such that it constitutes an unacceptable threat to safety or the environment;

(b)whose repeated and serious failure in its safety and pollution prevention performance is such that it constitutes an unacceptable threat to safety or the environment;

(c)which prevents or repeatedly obstructs the assessment by the [F21Secretary of State];

(d)which fails to pay the fines and/or periodic penalty payments referred to in Article 6(1) and (2); or

(e)which seeks to obtain financial cover or reimbursement of any fines imposed on it pursuant to Article 6.

2.For the purpose of points (a) and (b) of paragraph 1, the [F21Secretary of State] shall decide on the basis of all the available information, including:

(a)the results of its own assessment of the recognised organisation concerned pursuant to Article 8(1);

F22(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)analyses of casualties involving ships classed by the recognised organisations;

(d)any recurrence of the shortcomings referred to in point (a) of Article 6(1);

(e)the extent to which the fleet in the recognised organisation’s class is affected; and

(f)the ineffectiveness of the measures referred to in Article 6(2).

3.[F23The Secretary of State may decide to withdraw recognition from a recognised organisation only] after the recognised organisation concerned has been given the opportunity to submit its observations.

Textual Amendments

Article 8U.K.

[F241. All the recognised organisations must be assessed by the Secretary of State on a regular basis and at least every two years to verify that they meet the obligations under this Regulation and fulfil the minimum criteria set out in Annex I.] The assessment shall be confined to those activities of the recognised organisations, which fall within the scope of this Regulation.

2.In selecting the recognised organisations for assessment, the [F25Secretary of State] shall pay particular attention to the safety and pollution prevention performance of the recognised organisation [F26and] to the casualty records F27....

3.The assessment may include a visit to regional branches of the recognised organisation as well as random inspection of ships, both in service and under construction, for the purpose of auditing the recognised organisation’s performance. F28...

4.Each recognised organisation shall make available the results of its quality system management review to the [F29Secretary of State], on an annual basis.

Textual Amendments

Article 9U.K.

1.Recognised organisations shall ensure that the [F30Secretary of State] has access to the information necessary for the purposes of the assessment referred to in Article 8(1). No contractual clauses may be invoked to restrict this access.

2.Recognised organisations shall ensure in their contracts with shipowners or operators for the issue of statutory certificates or class certificates to a [F31United Kingdom] ship that such issue shall be made conditional on the parties not opposing the access of the [F32Secretary of State's] inspectors on board that ship for the purposes of Article 8(1).

Textual Amendments

Article 10U.K.

1.Recognised organisations shall consult with each other periodically with a view to maintaining equivalence and aiming for harmonisation of their rules and procedures and the implementation thereof. They shall cooperate with each other with a view to achieving consistent interpretation of the international conventions, without prejudice to the powers of the flag States. Recognised organisations shall, in appropriate cases, agree on the technical and procedural conditions under which they will mutually recognise the class certificates for materials, equipment and components based on equivalent standards, taking the most demanding and rigorous standards as the reference.

Where mutual recognition cannot be agreed upon for serious safety reasons, recognised organisations shall clearly state the reasons therefor.

Where a recognised organisation ascertains by inspection or otherwise that material, a piece of equipment or a component is not in compliance with its certificate, that organisation may refuse to authorise the placing on board of that material, piece of equipment or component. The recognised organisation shall immediately inform the other recognised organisations, stating the reasons for its refusal.

Recognised organisations shall recognise, for classification purposes, certificates of marine equipment [F33which comply with the Merchant Shipping (Marine Equipment) Regulations 2016].

They shall provide the [F34Secretary of State] with periodic reports on fundamental progress in standards and mutual recognition of certificates for materials, equipment and components.

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3.The recognised organisations shall cooperate with port State control administrations where a ship of their class is concerned, in particular in order to facilitate the rectification of reported deficiencies or other discrepancies.

4.The recognised organisations shall provide to [F36the Secretary of State] all relevant information about [F37United Kingdom ships classed by them including] transfers, changes, suspensions and withdrawals of class F38....

Information on transfers, changes, suspensions, and withdrawals of class, including information on all overdue surveys, overdue recommendations, conditions of class, operating conditions or operating restrictions issued against [F39United Kingdom ships classed by them], shall also be communicated electronically to the [F40Secretary of State] at the same time as it is recorded within the recognised organisation’s own systems and in any case no later than 72 hours after the event that gave rise to the obligation to communicate the information. That information, with the exception of recommendations and conditions of class which are not overdue, shall be published on the website of these recognised organisations.

5.The recognised organisations shall not issue statutory certificates to a [F41United Kingdom] ship, F42... which has been declassed or is changing class for safety reasons, before giving the opportunity to the [F43Secretary of State] to give [F44an] opinion within a reasonable time as to whether a full inspection is necessary.

6.In cases of transfer of class from one recognised organisation to another, the losing organisation shall, without undue delay, provide the gaining organisation with the complete history file of the ship and, in particular, inform it of:

(a)any overdue surveys;

(b)any overdue recommendations and conditions of class;

(c)operating conditions issued against the ship; and

(d)operating restrictions issued against the ship.

New certificates for the ship can be issued by the gaining organisation only after all overdue surveys have been satisfactorily completed and all overdue recommendations or conditions of class previously issued in respect of the ship have been completed as specified by the losing organisation.

Prior to the issue of the certificates, the gaining organisation must advise the losing organisation of the date of issue of the certificates and confirm the date, place and action taken to satisfy each overdue survey, overdue recommendation and overdue condition of class.

Recognised organisations shall establish and implement appropriate common requirements concerning cases of transfer of class where special precautions are necessary. Those cases shall, as a minimum, include the transfer of class of ships of 15 years of age or over and the transfer from a non-recognised organisation to a recognised organisation.

Recognised organisations shall cooperate with each other in properly implementing the provisions of this paragraph.

Textual Amendments

Article 11U.K.

1.Recognised organisations shall [F45continue to] maintain an independent quality assessment and certification entity in accordance with the applicable international quality standards where the relevant professional associations working in the shipping industry may participate in an advisory capacity.

2.The quality assessment and certification entity shall carry out the following tasks:

(a)frequent and regular assessment of the quality management systems of recognised organisations, in accordance with the ISO 9001 quality standard criteria;

(b)certification of the quality management systems of recognised organisations, including organisations for which recognition has been requested in accordance with Article 3;

(c)issue of interpretations of internationally recognised quality management standards, in particular to take account of the specific features of the nature and obligations of recognised organisations; and

(d)adoption of individual and collective recommendations for the improvement of recognised organisations’ processes and internal control mechanisms.

3.The quality assessment and certification entity shall have the necessary governance and competences to act independently of the recognised organisations and shall have the necessary means to carry out its duties effectively and to the highest professional standards, safeguarding the independence of the persons performing them. The quality assessment and certification entity will lay down its working methods and rules of procedure.

4.The quality assessment and certification entity may request assistance from other external quality assessment bodies.

5.The quality assessment and certification entity shall provide the [F46Secretary of State], with full information on its annual work plan as well as on its findings and recommendations, particularly with regard to situations where safety might have been compromised.

6.The quality assessment and certification entity shall be periodically assessed by the [F47Secretary of State].

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Textual Amendments

F49Article 12U.K.

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Textual Amendments

Article 13U.K.

[F501.The Secretary of State may by regulations modify the minimum criteria set out in Annex I.]

[F511A.The power in paragraph 1 may only be exercised where the Secretary of State considers it necessary in order to—

(a)take account of developments at international level and in particular in the International Maritime Organization; or

(b)improve the effectiveness of this Regulation.]

F522.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F53Article 13AU.K.Regulations: procedure

1.The power to make regulations conferred on the Secretary of State under Article 13 is exercisable by statutory instrument.

2.No regulations may be made under Article 13 unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House of Parliament.]

Textual Amendments

Article 14U.K.

[F541.[F55The Secretary of State may by regulations make provision for:]

(a)criteria to measure the effectiveness of the rules and procedures as well as the performance of the recognised organisations as regards the safety of, and the prevention of pollution from, their classed [F56United Kingdom] ships, having particular regard to the data produced by the Paris Memorandum of Understanding on Port State Control or by other similar schemes;

(b)criteria to determine when such performance is to be considered an unacceptable threat to safety or the environment, which may take into account specific circumstances affecting smaller-sized or highly specialised organisations.

[F572.The Secretary of State may by regulations make provision for—

(a)criteria to establish the amount of a fine or periodic penalty payment that may be imposed pursuant to Article 6;

(b)a decision-making procedure to impose a fine or periodic penalty payment;

(c)criteria against which the recognition of a recognised organisation may be withdrawn pursuant to Article 7.]]

[F583.The Secretary of State may by regulations provide for the interpretation of the minimum criteria in Annex I and in particular may establish objectives for the general minimum criteria referred to in point 3, Part A of Annex I.]

[F594.The power to make regulations in paragraphs 1 and 3 may only be exercised where the Secretary of State considers it necessary in order to—

(a)take account of developments at international level and in particular in the International Maritime Organization; or

(b)improve the effectiveness of this Regulation.]

Textual Amendments

[F60Article 14AU.K.Regulations: procedure

1.Any power to make regulations conferred on the Secretary of State under Article 14 is exercisable by statutory instrument.

2.A statutory instrument containing regulations made under Article 14(1) and (3) is subject to annulment in pursuance of a resolution of either House of Parliament.

3.No regulations may be made under Article 14(2) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House of Parliament.]

Textual Amendments

[F61Article 14aU.K.

1.The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.The power to adopt delegated acts referred to in Article 13(1) and Article 14(1) and (2) shall be conferred on the Commission for a period of five years from 26 July 2019. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.The delegation of power referred to in Article 13(1) and Article 14(1) and (2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making(1).

5.As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6.A delegated act adopted pursuant to Article 13(1) and Article 14(1) and (2) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.]

Textual Amendments

F62Article 15U.K.

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Textual Amendments

Article 16U.K.

In the course of the assessment pursuant to Article 8(1), the [F63Secretary of State] shall verify that the holder of the recognition is the relevant legal entity within the organisation to which the provisions of this Regulation shall apply. If that is not the case, the [F63Secretary of State] shall take a decision amending that recognition.

Where the [F63Secretary of State] amends the recognition, the [F64Secretary of State shall adapt the] agreements with the recognised organisation to take account of the amendment.

Textual Amendments

F65Article 17U.K.

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Textual Amendments

F65Article 18U.K.

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Textual Amendments

F65Article 19U.K.

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Textual Amendments

F66...

Textual Amendments