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32002L0059

Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC

Official Journal L 208 , 05/08/2002 P. 0010 - 0027

Directive 2002/59/EC of the European Parliament and of the Councilof 27 June 2002establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EECTHE 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 Economic and Social Committee(2),Having regard to the opinion of the Committee of the Regions(3),Acting in accordance with the procedure indicated in Article 251 of the Treaty(4),Whereas:(1) In its communication of 24 February 1993 on a common policy on safe seas, the Commission indicated that one objective at Community level was the introduction of a mandatory information system to give Member States rapid access to all important information relating to the movements of ships carrying dangerous or polluting materials and to the precise nature of their cargo.(2) Council Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods(5) introduced a system whereby the competent authorities receive information regarding ships bound for or leaving a Community port and carrying dangerous or polluting goods, and regarding incidents at sea. That Directive requires the Commission to produce new proposals for the introduction of a fuller reporting system for the Community, possibly covering ships transiting along the coasts of Member States.(3) The Council Resolution of 8 June 1993 on a common policy on safe seas(6) agreed that the main objectives of Community action included the adoption of a fuller information system.(4) Setting up a Community vessel traffic monitoring and information system should help to prevent accidents and pollution at sea and to minimise their impact on the marine and coastal environment, the economy and the health of local communities. The efficiency of maritime traffic, and in particular of the management of ships' calls into ports, also depends on ships giving sufficient advance notice of their arrival.(5) Several mandatory ship reporting systems have been set up along Europe's coasts, in accordance with the relevant rules adopted by the International Maritime Organisation (IMO). It ought to be ensured that ships comply with the reporting requirements in force under these systems.(6) Vessel traffic services and ships' routing systems have also been introduced and are playing an important part in the prevention of accidents and pollution in certain shipping areas which are congested or hazardous for shipping. It is necessary that ships use vessel traffic services and that they follow the rules applicable to ships' routing systems approved by the IMO.(7) Key technological progress has been made in the area of on-board equipment allowing automatic identification of ships (AIS systems) for enhanced ship monitoring, as well as voyage data recording (VDR systems or "black boxes") to facilitate investigations following accidents. Given its importance in the formulation of a policy to prevent shipping accidents, such equipment should be made compulsory on board ships making national or international voyages which call at Community ports. The data provided by a VDR system can be used both after an accident to investigate its causes and preventively to learn the necessary lessons from such situations. Member States should encourage the use of such data for both purposes.(8) Member States should ensure that the coastal stations of the competent authorities have available, in addition to appropriate technical equipment, sufficient and properly qualified staff.(9) Accurate knowledge of dangerous or polluting goods being carried on board ships and of other relevant safety information, such as information relating to navigational incidents, is essential to the preparation and effectiveness of operations to tackle pollution or the risk of pollution at sea. Ships leaving or bound for Member States' ports must notify this information to the competent authorities or port authorities of those Member States.(10) To streamline and accelerate the transmission and utilisation of what may be huge amounts of information on cargo, such information ought to be sent, whenever practicable, electronically to the competent authority or port authority concerned. For the same reasons, exchanges of information between the competent authorities of the Member States should take place electronically.(11) Where the companies concerned have, to the satisfaction of the Member States, introduced internal procedures to ensure that information required by the Directive is sent to the competent authority without delay, it must be possible to exempt scheduled services between two or more States, of which at least one is a Member State, from the reporting requirement for each voyage.(12) Because of their behaviour or condition, some ships pose potential risks to the safety of shipping and the environment. Member States should pay particular attention to the monitoring of such ships, take the appropriate measures to prevent any worsening of the risk they pose, and send any relevant information they possess on these ships to the other Member States concerned. Such appropriate measures could be measures provided for by port State control activities.(13) Member States need to guard against the threats to maritime safety, to the safety of individuals and to the marine and coastal environment created by incidents, accidents or certain other situations at sea and by the presence of polluting slicks or packages drifting at sea. To this end, masters of ships sailing within Member States' search and rescue region/exclusive economic zone or equivalent, should report such occurrences to the coastal authorities, supplying all appropriate information. In the light of their specific situation, Member States should be given flexibility in choosing which of the abovementioned geographical areas should be covered by the reporting obligation.(14) In the event of an incident or accident at sea, full and complete cooperation by the parties involved in the carriage contributes significantly to the effectiveness of operations by the competent authorities.(15) Where a competent authority designated by a Member State considers, upon a sea state and weather forecast provided by a qualified meteorological information service, that exceptionally bad weather or sea conditions are creating a serious threat for the safety of human life or of pollution, it should inform the master of a ship, which intends to enter or leave the port, of the situation and may take any other appropriate measures. Without prejudice to the duty of assistance to ships in distress, these might include a prohibition to enter or to leave port, until the situation returns to normal. In the event of a possible risk to safety or of pollution and taking into account the specific situation in the port concerned, the competent authority may recommend ships not to leave the port. If the master chooses to leave the port, he/she does so in any case under his/her own responsibility and should state the reasons for his/her decision.(16) Non-availability of a place of refuge may have serious consequences in the event of an accident at sea. Member States should therefore draw up plans whereby ships in distress may, if the situation so requires, be given refuge in their ports or any other sheltered area in the best conditions possible. Where necessary and feasible, these plans should include the provision of adequate means and facilities for assistance, salvage and pollution response. Ports accommodating a ship in distress should be able to rely on prompt compensation for any costs and damage involved in this operation. The Commission should therefore examine the possibilities for introducing an adequate system of compensation for ports in the Community accommodating a ship in distress and the feasibility of requiring a ship coming to a Community port to be adequately insured.(17) A framework for cooperation between the Member States and the Commission needs to be established to enhance the implementation of the monitoring and information system for maritime traffic, with proper communication links being established between the competent authorities and ports of the Member States. Moreover, the coverage of the ship identification and monitoring system needs to be supplemented in those shipping areas of the Community where it is insufficient. In addition, information management centres ought to be set up in the Community's maritime regions so as to facilitate the exchange or sharing of useful data in relation to traffic monitoring and the implementation of this Directive. The Member States and the Commission should also endeavour to cooperate with third countries to achieve these objectives.(18) The effectiveness of this Directive depends greatly on the Member States enforcing its implementation strictly. To this end, Member States must regularly carry out appropriate inspections or any other action required to ensure that the communication links established to meet the requirements of this Directive are operating satisfactorily. A system of sanctions should also be introduced to ensure that the parties concerned comply with the reporting and equipment carrying requirements laid down by this Directive.(19) 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).(20) Certain provisions of this Directive may be amended by that procedure so as to take account of the development of Community and international instruments and of experience gained in implementing this Directive, in so far as such amendments do not broaden the scope of the Directive. A useful tool for the Commission to evaluate the experience gained in implementing the Directive is an adequate reporting by Member States on such implementation.(21) The provisions of Directive 93/75/EEC are significantly reinforced, extended and amended by this Directive. Accordingly, Directive 93/75/EEC should be repealed.(22) Since the objectives of the proposed action, namely the enhancing of the safety and efficiency of maritime traffic, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed 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 those objectives,HAVE ADOPTED THIS DIRECTIVE:Article 1PurposeThe purpose of this Directive is to establish in the Community a vessel traffic monitoring and information system with a view to enhancing the safety and efficiency of maritime traffic, improving the response of authorities to incidents, accidents or potentially dangerous situations at sea, including search and rescue operations, and contributing to a better prevention and detection of pollution by ships.Member States shall monitor and take all necessary and appropriate measures to ensure that the masters, operators or agents of ships, as well as shippers or owners of dangerous or polluting goods carried on board such ships, comply with the requirements under this Directive.Article 2Scope1. This Directive applies to ships of 300 gross tonnage and upwards, unless stated otherwise.2. This Directive shall not apply to:(a) warships, naval auxiliaries and other ships owned or operated by a Member State and used for non-commercial public service;(b) fishing vessels, traditional ships and recreational craft with a length of less than 45 metres;(c) bunkers below 5000 tons, ships' stores and equipment for use on board ships.Article 3DefinitionsFor the purpose of this Directive(a) "Relevant international instruments" means the following instruments:- MARPOL means the International Convention for the Prevention of Pollution from Ships, 1973 and the 1978 Protocol thereto;- SOLAS means the International Convention for the Safety of Life at Sea, together with the protocols and amendments thereto;- the International Convention on Tonnage Measurement of Ships, 1969;- the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 and its 1973 Protocol relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil;- SAR Convention means the International Convention on Maritime Search and Rescue, 1979;- ISM Code means the International Safety Management Code;- IMDG Code means the International Maritime Dangerous Goods Code;- IBC Code means the IMO International Code for the construction and equipment of ships carrying dangerous chemicals in bulk;- IGC Code means the IMO International Code for the construction and equipment of ships carrying liquefied gases in bulk;- BC Code means the IMO Code of Safe Practice for Solid Bulk Cargoes;- INF Code means the IMO Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on board Ships;- IMO Resolution A.851(20) means International Maritime Organisation Resolution 851(20) entitled "General principles for ship reporting systems and ship reporting requirements, including guidelines for reporting incidents involving dangerous goods, harmful substances and/or marine pollutants";(b) "operator" means the owner or manager of a ship;(c) "agent" means any person mandated or authorised to supply information on behalf of the operator of the ship;(d) "shipper" means any person by whom or in whose name or on whose behalf a contract of carriage of goods has been concluded with a carrier;(e) "company" means a company within the meaning of Regulation 1(2) of Chapter IX of the SOLAS Convention;(f) "ship" means any sea-going vessel or craft;(g) "dangerous goods" means:- goods classified in the IMDG Code,- dangerous liquid substances listed in Chapter 17 of the IBC Code,- liquefied gases listed in Chapter 19 of the IGC Code,- solids referred to in Appendix B of the BC Code.Also included are goods for the carriage of which appropriate preconditions have been laid down in accordance with paragraph 1.1.3 of the IBC Code or paragraph 1.1.6 of the IGC Code;(h) "polluting goods" means:- oils as defined in Annex I to the MARPOL Convention,- noxious liquid substances as defined in Annex II to the MARPOL Convention,- harmful substances as defined in Annex III to the MARPOL Convention;(i) "cargo transport unit" means a road freight vehicle, a railway freight wagon, a freight container, a road tank vehicle, a railway wagon, or portable tank;(j) "address" means the name and the communication links whereby contact may, where necessary, be made with the operator, agent, port authority, competent authority or any other authorised person or body in possession of detailed information regarding the ship's cargo;(k) "competent authorities" means the authorities and organisations designated by Member States to receive and pass on information reported pursuant to this Directive;(l) "port authority" means the competent authority or body designated by Member States for each port to receive and pass on information reported pursuant to this Directive;(m) "place of refuge" means a port, the part of a port or another protective berth or anchorage or any other sheltered area identified by a Member State for accommodating ships in distress;(n) "coastal station" means any of the following, designated by Member States pursuant to this Directive: a vessel traffic service; a shore-based installation responsible for a mandatory reporting system approved by the IMO; or a body responsible for coordinating search and rescue operations or operations to tackle pollution at sea;(o) "vessel traffic service (VTS)" means a service designed to improve the safety and efficiency of vessel traffic and to protect the environment, which has the capability to interact with the traffic and to respond to traffic situations developing in the VTS area;(p) "ship's routing system" means any system of one or more routes or routing measures aimed at reducing the risk of casualties; it includes traffic separation schemes, two-way routes, recommended tracks, areas to be avoided, inshore traffic zones, roundabouts, precautionary areas and deep-water routes;(q) "traditional ships" means all kinds of historical ships and their replicas including those designed to encourage and promote traditional skills and seamanship, that together serve as living cultural monuments, operated according to traditional principles of seamanship and technique;(r) "casualty" means a casualty within the meaning of the IMO Code for the investigation of marine casualties and incidents.TITLE ISHIP REPORTING AND MONITORINGArticle 4Notification prior to entry into ports of the Member States1. The operator, agent or master of a ship bound for a port of a Member State shall notify the information in Annex I(1) to the port authority:(a) at least twenty-four hours in advance; or(b) at the latest, at the time the ship leaves the previous port, if the voyage time is less than twenty-four hours; or(c) if the port of call is not known or it is changed during the voyage, as soon as this information is available.2. Ships coming from a port outside the Community and bound for a port of a Member State carrying dangerous or polluting goods, shall comply with the notification obligations of Article 13.Article 5Monitoring of ships entering the area of mandatory ship reporting systems1. The Member State concerned shall monitor and take all necessary and appropriate measures to ensure that all ships entering the area of a mandatory ship reporting system, adopted by the IMO according to Regulation 11 Chapter V of the SOLAS Convention and operated by one or more States, of which at least one is a Member State, in accordance with the relevant guidelines and criteria developed by the IMO, comply with that system in reporting the information required without prejudice to additional information required by a Member State in accordance with IMO Resolution A.851(20).2. When submitting a new mandatory ship reporting system to the IMO for adoption or a proposal to amend an existing reporting system, a Member State shall include in its proposal at least the information referred to in Annex I(4).Article 6Use of automatic identification systems1. Any ship calling at a port of a Member State must, in accordance with the timetable set out in Annex II(I), be fitted with an AIS which meets the performance standards drawn up by the IMO.2. Ships fitted with an AIS, shall maintain it in operation at all times except where international agreements, rules or standards provide for the protection of navigational information.Article 7Use of ship's routing systems1. Member States shall monitor and take all necessary and appropriate measures to ensure that all ships entering the area of a mandatory ships' routing system adopted by the IMO according to Regulation 10 Chapter V of the SOLAS Convention and operated by one or more States, of which at least one is a Member State, use the system in accordance with the relevant guidelines and criteria developed by the IMO.2. When implementing a ship's routing system, which has not been adopted by the IMO, under their responsibility, Member States shall take into account, wherever possible, the guidelines and criteria developed by the IMO and promulgate all information necessary for the safe and effective use of the ship's routing system.Article 8Monitoring of the compliance of ships with vessel traffic servicesMember States shall monitor and take all necessary and appropriate measures to ensure that:(a) ships entering the area of applicability of a VTS operated by one or more States, of which at least one is a Member State, within their territorial sea and based on the guidelines developed by the IMO, participate in, and comply with, the rules of that VTS;(b) ships flying the flag of a Member State or ships bound for a port of a Member State and entering the area of applicability of such a VTS outside the territorial sea of a Member State and based on the guidelines developed by the IMO, comply with the rules of that VTS;(c) ships flying the flag of a third State and not bound for a port in a Member State entering a VTS area outside the territorial sea of a Member State, follow the rules of that VTS wherever possible. Member States should report to the flag State concerned any apparent serious breach of those rules in such a VTS area.Article 9Infrastructure for ship reporting systems, ships' routing systems and vessel traffic services1. Member States shall take all necessary and appropriate measures to provide themselves gradually, on a time-schedule compatible with the timetable set out in Annex II(I), with appropriate equipment and shore-based installations for receiving and utilising the AIS information taking into account a necessary range for transmission of the reports.2. The process of building up all necessary equipment and shore-based installations for implementing this Directive shall be completed by the end of 2007. Member States shall ensure that the appropriate equipment for relaying the information to, and exchanging it between, the national systems of Member States shall be operational at the latest one year thereafter.3. Member States shall ensure that the coastal stations in charge of monitoring the compliance with vessel traffic services and ships' routing systems have sufficient and properly qualified staff available, as well as appropriate means of communication and ship monitoring and that they operate in accordance with the relevant IMO guidelines.Article 10Voyage data recorder systems1. Member States shall monitor and take all necessary and appropriate measures to ensure that ships calling at a port of a Member State are fitted with a voyage data recorder (VDR) system in accordance with the rules laid down in Annex II(II). Any exemptions granted to ro-ro ferries or high-speed passenger craft under Article 4(1)(d) 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(8) shall terminate on 5 August 2002.2. Data which have been collected from a VDR system shall be made available to the Member State concerned in the event of an investigation following a casualty occurring within the waters under the jurisdiction of a Member State. Member States shall ensure that such data are used in the investigation and are properly analysed. Member States shall ensure that the findings of the investigation are published as soon as possible after its conclusion.Article 11Casualty investigationWithout prejudice to Article 12 of Directive 1999/35/EC, Member States shall comply with the provisions of the IMO Code for the investigation of marine casualties and incidents when conducting any marine casualty or incident investigation involving a ship referred to in this Directive. Member States shall cooperate in the investigation of marine casualties and incidents involving ships flying their flag.TITLE IINOTIFICATION OF DANGEROUS OR POLLUTING GOODS ON BOARD SHIPS (HAZMAT)Article 12Obligations on the shipperNo dangerous or polluting goods may be offered for carriage or taken on board any ship, irrespective of its size, in a port of a Member State unless a declaration has been delivered to the master or operator containing the information listed in Annex I(2).It shall be the duty of the shipper to deliver to the master or operator such declaration and to ensure that the shipment offered for carriage is indeed the one declared in compliance with the first subparagraph.Article 13Notification of dangerous or polluting goods carried on board1. The operator, agent or master of a ship, irrespective of its size, carrying dangerous or polluting goods and leaving a port of a Member State shall, at the latest at the moment of departure, notify the information indicated in Annex I(3) to the competent authority designated by that Member State.2. The operator, agent or master of a ship, irrespective of its size, carrying dangerous or polluting goods coming from a port located outside the Community and bound for a port of a Member State or an anchorage located in a Member State's territorial waters shall, at the latest upon departure from the loading port or as soon as the port of destination or the location of the anchorage is known, if this information is unavailable at the moment of departure, notify the information indicated in Annex I(3) to the competent authority of the Member State in which the first port of destination or anchorage is located.3. Member States may put in place a procedure authorising the operator, agent or master of a ship referred to in paragraphs 1 and 2 to notify the information listed in Annex I(3) to the port authority of the port of departure or destination in the Community, as appropriate.The procedure put in place must ensure that the competent authority has access to the information indicated in Annex I(3) at all times should it be needed. To this end, the port authority concerned shall retain the information listed in Annex I(3) long enough for it to be usable in the event of an incident or accident at sea. The port authority shall take the necessary measures to provide this information electronically and without delay to the competent authority, 24 hours a day upon request.4. The operator, agent or master of the ship must communicate the cargo information indicated in Annex I(3) to the port authority or the competent authority.The information must be transferred electronically whenever practicable. The electronic message exchange must use the syntax and procedures set out in Annex III.Article 14Computerised exchange of data between Member StatesMember States shall cooperate to ensure the interconnection and interoperability of the national systems used to manage the information indicated in Annex I.Communication systems set up pursuant to the first subparagraph must display the following features:(a) data exchange must be electronic and enable messages notified in accordance with Article 13 to be received and processed;(b) the system must allow information to be transmitted 24 hours a day;(c) each Member State must be able, upon request, to send information on the ship and the dangerous or polluting goods on board without delay to the competent authority of another Member State.Article 15Exemptions1. Member States may exempt scheduled services performed between ports located on their territory from the requirement laid down in Article 13 where the following conditions are met:(a) the company operating the scheduled services referred to above keeps and updates a list of the ships concerned and sends it to the competent authority concerned,(b) for each voyage performed, the information listed in Annex I(3) is kept available for the competent authority upon request. The company must establish an internal system to ensure that, upon request 24 hours a day and without delay, the said information can be sent to the competent authority electronically, in accordance with Article 13(4).2. When an international scheduled service is operated between two or more States, of which at least one is a Member State, any of the Member States involved may request of the other Member States that an exemption be granted to that service. All Member States involved, including the coastal States concerned, shall collaborate in granting an exemption to the service concerned in accordance with the conditions laid down in paragraph 1.3. Member States shall periodically check that the conditions laid down in paragraphs 1 and 2 are being met. Where at least one of these conditions is no longer being met, Member States shall immediately withdraw the privilege of the exemption from the company concerned.4. Member States shall communicate to the Commission a list of companies and ships granted exemption under this Article, as well as any updating of that list.TITLE IIIMONITORING OF HAZARDOUS SHIPS AND INTERVENTION IN THE EVENT OF INCIDENTS AND ACCIDENTS AT SEAArticle 16Transmission of information concerning certain ships1. Ships meeting the criteria set out below shall be considered to be ships posing a potential hazard to shipping or a threat to maritime safety, the safety of individuals or the environment:(a) ships which, in the course of their voyage:- have been involved in incidents or accidents at sea as referred to in Article 17; or- have failed to comply with the notification and reporting requirements imposed by this Directive; or- have failed to comply with the applicable rules in ships' routing systems and VTS placed under the responsibility of a Member State;(b) ships in respect of which there is proof or presumptive evidence of deliberate discharges of oil or other infringements of the MARPOL Convention in waters under the jurisdiction of a Member State;(c) ships which have been refused access to ports of the Member States or which have been the subject of a report or notification by a Member State in accordance with Annex I-1 to Council Directive 95/21/EC of 19 June 1995 on port State control of shipping(9).2. Coastal stations holding relevant information on the ships referred to in paragraph 1 shall communicate it to the coastal stations concerned in the other Member States located along the planned route of the ship.3. Member States shall ensure that the information communicated to them under paragraph 2 is transmitted to the relevant port authorities and/or any other authority designated by the Member State. Within the limits of their available staff capacity, Member States shall carry out any appropriate inspection or verification in their ports either on their own initiative or at the request of another Member State, without prejudice to any port State control obligation. They shall inform all Member States concerned of the results of the action they take.Article 17Reporting of incidents and accidents at sea1. Without prejudice to international law and with a view to preventing or mitigating any significant threat to maritime safety, the safety of individuals or the environment, Member States shall monitor and take all appropriate measures to ensure that the master of a ship sailing within their search and rescue region/exclusive economic zone or equivalent, immediately reports to the coastal station responsible for that geographical area:(a) any incident or accident affecting the safety of the ship, such as collision, running aground, damage, malfunction or breakdown, flooding or shifting of cargo, any defects in the hull or structural failure;(b) any incident or accident which compromises shipping safety, such as failures likely to affect the ship's manoeuvrability or seaworthiness, or any defects affecting the propulsion system or steering gear, the electrical generating system, navigation equipment or communications equipment;(c) any situation liable to lead to pollution of the waters or shore of a Member State, such as the discharge or threat of discharge of polluting products into the sea;(d) any slick of polluting materials and containers or packages seen drifting at sea.2. The report message sent in application of paragraph 1 shall include at least the ship's identity, its position, the port of departure, the port of destination, the address from which information may be obtained on the dangerous and polluting goods carried on board, the number of persons aboard, details of the incident and any relevant information referred to in IMO Resolution A.851(20).Article 18Measures in the event of exceptionally bad weather1. Where the competent authorities designated by Member States consider, in the event of exceptionally bad weather or sea conditions, that there is a serious threat of pollution of their shipping areas or coastal zones, or of the shipping areas or coastal zones of other States, or that the safety of human life is in danger:(a) they should, where possible, fully inform the master of a ship which is in the port area concerned, and intends to enter or leave that port, of the sea state and weather conditions and, when relevant and possible, of the danger they may present to his/her ship, the cargo, the crew and the passengers;(b) they may take, without prejudice to the duty of assistance to ships in distress and in accordance with Article 20, any other appropriate measures, which may include a recommendation or a prohibition either for a particular ship or for ships in general to enter or leave the port in the areas affected, until it has been established that there is no longer a risk to human life and/or to the environment;(c) they shall take appropriate measures to limit as much as possible or, if necessary, prohibit the bunkering of ships in their territorial waters.2. The master shall inform the company of the appropriate measures or recommendations referred to under paragraph 1. These do not however prejudice the decision of the master on the basis of his/her professional judgement corresponding to the SOLAS Convention. Where the decision taken by the master of the ship is not in accordance with the measures referred to under paragraph 1, he/she shall inform the competent authorities of the reasons for his/her decision.3. The appropriate measures or recommendations, referred to under paragraph 1, shall be based upon a sea state and weather forecast provided by a qualified meteorological information service recognised by the Member State.Article 19Measures relating to incidents or accidents at sea1. In the event of incidents or accidents at sea as referred to in Article 17, Member States shall take all appropriate measures consistent with international law, where necessary to ensure the safety of shipping and of persons and to protect the marine and coastal environment.Annex IV sets out a non-exhaustive list of measures available to Member States pursuant to this Article.2. The operator, the master of the ship and the owner of the dangerous or polluting goods carried on board must, in accordance with national and international law, cooperate fully with the competent national authorities, at the latter's request, with a view to minimising the consequences of an incident or accident at sea.3. The master of a ship to which the provisions of the ISM Code are applicable shall, in accordance with that Code, inform the company of any incident or accident, as referred to in Article 17(1), which occurs at sea. As soon as it has been informed of such a situation, the company must contact the competent coastal station and place itself at its disposal as necessary.Article 20Places of refugeMember States, having consulted the parties concerned, shall draw up, taking into account relevant guidelines by IMO, plans to accommodate, in the waters under their jurisdiction, ships in distress. Such plans shall contain the necessary arrangements and procedures taking into account operational and environmental constraints, to ensure that ships in distress may immediately go to a place of refuge subject to authorisation by the competent authority. Where the Member State considers it necessary and feasible, the plans must contain arrangements for the provision of adequate means and facilities for assistance, salvage and pollution response.Plans for accommodating ships in distress shall be made available upon demand. Member States shall inform the Commission by 5 February 2004 of the measures taken in application of the first paragraph.Article 21Information of the parties concerned1. The competent coastal station of the Member State concerned shall, as necessary, broadcast within the relevant areas any incident or accident notified under Article 17(1) and information with regard to any ship that poses a threat to maritime safety, the safety of individuals or the environment.2. Competent authorities holding information notified in accordance with Articles 13 and 17 shall make adequate arrangements to provide such information at any time upon request for safety reasons by the competent authority of another Member State.3. Any Member State the competent authorities of which have been informed, pursuant to this Directive or in some other way, of facts which involve or increase the risk for another Member State of a hazard being posed to certain shipping areas and coastal zones, shall take the appropriate measures to inform any interested Member State thereof as soon as possible and consult it regarding the action being envisaged. Where appropriate, Member States shall cooperate with a view to pooling the arrangements for joint action.Each Member State shall make the necessary arrangements to use fully the reports which ships are required to transmit to them pursuant to Article 17.TITLE IVACCOMPANYING MEASURESArticle 22Designation and publication of a list of competent bodies1. Each Member State shall designate the competent authorities, port authorities and coastal stations to which the notifications required by this Directive must be made.2. Each Member State shall ensure that the shipping industry is properly informed and regularly updated, notably via nautical publications, regarding the authorities and stations designated pursuant to paragraph 1, including where appropriate the geographical area for which they are competent, and the procedures laid down for notifying the information required by this Directive.3. Member States shall send the Commission a list of the authorities and stations they designate pursuant to paragraph 1, as well as any updating thereof.Article 23Cooperation between Member States and the CommissionMember States and the Commission shall cooperate in attaining the following objectives:(a) making optimum use of the information notified pursuant to this Directive, notably by developing appropriate telematic links between coastal stations and port authorities with a view to exchanging data relating to ships' movements, their estimated times of arrival in ports and their cargo;(b) developing and enhancing the effectiveness of telematic links between the coastal stations of the Member States with a view to obtaining a clearer picture of traffic, improving the monitoring of ships in transit, and harmonising and, as far as possible, streamlining the reports required from ships en route;(c) extending the cover of and/or updating the Community vessel traffic monitoring and information system with a view to enhanced identification and monitoring of ships. To this end, the Member States and the Commission shall work together to put in place, where necessary, mandatory reporting systems, mandatory vessel traffic services and appropriate ships' routing systems, with a view to submitting them to the IMO for approval;(d) drawing up, if appropriate, concerted plans to accommodate ships in distress.Article 24Confidentiality of informationMember States shall, in accordance with their national legislation, take the necessary measures to ensure the confidentiality of information sent to them pursuant to this Directive.Article 25Monitoring the implementation of this Directive and sanctions1. Member States shall carry out regular inspections and any other action required to check the functioning of the shore-based telematic systems set up to meet the requirements of this Directive, and in particular their capacity to meet the requirements of receiving or sending without delay, 24 hours a day, information notified pursuant to Articles 13 and 15.2. Member States shall lay down a system of sanctions for the breach of national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those sanctions are applied. The sanctions thus provided shall be effective, proportionate and dissuasive.3. Member States shall, without delay, inform the flag State and any other State concerned of measures taken in respect of ships not flying their flag pursuant to Articles 16 and 19 and to paragraph 2 of this Article.4. Where a Member State finds, on the occasion of an incident or accident at sea referred to in Article 19, that the company has not been able to establish and maintain a link with the ship or with the coastal stations concerned, it shall so inform the State which issued the ISM document of compliance and associated safety management certificate, or on whose behalf it was issued.Where the seriousness of the failure shows the existence of a major incidence of non-compliance in the functioning of the safety management system of a company established in a Member State, the Member State which issued the document of compliance or safety management certificate to the ship shall immediately take the necessary measures against the company concerned with the view to having the document of compliance and the associated safety management certificate withdrawn.Article 26Evaluation1. Member States must report to the Commission by 5 February 2007 on the progress in implementing this Directive and, in particular, the provisions of Articles 9, 10, 18, 20, 22, 23 and 25. Member States must report to the Commission by 31 December 2009 on the full implementation of the Directive.2. On the basis of the reports referred to in paragraph 1, the Commission shall report to the European Parliament and to the Council six months thereafter on the implementation of this Directive. In its reports, the Commission shall ascertain whether and to what extent the provisions of this Directive as implemented by the Member States are helping to increase the safety and efficiency of maritime transport and prevent pollution by ships.3. The Commission shall examine the need for, and feasibility of, measures at Community level aimed at facilitating the recovery of, or compensation for, costs and damage incurred for the accommodation of ships in distress, including appropriate requirements for insurance or other financial securityThe Commission shall report to the European Parliament and to the Council by 5 February 2007 the results of such examination.FINAL PROVISIONSArticle 27Amendment procedure1. The definitions in Article 3, the references to Community and IMO instruments and the Annexes may be amended in accordance with the procedure laid down in Article 28(2) in order to bring them into line with Community or international law which have been adopted, amended or brought into force, insofar as such amendments do not broaden the scope of this Directive.2. Furthermore, Annexes I, III and IV may be amended in accordance with the procedure laid down in Article 28(2), in the light of experience gained with this Directive, in so far as such amendments do not broaden the scope of this Directive.Article 28Committee procedure1. The Commission shall be assisted by a Committee.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 three months.3. The Committee shall adopt its rules of procedure.Article 291. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 5 February 2004 at the latest. 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 Member States.2. Member States shall notify to the Commission the provisions of their national legislation which they adopted in the field governed by this Directive.Article 30Council Directive 93/75/EEC is hereby repealed as from 5 February 2004.Article 31This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.Article 32This Directive is addressed to the Member States.Done at Luxembourg, 27 June 2002.For the European ParliamentThe PresidentP. CoxFor the CouncilThe PresidentM. Arias Cañete(1) OJ C 120 E, 24.4.2001, p. 67 andOJ C 362 E, 18.12.2001, p. 255.(2) OJ C 221, 7.8.2001, p. 54.(3) OJ C 357, 14.12.2001, p. 1.(4) Opinion of the European Parliament of 14 June 2001 (OJ C 53 E, 28.2.2002, p. 304), Council Common Position of 19 December 2001 (OJ C 58 E, 5.3.2002, p. 14) and Decision of the European Parliament of 10 April 2002 (not yet published in the Official Journal). Council Decision of 25 June 2002.(5) OJ L 247, 5.10.1993, p. 19. Directive as last amended by Commission Directive 98/74/EC (OJ L 276, 13.10.1998, p. 7).(6) OJ C 271, 7.10.1993, p. 1.(7) OJ L 184, 17.7.1999, p. 23.(8) OJ L 138, 1.6.1999, p. 1.(9) OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive 2001/106/EC of the European Parliament and of the Council (OJ L 19, 22.1.2002, p. 17).ANNEX ILIST OF INFORMATION TO BE NOTIFIED1. Information to be notified in accordance with Article 4 - General information:(a) ship identification (name, call sign, IMO identification number or MMSI number),(b) port of destination;(c) estimated time of arrival at the port of destination or pilot station, as required by the competent authority, and estimated time of departure from that port;(d) total number of persons on board.2. Information to be notified in accordance with Article 12 - Cargo information:(a) the correct technical names of the dangerous or polluting goods, the United Nations (UN) numbers where they exist, the IMO hazard classes in accordance with the IMDG, IBC and IGC Codes and, where appropriate, the class of the ship needed for INF cargoes as defined in Regulation VII/14.2, the quantities of such goods and, if they are being carried in cargo transport units other than tanks, the identification number thereof;(b) address from which detailed information on the cargo may be obtained.3. Information to be notified in accordance with Article 13:A. General information:(a) ship identification (name, call sign, IMO identification number or MMSI number);(b) port of destination;(c) for a ship leaving a port in a Member State: estimated time of departure from the port of departure or pilot station, as required by the competent authority, and estimated time of arrival at the port of destination;(d) for a ship coming from a port located outside the Community and bound for a port in a Member State: estimated time of arrival at the port of destination or pilot station, as required by the competent authority;(e) total number of persons on board.B. Cargo information:(a) the correct technical names of the dangerous or polluting goods, the United Nations (UN) numbers where they exist, the IMO hazard classes in accordance with the IMDG, IBC and IGC Codes and, where appropriate, the class of the ship as defined by the INF Code, the quantities of such goods and their location on board and, if they are being carried in cargo transport units other than tanks, the identification number thereof;(b) confirmation that a list or manifest or appropriate loading plan giving details of the dangerous or polluting goods carried and of their location on the ship is on board;(c) address from which detailed information on the cargo may be obtained.4. Information referred to in Article 5:- A. ship identification (name, call sign, IMO identification number or MMSI number),- B. date and time,- C or D. position in latitude and longitude or true bearing and distance in nautical miles from a clearly identified landmark,- E. course,- F. speed,- I. port destination and estimated time of arrival,- P. cargo and, if dangerous goods present on board, quantity and IMO class,- T. address for the communication of cargo information,- W. total number of persons on board,- X. various information:- characteristics and estimated quantity of bunker fuel, for ships carrying more than 5000 tons of bunker fuel,- navigational status.5. The master of the ship must forthwith inform the competent authority or port authority concerned of any change to the information notified pursuant to this Annex.ANNEX IIPRESCRIPTIONS APPLICABLE TO ON-BOARD EQUIPMENTI. Automatic identification systems (AIS)1. Ships built on or after 1 July 2002Passenger ships, irrespective of size, and all ships of 300 gross tonnage and upwards built on or after 1 July 2002 which call at a port of a Member State of the Community are subject to the carrying requirement laid down in Article 6.2. Ships built prior to 1 July 2002Passenger ships, irrespective of size, and all ships of 300 gross tonnage and upwards built prior to 1 July 2002 which call at a port of a Member State of the Community are subject to the carrying requirement laid down in Article 6 according to the following timetable:(a) passenger ships: not later than 1 July 2003;(b) tankers: not later than the first survey for safety equipment after 1 July 2003;(c) ships, other than passenger ships and tankers, of 50000 gross tonnage and upwards: not later than 1 July 2004;(d) ships, other than passenger ships and tankers, of 10000 gross tonnage and upwards but less than 50000 gross tonnage: not later than 1 July 2005 or, as regards ships engaged in international voyages, any earlier date decided within the framework of the IMO;(e) ships, other than passenger ships and tankers, of 3000 gross tonnage and upwards but less than 10000 gross tonnage: not later than 1 July 2006 or, as regards ships engaged in international voyages, any earlier date decided upon within the framework of the IMO;(f) ships, other than passenger ships and tankers, of 300 gross tonnage and upwards but less than 3000 gross tonnage: not later than 1 July 2007 or, as regards ships engaged in international voyages, any earlier date decided upon within the framework of the IMO.Member States may exempt passenger ships below 300 gross tonnage engaged in domestic trade from the application of the requirements concerning AIS laid down in this Annex.II. Voyage data recorder (VDR) systems1. Ships in the following classes must, inasmuch as they call at a port of a Member State of the Community, be fitted with a voyage data recorder system meeting the performance standards of IMO Resolution A.861(20) and the testing standards set by Standard No 61996 of the International Electronics Commission (IEC):(a) passenger ships built on or after 1 July 2002, not later than 1 July 2002;(b) ro-ro passenger ships built before 1 July 2002, not later than the first survey on or after 1 July 2002;(c) passenger ships other than ro-ro passenger ships, built before 1 July 2002, not later than 1 January 2004;(d) Ships other than passenger ships, of 3000 gross tonnage and upwards, built on or after 1 July 2002, not later than 5 August 2002.2. Ships in the following classes and built before 1 July 2002 must, inasmuch as they call at a port of a Member State of the Community, be fitted with a voyage data recorder system meeting the relevant IMO standards:(a) cargo ships of 20000 gross tonnage and upwards, not later than the date fixed by the IMO, or, in the absence of a decision in IMO, not later than 1 January 2007;(b) cargo ships of 3000 gross tonnage and upwards but less than 20000 gross tonnage, not later than the date fixed by the IMO, or, in the absence of a decision in IMO, not later than 1 January 2008.3. Member States may exempt passenger ships engaged only in domestic voyages in sea areas other than those covered by Class A, as referred to in Article 4 of Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships(1) from the voyage data recorder requirements laid down in this Directive.(1) OJ L 144, 15.5.1998, p. 1.ANNEX IIIELECTRONIC MESSAGES1. Member States shall develop and maintain the necessary infrastructure to enable transmission, reception and conversion of data between systems using XML or EDIFACT syntax, based on Internet or X.400 communication facilities.2. The Commission shall develop and maintain, in consultation with the Member States, an "Interface Control Document" which describes the system facilities in terms of the message scenario, the message functions and the relation between the messages. The message timing and performance shall be detailed, as well as data interchange protocols and parameters. The Interface Control Document shall further specify the data content of the required message functions and describe those messages.3. These procedures and infrastructure should incorporate, whenever practicable, reporting and information exchange obligations resulting from other Directives, such as Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues(1).(1) OJ L 332, 28.12.2000, p. 81.ANNEX IVMeasures available to Member States in the event of a threat to maritime safety and the protection of the environment(pursuant to Article 19(1))Where, following an incident or circumstance of the type described in Article 17 affecting a ship, the competent authority of the Member State concerned deems, within the framework of international law, that it is necessary to avert, lessen or remove a serious and imminent threat to its coastline or related interests, the safety of other ships and their crews and passengers or of persons on shore or to protect the marine environment, that authority may, inter alia:(a) restrict the movement of the ship or direct it to follow a specific course. This requirement does not affect the master's responsibility for the safe handling of his ship;(b) give official notice to the master of the ship to put an end to the threat to the environment or maritime safety;(c) send an evaluation team aboard the ship to assess the degree of risk, help the master to remedy the situation and keep the competent coastal station informed thereof;(d) instruct the master to put in at a place of refuge in the event of imminent peril, or cause the ship to be piloted or towed.


Avis juridique important

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31988L0378

Council Directive 88/378/EEC of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys

Official Journal L 187 , 16/07/1988 P. 0001 - 0013 Finnish special edition: Chapter 15 Volume 8 P. 0106  Swedish special edition: Chapter 15 Volume 8 P. 0106

COUNCIL DIRECTIVE of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys (88/378/EEC) THE COUNCIL OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Economic Community, and in particular Article 100A thereof,Having regard to the proposal from the Commission (1),In cooperation with the European Parliament (2),Having regard to the opinion of the Economic and Social Committee (3),Whereas the laws, regulations and administrative provisions in force in the various Member States relating to the safety characteristics of toys differ in scope and content; whereas such disparities are liable to create barriers to trade and unequal conditions of competition within the internal market without necessarily affording consumers in the common market, especially children, effective protection against the hazards arising from the products in question;Whereas these obstacles to the attainment of an internal market in which only sufficiently safe products would be sold should be removed; whereas, for this purpose, the marketing and free movement of toys should be made subject to uniform rules based on the objectives regarding protection of consumer health and safety as set out in the Council resolution of 23 June 1986 concerning the future orientation of the policy of the European Economic Community for the protection and promotion of consumer interests (4);Whereas, to facilitate proof of conformity with the essential requirements, it is necessary to have harmonized standards at European level which concern, in particular, the design and composition of toys so that products complying with them may be assumed to conform to the essential requirements; whereas these standards harmonized at European level are drawn up by private bodies and must remain non-mandatory texts; whereas for that purpose the European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (CENELEC) are recognized as the competent bodies for the adoption of harmonized standards in accordance with the general guidelines for cooperation between the Commission and those two bodies signed on 13 November 1984; whereas, for the purposes of this Directive, a harmonized standard is a technical specification (European standard or harmonization document) adopted by one or both of those bodies upon a remit from the Commission in accordance with the provisions of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (5), as last amended by the Act of Accession of Spain and Portugal, and on the basis of the general guidelines;Whereas, in accordance with the Council resolution of 7 May 1985 on a new approach to technical harmonization and standards (6), the harmonization to be achieved should consist in establishing the essential safety requirements to be satisfied by all toys if they are to be placed on the market;Whereas, in view of the size and mobility of the toy market and the diversity of the products concerned, the scope of this Directive should be determined on the basis of a sufficiently broad definition of 'toys'; whereas, nevertheless, it should be made clear that some products are not to be regarded as toys for the purposes of this Directive either because they are not in fact intended for children or because they call for supervision or special conditions of use;Whereas toys placed on the market should not jeopardize the safety and/or health either of users or of third parties; whereas the standard of safety of toys should be determined in relation to the criterion of the use of the product as intended, but allowance should also be made for any foreseeable use, bearing in mind the normal behaviour of children who do not generally show the same degree of care as the average adult user;Whereas the standard of safety of the toy must be considered when it is marketed, bearing in mind the need to ensure that this standard is maintained throughout the foreseeable and normal period of use of the toy;Whereas compliance with the essential requirements is likely to guarantee consumer health and safety; whereas all toys placed on the market must comply with these requirements and, if they do, no obstacle must be put in the way of their free movement;Whereas toys may be presumed to comply with these essential requirements where they are in conformity with the harmonized standards, reference numbers of which have been published in the Official Journal of the European Communities;Whereas toys that conform to a model approved by an approved body may also be regarded as complying with the essential requirements; whereas such conformity must be certified by the affixing of a European mark;Whereas certification procedures must be established to define the way in which national approved bodies have to approve models of toys not in conformity with standards and issue type-examination certificates for them and for toys in conformity with standards, a model of which is submitted to them for approval;Whereas adequate information for the Member States, the Commission and all the approved bodies must be provided for at the various stages of the certification and inspection procedures;Whereas Member States must appoint bodies, called 'approved bodies', for the purposes of applying the system introduced for toys; whereas adequate information on these bodies must be provided and they must all comply with minimum criteria for their approval;Whereas cases might arise where a toy does not satisfy the essential safety requirements; whereas, in such cases, the Member State which ascertains this fact must take all appropriate measures to withdraw the products from the market or to prohibit their being placed on the market; whereas a reason must be given for this decision and, where the reason is a shortcoming in the harmonized standards, these, or a part thereof, must be withdrawn from the list published by the Commission;Whereas the Commission is to ensure that the harmonized European standards in all the areas covered by the essential requirements listed in Annex II are drawn up in sufficient time to enable Member States to adopt and publish the necessary provisions by 1 July 1989; whereas the national provisions adopted on the basis of this Directive should consequently become effective on 1 January 1990;Whereas provision must be made for suitable action to be taken against anyone wrongfully affixing a mark of conformity;Whereas checks on the safety of toys already on the market must be carried out by the competent authorities of the Member States;Whereas, for some categories of toys that are particularly dangerous or intended for very young children, warnings or details of precautions to be taken must also be given;Whereas the Commission must receive regular information on activities carried out under this Directive by the approved bodies;Whereas those to whom any decision taken under this Directive is addressed must know the reason for that decision and the remedies open to them;Whereas the opinion of the Scientific Advisory Committee for the evaluation of the toxicity and ecotoxicity of chemical compounds has been taken into account with respect to the health-based limits of bioavailability of metallic compounds in toys to children,HAS ADOPTED THIS DIRECTIVE:Article 11.  This Directive shall apply to toys. A 'toy' shall mean any product or material designed or clearly intended for use in play by children of less than 14 years of age.2.  The products listed in Annex I shall not be regarded as toys for the purposes of this Directive.Article 21.  Toys may be placed on the market only if they do not jeopardize the safety and/or health of users or third parties when they are used as intended or in a foreseeable way, bearing in mind the normal behaviour of children.2.  In the condition in which it is placed on the market, taking account of the period of foreseeable and normal use, a toy must meet the safety and health conditions laid down in this Directive.3.  For the purposes of this Directive, the expression 'placed on the market' shall cover both sale and distribution free of charge.Article 3Member States shall take all steps necessary to ensure that toys cannot be placed on the market unless they meet the essential safety requirements set out in Annex II.Article 4Member States shall not impede the placing on the market on their territory of toys which satisfy the provisions of this Directive.Article 51.  Member States shall presume compliance with the essential requirements referred to in Article 3 in respect of toys bearing the EC mark provided for in Article 11, hereinafter referred to as 'EC mark', denoting conformity with the relevant national standards which transpose the harmonized standards the reference numbers of which have been published in the Official Journal of the European Communities. Member States shall publish the reference numbers of such national standards.2.  Member States shall presume that toys in respect of which the manufacturer has not applied the standards referred to in paragraph 1, or has applied them only in part, or for which no such standards exist, satisfy the essential requirements referred to in Article 3 where, after receipt of an EEC type-examination certificate, their conformity with the approved model has been certified by the affixation of the EC mark.Article 61.  Where a Member State or the Commission considers that the harmonized standards referred to in Article 5 (1) do not entirely satisfy the essential requirements referred to in Article 3, the Commission or the Member State shall refer the matter to the Standing Committee set up under Directive 83/189/EEC, hereinafter referred to as 'the committee', setting out its reasons. The committee shall issue an opinion as a matter of urgency.After receiving the committee's opinion, the Commission shall notify the Member States whether or not the standards concerned or a part thereof have to be withdrawn from the publications referred to in Article  5 (1).2.  The Commission shall inform the European standardization body concerned and, if necessary, issue a new standardization brief.Article 71.  Where a Member State ascertains that toys bearing the EC mark which are used as intended or in accordance with Article 2 are likely to jeopardize the safety and/or health of consumers and/or third parties, it shall take all appropriate measures to withdraw the products from the market, or to prohibit or restrict their placing on the market. The Member State shall inform the Commission immediately of this measure and indicate the reasons for its decision, stating in particular whether the non-compliance results from:(a)  failure to meet the essential requirements referred to in Article 3, if the toy does not meet the standards referred to in Article 5 (1);(b)  incorrect application of the standards referred to in Article 5 (1);(c)  shortcomings in the standards referred to in Article 5 (1).2.  The Commission shall enter into consultation with the parties concerned as soon as possible. Where, after such consultation, the Commission finds that any measure as referred to in paragraph 1 is justified, it shall forthwith so inform the Member State that took the action and the other Member States. Where the decision referred to in paragraph 1 is attributed to shortcomings in the standards, the Commission, after consulting the parties concerned, shall bring the matter before the Committee within two months if the Member State which has taken the measures intends to maintain them and shall initiate the procedures referred to in Article 6.3.  Where the toy which does not comply with the requirements bears the EC mark, the competent Member State shall take appropriate measures and inform the Commission, which shall inform the other Member States.4.  The Commission shall ensure that the Member States are kept informed of the progress and outcome of this procedure.Article 81.  (a)  Before being placed on the market, toys manufactured in accordance with the harmonized standards referred to in Article 5 (1) must have affixed to them the EC mark by which the manufacturer or his authorized representative established within the Community confirms that the toys comply with those standards;(b)  The manufacturer or his authorized representative established within the Community shall keep the following information available for inspection:- a description of the means (such as the use of a test report or technical file) whereby the manufacturer ensures conformity of production with the standards referred to in Article 5 (1) and, as appropriate: an EC type-certificate drawn up by an approved body; copies of the documents the manufacturer has submitted to the approved body; a description of the means whereby the manufacturer ensures conformity with the approved model,- the addresses of the places of manufacture and storage,- detailed information concerning the design and manufacture.Where neither the manufacturer nor his authorized representative are established within the Community, the above obligation to keep a dossier available shall be the responsibility of the person who places the toy on the Community market.2.  (a)  Toys which do not conform in whole or in part to the standards referred to in Article 5 (1) must have affixed to them, before being placed on the market, the EC mark by which the manufacturer or his authorized representative established within the Community confirms that the toy concerned conforms to the model examined in accordance with the procedures laid down in Article 10 which an approved body has stated complies with the essential requirements referred to in Article 3;(b)  the manufacturer or his authorized representive established within the Community shall keep the following information available for inspection:- a detailed description of manufacture,- a description of the means (such as the use of a test report or technical file) whereby the manufacturer ensures conformity with the approved model,- the addresses of the places of manufacture and storage,- copies of the documents the manufacturer has submitted to an approved body in accordance with Article 10 (2),- the test certificate for the sample or a certified copy thereof.Where neither the manufacturer nor his authorized representative is established within the Community, the above obligation to keep a dossier available shall be the responsibility of the person who places the toy on the market in the Community.3.  In the event of non-observance of the obligations laid down in paragraphs 1 (b) and 2 (b), the competent Member State shall take appropriate measures to ensure that those obligations are observed.Where non-observance of the obligations is obvious, it may in particular require the manufacturer or his authorized representative established within the Community to have a test performed at his own expense within a specified period by an approved body in order to verify compliance with the harmonized standards and essential safety requirements.Article 91.  The minimum criteria which Member States must meet in order to appoint the approved bodies referred to in this Directive are contained in Annex III.2.  Each Member State shall notify the Commission of the approved bodies responsible for carrying out the EC type-examination referred to in Articles 8 (2) and 10. The Commission shall publish a list of these bodies, with the distinguishing numbers it has given them, in the Official Journal of the European Communities for information and shall be responsible for updating it.3.  A Member State which has approved a body shall withdraw approval if it finds that the body no longer meets the criteria listed in Annex III. It shall forthwith inform the Commission thereof.Article 101.  EC type-examination is the procedure by which an approved body ascertains and certifies that a model of a toy satisfies the essential requirements referred to in Article 3.2.  The application for EC type-examination shall be lodged with an approved body by the manufacturer or by his authorized representative established within the Community.The application shall include:- a description of the toy,- the name and address of the manufacturer or of his authorized representative or representatives, and the place of manufacture of the toy,- comprehensive manufacturing and design data; and shall be accompanied by a model of the toy to be manufactured.3.  The approved body shall carry out the EC type-examination in the manner described below:- it shall examine the documents supplied by the applicant and establish whether they are in order,- it shall check that the toy would not jeopardize safety and/or health, as provided for in Article 2,- it shall carry out the appropriate examinations and tests - using as far as possible the harmonized standards referred to in Article 5 (1) - in order to check whether the model meets the essential requirements referred to in Article 3,- it may ask for further examples of the model.4.  If the model complies with the essential requirements referred to in Article 3, the approved body shall draw up an EC type-examination certificate which shall be notified to the applicant. This certificate shall state the conclusions of the examination, indicate any conditions attaching to it and be accompanied by the descriptions and drawings of the approved toy.The Commission, the other approved bodies and the other Member States may obtain on request a copy of the certificate and, on reasoned request, a copy of the design and manufacturing schedule and the reports on the examinations and tests carried out.5.  An approved body which refuses to issue an EC type-examination certificate shall so inform the Member State which approved it and the Commission, giving the reasons for refusal.Article 111.  The EC mark referred to in Articles 5, 7 and 8 and the name and/or trade name and/or mark and address of the manufacturer or his authorized representative or the importer into the Community shall as a rule be affixed either to the toy or on the packaging in a visible, easily legible and indelible form. In the case of small toys and toys consisting of small parts these particulars may be affixed in the same way to the packaging, to a label or to a leaflet. Where the said particulars are not affixed to the toy, the consumer's attention must be drawn to the advisability of keeping them.2.  The EC mark shall consist of the symbol 'CE'.3.  The affixing to toys of marks or inscriptions that are likely to be confused with the EC mark shall be prohibited.4.  The particulars referred to in paragraph 1 may be abbreviated provided that the abbreviation enables the manufacturer, his authorized representative or the importer into the Community to be identified.5.  Annex IV sets out the warnings and indications of precautions to be taken during use that have to be given for certain toys. Member States may require that these warnings and precautions, or some of them, together with the information specified in paragraph 4, be given in their own national language or languages when the toys are placed on the market.Article 121.  Member States shall take the necessary measures to ensure that sample checks are carried out on toys which are on their market, so as to verify their conformity with this Directive.The authority responsible for inspection:- shall obtain access, on request, to the place of manufacture or storage and to the information referred to in Article 8 (1) (b) and (2) (b),- may ask the manufacturer, his authorized representative or the person responsible for marketing the toy established within the Community to supply the information as provided for in Article 8 (1) (b) and (2) (b) within a period specified by the Member State,- may select a sample and take it away for examination and testing.2.  Every three years, Member States shall send the Commission a report on the application of this Directive.3.  The Member States and the Commission shall take the necessary measures to guarantee confidentiality with regard to the forwarding of the copies relating to the EC type-examination referred to in Article 10 (4).Article 13Member States shall regularly inform the Commission of the activities carried out in pursuance of this Directive by the bodies they have approved so that the Commission may ensure that the inspection procedures are implemented correctly and without discrimination.Article 14Any decision taken pursuant to this Directive and involving restrictions on the placing of the toy on the market shall state the exact grounds on which it is based. It shall be notified at the earliest opportunity to the party concerned, who shall at the same time be informed of the remedies available to him under the laws in force in the Member State in question and of the time limits applying to such remedies.Article 151.  Member States shall adopt and publish by 30 June 1989 the provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof.They shall apply these provisions from 1 January 1990.2.  Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.Article 16This Directive is addressed to the Member States.Done at Brussels, 3 May 1988.For the CouncilThe PresidentM. BANGEMANN(1) OJ N° C 282, 8. 11. 1986, p. 4.(2) OJ N° C 246, 14. 9. 1987, p. 91 and Decision of 9 March 1988 (not yet published in the Official Journal).(3) OJ N° C 232, 31. 8. 1987, p. 22.(4) OJ N° C 167, 5. 7. 1986, p. 1.(5) OJ N° L 109, 26. 4. 1983, p. 8.(6) OJ N° C 136, 4. 6. 1985, p.1.ANNEX I PRODUCTS NOT REGARDED AS TOYS FOR THE PURPOSE OF THIS DIRECTIVE (Article 1 (1))  1.  Christmas decorations 2.  Detailed scale models for adult collectors 3.  Equipment intended to be used collectively in playgrounds 4.  Sports equipment 5.  Aquatic equipment intended to be used in deep water 6.  Folk dolls and decorative dolls and other similar articles for adult collectors 7.  'Professional' toys installed in public places (shopping centres, stations, etc.) 8.  Puzzles with more than 500 pieces or without picture, intended for specialists 9.  Air guns and air pistols10.  Fireworks, including percussion caps (¹)11.  Slings and catapults12.  Sets of darts with metallic points13.  Electric ovens, irons or other functional products operated at a nominal voltage exceeding 24 volts14.  Products containing heating elements intended for use under the supervision of an adult in a teaching context15.  Vehicles with combustion engines16.  Toy steam engines17.  Bicycles designed for sport or for travel on the public highway18.  Video toys that can be connected to a video screen, operated at a nominal voltage exceeding 24 volts19.  Babies' dummies20.  Faithful reproductions of real fire arms21.  Fashion jewellery for children(¹) With the exception of percussion caps specifically designed for use in toys without prejudice to more stringent provisions already existing in certain Member States.ANNEX II ESSENTIAL SAFETY REQUIREMENTS FOR TOYS I. GENERAL PRINCIPLES1.  In compliance with the requirements of Article 2 of the Directive, the users of toys as well as third parties must be protected against health hazards and risk of physical injury when toys are used as intended or in a forseeable way, bearing in mind the normal behaviour of children. Such risks are those:(a)  which are connected with the design, construction or composition of the toy;(b)  which are inherent in the use of the toy and cannot be completely eliminated by modifying the toy's construction and composition without altering its function or depriving it of its essential properties.2.  (a)  The degree of risk present in the use of a toy must be commensurate with the ability of the users, and where appropriate their supervisors, to cope with it. This applies in particular to toys which, by virtue of their functions, dimensions and characteristics, are intended for use by children of under 36 months.(b)  To observe this principle, a minimum age for users of toys and/or the need to ensure that they are used only under adult supervision must be specified where appropriate.3.  Labels on toys and/or their packaging and the instructions for use which accompany them must draw the attention of users or their supervisors fully and effectively to the risks involved in using them and to the ways of avoiding such risks.II. PARTICULAR RISKS1. Physical and mechanical properties(a) Toys and their parts and, in the case of fixed toys, their anchorages, must have the requisite mechanical strength and, where appropriate, stability to withstand the stresses to which they are subjected during use without breaking or becoming liable to distortion at the risk of causing physical injury.(b) Accessible edges, protrusions, cords, cables and fastenings on toys must be so designed and constructed that the risks of physical injury from contact with them are reduced as far as possible.(c) Toys must be so designed and constructed as to minimize the risk of physical injury which could be caused by the movement of their parts.(d) Toys, and their component parts, and any detachable parts of toys which are clearly intended for use of toys which are clearly intended for use by children under 36 months must be of such dimensions as to prevent their being swallowed and/or inhaled.(e) Toys, and their parts and the packaging in which they are contained for retail sale must not present risk of strangulation or suffocation.(f) Toys intended for use in shallow water which are capable of carrying or supporting a child on the water must be designed and constructed so as to reduce as fas as possible, taking into account the recommended use of the toy, any risk of loss of buoyancy of the toy and loss of support afforded to the child.(g) Toys which it is possible to get inside and which thereby constitute an enclosed space for occupants must have a means of exit which the latter can open easily from the inside.(h) Toys conferring mobility on their users must, as far as possible, incorporate a braking system which is suited to the type of toy and is commensurate with the kinetic energy developed by it. Such a system must be easy for the user to operate without risk of ejection or physical injury for the user of for third parties.(i) The form and composition of projectiles and the kinetic energy they may develop when fired from a toy designed for that purpose must be such that, taking into account the nature of the toy, there is no unreasonable risk of physical injury to the user or to third parties.(j) Toys containing heating elements must be so constructed as to ensure that:- the maximum temperature of any accessible surfaces does not cause burns when touched,- liquids and gases contained within toys do not reach temperatures or pressures which are such that their escape from a toy, other than for reasons essential to the proper functioning of the toy, might cause burns, scalds or other physical injury.2. Flammability(a)  Toys must not constitute a dangerous flammable element in the child's environment. They must therefore be composed of materials which:  1.  do not burn if directly exposed to a flame or spark or other potential seat of fire; or  2.  are not readily flammable (the flame goes out as soon as the fire cause disappears); or  3.  if they do ignite, burn slowly and present a low rate of spread of the flame; or  4.  irrespective of the toy's chemical composition, are treated so as to delay the combustion process.  Such combustible materials must not constitute a risk of ignition for other materials used in the toy.(b)  Toys which, for reasons essential to their functioning, contain dangerous substances or preparations as defined in Council Directive 67/548/EEC (¹), in particular materials and equipment for chemistry experiments, model assembly, plastic or ceramic moulding, enamelling, photography or similar activities, must not contain, as such, substances or preparations which may become flammable due to the loss of non-flammable volatile components.(c)  Toys must not be explosive or contain elements or substances likely to explode when used as specified in Article 2 (1) of the Directive. This provision does not apply to toy percussion caps, for which reference should be made to point 10 of Annex I and the related footnote.(d)  Toys and, in particular, chemical games and toys, must not contain as such substances or preparations:- which, when mixed, may explode:  - through chemical reaction, or through heating,  - when mixed with oxidizing substances,- which contain volatile components which are flammable in air and liable to form flammable or explosive vapour/air mixture.3. Chemical properties1.  Toys must be so designed and constructed that, when used as specified in Article 2 (1) of the Directive, they do not present health hazards or risks of physical injury by ingestion, inhalation or contact with the skin, mucous tissues or eyes.They must in all cases comply with the relevant Community legislation relating to certain categories of products or to the prohibition, restriction of use or labelling of certain dangerous substances and preparations.2.  In particular, for the protection of children's health, bioavailability resulting from the use of toys must not, as an objective, exceed the following levels per day: 0,2 µg for antimony, 0,1 µg for arsenic,25,0 µg for barium, 0,6 µg for cadmium, 0,3 µg for chromium, 0,7 µg for lead, 0,5 µg for mercury, 5,0 µg for selenium,or such other values as may be laid down for these or other substances in Community legislation based on scientific evidence.The bioavailability of these substances means the soluble extract having toxicological significance.3.  Toys must not contain dangerous substances or preparations within the meaning of Directives 67/548/EEC and 88/379/EEC (²) in amounts which may harm the health of children using them. At all events it is strictly forbidden to include, in a toy, dangerous substances or preparations if they are intended to be used as such while the toy is being used.However, where a limited number of substances or preparations are essential to the functioning of certain toys, in particular materials and equipment for chemistry experiments, model assembly, plastic or ceramic moulding, enamelling, photography or similar activities, they are permitted up to a maximum concentration level to be defined for each substance or preparation by mandate to the European Committee for Standardization (CEN) according to the procedure of the committee set up by Directive 83/189/EEC, provided the permitted substances and preparations comply with the Community classification rules in respect of labelling, without prejudice to point 4 of Annex IV.4. Electrical properties(a)  Electric toys must not be powered by electricity of a nominal voltage exceeding 24 volts and no part of the toy may exceed 24 volts.(b)  Parts of toys which are connected to, or liable to come into contact with a source of electricity capable of causing electric shock, together with the cables or other conductors through which electricity is conveyed to such parts, must be properly insulated and mechanically protected so as to prevent the risk of such shock.(c)  Electric toys must be so designed and constructed as to ensure that the maximum temperatures reached by all directly accessible surfaces are not such as to cause burns when touched.5. HygieneToys must be so designed and manufactured as to meet the requirements of hygiene and cleanliness in order to avoid any risk of infection, sickness and contamination.6. RadioactivityToys must not contain radioactive elements or substances in forms or proportions likely to be detrimental to a child's health. Council Directive 80/836/Euratom shall apply (³).(¹) OJ N° 196, 16. 8. 1967, p. 1/67.(²) See page 14 of this Official Journal.(³) OJ N° L 246, 17. 9. 1980, p. 1.ANNEX III CONDITIONS TO BE FULFILLED BY THE APPROVED BODIES (Article 9 (1)) The bodies designated by the Member States must fulfil the following minimum conditions:1.  availability of personnel and of the necessary means and equipment;2.  technical competence and professional integrity of personnel;3.  independence, in carrying out the tests, preparing the reports, issuing the certificates and performing the surveillance provided for in this Directive, of staff and technical personnel in relation to all circles, groups or persons directly or indirectly concerned with toys;4.  maintenance of professional secrecy by personnel;5.  subscription of a civil liability insurance unless that liability is covered by the state under national law.Fulfilment of the conditions under 1 and 2 shall be verified at intervals by the competent authorities of the Member States.ANNEX IV WARNINGS AND INDICATIONS OF PRECAUTIONS TO BE TAKEN WHEN USING TOYS (Article 11 (5)) Toys must be accompanied by appropriate clearly legible warnings in order to reduce inherent risks in their use as described in the essential requirements, and specifically:1.  Toys not intended for children under 36 monthsToys which might be dangerous for children under 36 months of age shall bear a warning, for example: 'Not suitable for children under 36 months' or 'Not suitable for children under three years' together with a brief indication, which may also appear in the instructions for use, of the specific risks calling for this restriction.This provisions does not apply to toys which, on account of their function, dimensions, characteristics, properties or other cogent grounds, are manifestly unsuitable for children under 36 months.2.  Slides, suspended swings and rings, trapezes, ropes and similar toys attached to a crossbeamSuch toys shall be accompanied by instructions drawing attention to the need to carry out checks and maintenance of the main parts (suspensions, fixings, anchorages, etc.) at intervals, and pointing out that, if these checks are not carried out, the toy may cause a fall or overturn.Instructions must also be given as to correct assembly of the toy, indicating those parts which can present dangers if it is incorrectly assembled.3.  Functional toysFunctional toys or their packaging shall bear the marking 'Warning: to be used under the direct supervision of an adult'.In addition, these toys shall be accompanied by directions giving working instructions as well as the precautions to be taken by the user, with the warning that failure to take these precautions would expose the user to the hazards - to be specified - normally associated with the appliance or product of which the toy is a scale model or an imitation. It will also be indicated that the toy must be kept out of the reach of very young children.'Functional toys' means toys which are used in the same way as, and are often scale models of, appliances or installations intended for adults.4.  Toys containing inherently dangerous substances or preparations. Chemical toys(a)  Without prejudice to the application of the provisions laid down in Community directives on the classification, packaging and labelling of dangerous substances or preparations, the instructions for use of toys containing inherently dangerous substances or preparations shall bear a warning of the dangerous nature of these substances or preparations and an indication of the precautions to be taken by the user in order to avoid hazards associated with them, which shall be specified concisely according to the type of toy. The first aid to be given in the event of serious accidents resulting from the use of this type of toy shall also be mentioned. It shall also be stated that the toys must be kept out of reach of very young children.(b)  In addition to the instructions provided for in (a), chemical toys shall bear the following marking on their packaging:'Warning: for children over (¹) years of age only. For use under adult supervision'.In particular, the following are regarded as chemical toys: chemistry sets, plastic embedding sets, miniature workshops for ceramics, enamelling or photography and similar toys.5.  Skates and skateboards for childrenIf these products are offered for sale as toys they shall bear the marking:'Warning: protective equipment should be worn'.Moreover, the instructions for use shall contain a reminder that the toy must be used with caution, since it requires great skill, so as to avoid falls or collisions causing injury to the user and third parties. Some indication shall also be given as to recommended protective equipment (helmets, gloves, knee-pads, elbow-pads, etc.).6.  Toys intended for use in waterThe toys intended for use in water defined in Section II.1 (f) of Annex II shall contain the warning in accordance with CEN's brief to adapt standard EN/71, parts 1 and 2:'Warning! Only to be used in water in which the child is within its depth and under supervision'.(¹) Age to be decided by the manufacturer.