Current Access Rights, Responsibilities and Legal Barriers

Current Access Rights, Responsibilities and Legal Barriers

User Group definitions and functions in maritime surveillance

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  Maritime safety, security and prevention of pollution caused by ships, where maritime security means the combination of preventive measures intended to protect shipping and port facilities against threats of intentional unlawful acts. At the EU level, this function is already covered by e.g. the European Vessel Traffic Monitoring Directive (VTM) and as it is operational its users have been defined.
  
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  Fisheries control, where surveillance focuses on supporting the operational coordination of fisheries control and inspection activities by the MS, i.e. in the effort to prevent illegal fishing and ensure compliance with conservation and management measures. At the EU level, this function is covered by the European Fisheries Control Agency.
  
• 
  Marine pollution preparedness and response, marine environment, with focus on planning and preparedness in connection with large-scale marine pollution incidents such as oil spills. While the EU has an official role in some of these, i.e. through the EU Civil Protection Mechanism and EMSA, most are dealt with through regional agreements and several pieces of legislative acts governing surveillance of pollution threats and establishing frameworks for exchange of information and requests/offers of assistance during disasters.
  
• 
  Customs, with monitoring of compliance with customs regulations on the import, export and movement of goods; support of enforcement operations and early warning/identification of criminal trafficking of goods (narcotics, weapons, etc.); support of response operations. . At the EU level, the customs function is covered by TAXUD.
  
• 
  Border control focuses on preventing illegal immigration and cross-border crime at EU external borders. At EU level, EUROSUR covers this function by providing MS with the framework for increasing situational awareness at their external borders thereby improving the reaction capabilities of their national authorities.
  
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  General law enforcement, with focus on the prevention of any criminal/illegal activity and on policy administrative activities in the EU maritime domain. International aspects are important here, and EUROPOL is a highly relevant agency. Also EUROSUR data are of relevance.
  
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  Defence, where the European Defence Agency (EDA) is the relevant EU agency. The recent report of the WISE PEN team point to the fact that over 90% of current ship data relies on ships that cooperate and transmit. However, small and illegal vessels escape detection, and naval units can provide the deployable capabilities to enhance awareness regarding such ships.
  

A user community of a particular function consists of all the authorities and actors both public and private involved in that function. They may differ from one Member State to the other, and some may have mainly policy framing/implementation responsibilities while others may be more focused on operations and enforcement. Examples of types of authorities within the different functions include, see Annex 3.⁸

Rights, Responsibilities and Legal Barriers

This section addresses the essential rights and responsibilities of the legal and institutional framework needed for the effective implementation of CISE. It assesses to which extent the current EU framework allows for a free flow of information among the 7 user communities (as defined above), identifies potential legal barriers to such flow and provides suggestions as to how to overcome such barriers in order to fully implement CISE

Legal Barriers When identifying the legal barriers in the current legislative acts this report mainly targets 4 categories of obstacles related to regulatory methods. These categories are very different in their outset. However their consequences are similar for the functions and other stakeholder access to the information.

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  Direct legislative barriers prohibiting authorities from sharing specific types of information.
  
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  Specific functions exempted from the scope of legislative acts which holds provisions on information sharing. E.g. the exemption of defence related activities from almost all types of legislative acts governing the maritime area (exemptions are discussed just below)
  
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  Some legislative acts hold provisions on reporting from stakeholders but no specific provisions on sharing within or between functions. This is however not necessarily an obstacle for sharing if there is no specific provision prohibiting sharing.
  
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  Some legislative acts open a possibility to share by stating "may be shared" in the text. However that is naturally not seen as an obligation to share and especially not across functions. That can be perceived as a legal barrier; even though it is not necessarily in contradiction to provisions of the legislation. Other pieces of legislation specifically oblige authorities to share specific pieces of information either with the public or with other MS within the same function. This does not necessarily mean that it is prohibited to share other pieces of information collected within in the scope of the directive with the public or other authorities.
  

Observations
Within the current legislative framework the rights and responsibilities are subject to a rather fragmented approach, but horizontally governed by fundamental principles originating from the Charter of Fundamental Rights. These are mainly the rules governing public authorities' process and sharing of personal data, but on the other hand also the public right to access document and documentation originating from public bodies exercising their authority.

Structure of the section

The section is structured in the following manner: Firstly, the relevant horizontal legislation is addressed and analysed (subsection ). Secondly, right, responsibilities and barriers, which do not stem directly from horizontal legislation, but nonetheless affect potentially all or multiple user communities are outlined (subsection 2.2.2). Thirdly, an overview and analysis of relevant sectoral legislation is presented and the legislation (subsection 2.2.3). In the interests of comprehensibility each user community is addressed separately.

Annexes A detailed analysis of the findings of the present section is presented in Annexes 1-2:

Annex 1 provides the analysis of the specific legislation identifying the legal base, relevant provisions for information sharing, categorising each legal barrier. The annex also indicates suggestions for potential legislative initiatives. It is assumed that international conventions are not contrary to European legislation. The analysis does not provide a conformity check against international conventions and national or European legislation. Moreover most of the relevant international conventions are implemented by European legislative acts.

Annex 2 provides an analysis of the preparatory work of CISE, including pilot projects, legal studies and technical studies, e.g. "Legal Aspects of Maritime Monitoring & Surveillance Data⁹", "MARSUNO" Final report¹⁰ and BluemassMed Final report¹¹.

Annex 3 provides a non-exhaustive list of responsible authorities within the different functions.

Annex 4 provides a non-exhaustive list of studied material.

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