The EC and enhancing ship and port facility security

AuthorEkaterina Anyanova
PositionLecturer in the law of the sea at the chair of International and European Law at Kaliningrad State University, Russia Ph.D student at the Hamburg University, Germany
Pages25-31

    A version of this paper was published in Kierkegaard, S. (2006) Business Law and Technology Vol.2 and presented at the 2006 IBLT Conference, Denmark.

Page 25

Introduction

"A series of new security measures, a new era in the history of maritime shipping... "

With regard to these new measures, the European Union (EU) issued its own maritime security legislation under the official slogan of better implementation of standards of the International Maritime Organization (IMO). A single and harmonized application of security regulations was announced. These European initiatives suggested a European opposition against the international regulations, in particular within the sphere of maritime affairs.

The implementation of the maritime security regulations by the EC bears a strong resemblance to the EU's aspiration to become "une grande puissance maritime".

The purpose of this paper is to review the incorporation of the existing IMO maritime security measures into the law of the EU and examine the compliance of the new security regime with Community interests, needs and existing legislation. The paper will also attempt to identify possible collisions between new EU maritime security regulations and international law and analyze this development in the legislation of the EU in general.

1. Legal framework of the multilateral measures on enhancing ship and port security
1. 1 New international standards for maritime security

After the series of terrorist attacks on the 11th September 2001 ,the challenge of global challenge of terrorism increased. Those acts, "supported" by the attacks on USS Cole in 2000 and on the French oil tanker Limburg in 2002, generated a need for widespread and far reaching reviews of the transport security legislation.

Diplomatic Conferences, held from 9 to 13 December 2002 under the auspices of the IMO in London, adopted a number of amendments to the 1974 Safety of Life at Sea Convention (SOLAS).

A general outline of the new measures introduced for port authorities, shipping companies and Contracting Governments is to work in close cooperation with one another to create a security system which will prevent possible terrorist attacks and provide models of behaviour in case of an attack.

1. 2 EU legislation

After September 11, the EU also turned to the problems of terrorism. All civil security aviation and general security issues were covered (Regulation EC 2320/2002; Regulation EC 648/2005, Regulation 849/2004). Then maritime security issues were given attention.

International shipping was, one might say, secured" by international legal innovations". It was agreed (owing to the "tacit amendment procedure") that member states belonging to the SOLAS Convention should implement the new rulings. By the 1st of July 2004 ,all EC member states had to comply with the new security standards. Different opinions in matters of security could be a threat to the protection of the Community. In addition, domestic transport remained uncovered by international legislation. Thus, it was decided that legislation on a Community level would be a good means of preventing differences in Page 26 implementation. Besides it would give the Community one more possibility of presenting itself on the international scene (particularly in the field of maritime shipping) as a whole.

EC Regulation 725/2004 adopted on 31st March 2004 transposed into the EC law a mandatory part A of the International Ship and Port Facility Security Code (ISPS Code) and made some aspects of the Part B of the ISPS Code compulsory for inner EU traffic. Besides this is a legal basis for EC inspections controlling the proper implementation of the new measures was established.

The port security (areas beyond the ship/port interface) however, remained uncovered by both international rules and European legislation. In February 2004, the first text of the proposal for a Directive on enhancing port security was published. The new directive also established monitoring systems. Otherwise, and it was stressed during the deliberations on the Directive, new rules don't create new obligations in areas already covered by Regulation 725/2004.

2. Incorporation of the IMO measures into the Community law
2. 1 Corresponding proposal from the Commission

Although different procedures are applied in the EC legislative process (the consultation procedure, the cooperation procedure, the co-decision procedure), every of them is started by the Commission proposing certain actions (this right of the Commission - or its monopole (Sydow, 1980, p. 50) - "to propose" follows from Art. 211 third dash EC Treaty (Buttlar, 2002, p.22)).

Thus, the exercise of the legislative power of the Community is almost fully dependent upon the existence of the proposal of the Commission (Jacqué, 2003, p. 371) and the Commission closely regulates the legislative activity of the Community. Undoubtedly, this fact politically colours the whole legislative procedure of the Community.

2.1. 1 New legislative competence area for the Commission and competence areas of the Member States

With Regulation 725/2004 the European Commission exercised legislative competence in the field of maritime security for the first time. The necessity to regulate this new area on a Community level was called into question by Member States delegations , especially during the development of the Directive. They appealed to the principle of subsidiarity (Art. 5 EC Treaty and Art. 2 (2) of the EU Treaty as a particular case of the twelfth recital of the EU Treaty Preamble (Groeben, Schwarze, 2003, p. 630)) and expressed their doubts as to the Community's competence in these matters.

Those debates demonstrate in the best way possible one of the topical questions surrounding the political aspects of European integration: the increased concentration of power for the EC authorities in exchange for the (sometimes unjustified, unnecessary and ineffective) diminishing sphere of influence of its Member States. The subsidiarity principle limits Community competence (and thereby the "competence claims" of the Community) in the field of the non-exclusive (Dittert, 2001, p. 37) competence (Herdegen, 2004, p. 87) to the "necessaries", in the event when the Member States are not able to achieve the required results on a national level...

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