i-law

EU Shipping Law

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CHAPTER 20

European Union law relating to the maritime environment: organotin

A. Introduction

20.001 The European Union (“EU”) has stated that it is seriously concerned by the harmful environmental effects of organotin compounds used as anti-fouling systems on ships, and in particular of tributyltin (“TBT”) coatings.1 20.002 Internationally, the International Convention on the Control of Harmful Anti-Fouling Systems on Ships (the “AFS-Convention”) was adopted on 5 October 2001 at a Diplomatic Conference (“AFS-Conference”) held under the aegis of the International Maritime Organization (“IMO”). The EU Member States attended the AFS-Conference. 20.003 The Commission has seen the AFS-Convention as a framework convention allowing the prohibition of harmful anti-fouling systems used on ships in accordance with well-defined procedures and having due regard to the precautionary principle expressed in the Rio Declaration on Environment and Development.2 20.004 The Commission believes that as the AFS-Convention in 2003 only prohibited the application of organotin compounds on ships, the Commission proposed further EU legislation (hence Regulation 782/2003 considered below).3 It also noted that so-called “fixed application dates” have been included in the AFS-Convention (i.e. 1 January 2003 for the prohibition of the application of organotin compounds on ships and 1 January 2008 for the elimination of the presence of organotin compounds on ships) and the AFS-Convention will only enter into force 12 months after its ratification by at least 25 States representing at least 25% of the world’s tonnage.4

B. Regulation 782/2003 on the prohibition of organotin compounds on ships

Introduction

20.005 On 14 April 2003, the Parliament and the Council adopted Regulation (EC) No 782/2003 on the prohibition of organotin compounds on ships.5

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Legal basis

20.006 The legal basis for Regulation 782/2003 was the Treaty establishing the European Community (“TEC”) generally and, in particular, Article 80(2). Under Article 11, the regulation entered into force on the day following that of its publication in the Official Journal and it was published on 9 May 2003.

Legislative history

20.007 The legislative history was a proposal from the Commission,6 an opinion of the European Economic and Social Committee and a consultation with the Committee of the Regions. 20.008 The regulation provides in the seventh recital that Member States should ratify the AFS-Convention at the earliest opportunity. Moreover, the eighth recital states that Member States should be put in the best possible position for a speedy ratification of the AFS-Convention and any obstacle which might impede such ratification should be removed. 20.009 The background to the regulation is clear from the following recitals:
  • “(9) The AFS-Conference, aware that the time remaining until 1 January 2003 might not be sufficient to enable the entry into force of the AFS-Convention by that date, and desiring that organotin compounds should effectively cease to be applied in shipping as from 1 January 2003, requested in AFS-Conference Resolution No 1 that IMO Member States do their utmost to prepare for implementing the AFS-Convention as a matter of urgency, and urged the relevant industries to refrain from the marketing, sale and application of organotin compounds by that date.
  • (10) As an immediate follow-up to the AFS-Conference the Commission adopted Commission Directive 2002/62/EC of 9 July 2002 adapting to technical progress for the ninth time Annex I to Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (organostannic compounds)7 in order to prohibit, with effect from 1 January 2003, the marketing and use of organostannic compounds in anti-fouling systems for all ships, irrespective of their length.
  • (11) In the light of AFS-Conference Resolution No 1, additional steps are necessary for the implementation of measures concerning organotin compounds in order to ensure a general ban on TBT coating used on ships throughout the Community and its surrounding seas on the dates provided for by the AFS-Convention.
  • (12) A Regulation is the appropriate legal instrument as it imposes on shipowners and Member States, directly and within a short time frame, precise requirements to be implemented at the same time and in the same manner throughout the Community. This Regulation, which should seek solely to prohibit organotin compounds, should not duplicate the AFS-Convention.
  • (13) This Regulation should not affect the restrictions on the marketing and use of certain dangerous substances and preparations (organostannic compounds) laid down in Directive 76/769/EEC.8
  • (14) Uncertainty regarding the total prohibition of active TBT coatings should not be accepted at Community level; the world-wide shipping industry, which has to programme the

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    maintenance of its ships, should be made aware clearly and in due time that, as from 1 January 2008, ships bearing an active TBT coating on their hulls will no longer be allowed in Community ports.
  • (15) Third countries, particularly if they cannot benefit from the added value of a supranational regulation, might experience legal technical difficulties in imposing, through their national legislation, the prohibition on applying TBT coatings to their ships from the day on which the prohibition enters into force under this Regulation. The application of the prohibition in this Regulation on applying TBT coatings should therefore be suspended as regards ships sailing under the flag of a third State for an interim period beginning on 1 July 2003 and ending on the date of entry into force of the AFS-Convention.
  • (16) Flag States which have banned the use of TBT coatings on their ships have an economic interest in ensuring that the AFS-Convention enters into force as soon as possible, in order to ensure a world-wide level playing field. This Regulation, which prohibits, as soon as possible, all ships flying the flag of a Member State from applying TBT coatings should constitute an incentive for flag States to ratify the AFS-Convention.
  • (17) The definitions used and requirements imposed in this Regulation should as far as possible be based upon those used in the AFS-convention.
  • (18) In order to ensure its application to offshore platforms, this Regulation should also apply to ships operating under the authority of a Member State. It should not apply to any warships or other government ships since the treatment of those ships is adequately covered under the AFS-Convention.
  • (19) Imposing, as from 1 July 2003, the prohibition of active TBT coatings on all ships which are entitled to fly the flag of a Member State and whose anti-fouling system has been applied, changed or replaced after that date, should be an incentive for the shipping industry to implement the recommendation of AFS-Conference Resolution No 1.
  • (20) It is appropriate to establish the same survey and certification regime as that provided for by the AFS-Convention. Under this Regulation all ships of 400 gross tonnage and above, irrespective of the nature of their voyage, should be surveyed, whilst ships of 24 metres or more in length but less than 400 gross tonnage should only have to carry a declaration of compliance with this Regulation or with the AFS-Convention. The Community should have the right to introduce a harmonised survey regime for these ships, if this proves necessary at a later stage.
  • (21) For ships less than 24 metres in length, it is not necessary to provide for a specific survey or declaration since these ships, mainly recreational craft and fishing vessels, will be adequately covered under the provisions of Directive 76/769/EEC.
  • (22) Certificates and documents issued in conformity with this Regulation, as well as AFS-Certificates and AFS-Declarations issued by Parties to the AFS-Convention, should be recognised.
  • (23) If the AFS-Convention has not entered into force by 1 January 2007, the Commission should be permitted to adopt appropriate measures allowing ships flying the flag of a third State to demonstrate their compliance with this Regulation, as well as measures to control the implementation of these provisions.
  • (24) The most appropriate regime for controlling the implementation of the prohibition of TBT coatings on ships and the requirements of the AFS-Convention is that laid down in Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control)9 and amendments should be made to that Directive at the appropriate time. Having regard to the specific scope of that Directive, equivalent provisions should be applied to ships flying the flag of a Member State during the interim period.

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    (25) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down procedures for the exercise of implementing powers conferred on the Commission.10
  • (26) In order to assess the achievement of the objective of this Regulation, the Commission should report to the European Parliament and the Council and propose, if necessary, any appropriate adjustments to the Regulation.
  • (27) The entry into force of this Regulation should be such as to allow the effective prohibition of organotin compounds on ships as soon as possible.”

Objective of Regulation 782/2003

20.010 The purpose of Regulation 782/2003, according to Article 1, is to reduce or eliminate adverse effects on the marine environment and human health caused by organotin compounds, which act as active biocides in anti-fouling systems used on ships flying the flag of, or operating under the authority of, a Member State, and on ships, regardless of the flag they fly, sailing to or from ports of the Member States.

Concepts in Regulation 782/2003

20.011 Article 2 sets out a number of definitions for the purpose of the regulation. First, the term “anti-fouling system” means a coating, paint, surface treatment, surface or device that is used on a ship to control or prevent attachment of unwanted organisms. The phrase “gross tonnage” means the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex 1 to the International Convention on Tonnage Measurement of Ships, 1969, or any successor convention. The term “length” means the length as defined in the International Convention on Load Lines, 1966, as modified by the Protocol of 1988 relating thereto, or any successor convention. The word “ship” means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft, fixed or floating platforms, floating storage units (“FSUs”) and floating production storage and off-loading units (“FPSOs”). The phrase “AFS-Convention” means the International Convention on the control of harmful anti-fouling systems on ships, adopted on 5 October 2001, irrespective of its entry into force. The phrase “recognised organisation” means a body recognised in accordance with the provisions of Council Directive 94/57 of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations.11 The term “AFS-Certificate” means the certificate issued to ships in conformity with the provisions of Annex 4 to the AFS-Convention or, during the interim period, a certificate issued in accordance with the format laid down in Annex II to this regulation, when it is issued by the administration of any Member State or by a recognised organisation acting on its behalf. The term “AFS-Declaration” means a declaration drawn up under the provisions of Annex 4 to the AFS-Convention or, during the interim period, a declaration signed by the owner or the owner’s authorised agent and drawn up in accordance with the format

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laid down in Annex III to this regulation. The words “AFS-Statement of Compliance” means a document recording compliance with Annex 1 to the AFS-Convention, issued by a recognised organisation on behalf of the administration of a Member State. The concept of “interim period” means the period beginning on 1 July 2003 and ending on the date of entry into force of the AFS-Convention.

Scope of Regulation 782/2003

20.012 Article 3 provides the regulation shall apply to: (a) ships flying the flag of a Member State; (b) ships not flying the flag of a Member State but operating under the authority of a Member State, and (c) ships that enter a port or offshore terminal of a Member State but do not fall within points (a) or (b). Article 3(2) provides that the regulation shall not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service.

Prohibition of the application of organotin compounds which act as biocides

20.013 Article 4 provides that as from 1 July 2003, organotin compounds which act as biocides in anti-fouling systems shall not be applied or re-applied on ships. However, during the interim period this provision shall only apply to ships referred to in points (a) or (b) of Article 3(1).

Prohibition of the bearing of organotin compounds which act as biocides

20.014 Article 5 provides:
  • “1. Ships entitled to fly the flag of a Member State as from 1 July 2003, and whose anti-fouling system has been applied, changed or replaced after that date, shall not bear organotin compounds which act as biocides in anti-fouling systems on their hulls or external parts and surfaces, unless they bear a coating that forms a barrier to such compounds to prevent them leaching from the underlying non-compliant anti-fouling system.
  • 2. As from 1 January 2008 the ships referred to in Article 3(1) shall either not bear organotin compounds which act as biocides in anti-fouling systems on their hulls or external parts and surfaces, or bear a coating that forms a barrier to such compounds leaching from the underlying non-compliant anti-fouling system.
  • 3. Paragraphs 1 and 2 shall not apply to fixed and floating platforms, FSUs and FPSOs constructed prior to 1 July 2003 that have not been in dry-dock on or after that date.”

Survey and certification

20.015 Article 6 deals with survey and certification. Article 6(1) provides that the following rules shall apply as regards the survey and certification of ships flying the flag of a Member State: (a) ships of 400 gt and above, excluding fixed or floating platforms, FSUs and FPSOs, shall be surveyed and certified as from 1 July 2003 in accordance with the requirements laid down in Annex 1, before the ship is put into service for the first time, or when the anti-fouling systems are changed or replaced; (b) ships of 24 metres or more in length, but less than 400 gt, excluding fixed or floating platforms, FSUs and FPSOs, shall carry an AFS-Declaration to demonstrate compliance with Articles 4 and 5 and if

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necessary, the Commission, in accordance with the procedure referred to in Article 9(2), may establish a harmonised survey and certification regime for these ships; and (c) Member States may establish appropriate measures for ships not covered by points (a) and (b) in order to ensure compliance with this regulation. Article 6(2) provides that the following rules shall apply as regards the recognition of certificates, declarations and statements of compliance: (a) as from 1 July 2003, Member States shall recognise any AFS-Certificate; (b) until a year after the date referred to in point (a), Member States shall recognise any AFS-Statement of Compliance; and (c) as from 1 July 2003, Member States shall recognise any AFS-Declaration. These declarations shall be accompanied by appropriate documentation (such as a paint receipt or a contractor invoice) or contain an appropriate endorsement. Article 6(3) provides that if the AFS-Convention has not entered into force by 1 January 2007, the Commission, in accordance with the procedure referred to in Article 9(2), shall adopt appropriate measures in order to allow ships flying the flag of a third State to demonstrate their compliance with Article 5.

Port State control

20.016 Article 7 provides that during the interim period Member States shall apply control provisions equivalent to those laid down in Directive 95/21 to ships of 400 gt and above flying the flag of a Member State. With regard to the inspections and detection of breaches, Member States shall be guided by the provisions of Article 11 of the AFS-Convention. If the AFS-Convention has not entered into force by 1 January 2007, the Commission, in accordance with the procedure referred to in Article 9(2), shall establish appropriate procedures for these controls.

Adaptations

20.017 Article 8 states that in order to take account of developments at international level and in particular in the IMO, or to improve the effectiveness of this regulation in the light of experience, the references to the AFS-Convention, to the AFS-Certificate, to the AFS-Declaration and to the AFS-Statement of Compliance and/or the annexes to this regulation, including relevant IMO guidelines in relation to Article 11 of the AFS-Convention, may be amended in accordance with the procedure referred to in Article 9(2).

Committee

20.018 Article 9(1) provides that the Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (“COSS”) established by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 concerning the COSS and amending the regulations on maritime safety and the prevention of pollution from ships.12 Article 9(2) provides that where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468 shall apply, having regard to the provisions of Article 8 thereof. The period laid down in Article 5(6) of Decision

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1999/468 shall be set at three months. Article 9(3) provides that the COSS shall adopt its rules of procedure.

Annexes

20.019 Of the annexes, Annex 1 is the more important. It deals with surveys and certification requirements for anti-fouling systems on ships flying the flag of a Member State.

Evaluation

20.020 Pursuant to Article 10, by 10 May 2004, the Commission had to report to the Parliament and the Council on the state of ratification of the AFS-Convention and provide information on the extent to which organotin compounds, which act as biocides in anti-fouling systems on ships, are still used on ships not flying the flag of a Member State operating to or from EU ports. In the light of this report the Commission may propose, if necessary, amendments to ensure accelerated reduction of the contribution by ships not flying the flag of a Member State to the presence of harmful anti-fouling compounds in the waters under the jurisdiction of Member States.

C. Regulation 536/2008 giving effect to Article 6(3) and Article 7 of Regulation 782/2003 on the prohibition of organotin compounds on ships and amending that Regulation

Introduction

20.021 On 13 June 2008, the Commission adopted Regulation 536/2008 giving effect to Article 6(3) and Article 7 of Regulation 782/2003 of the European Parliament and of the Council on the prohibition of organotin compounds on ships and amending that regulation.13 20.022 The legal basis of the regulation is the TEC. The legal background was, in particular, Article 6(3), Article 7, second paragraph, and Article 8 of Regulation 782/2003. Under Article 6, the regulation entered into force on the twentieth day following that of its publication in the Official Journal and it was published on 14 June 2008. 20.023 It is useful to consider some of the recitals:
  • “(1) Regulation (EC) No 782/2003 requires the Commission to adopt a number of measures in order to give effect to that Regulation if the International Convention on the control of harmful anti-fouling systems on ships (hereinafter referred to as the AFS-Convention), adopted on 5 October 2001, has not entered into force by 1 January 2007.
  • (2) The AFS-Convention has not yet entered into force.
  • (3) It is therefore necessary to adopt measures in order to allow ships flying the flag of a third State to demonstrate their compliance with Article 5 of Regulation (EC) No 782/2003, and to provide for port State control.
  • (4) Article 8 of Regulation (EC) No 782/2003 provides that the Regulation may be amended in order to take account of developments at international level and in particular in the International Maritime Organisation (hereinafter referred to as the IMO), or to improve the effectiveness of the Regulation in the light of experience.

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    (5) The IMO Marine Environment Protection Committee (hereinafter referred to as the MEPC), in accordance with Article 1(4)(a) of Annex 4 to the AFS-Convention, adopted Guidelines for Survey and Certification of Anti-Fouling Systems on Ships by means of Resolution MEPC.102(48) on 11 October 2002.
  • (6) The MEPC, in accordance with Article 11(2) of the AFS-Convention, adopted Guidelines for Inspection of Anti-Fouling Systems on Ships by means of Resolution MEPC.105(49) on 18 July 2003.
  • (7) The MEPC, in accordance with Article 11(1) of the AFS-Convention, adopted on Guidelines for Brief Sampling of Anti-Fouling Systems on Ships by means of Resolution MEPC.104(49) on 18 July 2003.
  • (8) Until the entry into force of the AFS-Convention, it is appropriate to apply its provisions to ships flying the flag of a State which is a Party to the said convention. Similarly, ships flying the flag of a State which is not a Party to the AFS-Convention should not receive a more favourable treatment within the Community.
  • (9) The measures provided for in this Regulation are in accordance with the opinion of the Committee on Safe Seas and the Prevention of Pollution from Ships, established by Regulation (EC) No 2099/2002 of the European Parliament and of the Council.”14

Purpose of the regulation

20.024 Article 1 provides that the purpose of the regulation is to: (a) establish measures in order to allow ships flying the flag of a third State that enter a port or offshore terminal of a Member State to demonstrate their compliance with Article 5 of Regulation 782/2003; (b) establish procedures for control by the port State within the Community; and (c) amend the references to the AFS-Statement of Compliance in Regulation 782/2003 and Annex 1 to that regulation. 20.025 Article 2(1) provides that ships referred to in Article 3(1)(c) of Regulation 782/2003 shall demonstrate their compliance with Article 5 of that regulation in accordance with paragraphs 2, 3 and 4 of Article 2 of Regulation 536/2008. Article 2(2) provides that during the interim period ships flying the flag of a State which is a Party to the AFS-Convention shall demonstrate their compliance with Article 5 of Regulation 782/2003 by means of a Statement of Compliance in accordance with paragraph 5.4.1 of the guidelines for surveys and certification of anti-fouling systems on ships annexed to Resolution MEPC.102(48) of the Marine Environment Protection Committee of the IMO (““MEPC”). Article 2(3) provides that as from the entry into force of the AFS-Convention ships flying the flag of a State which is a Party to the AFS-Convention shall demonstrate their compliance with Article 5 of Regulation 782/2003 by means of an International Anti-Fouling System Certificate in accordance with Annex 4 to the AFS-Convention. Article 2(4) states that ships flying the flag of a State which is not a Party to the AFS-Convention, shall demonstrate their compliance with Article 5 of Regulation 782/2003 by means of a Statement of Compliance delivered by the Administration of the flag State by applying the provisions of Article 10 of the AFS-Convention, in conjunction with Annex 4 thereto and the guidelines for surveys and certification of anti-fouling systems on ships annexed to the resolution. For the purpose of this paragraph the references made in the said article, annex and guidelines to the International Anti-Fouling System Certificate shall be construed as references to the Statement of Compliance.

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 20.026 Article 3(1) provides that during the interim period, Member States shall apply control provisions equivalent to those laid down in Council Directive 95/2115 to ships falling within the scope of Regulation 782/2003 in accordance with paragraphs 2 and 3 of Article 3. Article 3(2) provides that with regard to the inspections and detection of breaches, and without prejudice to Article 2 of this regulation, Member States shall apply the provisions of Article 11 of the AFS-Convention and be guided by the guidelines for inspection of anti-fouling systems on ships annexed to Resolution MEPC.105(49) of the MEPC. Article 3(3) provides that Article 3(1) shall apply to ships referred to in Article 3(1)(c) of Regulation (EC) No 782/2003 from 1 January 2008. 20.027 Article 4 provides that in fulfilling their obligations pursuant to Articles 6 and 7 of Regulation 782/2003, Member States shall be guided by the guidelines for brief sampling of anti-fouling systems on ships annexed to Resolution MEPC.104(49) of the MEPC. 20.028 Article 5 amended Regulation 782/2003 in various ways which have been incorporated into the text above.16

D. Conclusions

20.029 The measures adopted by the EU have been important steps to address the very harmful effects of organotin compounds.17