We have written about Directive 2012/33 relating to the sulphur content of marine fuels in number 18 of our Bulletin. The Directive has amended previous directive 1999/32 but certain technical measures of the latter have been recently enacted in the legal form of a Decision. In the case at issue, Implementing Decision 2015/253 of 16 February 2015, which lays down the rules concerning the sampling and reporting required pursuant to Directive  1999/32.

The rationale of the Decision

For the correct and effective application of Directive 1999/32 it is necessary that Member States ensure sufficiently frequent and accurate sampling of marine fuels delivered to ships or used on board ships, including inspections of ships' log books and bunker delivery notes1. In this respect, Article 6, paragraph 1 of the mentioned Directive provides the obligations for Member States to take all necessary measures to check by sampling the sulphur content of the marine fuel being used for on-­‐board combustion while in relevant sea areas and ports.

Decision 2015/253 is aimed at clarifying the criteria to be used for the sampling and reporting by Member States. Indeed physical sampling of marine fuel being used for the purpose of verifying compliance should be carried out either through obtaining and analysing a fuel spot sample from the ship's fuel service system, or by analysing the relevant sealed bunker samples on board.

The frequency of sampling will be determined on the basis of the number of individual ships calling in a Member State, of the verification of the documentation, of the use of alternative targeting technologies to ensure a fair share of burden among Member States and of cost-­‐effectiveness as well as on the basis of specific alerts about individual ships.

Moreover, the Decision is necessary in order to apply    Directive    1999/32    in    a    cost-­‐effective  whereas clauses of the Decision, «should be encouraged to comply with the sampling frequency by selecting ships for fuel compliance verification on the basis of national risk-­‐based targeting mechanisms or the use of innovative compliance verification technologies, and to share the collected information with other Members States».

Technical  compliance

The Decision is based on Directive 1999/32 2 , which was not amended by Directive 2012/33 as to sampling procedures.

In brief, pursuant to Article 3, Member States should carry out annual inspections on a standard document (inspections of ships' log books and bunker delivery notes on board) of at least 10 % of the ships calling in the relevant Member State. The verification of the documents will be completed by sampling and/or analysis to check the sulphur content of marine fuels used on board, with a frequency ranging from 20% to 40% depending on whether (or not) the Member State is located in or bordering (or inside) SECAs, this should be applicable, pursuant to the Decision, from 1 January 2016 at the latest. Member States not bordering SECAs shall have to carry out 30% of the sampling analysis from 1 January 2020.

In particular, this Implementation Deed provides that the sampling frequency may be reduced but not by more than half, using remote sensing technologies or quick scan analysing methods to verify a possible non-­‐compliance. The same reduction may be applied where document verifications are carried out on board of at least 40% (rather than 10%) of the individual ships calling in the relevant Member State per year.

It should be noted that the issue of the annual communication obligations is connected to Thetis-­‐S3. The aim is that to develop a risk-­‐based

targeting mechanism. From 1 January 2016 a certain flexibility will be left to Member States which may apply an annual frequency of sampling on the basis of such risk-­‐based targeting mechanism.

A brief summary including also deadlines:

  • starting from 1 January 2016, the sulphur content of the marine fuel being used on board shall also be checked by sampling or    analysis,  or  both,   of   at   least   the following percentage  of  the  inspected ships referred to in paragraph 1: a) 40% in   Member States fully bordering  SOx Emission Control Areas (SECAs); b) 30% in Member   States    partly    bordering SECAs;   c) 20% in Member States not bordering SECAs.
  • Starting from 1 January 2020, in Member States not bordering SECAs, the sulphur content of the marine fuel being used on board shall also be checked by sampling or    analysis,  or  both,  of   30%   of   the inspected ships referred to in paragraph 1.

Member States may comply with the frequencies specified in this paragraph by  selecting  ships  on the basis of national risk-­‐based targeting mechanisms and of specific alerts on individual ships reported  in  the UE  information  system. We wish to remind that such system consists in using the port call data within  SafeSeaNet,  the information management system that enables to record and exchange information on the results of individual compliance verifications. In particular, the Decision provides that the sampling frequency may be reduced but not by more than half, using remote sensing technologies or quick scan analysing methods to verify a possible non-­‐ compliance. A reduction may be applied where document verifications are  carried  out  on  board of    at    least 40%    (rather    than    10%)    of    the individual ships calling in the relevant Member State per year1 .

Starting from 1 January 2016, instead of complying with the frequencies specified above, Member States may apply an annual sampling on the basis of Union national risk-­‐based targeting mechanisms.

As concerns reporting,  the  Decision  sets  forth,  in its general provisions, that it is  necessary  to  take into account the best use of all available and state-­‐ of-­‐the-­‐art technologies so that the administrative burden is kept to a minimum 2 , while leaving flexibility to those Member States  which  might prefer to report in a more  traditional  way. Therefore,  Member  States  have  the   possibility   to use the Union information system to fulfil the relevant  annual  reporting  obligations  under Directive     1999/32/EC.