European Commission guidelines for the application of the regulation on ship recycling

Responding to some reports, in particular the international shipowners' association BIMCO, which highlighted how covid‐19 restrictions have significant difficulties with regard to the control of ships and the compilation of certified inventories hazardous materials and in which it was emphasized that probably several thousand ships will not be able to comply with the obligations regarding inventories of materials dangerous and may not have the necessary certification by next December 31st, the European Commission has defined common guidelines to ensure a harmonised approach to enforcement of the rules by the authorities of the EU port states during ship inspections carried out starting next January.

In communicating these guidelines, the EU Commission explained that, "in principle, primary responsibility compliance with the obligations regarding the the inventories of hazardous materials are the responsibility of the shipowner, and the monitoring compliance with those legal obligations is the responsibility of the authorities of eu port states. However, it may be necessary - it is specified - to take into account the circumstances related to the Covid‐19 crisis in the application of the such obligations on the part of Member States, where similar circumstances result in situations in which it is temporarily impossible or excessively difficult to ensure compliance the obligations in question.' The Commission also clarifies that, 'in view of its links with the principle of proportionality, the notion of force majeure can be considered a general principle of Union law, which may be relied on even in the absence of explicit provisions', pointing out, however, that "in the particular case enforcement of the obligations under the EU Regulation recycling of ships, however, it is not possible to automatically resort to the notion of force majeure. In this context, context - explains the Commission - Member States are invited to carefully assess the specific situation of each shipowner and the degree of possible application of the caselaw referred to.'

"In their assessment - it is still stated in the guide - Member States are also invited to duly keep account of the duration of the period between the entry into force of the regulation on the recycling of ships and the date of applicability of the obligations relating to the inventory of hazardous materials and to assess whether, and to what extent, that period has been used by the individual shipowner to prepare for comply with those obligations.'

Referring to the specific scenarios related to the health crisis covid‐19, the Communication of the European Commission states that, 'as regards the application of the regulation on the recycling of ships, it is likely that that the authorities of the EU port states compare themselves with two specific scenarios related to Covid‐19 that may require a more harmonised approach during the inspections, on the basis of the above general guiding principles. Yes suggests that this temporarily harmonised approach be applied for a limited period of six months from the date of application of the obligations regarding the inventory of hazardous materials to ships flag of an EU Member State and to vessels flying the flag of a third country calling at ports (i.e. until 30 June 2021).'

The first scenario relates to 'ships without an inventory of hazardous materials and/or a certificate of valid accompaniment.' The Commission notes that 'in the case in question it is possible for a ship to arrive in a port after 31 December 2020 without having on board an inventory of the hazardous materials and/or an accompanying certificate valid certificate (inventory certificate or certificate of eligibility recycling for vessels flying the flag of a Member State eu, or declaration of conformity for ships flag of a third country) and that the shipowner/master ship declares that such non-compliance is due to the covid‐19 crisis. In all cases where they are not available on board a valid inventory of hazardous materials and/or the necessary certificate - clarifies the European Commission - the burden of proof rests on the shipowner/master of the vessel, which must provide evidence that it has been undertaken all possible measures to comply with the obligations and obtain the required certification. Evidence of the efforts made to compliance obligations may include, for example, for example, a SDN for a control or control to Sample. They may also include a justification for the reason so it was not possible to obtain an inventory of the semi-filled hazardous materials and their certificate in accordance with Section 2, accompanied by evidence showing the impossibility of conforming to other elements of the certification other than on-board inspection. It is therefore up to the the inspector decide, on a case-by-case basis, whether the evidence is acceptable in the light of the specific situation of the vessel in question and on the the basis of his professional judgment.'

The second scenario is that of 'ships with a inventory of semi-filled hazardous materials, accompanied by a certificate of inventory or suitability for recycling approved (for vessels flying the flag of a Member State) declaration of conformity (for ships flag of a third country), which does not provide for a control of the (targeted or random) on board.' 'In the event that examination - explains the Commission - it is possible that a ship stopover at an EU port or anchorage after 31 December 2020 with an inventory of hazardous materials on board and the certificate, but that the inventory has been compiled at without carrying out a random check on board. Such situation can occur when it has not been possible to carry out the checks provided on board for the compilation of the inventory of hazardous materials due to restrictions on the inspections during the Covid‐19 pandemic. In all cases where the certificate is based on an inventory of the hazardous materials compiled without carrying out a sample on board - clarifies the Commission - in principle inventory should not be acceptable as it is incomplete. However, considering that since March 2020 inspectors have limited or no possibility of boarding ships and to carry out these checks, a similar (spot) check at a distance could be accepted exceptionally if there are evidence that the flag State has consented to such a Mode. In this case, they should also be required to on board the ship, plans and documented provisions indicating when it is possible for qualified controllers to complete inventory of hazardous materials in light of the limitations due to the Covid‐19 pandemic. It is therefore up to the inspector decide, on a case-by-case basis, whether such evidence is acceptable in the light of specific situation of the vessel in question and on the basis of the his professional judgment.'