Statement of objections
1. Where the Commission considers that there are grounds to impose a fine and periodic penalty payments on a recognised organisation in accordance with Article 6 of Regulation (EC) No 391/2009, or to withdraw an organisation's recognition in accordance with Article 7 of that Regulation, it shall address a statement of objections to the organisation and notify the Member States concerned.
2. The statement of objections shall include:
(a)
a detailed account of the recognised organisation's actions and omissions, including the description of the relevant facts and the identification of the provisions of Regulation (EC) No 391/2009, which the Commission considers to have been breached by the recognised organisation;
(b)
an identification of the evidence on which the relevant findings are based, including by reference to inspection reports, assessment reports, or any other relevant documents which have been previously communicated to the organisation concerned by the Commission or by the European Maritime Safety Agency acting on the Commission's behalf;
(c)
a notice that fines and periodic penalty payments or the withdrawal of recognition may be imposed by the Commission in accordance with Articles 6 or 7 of Regulation (EC) No 391/2009.
3. When notifying the statement of objections, the Commission shall invite the recognised organisation and the Member States concerned to submit written observations within a designated time limit, which shall not, in any event, be less than six weeks of the date of receipt of the statement of objections. The Commission shall not be obliged to take into account submissions received after the expiry of that time limit, without prejudice to the provisions of Article 24 paragraph 4 of this Regulation.
4. The notification of a statement of objections shall not suspend the assessment of the organisation concerned. At any moment prior to the adoption of a decision to impose a fine and periodic penalty payments, or the withdrawal of recognition in accordance with this Regulation, the Commission may decide to carry out additional inspections of an organisation's offices and facilities, to visit ships certified by the organisation or to request the recognised organisation in writing to provide additional information relating to its compliance with the criteria and obligations under Regulation (EC) No 391/2009.
5. At any moment prior to the adoption of a decision to impose a fine and periodic penalty payments, or the withdrawal of recognition in accordance with this Regulation, the Commission may amend its assessment of the recognised organisation concerned. If the new assessment is different to the assessment which gave rise to the statement of objections, because new facts have been discovered, or because new infringements or new circumstances concerning the seriousness of an infringement or its effects on safety and the environment have been identified, the Commission shall issue a new statement of objections.
Requests for information
In order to clarify the facts for the purposes of Article 12, the Commission may request in writing the recognised organisation to provide written or oral explanations, or particulars or documents, within a designated time limit, which shall not, in any event, be less than 4 weeks. In such a case the Commission shall inform the recognised organisation of the periodic penalty payments and fines that may be imposed for failing to comply with the request or when incurring unjustified delays in the provision of information or providing deliberately incorrect, incomplete or misleading information to the Commission.
Oral hearing
1. At the request of the recognised organisation to which a statement of objections has been addressed, the Commission shall offer that organisation the opportunity to present its arguments at an oral hearing.
2. The Commission shall invite the competent authorities of Member States concerned, and may, on its own initiative or at the request of Member States concerned, invite any other persons with a legitimate interest in the infringements to take part in the oral hearing. The Commission may choose to be assisted by the European Maritime Safety Agency.
3. Natural or private legal persons invited to attend shall either appear in person or be represented by legal or authorised representatives. Member States shall be represented by officials of that Member State.
4. The oral hearing shall not be public. Each person invited to attend may be heard separately or in the presence of other persons invited to attend, having regard to the legitimate interest of the recognised organisation and other parties in the protection of their business secrets and other confidential information.
5. The statements made by each person heard shall be recorded. Upon request, the recording of the hearing shall be made available to the persons who attended the hearing and to Member States concerned.
Periodic penalty payments for non-cooperation
1. Where the Commission intends to adopt a decision imposing periodic penalty payments as referred to in Article 7(1) to a recognised organisation that has failed to undertake or incurs unjustified delays in undertaking preventive and remedial action requested by the Commission, it shall first notify the recognised organisation in writing.
2. The notification by the Commission in accordance with paragraph 1 shall make reference to the specific preventive and remedial action that has not been undertaken by the recognised organisation and the supporting evidence, as well as inform the recognised organisation of the periodic penalty payments that are being considered by the Commission thereon.
3. The Commission shall set a time limit in which the recognised organisation may submit written observations to the Commission. The Commission shall not be obliged to take into account written observations received after the expiry of the time limit.
Access to the file
1. At the request of the recognised organisation to which a statement of objections has been addressed, the Commission shall grant access to the file containing documents and other evidence compiled by the Commission on the alleged infringement.
2. The Commission shall set the date and make the relevant practical arrangements for the recognised organisation's access to the file, which may be granted in electronic form only.
3. The Commission shall make available to the recognised organisation concerned, upon request, a list of all the documents contained in the file.
4. The recognised organisation concerned shall have the right to access the documents and information contained in the file. When granting such access, the Commission shall have due regard to business secrets, confidential information or the internal character of documents issued by the Commission or the European Maritime Safety Agency.
5. For the purposes of paragraph 4, internal documents of the Commission and the European Maritime Safety Agency may include:
(a)
documents or parts of documents pertaining to the internal deliberations of the Commission and its services and of the European Maritime Safety Agency, including the opinions and recommendations of the European Maritime Safety Agency addressed to the Commission;
(b)
documents or parts of documents forming part of the correspondence between the Commission and the European Maritime Safety Agency or between the Commission and Member States.
Legal representation
The recognised organisation shall have the right to legal representation at all stages of the proceedings under this Regulation.
Confidentiality, professional secrecy and the right to remain silent
1. Proceedings under this Regulation shall be carried out subject to the principles of confidentiality and of professional secrecy.
2. The Commission, the European Maritime Safety Agency, and the authorities of the Member States concerned, as well as their officials, servants and other persons working under their supervision shall not disclose information acquired or exchanged by them pursuant to this Regulation and of the kind covered by the obligation of professional secrecy and confidentiality.
3. Any recognised organisation or other person who submits information or observations pursuant to this Regulation shall clearly identify any material considered to be confidential, giving the reasons for it, and provide a separate non-confidential version by the date set by the Commission.
4. The Commission may also require recognised organisations and other interested parties to identify any part of a report, of the statement of objections or of a decision by the Commission, which in their view contains business secrets.
5. In the absence of the identification referred to in paragraphs 3 and 4, the Commission may assume that the documents or observations concerned do not contain confidential information.
6. Without prejudice to Article 9 of Regulation (EC) No 391/2009, recognised organisations shall have the right to remain silent in situations where it would otherwise be compelled to provide answers which might involve an admission on their part of the existence of a breach.
Decision
1. A decision to impose fines, periodic penalty payments, or the withdrawal of recognition in accordance with this Regulation shall be based exclusively on the grounds on which the recognised organisation concerned has been able to submit its observations.
2. The decision to impose a fine or a periodic penalty payment and the determination of the appropriate amount shall take into account the principles of effectiveness, proportionality and dissuasiveness.
3. When taking measures in accordance with this Regulation and deciding on the seriousness and effect of the relevant actions or omissions on safety and the environment the Commission shall take into account national measures already taken on the basis of the same facts against the recognised organisation concerned, in particular where that organisation has already been subject to judicial or enforcement proceedings.
4. Actions or omissions of a recognised organisation on the basis of which measures have been taken in accordance with this Regulation shall not be subject to further measures. However, these actions or omissions may be taken into account in subsequent decisions adopted in accordance with this Regulation in order to assess recurrence.
5. A decision to impose periodic penalty payments or a decision imposing fines and periodic penalty payments shall be adopted by the Commission in accordance with the procedure applicable pursuant to Article 12(2) of Regulation (EC) No 391/2009.
6. A decision to withdraw the recognition of a recognised organisation shall be adopted by the Commission in accordance with the procedure applicable pursuant to Article 12(3) of Regulation (EC) No 391/2009.
Judicial remedies, notification and publication
1. The Commission shall inform the recognised organisation concerned of the judicial remedies available to it.
2. The Commission shall notify its decision to the European Maritime Safety Agency and to the Member States for information.
3. When justified, in particular on grounds of safety or protection of the environment, the Commission may make its decision public. When publishing details of its decision or informing the Member States, the Commission shall have regard to the legitimate interests of the recognised organisation concerned and other interested persons.
Recovery of fines and penalty payments
The Commission shall proceed with the recovery of the fines and the penalty payments by establishing a recovery order and issuing a debit note addressed to the recognised organisation concerned in accordance with Articles 78 to 80 and 83 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council ( 6 ) and Articles 80 to 92 of Commission Delegated Regulation (EU) No 1268/2012 ( 7 ) .
Limitation periods for the imposition of fines and periodic penalty payments
1. The right of the Commission to impose fines and/or periodic penalty payments to a recognised organisation in accordance with this Regulation shall expire after five years from the date when the action or omission of the recognised organisation giving rise to an infringement identified in accordance with Article 3 of this Regulation was committed. However, in case of continuing or repeated actions or omissions giving rise to an infringement, time shall begin to run on the day on which the action or omission ceases.
The right of the Commission to impose periodic penalty payments to a recognised organisation in accordance with Article 15 of this Regulation shall expire after three years from the date when the action or omission of the recognised organisation, for which the Commission requested appropriate preventive and remedial action, was committed.
2. Any action taken by the Commission or the European Maritime Safety Agency for the purpose of the assessment or the infringement procedure in relation to an action or omission of the recognised organisation shall interrupt the relevant limitation period established under paragraph 1. The limitation period shall be interrupted with effect from the date on which the action of the Commission or the Agency is notified to the recognised organisation.
3. Each interruption shall start time running afresh. The limitation period shall, however, not exceed a period equal to twice the initial limitation period, except where limitation is suspended pursuant to paragraph 4.
4. The limitation period for the imposition of periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.
Limitation periods for the collection of fines and periodic penalty payments
1. The right to start a recovery procedure for fines and/or periodic penalty payments shall expire one year after the Decision pursuant to Article 19 has become final.
2. The limitation period referred to in paragraph 1 shall be interrupted by any action of the Commission or of a Member State acting at the request of the Commission, aimed at enforcing payment of the fines and/or periodic penalty payments.
3. Each interruption shall start time running afresh.
4. The limitation periods referred to in paragraphs1 and 2 shall be suspended for as long as:
(a)
time to pay is allowed;
(b)
enforcement of payment is suspended pursuant to a decision of the Court of Justice of the European Union.
Application of time limits
1. The time limits laid down in this Regulation shall run from the day following receipt of the Commission's communication or delivery thereof by hand.
2. In the case of a communication addressed to the Commission, the relevant time limits shall be deemed to have been met when that communication has been dispatched by registered post before the relevant time limit expires.
3. In setting the time limits, the Commission shall have regard both to due process rights and the specific circumstances of each decision-making procedure under this Regulation.
4. Where appropriate and upon reasoned request made before the expiry of the original time limit, time limits may be extended.
Cooperation with national competent authorities
Information provided by the national competent authorities in response to a request from the Commission shall be used by the Commission only for the following purposes:
(a)
to carry out the tasks entrusted to it for the recognition and supervision of recognised organisations under Regulation (EC) No 391/2009;
(b)
as evidence for the purposes of decision-making under this Regulation, without prejudice to Articles 16 and 18 of this Regulation.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
