Detail
Directive (EU) 2016/1629, Article 12 and Annex V, Article 2.09 - Expired vessel certificate
Question:
What are the implications of a vessel's expired certificate according to the Directive 2016/1629, and how does it affect the application of transitional provisions for existing vessels?
Answer:
• Although the Directive requires that a craft shall be subjected to a periodical inspection before expiry of the validity of its Union certificate (Article 12, and Annex V, Article 2.09), it does not specify the consequences if this obligation is not met.
• No provision in the Directive states or necessarily implies that vessels with an expired certificate should be considered as newly built vessels (for which, as a consequence, the transitional provisions shall not apply). Inferring, that a vessel with an expired vessel certificate is to be treated as newly built, may give a strong incentive not to pass the deadlines for the periodical inspections, but it is neither an evident nor imperative conclusion based on the provisions of the Directive.
• The obligation to undergo periodical inspections is indeed crucial for safety of navigation. To ensure compliance with the obligations arising out of the Directive, Article 35 of the Directive, therefore, obliges the Member States to “lay down the rules on penalties applicable to infringements” of provisions which are adopted pursuant to the Directive. The penalties, hence, are subject to national law and usually stipulate administrative fines or orders. Such penalties shall be “effective, proportionate and dissuasive”.
• The technical requirements, however, shall be uniformly applied among Member States and are as a matter of principle attached to the vessel. Their purposes are to provide an objectively adequate level of safety. The transitional provisions in particular aim to uphold the proportionality of requirements in order not to overburden existing vessels, i.e. not to disproportionately devalue the vessel as an economic good. Not applying these transitional provisions to vessels with expired certificates would on the one hand lift proportionality considerations. Already minor negligence or faultlessly surpassing the deadline could necessitate economically impracticable measures so that the wrongdoing would be disproportionate to the legal consequence. On the other hand, the technical requirements would be used to penalise or privilege certain vessels, linking objective safety requirements to behavioural obligations. If this was the case, then good conduct should lead to less stringent requirements, too. This, however, is not part of the logic of transitional provisions which strike a balance between an adequate safety level and economic burden.
This interpretation replaces those provided by the European Commission on Directive 2006/87/CE in the Joint working group (see JWG (12) 52). The CCNR Member States shared this reading for the corresponding provisions of the Rhine vessel inspection regulations (RVIR).
In addition, several Member States underlined that police regulations restrict the navigation of vessels without a valid certificate.
CESNI/PT (25) 14, CESNI/PT/DT (25)m 6, CESNI/PT (24) 73
Working group on technical requirements (CESNI/PT), Working group on the transitional provisions of the vessel technical requirements (CESNI/PT/DT)
expired certificate, transitional provisions
