Directive 2009/16 on port state control

Directive 2009/16 on port state control

Data collected, responsibility to share and access rights

Art. 21(3) provides for the notifications by the competent authority of the MS in the port of inspection to the competent authority of the State where the repair yard is located regarding follow-up actions taken in the repair following the discovery of deficiencies.

Art. 24 sets down a basis for the establishment of an inspection database. The database should incorporate inspection data of MS (and signatories to the Memorandum of Understanding on Port State Control of 26 January 1982) and shall be interconnected through the SafeSeaNet database. To the inspection database MS shall transfer information on the actual arrival and the actual time of departure of any ship calling at their ports (through the SafeSeaNet) and information related to inspection as soon as the inspection report is completed or the detention lifted.

The access rights to the database are limited to the data relevant for implementing the inspection procedures of the Directive. MS shall nonetheless be granted access to any data they have recorded in the inspection database and to the data on ships flying their flag.

Art. 25 provides a list of information that shall be provided by MS port authorities to the competent port State control authority. This, in addition to information collected pursuant to Art. 9 of the Directive and information concerning ships, which have failed to notify any information according to the Directive, includes (1) information regarding ships which have proceeded to sea without having complied with Art. 7 or 10 of Directive 725/2004, (2) information concerning ships which have been denied entry or expelled from a port on security grounds and (3) information on apparent anomalities in accordance with Art. 23.

Annex XIV contains a list of data that shall be notified to the Commission by MS on yearly basis regarding the implementation of the Directive. Had the MS already transferred the data specified in Art. 24(2) through the SafeSeaNet to the inspection database, the are exempted from notifying some of the data in accordance with Annex XIV.

Finally, Art. 26 and Annex XIII list the information related to inspections, detention and refusals that the Commission shall make available on a public website.

General barriers

Specific barriers

Arts. 21(3) and 25 limit access rights to the data defined therein to the competent authorities (maritime authority responsible for port State control). This limits considerably the opportunities to share the data across sectors. Art. 25 for example refers to notifications given pursuant to Art. 9, which includes a description of planned operations at the port or anchorage of destination, and may therefore be relevant to other user communities (a responsibility to share exists only with respect to the actual arrival and departure times).

Suggestions to enhance the possibilities to exchange information between functions

Better options for information sharing across sectors may be achieved by the removal of the limitation to the use of inspection data accessed pursuant to Art. 24(3). Moreover, it may be contemplated to expand to access rights in particular to data identified in Art. 25 above the maritime authority responsible for port control.

Directive 2005/35 on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences

Data collected, responsibility to share and access rights

Pursuant to Art. 6(1) MS shall inspect a vessel if such vessel raises suspicion as to discharging polluting substances. If such inspection reveals facts that could indicate an infringement, there is a responsibility to share such information with competent authorities of the MS and of the flag State.

If a ship suspected of discharging polluting substances does not call at the port of a MS holding the information related to such discharge, such MS shall cooperate closely in inspecting the ship with the MS of the next port of call (Art. 7(1)). Such cooperation requires the exchange of information related to the polluting discharge and, accordingly, may be deemed to constitute an access right to such information to the MS of the next port call. Additionally, Art. 7(3) gives access rights to the authorities of the flag State.

It is also important to highlight Art. 10 of the Directive, which obliges the MS and the Commission to cooperate with EMSA in order to develop the necessary information systems required for the effective implementation of the Directive.

In accordance with Art. 12 MS shall on a tri-annual basis transmit a report to the Commission on the application of the Directive.

General barriers

Specific barriers

The Directive does not provide for access rights to the reports drafted by MS on the implementation of the Directive. Although the reporting scheme is insufficient to contribute to an increased real-time situational awareness, the reports may nonetheless contain useful information to other MS (in particular the security and safety and the marine pollution user community).

Suggestions to enhance the possibilities to exchange information between functions
The Council Framework decision applies to the sharing of data concerning the investigation and follow-up on infringements pursuant to the Directive. Accordingly, the potential to enhance the possibilities to exchange investigation data between different user communities is rather low. Nonetheless, it may be contemplated to remove the limitation to access rights in Arts. 6 and 7 (flag state, MS of next call) and include competent authorities of all MS in need of such data for a specified purpose (i.e. investigation and follow-up on infringements).