2009/491/EC: Commission Decision of 16 June 2009 on criteria to be followed in order to decide when the performance of an organisation acting on behalf of a flag State can be considered an unacceptable threat to safety and the environment (notified under document number C(2009) 4398) (Text with EEA relevance )

For the purpose of this Decision: 1. ‘recognised organisation’ means an organisation recognised in accordance with Article 4 of Directive 94/57/EC; 2. ‘Paris Memorandum of Understanding’ (hereinafter Paris MOU) means the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, as it stands at the date of adoption of this Decision; 3. ‘Tokyo Memorandum of Understanding’ (hereinafter Tokyo MOU) means the Memorandum of Understanding on Port State Control in the Asia Pacific Region, signed in Tokyo on 1 December 1993, as it stands at the date of adoption of this Decision; 4. a ‘recognised organisation-related detention’ means that the ship’s recognised organisation that carried out the relevant survey or that issued a certificate had a responsibility in relation to the deficiencies which, alone or in combination, led to detention, as defined in the applicable instructions of the relevant port State control scheme; 5. a ‘marine casualty’ means a marine casualty as defined in IMO resolution A. 849(20).

The criteria to be followed in order to decide when the performance of an organisation acting on behalf of a flag State can be considered an unacceptable threat to safety and the environment are set out in Annex I.

1 The Commission, in determining whether an organisation acting on behalf of a flag State must be considered an unacceptable threat to safety and the environment may, in addition to the criteria set out in Annex I, take into account the cases that come to its knowledge where: (a) it has been proven in a court of law or in an arbitration procedure that a marine casualty involving a ship in the class of a recognised organisation has been caused by a wilful act or omission or gross negligence of such recognised organisation, its bodies, employees, agents or others who act on its behalf; and (b) it can be considered, based on the information available to the Commission, that such wilful act, omission or gross negligence has been due to shortcomings in the organisation’s structure, procedures and/or internal control.

2 The Commission shall take into account the gravity of the case, and shall seek to determine whether recurrence or any other circumstances reveal the organisation’s failure to remedy the shortcomings referred to in paragraph 1 and improve its performance.

1 Three years after the entry into force of this Decision, the Commission shall evaluate the criteria set out in Annex I.

2 Where appropriate it shall, in accordance with the procedure referred to in Article 7(2) of Directive 94/57/EC, amend Annex I in order to: (a) adjust the said criteria to ensure their usefulness and fairness; (b) define thresholds triggering the application of the measures provided for in Articles 9(1) and 10(2) of the said Directive.

In submitting reports to the Commission and to the other Member States in accordance with Article 12 of Directive 94/57/EC, the Member States shall make use of the harmonised form set out in Annex II.

This Decision is addressed to the Member States.