
Article 1 
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).
Article 2 
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.
Article 3 

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.
Article 4 

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.
Article 5 
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.
Article 6 
This Decision is addressed to the Member States.
Done at Brussels, 16 June 2009.
For the Commission
Antonio TAJANI
Vice-President
ANNEX I
1.  1.1. 
being

Ul = N · p + 0,5 + z · [N · p · (1 – p)]1/2

Uh = N · p – 0,5 – z · [N · p · (1 – p)]1/2

where

nnumber of recognised organisation-related detentionsUlthreshold low to medium performanceUhthreshold medium to high performanceNtotal number of inspections (minimum number = 60)pfixed yardstick = 0,02zstatistical significance factor = 1,645
 1.1.1. 

n > Ul 6 points
Ul ≥ n ≥ Uh 3 points
Uh > n 0 points
 1.1.2. 

n > Ul 6 points
Ul ≥ n ≥ Uh 3 point
Uh > n 0 points
 1.1.3. 

n > Ul 6 points
Ul ≥ n ≥ Uh 3 points
Uh > n 0 points

If Uh < 0, then it is considered that Uh = 0.

If n = 0, then 0 points will be given, irrespective of the Uh value.
 1.2.  1.2.1. 

increase 1 point
unchanged 0 point
decrease – 1 point
 1.2.2. 

increase 1 point
unchanged 0 points
decrease – 1 point
 1.2.3. 

increase 1 point
unchanged 0 points
decrease – 1 point

When a recognised organisation presents a 0 % detention rate for two consecutive periods, it will be considered a positive performance and the same number of points as for a decrease in the detention rates will be given.
 1.3. 
being

Ul = N · p + 0,5 + z · [N · p · (1 – p)]1/2

where

nnumber of detentionsUlthreshold low performanceNtotal number of inspections (minimum number = 60)pfixed yardstick = 0,05zstatistical significance factor = 1,645
 1.3.1. 

n > Ul 1 point
Ul ≥ n 0 points
 1.3.2. 

n > Ul 1 point
Ul ≥ n 0 points
 1.3.3. 

n > Ul 1 point
Ul ≥ n 0 points
 1.4. 

Number of cases points
1 or 2 1 per ship
3 to 5 2 per ship
> 5 3 per ship
 1.5. 
1 point for every ship. Occurrences already counted under 1.4 are excluded.
 1.6. 
3 points for every ship — adding to points allocated under 1.4 or 1.5
 1.7. 

> 2 + 3 points
1 – 2 + 2 points
0,5 – 1 + 1 point
< 0,5 – 1 point

Where there is not sufficient data for the calculation of the difference in performance for a recognised organisation, then 0 points will be attributed.

2. 
1 point for every reported case up to a maximum of 3 points.

ANNEX II
REPORT 
‘In exercising their obligations as port States, Member States shall report to the Commission and other Member States, and inform the flag State concerned, the discovery of the issue of valid certificates by organisations acting on behalf of a flag States to a ships which does not fulfil the relevant requirements of the international conventions, or of any failure of a ship carrying a valid class certificate and relating to items covered by that certificate. Only cases of ships representing a serious threat to safety and the environment or showing evidence of particularly negligent behaviour of the organisations shall be reported for the purpose of this Article. The recognised organisation concerned shall be advised of the case at the time of the initial inspection so that it can take appropriate follow-up action immediately.’

For the purpose of identifying the cases in which failures by the recognised organisation (hereinafter RO) to detect serious defects in the conditions of the surveyed vessels shall be reported to the Commission, the other Members States and the flag State concerned, the following criteria shall be applied:


1.. the failure is related to statutory surveys performed by the RO and is manifestly due to gross negligence, recklessness or omission by the RO,
2.. defects not properly addressed by the RO involve structural elements of the hull and/or machinery and/or safety equipment and are serious enough to result in:

((a)) suspension, withdrawal or conditional endorsement of the safety certificate by the flag State; or
((b)) prevention of operation under Council Directive 1999/35/EC or a detention order under Council Directive 95/21/EC being issued by the host or the port State where deficiencies cannot be repaired in less than five days.

The report shall include an account of the case detailing why the above criteria were considered met.

The following evidence material should also be attached where applicable:


1.. copy of the safety certificates;
2.. documents related to the statutory work performed by the RO before the defects were detected;
3.. evidence of the action taken by the flag State, port State or host State;
4.. copy of the class survey report issued as a result of the class attending the vessel after the defects were detected;
5.. digital photographs of the defective areas.

The attached format shall be used for reporting.

The report shall be forwarded to the European Commission, EMSA and all Member States.
