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Directive 2003/25/EC of the European Parliament and of the Council of 14 April 2003 on specific stability requirements for ro-ro passenger ships (Text with EEA relevance)

Official Journal L 123 , 17/05/2003 P. 0022 - 0041

Directive 2003/25/EC of the European Parliament and of the Councilof 14 April 2003on specific stability requirements for ro-ro passenger ships(Text with EEA relevance)THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,Having regard to the proposal from the Commission(1),Having regard to the Opinion of the European Economic and Social Committee(2),Having consulted the Committee of the Regions,Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),Whereas:(1) Within the framework of the common transport policy further measures should be taken to improve safety in maritime transport of passengers.(2) The Community wishes to avoid by all appropriate means shipping accidents involving ro-ro passenger ships and resulting in loss of life.(3) The survivability of ro-ro passenger ships following collision damage, as determined by their damage stability standard, is an essential factor for the safety of passengers and crew and is particularly relevant for search and rescue operations; the most dangerous problem for the stability of a ro-ro passenger ship with an enclosed ro-ro deck, following collision damage, is the one posed by the effect of a build up of significant amounts of water on that deck.(4) Persons using ro-ro passenger ships and crew employed on board such vessels throughout the Community should have the right to demand the same high level of safety regardless of the area in which ships operate.(5) In view of the internal market dimension of maritime transport of passengers, action at Community level is the most effective way of establishing a common minimum level of safety for ships throughout the Community.(6) Action at Community level is the best way to ensure the harmonised enforcement of principles agreed on within the International Maritime Organisation (IMO), thus avoiding distortions of competition between the operators of ro-ro passenger ships operating in the Community.(7) General stability requirements for ro-ro passenger ships in damaged condition were established at international level by the 1990 Safety of Life at Sea (SOLAS 90) Conference and were included in Regulation II-1/B/8 of the SOLAS Convention (SOLAS 90 standard). These requirements are applicable in the entire Community owing to the direct application to international voyages of the SOLAS Convention and the application to domestic voyages of Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships(4).(8) The SOLAS 90 damage stability standard implicitly includes the effect of water entering the ro-ro deck in a sea state of the order of 1,5 m significant wave height.(9) IMO Resolution 14 of the 1995 SOLAS Conference, allowed IMO members to conclude regional agreements if they consider that prevailing sea conditions and other local conditions require specific stability requirements in a designated area.(10) Eight northern European countries, including seven Member States, agreed in Stockholm on 28 February 1996 to introduce a higher stability standard for ro-ro passenger ships in damaged condition in order to take into account the effect of water accumulation on the ro-ro deck and to enable the ship to survive in more severe states than the SOLAS 90 standard, up to 4 m significant wave heights.(11) Under this agreement, known as the Stockholm Agreement, the specific stability standard is directly related to the sea area in which the vessel operates and more particularly to the significant wave height recorded in the area of operation; the significant wave height of the area where the ship operates determines the height of water on the car deck that would arise following the occurrence of accidental damage.(12) At the conclusion of the Conference at which the Stockholm Agreement was adopted, the Commission noted that the Agreement was not applicable in other parts of the Community and announced its intention to examine the prevailing local conditions under which ro-ro passenger ships sail in all European waters and to take appropriate initiatives.(13) The Council entered a statement in the minutes of the 2074th Council meeting of 17 March 1998 stressing the need to ensure the same level of safety for all passenger ferries operating in similar conditions, whether on international or on domestic voyages.(14) In its Resolution of 5 October 2000 on the sinking of the Greek ferry "Samina"(5), the European Parliament expressly stated that it awaited the evaluation by the Commission of the effectiveness of the Stockholm Agreement and other measures for improving the stability and safety of passenger ships.(15) Following an expert study by the Commission, the wave height conditions in south European waters were found to be similar to those in the north. While meteorological conditions may be generally more favourable in the south, the stability standard determined in the context of the Stockholm Agreement is based solely on the significant wave height parameter and the way this influences the accumulation of water on the ro-ro deck.(16) The application of Community safety standards regarding the stability requirements for ro-ro passenger ships is essential for the safety of these vessels and has to be part of the common maritime safety framework.(17) In the interests of improving safety and avoiding distortion of competition, the common safety standards regarding stability should apply to all ro-ro passenger ships, regardless of the flag that they fly, providing regular services to or from a port in the Member States on international voyages.(18) The safety of ships is primarily the responsibility of flag States and therefore each Member State should ensure compliance with the safety requirements applicable to the ro-ro passenger ships flying the flag of that Member State.(19) Member States should also be addressed in their capacity as host States. The responsibilities exercised in that capacity are based on specific port State responsibilities that are fully in line with the 1982 United Nations Convention on the Law of the Sea (Unclos).(20) The specific stability requirements introduced by this Directive should be based on a method, as set out in the Annexes to the Stockholm Agreement, which calculates the height of water on the ro-ro deck following collision damage in relation to two basic parameters: the ship's residual freeboard and the significant wave height in the sea area where the ship operates.(21) Member States should determine and publicise the significant wave heights in the sea areas crossed by ro-ro passenger ships on regular service to or from their ports. For international routes the significant wave heights should, wherever applicable and possible, be established in agreement between the States at both ends of the route. Significant wave heights for seasonal operation in the same sea areas may also be determined.(22) Every ro-ro passenger ship engaged in voyages within the scope of this Directive should fulfil the stability requirements in relation to the significant wave heights determined for its area of operation. It should carry a certificate of compliance issued by the Administration of the flag State, which should be accepted by all other Member States.(23) The SOLAS 90 Standard provides a level of safety equivalent to the specific stability requirements established by this Directive for ships operating in sea areas where the significant wave height is equal to or less than 1,5 m.(24) In view of the structural modifications that the existing ro-ro passenger ships may need to undergo in order to comply with the specific stability requirements, those requirements should be introduced over a period of years in order to allow to the part of the industry affected sufficient time to comply: to that end, a phasing-in timetable for existing ships should be provided. This phasing-in timetable should not affect the enforcement of the specific stability requirements in the sea areas covered by the Annexes to the Stockholm Agreement.(25) Article 4(1)(e) of Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services(6) provides that host States are to check that ro-ro passenger ferries and high-speed passenger craft comply with specific stability requirements adopted at regional level and transposed into their national legislation, when these ships operate a service covered by that national legislation in the region concerned.(26) High-speed passenger craft as defined in Regulation 1 of Chapter X of the SOLAS Convention, as amended, should not be required to comply with the provisions of this Directive, provided that they comply entirely with the provisions of the IMO "International code for safety of high-speed craft", as amended.(27) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(7).(28) Since the objective of the proposed action, namely to safeguard human life at sea by improving the survivability of ro-ro passenger ships in the event of damage, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,HAVE ADOPTED THIS DIRECTIVE:Article 1PurposeThe purpose of this Directive is to lay down a uniform level of specific stability requirements for ro-ro passenger ships, which will improve the survivability of this type of vessel in case of collision damage and provide a high level of safety for the passengers and the crew.Article 2DefinitionsFor the purpose of this Directive, the following definitions shall apply:(a) "ro-ro passenger ship" means a ship carrying more than 12 passengers, having ro-ro cargo spaces or special category spaces, as defined in Regulation II-2/3 of the SOLAS Convention, as amended;(b) "new ship" means a ship the keel of which is laid or which is at a similar stage of construction on or after 1 October 2004: a similar stage of construction means the stage at which:(i) construction identifiable with a specific ship begins; and(ii) assembly of that ship has commenced comprising at least 50 tonnes or 1 % of the estimated mass of structural material, whichever is less;(c) "an existing ship" means a ship which is not a new ship;(d) "a passenger" is every person other than the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship and other than a child under one year of age;(e) "international Conventions" means the 1974 International Convention for the Safety of Life at Sea (the SOLAS Convention), and the 1966 International Convention on Load Lines, together with Protocols and amendments thereto in force;(f) "regular service" means a series of ro-ro passenger ship crossings serving traffic between the same two or more ports, which is operated either:(i) according to a published timetable; or(ii) with crossings so regular or frequent that they constitute a recognisable systematic series;(g) "Stockholm Agreement" means the Agreement concluded at Stockholm on 28 February 1996 in pursuance of SOLAS 95 Conference Resolution 14 "Regional agreements on specific stability requirements for ro-ro passenger ships", adopted on 29 November 1995;(h) "administration of flag State" means the competent authorities of the State whose flag the ro-ro passenger ship is entitled to fly;(i) "host State" means a Member State to or from whose ports a ro-ro passenger ship is engaged on a regular service;(j) "international voyage" means a sea voyage from a port of a Member State to a port outside that Member State, or vice versa;(k) "specific stability requirements" means the stability requirements set out in Annex I;(l) "significant wave height" ("hs") is the average height of the highest third of wave heights observed over a given period;(m) "residual freeboard" ("fr") is the minimum distance between the damaged ro-ro deck and the final waterline at the location of the damage, without taking into account the additional effect of the sea water accumulated on the damaged ro-ro deck.Article 3Scope1. This Directive shall apply to all ro-ro passenger ships operating to or from a port of a Member State on a regular service, regardless of their flag, when engaged on international voyages.2. Each Member State, in its capacity as host State, shall ensure that ro-ro passenger ships, flying the flag of a State which is not a Member State, comply fully with the requirements of this Directive before they may be engaged on voyages from or to ports of that Member State in accordance with Article 4 of Directive 1999/35/EC.Article 4Significant wave heightsThe significant wave heights (hS) shall be used for determining the height of water on the car deck when applying the specific stability requirements contained in Annex I. The figures of significant wave heights shall be those which are not exceeded by a probability of more than 10 % on a yearly basis.Article 5Sea areas1. Host States shall establish, not later than 17 May 2004, a list of sea areas crossed by ro-ro passenger ships operating on regular service to or from their ports as well as the corresponding values of significant wave heights in these areas.2. The sea areas and the applicable values of the significant wave height in these areas shall be defined by agreement between the Member States or, wherever applicable and possible, between Member States and third countries at both ends of the route. Where the ship's route crosses more than one sea area, the ship shall satisfy the specific stability requirements for the highest value of significant wave height identified for these areas.3. The list shall be notified to the Commission and published in a public database available in the internet site of the competent maritime authority. The location of such information as well as any updates to the list and the reasons for such updates shall also be notified to the Commission.Article 6Specific stability requirements1. Without prejudice to the requirements of Regulation II-I/B/8 of the SOLAS Convention (SOLAS 90 standard) relating to watertight subdivision and stability in damaged condition, all ro-ro passenger ships referred to in Article 3(1) shall comply with the specific stability requirements set out in Annex I to this Directive.2. For ro-ro passenger ships operating exclusively in sea areas where the significant wave height is equal to or lower than 1,5 metres, compliance with the requirements of the regulation referred to in paragraph 1 shall be considered equivalent to compliance with the specific stability requirements set out in Annex I.3. In applying the requirements set out in Annex I, Member States shall use the guidelines set out in Annex II, in so far this is practicable and compatible with the design of the ship in question.Article 7Introduction of the specific stability requirements1. New ro-ro passenger ships shall comply with the specific stability requirements as set out in Annex I.2. Existing ro-ro passenger ships, with the exception of those ships to which Article 6(2) applies, shall comply with the specific stability requirements as set out in Annex I not later than 1 October 2010.Existing ro-ro passenger ships which on 17 May 2003 are in compliance with the requirements of the regulation referred to in Article 6(1) shall comply with the specific stability requirements as set out in Annex I not later than 1 October 2015.3. This Article shall be without prejudice to Article 4(1)(e) of Directive 1999/35/EC.Article 8Certificates1. All new and existing ro-ro passenger ships flying the flag of a Member State shall carry a certificate confirming compliance with the specific stability requirements established in Article 6 and Annex I.This certificate, which shall be issued by the administration of the flag State and may be combined with other related certificates, will indicate the significant wave height up to which the ship can satisfy the specific stability requirements.The certificate shall remain valid as long as the ship operates in an area with the same or a lower value of significant wave height.2. Each Member State acting in its capacity as host State shall recognise certificates issued by another Member State in pursuance of this Directive.3. Each Member State acting in its capacity as host State shall accept certificates issued by a third country certifying that a ship complies with the specific stability requirements established.Article 9Seasonal and short-time period operations1. If a shipping company operating a regular service on a year-round basis wishes to introduce additional ro-ro passenger ships to operate for a shorter period on that service, it shall notify the competent authority of the host State or States not later than one month before the said ships are operated on that service. However, in cases where, following unforeseen circumstances, a replacement ro-ro passenger ship must be introduced rapidly to ensure continuity of service, Directive 1999/35/EC shall apply.2. If a shipping company wishes to operate seasonally a regular service for a shorter time period not exceeding six months a year, it shall notify the competent authority of the host State or States not later than three months before such operation takes place.3. Where such operations take place under conditions of lower significant wave height than those established for the same sea area for all-year-round operation, the significant wave height value applicable for this shorter time period may be used by the competent authority for determining the height of water on the deck when applying the specific stability requirements contained in Annex I. The value of the significant wave height applicable for this shorter time period shall be agreed between the Member States or, wherever applicable and possible, between Member States and third countries at both ends of the route.4. Following agreement of the competent authority of the host State or States for operations within the meaning of paragraphs 1 and 2, the ro-ro passenger ship which undertakes such operations shall be required to carry a certificate confirming compliance with the provisions of this Directive, as provided for in Article 8(1).Article 10AdaptationsIn order to take account of developments at international level, in particular, in the International Maritime Organisation (IMO), and to improve the effectiveness of this Directive in the light of experience and of technical progress, the Annexes may be amended in accordance with the procedure referred to in Article 11(2).Article 11Committee1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships established pursuant to Article 3 of Regulation (EC) No 2099/2002(8).2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at eight weeks.3. The Committee shall adopt its Rules of Procedure.Article 12PenaltiesMember States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.Article 13ImplementationMember States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 17 November 2004. They shall forthwith inform the Commission thereof.When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.Article 14Entry into forceThis Directive shall enter into force on the day of its publication in the Official Journal of the European Union.Article 15AddresseesThis Directive is addressed to the Member States.Done at Luxembourg, 14 April 2003.For the European ParliamentThe PresidentP. CoxFor the CouncilThe PresidentA. Giannitsis(1) OJ C 20 E, 28.1.2003, p. 21.(2) Opinion delivered on 11 December 2002 (not yet published in the Official Journal).(3) Opinion of the European Parliament of 7 November 2002 (not yet published in the Official Journal), and Council Decision of 17 March 2003.(4) OJ L 144, 15.5.1998, p. 1; Directive as last amended by Directive 2002/84/EC of the European Parliament and of the Council (OJ L 324, 29.11.2002, p. 53).(5) OJ C 178, 22.6.2001, p. 288.(6) OJ L 138, 1.6.1999, p. 1. Directive as amended by Directive 2002/84/EC of the European Parliament and of the Council.(7) OJ L 184, 17.7.1999, p. 23.(8) OJ L 324, 29.11.2002, p. 1.ANNEX ISPECIFIC STABILITY REQUIREMENTS FOR RO-RO PASSENGER SHIPSas referred to in Article 61. In addition to the requirements of Regulation II-1/B/8 of the SOLAS Convention relating to watertight subdivision and stability in damaged condition, all ro-ro passenger ships referred to in Article 3(1) shall comply with the requirements of this Annex.1.1. The provisions of Regulation II-1/B/8.2.3 shall be complied with when taking into account the effect of a hypothetical amount of sea water which is assumed to have accumulated on the first deck above the design waterline of the ro-ro cargo space or the special cargo space as defined in Regulation II-2/3 assumed to be damaged (hereinafter referred to as "the damaged ro-ro deck"). The other requirements of Regulation II-1/B/8 need not be complied with in the application of the stability standard contained in this Annex. The amount of assumed accumulated sea water shall be calculated on the basis of a water surface having a fixed height above:(a) the lowest point of the deck edge of the damaged compartment of the ro-ro deck; or(b) when the deck edge of the damaged compartment is submerged then the calculation is based on a fixed height above the still water surface at all heel and trim angles;as follows:0,5 m if the residual freeboard (fr) is 0,3 m or less,0,0 m if the residual freeboard (fr) is 2,0 m or more, andintermediate values to be determined by linear interpolation, if the residual freeboard (fr) is 0,3 m or more but less than 2,0 m,where the residual freeboard (fr) is the minimum distance between the damaged ro-ro deck and the final waterline at the location of the damage in the damage case being considered without taking into account the effect of the volume of assumed accumulated water on the damaged ro-ro deck,1.2. When a high-efficiency drainage system is installed, the administration of the flag State may allow a reduction in the height of the water surface.1.3. For ships in geographically defined restricted areas of operation, the administration of the flag State may reduce the height of the water surface prescribed in accordance with point 1.1 by substituting such height of the water surface by the following:1.3.1. 0,0 m if the significant wave height (hs) defining the area concerned is 1,5 m or less;1.3.2. the value determined in accordance with paragraph 1.1 if the significant wave height (hs) defining the area concerned is 4,0 m or above;1.3.3. intermediate values to be determined by linear interpolation if the significant wave height (hs) defining the area concerned is 1,5 m or more but less than 4,0 m,provided that the following conditions are fulfilled:1.3.4. the flag State administration is satisfied that the defined area is represented by the significant wave height (hs) which is not exceeded with a probability of more than 10 %; and1.3.5. the area of operation and, if applicable, the part of the year for which a certain value of the significant wave height (hs) has been established are entered on the certificates.1.4. As an alternative to the requirements of paragraph 1.1 or 1.3, the flag State administration may exempt application of the requirements of paragraph 1.1 or 1.3 and accept proof, established by model tests carried out for an individual ship in accordance with the model test method, which appears in the Appendix, justifying that the ship will not capsize with the assumed extent of damage as provided in Regulation II-1/B/8.4 in the worst location being considered under paragraph 1.1, in an irregular seaway, and1.5. reference to acceptance of the results of the model test as an equivalence to compliance with paragraph 1.1 or 1.3 and the value of the significant wave height (hs) used in the model tests shall be entered on the ship's certificates.1.6. the information supplied to the master in accordance with Regulations II-1/B/8.7.1 and II-1/B/8.7.2, as developed for compliance with Regulations II-1/B/8.2.3 to II-1/B/8.2.3.4, shall apply unchanged for ro-ro passenger ships approved according to these requirements.2. For assessing the effect of the volume of the assumed accumulated sea water on the damaged ro-ro deck in paragraph 1, the following provisions shall prevail:2.1. a transverse or longitudinal bulkhead shall be considered intact if all parts of it lie inboard of vertical surfaces on both sides of the ship, which are situated at a distance from the shell plating equal to one-fifth of the breadth of the ship, as defined in Regulation II-1/2, and measured at right angles to the centreline at the level of the deepest subdivision load line;2.2. in cases where the ship's hull is structurally partly widened for compliance with the provisions of this Annex, the resulting increase of the value of one fifth of the breadth of it is to be used throughout, but shall not govern the location of existing bulkhead penetrations, piping systems, etc., which were acceptable prior to the widening;2.3. the tightness of transverse or longitudinal bulkheads which are taken into account as effective to confine the assumed accumulated sea water in the compartment concerned in the damaged ro-ro deck shall be commensurate with the drainage system, and shall withstand hydrostatic pressure in accordance with the results of the damage calculation. Such bulkheads shall be at least 2,2 m in height. However, in case of a ship with hanging car decks, the minimum height of the bulkhead shall be not less than the height to the underside of the hanging deck when in its lowered position;2.4. for special arrangements such as, e.g., full-width hanging decks and wide side casings, other bulkhead heights may be accepted on the basis of detailed model tests;2.5. the effect of the volume of the assumed accumulated sea water need not be taken into account for any compartment of the damaged ro-ro deck, provided that such a compartment has on each side of the deck freeing ports evenly distributed along the sides of the compartment complying with the following:2.5.1. A >= 0,3 lwhere A is the total area of freeing ports on each side of the deck in m2; and l is the length of the compartment in m;2.5.2. the ship shall maintain a residual freeboard of at least 1,0 m in the worst damage condition without taking into account the effect of the assumed volume of water on the damaged ro-ro deck; and2.5.3. such freeing ports shall be located within the height of 0,6 m above the damaged ro-ro deck, and the lower edge of the ports shall be within 2 cm above the damaged ro-ro deck; and2.5.4. such freeing ports shall be fitted with closing devices or flaps to prevent water entering the ro-ro deck whilst allowing water which may accumulate on the ro-ro deck to drain.2.6. When a bulkhead above the ro-ro deck is assumed damaged, both compartments bordering the bulkhead shall be assumed flooded to the same height of water surface as calculated in paragraph 1.1 or 1.3.3. When determining significant wave height, the wave heights given on the maps or list of sea areas established by Member States in line with Article 5 of this Directive shall be used.3.1. For ships which are to be operated only for a shorter season, the host State administration shall determine in agreement with the other country whose port is included in the ships route, the significant wave height to be used.4. Model tests shall be conducted in accordance with the Appendix.AppendixModel test method1. ObjectivesIn the tests provided for in paragraph 1.4 of the stability requirements included in Annex I, the ship should be capable of withstanding a seaway as defined in paragraph 3 hereunder in the worst-damage-case scenario.2. Ship model2.1. The model should copy the actual ship for both outer configuration and internal arrangement, in particular all damaged spaces having an effect on the process of flooding and shipping of water. The damage should represent the worst damage case defined for compliance with Regulation II-1/B/8.2.3.2 of the SOLAS Convention. An additional test is required at a level keel midship damage, if the worst damage location according to the SOLAS 90 standard is outside the range ± 10 % Lpp from the midship. This additional test is only required when the ro-ro spaces are assumed to be damaged.2.2. The model should comply with the following:2.2.1. length between perpendiculars (Lpp) is to be at least 3 m;2.2.2. the hull is to be thin enough in areas where this feature has influence on the results;2.2.3. the characteristics of motion should be modelled properly to the actual ship, paying particular attention to scaling of radii of gyration in roll and pitch motions. Draught, trim, heel and centre of gravity should represent the worst damage case;2.2.4. main design features such as watertight bulkheads, air escapes, etc., above and below the bulkhead deck that can result in asymmetric flooding should be modelled properly as far as practicable to represent the real situation;2.2.5. the shape of the damage opening shall be as follows:2.2.5.1. rectangular side profile with a width according to Regulation II-1/B/8.4.1 of the SOLAS Convention and unlimited vertical extent;2.2.5.2. isosceles triangular profile in the horizontal plane with a height equal to B/5 according to Regulation II-1/B/8.4.2 of the SOLAS Convention.3. Procedure for experiments3.1. The model should be subjected to a long-crested irregular seaway defined by the Jonswap spectrum with a significant wave height hs defined in paragraph 1.3 of the stability requirements and having peak enhancement factor γ and peak period Tp as follows:3.1.1. Tp = 4[radic   ]hs with γ = 3,3; and3.1.2. Tp equal to the roll resonant period for the damaged ship without water on deck at the specified loading condition but not higher than 6[radic   ]hs and with γ = 1.3.2. The model should be free to drift and placed in beam seas (90 ° heading) with the damage hole facing the oncoming waves. The model should not be restrained in a manner to resist capsize. If the ship is upright in flooded condition, 1° of heel towards the damage should be given.3.3. At least five experiments for each peak period should be carried out. The test period for each run shall be of such duration that a stationary state has been reached but should be run for not less than 30 minutes in full-scale time. A different wave realisation train should be used for each test.3.4. If none of the experiments result in final inclination towards the damage, the experiments should be repeated with five runs at each of the two specified wave conditions or, alternatively, the model should be given an additional one angle of heel towards the damage and the experiment repeated with two runs at each of the two specified wave conditions. The purpose of these additional experiments is to demonstrate, in the best possible way, survival capability against capsize in both directions.3.5. The tests are to be carried out for the following damage cases:3.5.1. the worst damage case with regard to the area under the GZ curve according to the SOLAS Convention; and3.5.2. the worst midship damage case with regard to the residual freeboard in the midship area if required by paragraph 2.1.4. Survival criteriaThe ship should be considered as surviving if a stationary state is reached for the successive test runs as required in paragraph 3.3, provided that angles of roll of more than 30 ° against the vertical axis, occurring more frequently than in 20 % of the rolling cycles or steady heel greater than 20 ° should be taken as capsizing events even if a stationary state is reached.5. Test approval5.1. Proposals for model test programmes should be submitted to the host State administration to be approved in advance. It should also be borne in mind that lesser cases of damage may create a worst-case scenario.5.2. The test should be documented by means of a report and a video or other visual record containing all relevant information on the ship and test results.ANNEX IIINDICATIVE GUIDELINES TO NATIONAL ADMINISTRATIONSas referred to in Article 6(3)PART IAPPLICATIONIn line with the provisions of Article 6(3) of this Directive, these guidelines shall be used by the national administrations of Member States in the application of the specific stability requirements set out in Annex I, in so far as this is practicable and compatible with the design of the ship in question. The paragraph numbers appearing below correspond to those in Annex I.Paragraph 1As a first step all ro-ro passenger ships referred to in Article 3(1) of this Directive must comply with the SOLAS 90 standard of residual stability as it applies to all passenger ships constructed on or after 29 April 1990. It is the application of this requirement that defines the residual freeboard fr, necessary for the calculations required in paragraph 1.1.Paragraph 1.11. This paragraph addresses the application of a hypothetical amount of water accumulated on the bulkhead (ro-ro) deck. The water is assumed to have entered the deck via a damage opening. This paragraph requires that the ship in addition to complying with the full requirements of the SOLAS 90 standard further complies with that part of the SOLAS 90 criteria contained in points 2.3 to 2.3.4 of Regulation II-1/B/8 with the defined amount of water on deck. For this calculation no other requirements of Regulation II-1/B/8 need be taken into account. For example the ship does not, for this calculation, need to comply with the requirements for the angles of equilibrium or non-submergence of the margin line.2. The accumulated water is added as a liquid load with one common surface inside all compartments which are assumed flooded on the car deck. The height (hw) of water on deck is dependent on the residual freeboard (fr) after damage, and is measured in way of the damage (see figure 1). The residual freeboard, is the minimum distance between the damaged ro-ro deck and the final waterline (after equalisation measures if any have been taken) in way of the assumed damage after examining all possible damage scenarios in determining the compliance with the SOLAS 90 standard as required in paragraph 1 of Annex I. No account should be taken of the effect of the hypothetical volume of water assumed to have accumulated on the damaged ro-ro deck when calculating fr.3. If fr is 2,0 m or more, no water is assumed to accumulate on the ro-ro deck. If fr is 0,3 m or less, then height hw is assumed to be 0,5 m. Intermediate heights of water are obtained by linear interpolation (see figure 2).Paragraph 1.2Means for drainage of water can only be considered as effective if these means are of a capacity to prevent large amounts of water from accumulating on the deck i.e. many thousands of tonnes per hour which is far beyond the capacities fitted at the time of the adoption of these regulations. Such high efficiency drainage systems may be developed and approved in the future (based on guidelines to be developed by the International Maritime Organisation)Paragraph 1.31. The amount of assumed accumulated water on deck may, in addition to any reduction in accordance with paragraph 1.1, be reduced for operations in geographically defined restricted areas. These areas are designated in accordance with the significant wave height (hs) defining the area in line with the provisions of Article 5 of this Directive.2. If the significant wave height (hs), in the area concerned, is 1,5 m or less then no additional water is assumed to accumulate on the damaged ro-ro deck. If the significant wave height in the area concerned is 4,0 m or more then the height of the assumed accumulated water shall be the value calculated in accordance with paragraph 1.1. Intermediate values to be determined by linear interpolation (see figure 3).3. The height hw is kept constant, therefore the amount of added water is variable as it is dependent upon the heeling angle and whether at any particular heeling angle the deck edge is immersed or not (see figure 4). It should be noted that the assumed permeability of the car deck spaces is to be taken as 90 % (MSC/Circ.649 refers), whereas other assumed flooded spaces permeabilities are to be those prescribed in the SOLAS Convention.4. If the calculations to demonstrate compliance with this Directive relate to a significant wave height less than 4,0 m that restricting significant wave height must be recorded on the vessel's passenger ship safety certificate.Paragraphs 1.4 and 1.5As an alternative to complying with the new stability requirements in paragraph 1.1 or 1.3 an administration may accept proof of compliance via model tests. The model test requirements are detailed in the Appendix to Annex I. Guidance notes on the model tests are contained in part II of this Annex.Paragraph 1.6Conventionally derived SOLAS 90 standard limiting operational curve(s) (KG or GM) may not remain applicable in cases where "water on deck" is assumed under the terms of this Directive and it may be necessary to determine revised limiting curve(s) which take into account the effects of this added water. To this effect sufficient calculations corresponding to an adequate number of operational draughts and trims must be carried out.Note:Revised limiting operational KG/GM Curves may be derived by iteration, whereby the minimum excess GM resulting from damage stability calculations with water on deck is added to the input KG (or deducted from the GM) used to determine the damaged freeboards (fr), upon which the quantities of water on deck are based, this process being repeated until the excess GM becomes negligible.It is anticipated that operators would begin such an iteration with the maximum KG/minimum GM which could reasonably be sustained in service and would seek to manipulate the resulting deck bulkhead arrangement to minimisethe excess GM derived from damage stability calculations with water on deck.Paragraph 2.1As for conventional SOLAS damage requirements bulkheads inboard of the B/5 line are considered intact in the event of side collision damage.Paragraph 2.2If side structural sponsons are fitted to enable compliance with Regulation II-1/B/8, and as a consequence there is an increase in the breadth (B) of the ship and hence the vessel's B/5 distance from the ship's side, such modification shall not cause the relocation of any existing structural parts or any existing penetrations of the main transverse watertight bulkheads below the bulkhead deck (see figure 5).Paragraph 2.31. Transverse or longitudinal bulkheads/barriers which are fitted and taken into account to confine the movement of assumed accumulated water on the damaged ro-ro deck need not be strictly "watertight". Small amounts of leakage may be permitted subject to the drainage provisions being capable of preventing an accumulation of water on the "other side" of the bulkhead/barrier. In such cases where scuppers become inoperative as a result of a loss of positive difference of water levels other means of passive drainage must be provided.2. The height (Bh) of transverse and longitudinal bulkheads/barriers shall be not less than (8 x hw) metres, where hw is the height of the accumulated water as calculated by application of the residual freeboard and significant wave height ( as referred to in paragraphs 1.1 and 1.3). However in no case is the height of the bulkhead/barrier to be less than the greater of:(a) 2,2 metres; or(b) the height between the bulkhead deck and the lower point of the underside structure of the intermediate or hanging car decks, when these are in their lowered position. It should be noted that any gaps between the top edge of the bulkhead and the underside of the plating must be "plated-in" in the transverse or longitudinal direction as appropriate (see figure 6).Bulkheads/barriers with a height less than that specified above, may be accepted if model tests are carried out in accordance with part II of this Annex to confirm that the alternative design ensures appropriate standard of survivability. Care needs to be taken when fixing the height of the bulkhead/barrier such that the height shall also be sufficient to prevent progressive flooding within the required stability range. This range is not to be prejudiced by model tests.Note:The range may be reduced to 10 degrees provided the corresponding area under the curve is increased (as referred to in MSC 64/22).Paragraph 2.5.1The area "A" relates to permanent openings. It should be noted that the "freeing ports" option is not suitable for ships which require the buoyancy of the whole or part of the superstructure in order to meet the criteria. The requirement is that the freeing ports shall be fitted with closing flaps to prevent water entering, but allowing water to drain.These flaps must not rely on active means. They must be self-operating and it must be shown that they do not restrict outflow to a significant degree. Any significant efficiency reduction must be compensated by the fitting of additional openings so that the required area is maintained.Paragraph 2.5.2For the freeing ports to be considered effective the minimum distance from the lower edge of the freeing port to the damaged waterline shall be at least 1,0 m. The calculation of the minimum distance shall not take into account the effect of any additional water on deck (see figure 7).Paragraph 2.5.3Freeing ports must be sited as low as possible in the side bulwark or shell plating. The lower edge of the freeing port opening must be no higher than 2 cm above the bulkhead deck and the upper edge of the opening no higher than 0,6 m (see figure 8).Note:Spaces to which paragraph 2.5 applies, i.e. those spaces fitted with freeing ports or similar openings, shall not be included as intact spaces in the derivation of the intact and damage stability curves.Paragraph 2.61. The statutory extent of damage is to be applied along the length of the ship. Depending on the subdivision standard the damage may not affect any bulkhead or may only affect a bulkhead below the bulkhead deck or only bulkhead above the bulkhead deck or various combinations.2. All transverse and longitudinal bulkheads/barriers which constrain the assumed accumulated amount of water must be in place and secured at all times when the ship is at sea.3. In those cases where the transverse bulkhead/barrier is damaged the accumulated water on deck shall have a common surface level on both sides of the damaged bulkhead/barrier at the height hw (see figure 9).PART IIMODEL TESTINGThe purpose of these guidelines is to ensure uniformity in the methods employed in the construction and verification of the model as well as in the undertaking and analyses of the model tests, while appreciating that available facilities and costs will affect in some way this uniformity.The content of paragraph 1 of the Appendix to Annex I is self-explanatory.Paragraph 2 - Ship model2.1. The material of which the model is made is not important in itself, provided that the model both in the intact and damaged condition is sufficiently rigid to ensure that its hydrostatic properties are the same as those of the actual ship and also that the flexural response of the hull in waves is negligible.It is also important to ensure that the damaged compartments are modelled as accurately as practicably possible to ensure that the correct volume of flood water is represented.Since ingress of water (even small amounts) into the intact parts of the model will affect its behaviour, measures must be taken to ensure that this ingress does not occur.2.2. Model particulars2.2.1. In recognising that scale effects play an important role in the behaviour of the model during tests, it is important to ensure that these effects are minimised as much as practically possible. The model should be as large as possible since details of damaged compartments are easier constructed in larger models and the scale effects are reduced. It is therefore recommended that the model length is not less than that corresponding to 1:40 scale. However it is required that the model is not less than 3 metres long at the subdivision load line.2.2.2(a) The model in way of the assumed damages must be as thin as practically possible to ensure that the amount of flood water and its centre of gravity is adequately represented. It is recognised that it may not be possible for the model hull and the elements of primary and secondary subdivision in way of the damage to be constructed with sufficient detail and due to these constructional limitations it may not be possible to calculate accurately the assumed permeability of the space.2.2.2(b) It has been found during tests that the vertical extent of the model can affect the results when tested dynamically. It is therefore required that the ship is modelled to at least three super structure standard heights above the bulkhead (freeboard) deck so that the large waves of the wave train do not break over the model.2.2.2(c) It is important that not only the draughts in the intact condition are verified, but also that the draughts of the damaged model are accurately measured for correlation with those derived from the damaged stability calculation. After measuring the damaged draughts it may be found necessary to make adjustments to the permeability of the damaged compartment by either introducing intact volumes or by adding weights. However it is also important to ensure that the centre of gravity of the flood water is accurately represented. In this case any adjustments made must err on the side of safety.2.2.2(d) If the model is required to be fitted with barriers on deck and the barriers are less than the height required as per paragraph 2.3 of Annex I, the model is to be fitted with CCTV so that any "splashing over" and any accumulation of water on the undamaged area of the deck can be monitored. In this case a video recording of the event is to form part of the test records.2.2.3. In order to ensure that the model motion characteristics represent those of the actual ship it is important that the model is both inclined and rolled in the intact condition so that the intact GM and the mass distribution are verified.The transverse radius of gyration of the actual ship is not to be taken as being greater than 0,4B and the longitudinal radius of gyration is not to be taken as being more than 0,25L.The transverse rolling period of the model is to be obtained by:>REFERENCE TO A GRAPHIC>where:GM: metacentric height of the actual (intact) shipg: acceleration due to gravityλ: scale of modelB: breadth of actual ship.Note:While inclining and rolling the model in the damage condition may be accepted as a check for the purpose of verifying the residual stability curve, such tests are not to be accepted in lieu of the intact tests.Nevertheless the damaged model must be rolled in order to obtain the rolling period required to perform the tests as per paragraph 3.1.2.2.2.4. The contents of this paragraph are self-explanatory. It is assumed that the ventilators of the damage compartment of the actual ship are adequate for unhindered flooding and movement of the flood water. However in trying to scale down the ventilating arrangements of the actual ship undesirable scale effects may be introduced. In order to ensure that these do not occur it is recommended to construct the ventilating arrangements to a larger scale than that of the model, ensuring that this does not affect the flow of water on the car deck.2.2.5. The isosceles triangular profile of the prismatic damage shape is that corresponding to the load waterline.Additionally in cases where side casings of width less than B/5 are fitted and in order to avoid any possible scale effects, the damage length in way of the side casings must not be less than 2 metres.Paragraph 3 - Procedure for experiments3.1. Wave spectraThe Jonswap spectrum it to be used as this describes fetch and duration limited seas which correspond to the majority of the conditions world wide. In this respect it is important that not only the peak period of the wave train is verified but also that the zero crossing period is correct.3.1.1. Corresponding to a peak period of 4[radic   ]hs and given that the enhancement factor γ is 3,3, the zero crossing period is not to be greater than:{Tp/(1,20 to 1,28)} +/- 5 %3.1.2. The zero crossing period corresponding to a peak period equal to the rolling period of the damaged model and given that the factor γ is to be 1, is not to be greater than:{Tp/(1,3 to 1,4)} +/- 5 %,noting that if the rolling period of the damaged model is greater than 6[radic   ]hs, the peak period is to be limited to 6[radic   ]hs.Note:It has been found that it is not practical to set limits for zero crossing periods of the model wave spectra according to the nominal values of the mathematical formulae. Therefore an error margin of 5 % is allowed.It is required that for every test run the wave spectrum is recorded and documented. Measurements for this recording are to be taken in the immediate vicinity of the model (but not on the leeside) - see figure (a) below, and also near the wave-making machine. It is also required that the model is instrumented so that its motions (roll, heave and pitch) as well as its attitude (heel, sinkage and trim) are monitored and recorded though out the test.>PIC FILE= "L_2003123EN.003501.TIF">The "near the model" wave measuring probe to be positioned either on arc A or arc B (figure (a)).Paragraphs 3.2, 3.3, 3.4The contents of these paragraphs are considered self-explanatory.Paragraph 3.5 Simulated damagesExtensive research carried out for the purpose of developing appropriate criteria for new vessels has clearly shown that in addition to the GM and freeboard being important parameters in the survivability of passenger ships, the area under the residual stability curve up to the angle of maximum GZ is also an other major factor. Consequently in choosing the worst SOLAS damage for compliance with the requirement of paragraph 3.5.1, the worst damage is to be taken as that which gives the least area under the residual stability curve up to the angle of the maximum GZ.Paragraph 4 - Survival criteriaThe contents of this paragraph are considered self-explanatory.Paragraph 5 - Test approvalThe following documents are to be part of the report to the administration:(a) damage stability calculations for worst SOLAS and mid-ship damage (if different);(b) general arrangement drawing of the model together with details of construction and instrumentation;(c) inclining experiment and rolling test reports;(d) calculations of actual ship and model rolling periods; and(e) nominal and measured wave spectra (near the wave-making machine and near the model respectively);(f) representative record of model motions, attitude and drift;(g) relevant video recordings.Note:All tests must be witnessed by the administration.Figures(Indicative guidelines to national administrations)Figure 1>PIC FILE= "L_2003123EN.003601.TIF">Figure 2>PIC FILE= "L_2003123EN.003701.TIF">1. If fr >= 2,0 metres, height of water on deck (hw) = 0,0 metres.2. If fr <  0,3 metres, height of water on deck (hw) = 0,5 metres.Figure 3>PIC FILE= "L_2003123EN.003702.TIF">1. If hs >= 4,0 metres, height of water on deck is calculated as per figure 3.2. If hs <  1,5 metres, height of water on deck (hw) = 0,0 metres.For example:If fr = 1,15 metres and hs = 2,75 metres, height hw = 0,125 metres.Figure 4>PIC FILE= "L_2003123EN.003801.TIF">Figure 5>PIC FILE= "L_2003123EN.003901.TIF">Figure 6>PIC FILE= "L_2003123EN.004001.TIF">Ship without hanging car decksExample 1:Height of water on deck = 0,25 metresMinimum required height of barrier = 2,2 metresShip with hanging deck (in way of the barrier)Example 2:Height of water on deck (hw) = 0,25 metresMinimum required height of barrier = xFigure 7>PIC FILE= "L_2003123EN.004002.TIF">Minimum required freeboard to freeing port = 1,0 mFigure 8>PIC FILE= "L_2003123EN.004101.TIF">Figure 9>PIC FILE= "L_2003123EN.004102.TIF">Deck edge not immersed>PIC FILE= "L_2003123EN.004103.TIF">Deck edge immersed


Avis juridique important

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32001L0084

Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art

Official Journal L 272 , 13/10/2001 P. 0032 - 0036

Directive 2001/84/EC of the European Parliament and of the Councilof 27 September 2001on the resale right for the benefit of the author of an original work of artTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,Having regard to the proposal from the Commission(1),Having regard to the opinion of the Economic and Social Committee(2),Acting in accordance with the procedure laid down in Article 251 of the Treaty(3), and in the light of the joint text approved by the Conciliation Committee on 6 June 2001,Whereas:(1) In the field of copyright, the resale right is an unassignable and inalienable right, enjoyed by the author of an original work of graphic or plastic art, to an economic interest in successive sales of the work concerned.(2) The resale right is a right of a productive character which enables the author/artist to receive consideration for successive transfers of the work. The subject-matter of the resale right is the physical work, namely the medium in which the protected work is incorporated.(3) The resale right is intended to ensure that authors of graphic and plastic works of art share in the economic success of their original works of art. It helps to redress the balance between the economic situation of authors of graphic and plastic works of art and that of other creators who benefit from successive exploitations of their works.(4) The resale right forms an integral part of copyright and is an essential prerogative for authors. The imposition of such a right in all Member States meets the need for providing creators with an adequate and standard level of protection.(5) Under Article 151(4) of the Treaty the Community is to take cultural aspects into account in its action under other provisions of the Treaty.(6) The Berne Convention for the Protection of Literary and Artistic Works provides that the resale right is available only if legislation in the country to which the author belongs so permits. The right is therefore optional and subject to the rule of reciprocity. It follows from the case-law of the Court of Justice of the European Communities on the application of the principle of non-discrimination laid down in Article 12 of the Treaty, as shown in the judgment of 20 October 1993 in Joined Cases C-92/92 and C-326/92 Phil Collins and Others(4), that domestic provisions containing reciprocity clauses cannot be relied upon in order to deny nationals of other Member States rights conferred on national authors. The application of such clauses in the Community context runs counter to the principle of equal treatment resulting from the prohibition of any discrimination on grounds of nationality.(7) The process of internationalisation of the Community market in modern and contemporary art, which is now being speeded up by the effects of the new economy, in a regulatory context in which few States outside the EU recognise the resale right, makes it essential for the European Community, in the external sphere, to open negotiations with a view to making Article 14b of the Berne Convention compulsory.(8) The fact that this international market exists, combined with the lack of a resale right in several Member States and the current disparity as regards national systems which recognise that right, make it essential to lay down transitional provisions as regards both entry into force and the substantive regulation of the right, which will preserve the competitiveness of the European market.(9) The resale right is currently provided for by the domestic legislation of a majority of Member States. Such laws, where they exist, display certain differences, notably as regards the works covered, those entitled to receive royalties, the rate applied, the transactions subject to payment of a royalty, and the basis on which these are calculated. The application or non-application of such a right has a significant impact on the competitive environment within the internal market, since the existence or absence of an obligation to pay on the basis of the resale right is an element which must be taken into account by each individual wishing to sell a work of art. This right is therefore a factor which contributes to the creation of distortions of competition as well as displacement of sales within the Community.(10) Such disparities with regard to the existence of the resale right and its application by the Member States have a direct negative impact on the proper functioning of the internal market in works of art as provided for by Article 14 of the Treaty. In such a situation Article 95 of the Treaty constitutes the appropriate legal basis.(11) The objectives of the Community as set out in the Treaty include laying the foundations of an ever closer union among the peoples of Europe, promoting closer relations between the Member States belonging to the Community, and ensuring their economic and social progress by common action to eliminate the barriers which divide Europe. To that end the Treaty provides for the establishment of an internal market which presupposes the abolition of obstacles to the free movement of goods, freedom to provide services and freedom of establishment, and for the introduction of a system ensuring that competition in the common market is not distorted. Harmonisation of Member States' laws on the resale right contributes to the attainment of these objectives.(12) The Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - common system of value added tax: uniform basis of assessment(5), progressively introduces a Community system of taxation applicable inter alia to works of art. Measures confined to the tax field are not sufficient to guarantee the harmonious functioning of the art market. This objective cannot be attained without harmonisation in the field of the resale right.(13) Existing differences between laws should be eliminated where they have a distorting effect on the functioning of the internal market, and the emergence of any new differences of that kind should be prevented. There is no need to eliminate, or prevent the emergence of, differences which cannot be expected to affect the functioning of the internal market.(14) A precondition of the proper functioning of the internal market is the existence of conditions of competition which are not distorted. The existence of differences between national provisions on the resale right creates distortions of competition and displacement of sales within the Community and leads to unequal treatment between artists depending on where their works are sold. The issue under consideration has therefore transnational aspects which cannot be satisfactorily regulated by action by Member States. A lack of Community action would conflict with the requirement of the Treaty to correct distortions of competition and unequal treatment.(15) In view of the scale of divergences between national provisions it is therefore necessary to adopt harmonising measures to deal with disparities between the laws of the Member States in areas where such disparities are liable to create or maintain distorted conditions of competition. It is not however necessary to harmonise every provision of the Member States' laws on the resale right and, in order to leave as much scope for national decision as possible, it is sufficient to limit the harmonisation exercise to those domestic provisions that have the most direct impact on the functioning of the internal market.(16) This Directive complies therefore, in its entirety, with the principles of subsidiarity and proportionality as laid down in Article 5 of the Treaty.(17) Pursuant to Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights(6), the term of copyright runs for 70 years after the author's death. The same period should be laid down for the resale right. Consequently, only the originals of works of modern and contemporary art may fall within the scope of the resale right. However, in order to allow the legal systems of Member States which do not, at the time of the adoption of this Directive, apply a resale right for the benefit of artists to incorporate this right into their respective legal systems and, moreover, to enable the economic operators in those Member States to adapt gradually to the aforementioned right whilst maintaining their economic viability, the Member States concerned should be allowed a limited transitional period during which they may choose not to apply the resale right for the benefit of those entitled under the artist after his death.(18) The scope of the resale right should be extended to all acts of resale, with the exception of those effected directly between persons acting in their private capacity without the participation of an art market professional. This right should not extend to acts of resale by persons acting in their private capacity to museums which are not for profit and which are open to the public. With regard to the particular situation of art galleries which acquire works directly from the author, Member States should be allowed the option of exempting from the resale right acts of resale of those works which take place within three years of that acquisition. The interests of the artist should also be taken into account by limiting this exemption to such acts of resale where the resale price does not exceed EUR 10000.(19) It should be made clear that the harmonisation brought about by this Directive does not apply to original manuscripts of writers and composers.(20) Effective rules should be laid down based on experience already gained at national level with the resale right. It is appropriate to calculate the royalty as a percentage of the sale price and not of the increase in value of works whose original value has increased.(21) The categories of works of art subject to the resale right should be harmonised.(22) The non-application of royalties below the minimum threshold may help to avoid disproportionately high collection and administration costs compared with the profit for the artist. However, in accordance with the principle of subsidiarity, the Member States should be allowed to establish national thresholds lower than the Community threshold, so as to promote the interests of new artists. Given the small amounts involved, this derogation is not likely to have a significant effect on the proper functioning of the internal market.(23) The rates set by the different Member States for the application of the resale right vary considerably at present. The effective functioning of the internal market in works of modern and contemporary art requires the fixing of uniform rates to the widest possible extent.(24) It is desirable to establish, with the intention of reconciling the various interests involved in the market for original works of art, a system consisting of a tapering scale of rates for several price bands. It is important to reduce the risk of sales relocating and of the circumvention of the Community rules on the resale right.(25) The person by whom the royalty is payable should, in principle, be the seller. Member States should be given the option to provide for derogations from this principle in respect of liability for payment. The seller is the person or undertaking on whose behalf the sale is concluded.(26) Provision should be made for the possibility of periodic adjustment of the threshold and rates. To this end, it is appropriate to entrust to the Commission the task of drawing up periodic reports on the actual application of the resale right in the Member States and on the impact on the art market in the Community and, where appropriate, of making proposals relating to the amendment of this Directive.(27) The persons entitled to receive royalties must be specified, due regard being had to the principle of subsidiarity. It is not appropriate to take action through this Directive in relation to Member States' laws of succession. However, those entitled under the author must be able to benefit fully from the resale right after his death, at least following the expiry of the transitional period referred to above.(28) The Member States are responsible for regulating the exercise of the resale right, particularly with regard to the way this is managed. In this respect management by a collecting society is one possibility. Member States should ensure that collecting societies operate in a transparent and efficient manner. Member States must also ensure that amounts intended for authors who are nationals of other Member States are in fact collected and distributed. This Directive is without prejudice to arrangements in Member States for collection and distribution.(29) Enjoyment of the resale right should be restricted to Community nationals as well as to foreign authors whose countries afford such protection to authors who are nationals of Member States. A Member State should have the option of extending enjoyment of this right to foreign authors who have their habitual residence in that Member State.(30) Appropriate procedures for monitoring transactions should be introduced so as to ensure by practical means that the resale right is effectively applied by Member States. This implies also a right on the part of the author or his authorised representative to obtain any necessary information from the natural or legal person liable for payment of royalties. Member States which provide for collective management of the resale right may also provide that the bodies responsible for that collective management should alone be entitled to obtain information,HAVE ADOPTED THIS DIRECTIVE:CHAPTER ISCOPEArticle 1Subject matter of the resale right1. Member States shall provide, for the benefit of the author of an original work of art, a resale right, to be defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.2. The right referred to in paragraph 1 shall apply to all acts of resale involving as sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art.3. Member States may provide that the right referred to in paragraph 1 shall not apply to acts of resale where the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed EUR 10000.4. The royalty shall be payable by the seller. Member States may provide that one of the natural or legal persons referred to in paragraph 2 other than the seller shall alone be liable or shall share liability with the seller for payment of the royalty.Article 2Works of art to which the resale right relates1. For the purposes of this Directive, "original work of art" means works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist himself or are copies considered to be original works of art.2. Copies of works of art covered by this Directive, which have been made in limited numbers by the artist himself or under his authority, shall be considered to be original works of art for the purposes of this Directive. Such copies will normally have been numbered, signed or otherwise duly authorised by the artist.CHAPTER IIPARTICULAR PROVISIONSArticle 3Threshold1. It shall be for the Member States to set a minimum sale price from which the sales referred to in Article 1 shall be subject to resale right.2. This minimum sale price may not under any circumstances exceed EUR 3000.Article 4Rates1. The royalty provided for in Article 1 shall be set at the following rates:(a) 4 % for the portion of the sale price up to EUR 50000;(b) 3 % for the portion of the sale price from EUR 50000,01 to EUR 200000;(c) 1 % for the portion of the sale price from EUR 200000,01 to EUR 350000;(d) 0,5 % for the portion of the sale price from EUR 350000,01 to EUR 500000;(e) 0,25 % for the portion of the sale price exceeding EUR 500000.However, the total amount of the royalty may not exceed EUR 12500.2. By way of derogation from paragraph 1, Member States may apply a rate of 5 % for the portion of the sale price referred to in paragraph 1(a).3. If the minimum sale price set should be lower than EUR 3000, the Member State shall also determine the rate applicable to the portion of the sale price up to EUR 3000; this rate may not be lower than 4 %.Article 5Calculation basisThe sale prices referred to in Articles 3 and 4 are net of tax.Article 6Persons entitled to receive royalties1. The royalty provided for under Article 1 shall be payable to the author of the work and, subject to Article 8(2), after his death to those entitled under him/her.2. Member States may provide for compulsory or optional collective management of the royalty provided for under Article 1.Article 7Third-country nationals entitled to receive royalties1. Member States shall provide that authors who are nationals of third countries and, subject to Article 8(2), their successors in title shall enjoy the resale right in accordance with this Directive and the legislation of the Member State concerned only if legislation in the country of which the author or his/her successor in title is a national permits resale right protection in that country for authors from the Member States and their successors in title.2. On the basis of information provided by the Member States, the Commission shall publish as soon as possible an indicative list of those third countries which fulfil the condition set out in paragraph 1. This list shall be kept up to date.3. Any Member State may treat authors who are not nationals of a Member State but who have their habitual residence in that Member State in the same way as its own nationals for the purpose of resale right protection.Article 8Term of protection of the resale right1. The term of protection of the resale right shall correspond to that laid down in Article 1 of Directive 93/98/EEC.2. By way of derogation from paragraph 1, those Member States which do not apply the resale right on (the entry into force date referred to in Article 13), shall not be required, for a period expiring not later than 1 January 2010, to apply the resale right for the benefit of those entitled under the artist after his/her death.3. A Member State to which paragraph 2 applies may have up to two more years, if necessary to enable the economic operators in that Member State to adapt gradually to the resale right system while maintaining their economic viability, before it is required to apply the resale right for the benefit of those entitled under the artist after his/her death. At least 12 months before the end of the period referred to in paragraph 2, the Member State concerned shall inform the Commission giving its reasons, so that the Commission can give an opinion, after appropriate consultations, within three months following the receipt of such information. If the Member State does not follow the opinion of the Commission, it shall within one month inform the Commission and justify its decision. The notification and justification of the Member State and the opinion of the Commission shall be published in the Official Journal of the European Communities and forwarded to the European Parliament.4. In the event of the successful conclusion, within the periods referred to in Article 8(2) and (3), of international negotiations aimed at extending the resale right at international level, the Commission shall submit appropriate proposals.Article 9Right to obtain informationThe Member States shall provide that for a period of three years after the resale, the persons entitled under Article 6 may require from any art market professional mentioned in Article 1(2) to furnish any information that may be necessary in order to secure payment of royalties in respect of the resale.CHAPTER IIIFINAL PROVISIONSArticle 10Application in timeThis Directive shall apply in respect of all original works of art as defined in Article 2 which, on 1 January 2006, are still protected by the legislation of the Member States in the field of copyright or meet the criteria for protection under the provisions of this Directive at that date.Article 11Revision clause1. The Commission shall submit to the European Parliament, the Council and the Economic and Social Committee not later than 1 January 2009 and every four years thereafter a report on the implementation and the effect of this Directive, paying particular attention to the competitiveness of the market in modern and contemporary art in the Community, especially as regards the position of the Community in relation to relevant markets that do not apply the resale right and the fostering of artistic creativity and the management procedures in the Member States. It shall examine in particular its impact on the internal market and the effect of the introduction of the resale right in those Member States that did not apply the right in national law prior to the entry into force of this Directive. Where appropriate, the Commission shall submit proposals for adapting the minimum threshold and the rates of royalty to take account of changes in the sector, proposals relating to the maximum amount laid down in Article 4(1) and any other proposal it may deem necessary in order to enhance the effectiveness of this Directive.2. A Contact Committee is hereby established. It shall be composed of representatives of the competent authorities of the Member States. It shall be chaired by a representative of the Commission and shall meet either on the initiative of the Chairman or at the request of the delegation of a Member State.3. The task of the Committee shall be as follows:- to organise consultations on all questions deriving from application of this Directive,- to facilitate the exchange of information between the Commission and the Member States on relevant developments in the art market in the Community.Article 12Implementation1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 2006. They shall forthwith inform the Commission thereof.When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.2. Member States shall communicate to the Commission the provisions of national law which they adopt in the field covered by this Directive.Article 13Entry into forceThis Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.Article 14AddresseesThis Directive is addressed to the Member States.Done at Brussels, 27 September 2001.For the European ParliamentThe PresidentN. FontaineFor the CouncilThe PresidentC. Picqué(1) OJ C 178, 21.6.1996, p. 16 and OJ C 125, 23.4.1998, p. 8.(2) OJ C 75, 10.3.1997, p. 17.(3) Opinion of the European Parliament of 9 April 1997 (OJ C 132, 28.4.1997, p. 88), confirmed on 27 October 1999, Council Common Position of 19 June 2000 (OJ C 300, 20.10.2000, p. 1) and Decision of the European Parliament of 13 December 2000 (OJ C 232, 17.8.2001, p. 173). Decision of the European Parliament of 3 July 2001 and Decision of the Council of 19 July 2001.(4) [1993] ECR I-5145.(5) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive 1999/85/EC (OJ L 277, 28.10.1999, p. 34).(6) OJ L 290, 24.11.1993, p. 9.


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31983L0643

Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States

Official Journal L 359 , 22/12/1983 P. 0008 - 0011 Spanish special edition: Chapter 07 Volume 3 P. 0187  Portuguese special edition Chapter 07 Volume 3 P. 0187

COUNCIL DIRECTIVE of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (83/643/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Articles 43, 75, 84 and 100 thereof,  Having regard to the proposal from the Commission (1),  Having regard to the opinion of the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Whereas the European Council has on a number of occasions underlined the need to reinforce and develop further the internal market ; whereas increased efforts are needed to reduce to the minimum the formalities and inspection at internal Community frontiers;  Whereas, on 26 March 1981 (4), the Council approved a priority programme under the common transport policy, concerning the period up to the end of 1983, of which to facilitate the crossing of frontiers was one of 10 priorities ; whereas the Council called upon the Commission to submit proposals on this subject;  Whereas, on 12 June 1978, the Council approved a priority programme for air transport, one priority being facilitation;  Whereas waiting times at frontier crossing-points affect the flow of transport between Member States, lead to an increase in transport costs, which is passed on in the end price of the goods carried, and thus have a negative effect on intra-Community trade;  Whereas waiting times at frontiers may have a negative effect on the working conditions of those employed in the transport sector, in particular in road transport and inland waterway transport;  Whereas these waiting times at frontier crossing-points are caused by transport-related factors and other factors;  Whereas waiting times could be reduced by organizing inspections and formalities and inspections, which are justified under Community law, more efficiently;  Whereas, in order to ensure a smoother flow of means of transport engaged in the carriage of goods between Member States, it is desirable to centralize the various  (1) OJ No C 127, 18.5.1982, p. 6. (2) OJ No C 42, 14.2.1983, p. 67. (3) OJ No C 90, 5.4.1983, p. 22. (4) OJ No C 171, 11.7.1981, p. 1.   inspections in one place, preferably the place of departure or destination of the goods;  Whereas it is advisable that, in intra-Community trade, Member States should carry out inspection by means of spot-checks, except in duly justified circumstances;  Whereas the flow of goods traffic between Member States may be improved by application of the principle of recognition of inspections carried out and of documents drawn up by the competent authorities of another Member State which prove that the goods meet the conditions applicable in the Member State of import or transit;  Whereas it is desirable to attain, through cooperation and concerted effort between the various inspection services and the different types of users, better exchange of information on the various problems which arise at certain frontier crossing-points, in order to seek joint solutions likely to improve the situation at the crossing-points in question;  Whereas a minimum of business hours at frontier posts and appropriate organization of the hours during which inspection services operate may reduce waiting times in traffic passing through;  Whereas the establishment of express lanes reserved for means of transport travelling empty or carrying goods under a customs transit procedure is likely to bring about a reduction in waiting times at the frontier;  Whereas it is also necessary to ensure that Member States do not introduce any new inspections or formalities that would render inoperative the measures taken to facilitate the crossing of frontiers,  HAS ADOPTED THIS DIRECTIVE:    Article 1 1. Without prejudice to individual provisions in force in the framework of general or specific Community rules, this Directive shall apply to physical inspections and administrative formalities, hereinafter referred to as "inspections and formalities", concerning the transport of goods which have to cross:  - an internal frontier within the Community, or   - an external frontier, where carriage between Member States involves crossing a third country.     2. This Directive shall not apply to inspections or formalities for ships and aircraft as means of transport ; however, it shall apply to vehicles and goods carried by the said means of transport.   Article 2 Member States shall take the necessary measures to ensure that in the course of any carriage operation the various inspections and formalities are carried out with the minimum of delay necessary and:  - as far as possible, in one place,   - with the inspections being carried out by means of spot checks, except in duly justified circumstances.      Article 3 1. For the purposes of implementing this Directive and without prejudice to the possibility of carrying out spot checks, the importing Member States or the Member States through which the goods are passing in transit shall recognize the inspections carried out and the documents drawn up by the competent authorities of another Member State which show that the goods comply with the requirements of the Member State of import or transit.  Member States shall cooperate to combat fraudulent practices and the forgery of certificates.  2. Member States shall send each other and the Commission the information necessary in order to carry out the inspections and draw up the documents required. In cooperation with the Member States, the Commission shall prepare a manual containing the salient points regarding the methods of inspection and analysis applied in each Member State.   Article 4 1. In order to seek appropriate solutions to problems arising at common frontiers, Member States shall take the measures necessary to extend bilateral cooperation between the various departments carrying out inspections and formalities on either side.  2. The cooperation referred to in paragraph 1 shall cover inter alia:  - the harmonization of the business hours of the various departments concerned,   -  the arrangement of frontier posts,   - the conversion of frontier offices into juxtaposed or combined inspection offices, where possible.     3. Member States shall provide for the possibility of informal consultation at local and, if appropriate, national level between representatives of the various departments involved in inspections and formalities and of carriers, customs agents, persons engaged in services ancillary to transport and transport users.   Article 5 1. Where the volume of traffic so warrants, Member States shall ensure that frontier posts are open, except when traffic is prohibited, so that:  - frontiers can be crossed 24 hours a day with the corresponding inspections and formalities, by vehicles travelling unladen or carrying goods under a customs transit procedure, save where frontier inspection is necessary to prevent the spread of disease,   - inspections and formalities relating to the movement of means of transport and of goods which are not being carried under a customs transit procedure may be carried out daily from Monday to Friday during an uninterrupted period of at least 10 hours and on Saturday during an uninterrupted period of at least six hours, except where these days are public holidays.     2. Where general compliance with the periods referred to in the second indent of paragraph 1 poses problems for veterinary services, Member States shall ensure that, with at least 12 hours' notice from the carrier, a veterinary expert is available during these periods at the time of the frontier crossing ; in the case of the transport of live animals, however, this notice may be increased to at least 18 hours.  3. Where several frontier posts are situated in the same port area, Member States may derogate from paragraph 1 provided that the other posts in that area are sufficient to clear goods and vehicles effectively in accordance with that paragraph.  4. For the frontier posts referred to in paragraph 1, and under the conditions laid down by the Member States, the competent authorities of the Member States shall ensure that, if specifically requested during business hours and for sound reasons, inspections and formalities can be carried out, as an exception, outside business hours ; where relevant, services so rendered shall be paid for.   Article 6 Member States shall take the necessary measures to ensure that waiting time caused by the various inspections and formalities does not exceed the time required for their proper completion. To this end, they shall organize the business hours of the departments which are to carry out inspections and formalities and the staff available in such a way as to reduce waiting time in the flow of traffic to a minimum.   Article 7 Member States shall endeavour to establish at frontier posts, where technically possible and justified by the volume of traffic, express lanes reserved for means of transport travelling unladen or carrying goods under a customs transit procedure.   Article 8 With a view to resolving difficulties with inspections or formalities within the meaning of this Directive, a Member State may request consultations with another Member State. If these consultations do not enable the difficulties to be resolved, a Member State may inform the Commission so that the latter can submit such solutions as it deems appropriate to resolve the difficulties in question.   Article 9 Where, in exceptional and justified cases, a Member State intends to introduce a new inspection or formality, it shall inform the Commission thereof.  The Member State concerned shall ensure that the measures taken to facilitate the crossing of frontiers are not rendered inoperative through the application of such new inspections or formalities.   Article 10 For the first time before 1 July 1986, and thereafter every two years, Member States shall forward to the Commission the particulars covered by a questionnaire from the Commission concerning any provisions and practical measures found necessary in the course of the preceding two years with a view to ensuring more efficient organization of the inspections and formalities.  On the basis of these particulars, the Commission shall report every two years to the Council on the implementation of this Directive.    Article 11 1. Member States shall, after consulting the Commission, bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 1984 at the latest.  2. However, Member States may, after consulting the Commission, postpone application of Article 5 until 31 December 1986.  3. Each Member State shall communicate to the Commission the texts of the provisions it adopts in order to implement this Directive.   Article 12 This Directive is addressed to the Member States.     Done at Brussels, 1 December 1983.  For the Council  The President  N. AKRITIDIS