EU Shipping Law

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Security: ships and ports

A. Introduction

42.001 Security in the maritime sector is critical. There have been several security incidents involving ships and ports but there is a risk that there could be a catastrophic incident involving an enormous number of fatalities (e.g. an incident on a ferry or cruise liner or at a port) and/or severe damage (e.g. environmental damage due to an incident at a port facility). The issue relates equally to both ships and ports. 42.002 Ship security is an issue of considerable practical significance. An incident on board a ferry, cruise liner or even cargo vessel could have the most appalling consequences. Already, incidents involving some cruise liners and cargo vessels have been significant but the need for greater security continues unabated. 42.003 Port security is also a topic of enormous importance to any society because a lapse in security in ports can have very serious consequences (e.g. because of terrorist activities or the smuggling of armaments or narcotics). It is not surprising therefore that the European Union (“EU”) has been concerned about security in ports. 42.004 The EU has defined the term “maritime security” as meaning the combination of preventive measures intended to protect shipping and port facilities against threats of intentional unlawful acts.1 42.005 Security is now a global issue. Among others, the International Maritime Organization (the “IMO”) has become involved in the issue. For example, on 12 December 2002, the Diplomatic Conference of the IMO adopted amendments to the 1974 International Convention for the Safety of Life at Sea (“SOLAS” Convention) and an International Ship and Port Facility Security Code (the “ISPS” Code) to enhance the security of ships used in international trade and associated port facilities. The presence of several navies off the coast of Somalia demonstrates the international desire to combat security issues – and such efforts have been largely successful. 42.006 The European Parliament and the Council of Ministers believe that “[s]ecurity incidents resulting from terrorism are among the greatest threats to the ideals of democracy, freedom and peace, which are the very essence of the European Union”2 and therefore “[p]eople, infrastructure and equipment in ports should be protected against security incidents and their devastating effects. Such protection would benefit transport users, the economy and society as a whole”.3 The Parliament and Council believe that the “security of [EU] shipping and of citizens using it and of the environment in the face of threats of

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intentional unlawful acts such as acts of terrorism, acts of piracy or similar, should be ensured at all times”.4 The risk comes from persons and goods (especially hazardous goods).5 While the focus is on international traffic, there is equally a threat from domestic or cabotage traffic6 so all ports (and all traffic within ports) need to be secure. 42.007 If the EU shipping sector is to be secure then the EU’s ports must be secure.7 This need for increased security became clearer after the events of 11 September 2001 in the USA but also events since in various European States. It is not surprising therefore that the Commission presented various measures in May 20038 which were largely adopted as Regulation 725/20049 and there have been other measures adopted since. 42.008 While security remains very much within the sovereignty of Member States, the EU has been anxious to ensure a uniform minimum level of security and the EU believes there are some measures which require EU-wide action.10 It is logical that the EU should have a role to play in regard to port security given the EU’s role in regard to trade and the free movement of goods and persons.

B. Regulation 725/2004 on enhancing ship and port facility security


42.009 On 31 March 2004, the Parliament and the Council adopted Regulation 725/2004 on enhancing ship and port facility security.11 Regulation 725/2004 has been amended by: (a) Commission Decision 2009/83 of 23 January 2009 amending Regulation 725/2004 of the European Parliament and of the Council as far as the IMO Unique Company and Registered Owner Identification Number Scheme is concerned;12 and (b) Regulation 219/2009 of the European Parliament and of the Council of 11 March 2009 adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468 with regard to the regulatory procedure with

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scrutiny–Adaptation to the regulatory procedure with scrutiny – Part Two.13 Article 15 provides that the regulation entered into force on the twentieth day following its publication in the Official Journal of the European Union. It shall apply from 1 July 2004, apart from the provisions of Articles 3(2) and (3), and 9(4), which shall enter into force on and apply from the dates specified therein. The first annex contains amendments to the annex to the SOLAS Convention, 1974 (as amended). The second annex contains the International Code for the Security of Ships and of Port Facilities. 42.010 The legal basis for Regulation 725/2004 was the Treaty establishing the European Community (“TEC”) generally and, in particular, Article 80(2) (now, Article 100(2) of the Treaty on the Functioning of the European Union (“TFEU”)). The legislative history includes a proposal from the Commission, an opinion of the European Economic and Social Committee14 and a consultation with the Committee of the Regions. 42.011 The fifth recital to Regulation 725/2004 recalls that without prejudice to the rules of the Member States in the field of national security and measures which might be taken on the basis of Title VI of the Treaty on European Union, the security objective contemplated by Regulation 725/2004 should be achieved by adopting appropriate measures in the field of maritime transport policy establishing joint standards for the interpretation, implementation and monitoring within the EU of the provisions adopted by the Diplomatic Conference of the IMO on 12 December 2002 and implementing powers should be conferred on the Commission to adopt detailed implementing provisions. 42.012 The tenth recital took an interesting but potentially dangerous approach by saying that permanently applying all the security rules provided for in this regulation to port facilities situated in ports which only occasionally serve international shipping might be disproportionate. The Member States should determine, on the basis of the security assessments which they are to conduct, which ports are concerned and which alternative measures provide an adequate level of protection. 42.013 The eleventh recital provides:

“Member States should vigorously monitor compliance with the security rules by ships intending to enter a Community port, whatever their origin. The Member State concerned should appoint a ‘competent authority for maritime security’ responsible for coordinating, implementing and monitoring the application of the security measures laid down in this Regulation as they apply to ships and port facilities. This authority should require each ship intending to enter the port to provide in advance information concerning its international ship security certificate and the levels of safety at which it operates and has previously operated, and any other practical information concerning security.”

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