SWD 2020 269.pdf

EUROPEAN
  COMMISSION

Brussels, 16.11.2020
SWD(2020) 269 final/2

CORRIGENDUM:
This document corrects document SWD(2020) 269 final of 16.11.2020
Concerns the correction of the title on the cover page.
The text shall read as follows:
COMMISSION STAFF WORKING DOCUMENT


Accompanying the document
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE
assessing the implementation of Directive 2013/30/EU of the European Parliament and
of the Council of 12 June 2013 on the safety of offshore oil and gas operations and
amending Directive 2004/35/EC
{COM(2020) 732 final}

EN

  EN

link to page 275 link to page 276 link to page 276
16.
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Financial security – views from the industry .............................................................................. 271
16.
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Views from non-governmental associations (NGOs) .................................................................. 272
16.
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Views from the insurance sector .................................................................................................. 272

4

Executive Summary
The Offshore Safety Directive, applicable for oil and gas operations, addresses control of risk
of  major  offshore  accidents,  in  addition  to  response  and  recovery  mechanisms,  should
preventive  measures  fail.  The  Directive  applies  to  all  Member  States  and  predominantly
affects the 15 Member States who are active or planning offshore oil and gas operations. At
the  date  of  drafting,  it  applies  to  the  UK  until  31  December  2020  when  transitional
arrangements expire. The Directive draws on existing international best offshore practices for
control of risk and improved emergency response.
The  general  deadline  for  implementation  for  Member  States  was  19  July  2015,  and
transitional  periods  for  the  industry  applied  until  19  July  2018.  One  year  after  the  latter
deadline,  in  accordance  with  Article  40  of  the  Directive,  the  Commission  was  obliged  to
assess the experience of implementing the Directive.
According  to  notifications  from  Member  States  of  their  national  transposition  measures,  the
Directive’s  measures  have  been  adequately  implemented.  Crucially,  industry  has  adopted
clear  duties  for  management  of  risk,  with  each  offshore  installation  having  a  detailed  risk
report.  Equally,  each  Member  State  has  appointed  an  expert  Competent  Authority  with
comprehensive powers of oversight. EU annual reports on Union wide safety for offshore oil
and gas operations have been published for the years 2016, 2017 and 2018. These reports in
combination with other data enable a risk performance baseline to be developed, although it is
early to identify trends.
The  content  of  this  assessment  is  based  on  intensive  stakeholder  engagements,  including
workshops and public consultation. These data collection methods generated a dense database
of  primarily  qualitative  information  which  was  complemented  by  Commission  expertise.
Based  on  Articles  and  Annexes  of  the  Directive,  and  interactions  with  stakeholders,  15
priority themes were identified, which were analysed.
The clearest indication of the Directive’s success is that the aims of the intervention are being
met  through  the  Member  States’  transposition.  Moreover,  the  Directive’s  requirements  are
being followed by industry and Member States, albeit with some differences in the detail of
application.  Overall,  the  efforts  of  implementation  appear  in  line  with  the  Commission’s
forecast.  Most  of  the  emerging  themes  may  be  handled  under  existing  communication
protocols,  as  in  the  European  Offshore  Authorities  Group  (EUOAG),  whilst  a  few  justify
further scrutiny.
In  providing  feedback,  Member  States  and  industry  welcomed  the  introduction  of  the
Directive.  The  views  of  environmental  non-governmental  organisations  (NGO’s)  are  more
nuanced, and call for then further tightening of some measures. All stakeholders maintain that
more time and monitoring is required before considering any changes.
Additional  analysis  is  presented  on  the  topics  of  liability  and  the  handling  of  compensation
claims,  the  appropriateness  of  criminal  sanctions,  the  removal  and  detoxification  of  fixed
5

production platforms, and the mutual recognition of mobile drilling units in Member States’
different jurisdictions.
6

Glossary

ACSNI: Advisory Committee on the Safety of Nuclear Installations
ALARP:  As  Low  As  Reasonably  Practicable  (principle)  -  Reduction  of  the  risk  of  a  major
accident  to  the  point  where  the  cost  of  further  risk  reduction  would  be  grossly
disproportionate to the benefits of such reduction.
API: American Petroleum Institute
CEN: European Committee for Standardisation
CMAPP: Corporate Major Accident Prevention Policy - The corporate level policy by which
owners,  licensees,  and  operators  responsible  for  offshore  oil  and  gas  operations  establish
consistent, corporate-wide mechanisms for preventing major accidents (see Annex  I  - part 8
of the Directive).
ECD: Environmental Crime Directive
ECI: European Critical Infrastructures - Critical infrastructure located in EU Member States,
the  disruption  or  destruction  of  which  would  have  a  significant  impact  on  at  least  two  EU
Member States.
EEA: European Economic Area
EERP: External Emergency Response Plan
EEZ: Exclusive Economic Zone - The offshore zone beyond the territorial waters prescribed
by the 1982 United Nations Convention on the Law of the Sea which a state has special rights
regarding the exploration and exploitation of marine, mineral and energy resources, including
energy production from water and wind.
EIA: Environmental Impact Assessment
ELD: Environmental Liability Directive
EMSA: European Maritime Safety Agency
EU: European Union
EUOAG: European Union Offshore Authorities Group
GIRG: Global Incident Response Group (IOGP)
HELCOM:  Baltic Marine Environment Protection Commission  - Helsinki Commission - An
intergovernmental organization and the governing body of the Convention on the Protection
of the Marine Environment of the Baltic Sea Area (Helsinki Convention). HELCOM consists
of ten members - the nine Baltic Sea countries: Denmark, Estonia, Finland, Germany, Latvia,
Lithuania, Poland, Russia and Sweden, plus the European Union.
HPHT:  High  Pressure  High  Temperature  -  Term  referring  to  oil  or  gas  wells  which  exhibit
characteristics of high temperature and high pressure.
HSE: Health and Safety Executive (UK)
IA: Impact Assessment
IADC: International Association of Drilling Contractors
IERP:  Internal  Emergency  Response  Plan  -  Plan  at  the  level  of  the  operator  or  owner  of  an
offshore  oil  and  gas  installation,  regarding  their  response  to  emergencies  such  as  oil  spills,
fire, explosion, vessel collision, or personnel evacuation.
ILO: International Labour Organization
IMO: International Maritime Organization
IMP: Integrated Marine Policy
IOGP: International Oil and Gas Produces Organization
IUMI: International Union of Marine Insurance
KPI:  Key Performance  Indicator  -  A measurable  value that demonstrates how effectively an
objective is achieved.
MODU: Mobile Offshore Drilling Unit
MS: Member State
7

NGO: Non-Governmental Organization
NIS Directive: Directive 2016/1148/EU on Security of Network and Information Systems
OPA: Oil Pollution Act 1990 (USA)
OPEP: Oil Pollution Emergency Plan (Oil & Gas UK)
OPOL: Offshore Pollution Liability Agreement
OSD: Offshore Safety Directive (2013/30/EU)
OSPAR: Convention for the Protection of the Marine Environment of the North-East Atlantic
REMPEC: Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea
RoMH: Report on Major Hazards
SEA:  Strategic  Environmental  Assessment  -  Assessment  of  the  environmental  impact  of
certain plans and programmes, in the context of Directive 2001/42/EC.
SECE:  Safety  and  Environmental  Critical  Element  -  Element  of  an  offshore  oil  and  gas
installation whose function is critical to safety and environmental protection.
SEMS:  Safety  and  Environmental  Management  System  -  The  system  of  an  offshore
installation for managing safety and environmental protection in the context of the Directive
(see Annex I – part 8 of the Directive)
SEMS:  Safety  and  Environmental  Management  System  -  The  system  of  an  offshore
installation for managing safety and environmental protection (a list of its contents is provided
in the Directive, Annex I – part 8)
SLIC: Senior Labour Inspectors' Committee (UK)
SWD: Staff Working Document
TFEU: Treaty of Functioning of the European Union
TU: Trade Union
UK: United Kingdom
UNCLOS: United Nations Convention on the Law of the Sea
USA: United States of America
WFD: Waste Framework Directive

8

1
INTRODUCTION
Between  1980  and  2010  there  were  at  least  eleven  major  accidents  in  offshore  petroleum
activities which  caused significant loss of life  and pollution of the sea, as well as economic
loss to the coastal states. The two most serious incidents occurred on production installations
in European waters, in the North Sea1. In April 2010 a disaster in the US Gulf of Mexico at a
drilling  operation  controlled  by  an  EU  based  company2  sparked  worldwide  concerns  as  to
whether the risks of offshore drilling and production were being adequately managed.
Subsequent assessments3 of the Gulf of Mexico disaster in the US and Europe concluded that
the  industry  was  displaying  an  unacceptable  lack  of  operational  integrity,  and  that  major
accidents  were  occurring  in  situations  that  were  avoidable.  Given  the  offshore  petroleum
sectors’  high-level  of  maturity,  such  accidents  were  occurring  in  circumstances  that  should
have been eliminated.
Imbalances  and  fragmentation  characterised  the  EU  regulatory  systems  for  offshore
petroleum. Whilst some Member States had offshore regulatory systems considered effective,
all had room for improvement. No Member State was able to claim that it was making full use
of best practices available in case of major accidents.
The  intention  of  the  Offshore  Safety  Directive4  (hereafter,  the  ''Directive'')  was  to  address
these  shortcomings.  The  Directive  required  all  Member  States  to  adjust  their  regulatory

1 In 1980 in Norwegian waters a structural failure caused catastrophic collapse of the Alexander Kielland, a
floating production installation, with the deaths of 123 personnel. In 1988 in UK waters, an oversight of risk
assessment during maintenance caused a series of explosions of increasing severity leading to the total
destruction of the Piper Alpha, a fixed production platform, with the deaths of 167 personnel.
2 The MODU (mobile drilling unit) ‘Deepwater Horizon’ was owned by Transocean Inc the world’s largest
drilling contractor, operated by BP and attended by the world’s largest and most technically reputable
contractors such as Schlumberger and Halliburton. The water depth at the well location was 1522m and the well
itself had drilled through the reservoir to 5486m. The well was extremely valuable and was being temporarily
abandoned with cement plugs. Numerous changes to plans failed to be assessed systematically by operator BP
and the owner, Transocean, failed to adequately supervise its abandonment operations. A surge of highly
pressured reservoir gas overcame the unsuitable cement plug and other barriers, and blew through to the rig. The
ensuing explosion killed eleven men working in the drilling area and the flow of ultra-high pressure gas
destroyed the sea floor equipment allowing the well to flow petroleum fluids at 62k barrels/day (9.9kM3/day).
The MODU sank two days after the explosions and subsequent fires. The well was capped and petroleum flow
stemmed after 96 days. By this time 4.9m barrels (780kM3) had been spilled across 658k miles2 (180km2) the
size of Oklahoma. Coastal pollution occurred across 1074 miles 1728km) of the US Gulf States. This was the
most polluting incident in US history.
3 For example: Report by the National Commission on the BP Deepwater Horizon Oil Spill and Offshore
Drilling, January 2011, https://www.govinfo.gov/content/pkg/GPO-OILCOMMISSION/pdf/GPO-
OILCOMMISSION.pdf.
4  Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil
and gas operations and amending Directive 2004/35/EC, OJ L 178, 28.6.2013, p. 66–106.
9

systems  to  a  more  robust  and  consistent  level,  deriving  higher  standards  and  greater
homogeneity of regulation across the Union.
The  Directive,  establishing  minimum  requirements  for  safety,  environmental  protection  and
emergency response across the EU, entered into force on 19 July 2013. Member States had to
transpose  the  Directive  into  national  rules  and  regulations  by  19  July  2015.  The  full
implementation of the Directive acts upon all duty holders namely regulators, operators, and
owners  of  production  and  non-production  installations  (e.g.  mobile  drilling  rigs,  mobile
accommodation  units  and  well  intervention  vessels).  Industry  duty  holders  were  required  to
fully comply with the Directive, as transposed by Member States, by 19 July 2018.
The Commission was obliged to formally assess the implementation of the Directive pursuant
to Article 4 which provides that:  “No later than 19 July 2019, the Commission shall, taking
due account of the efforts and experiences of competent authorities, assess the experience of
implementing this Directive”. The overall framework of the assessment shall consider that the
aims of the Directive are consistent with the objective of protection of any coastal state.
This  assessment  addresses  the  aspects  of  EU  intervention  into  upstream  offshore  petroleum
activities  foreseen  by  the  Directive.  These  activities  include  searching  for  potential
underground  or  underwater  crude  oil  and  natural  gas  fields,  drilling  exploratory  wells,  and
subsequently  drilling  and  operating  the  wells  that  recover  and  bring  the  crude  oil  or  raw
natural  gas  to  the  surface.  Foremost  is  the  impact  on  risk  of  a  major  accident  occurring,
including  to  the  environment.  The  assessment  also  includes  an  in-depth  analysis  on  special
themes  as  for  example  decommissioning  of  installations,  the  mutual  recognition  between
Member  States  of  certified  mobile  drilling  units,  liability  and  the  handling  of  compensation
claims by relevant enterprises in the event of a major pollution incident.
The  States in this assessment, for which we carry out an in-depth analysis, are the coastal EU
Member  States  with  an  active  offshore  petroleum  sector,  or  a  policy  to  become  active  in
coming  the  years  (“focal  Member  States”):  Bulgaria,  Croatia,  Cyprus,  Denmark,  France,
Germany,  Greece,  Ireland,  Italy,  Malta,  Netherlands,  Poland,  Portugal,  Romania,  Spain  and
the United Kingdom5. The data examined run from 19 July 2015 (deadline for transposition)
until July 2019.
Articles  23,  24,  and  25  of  the  Directive  concern  measures  for  EU-wide  reporting  systems,
under  which  the  Commission  is  obliged  to  make  an  implementing  regulation  for  common
reporting  parameters  of  accidents.  This  Implementing  Regulation  (1112/2014/EU)6
provides reporting formats for Member States for annually publishing incident data and other

5 Despite their legal obligation members of the EEA (Iceland, Liechtenstein and Norway) did not implement the
Directive.
6 Commission Implementing Regulation (EU) No 1112/2014 of 13 October 2014 determining a common format
for sharing of information on major hazard indicators by the operators and owners of offshore oil and gas
installations and a common format for the publication of the information on major hazard indicators by the
Member States, OJ L 302, 22.10.2014, p. 1–25.
10

relevant  information.  The  assessment  of  the  Directive  also  includes  the  Implementing
Regulation.
Therefore, based on the experience with implementing the Directive, the assessment’s results
will  provide  help  to  determine  whether  the  Directive  is  fully  adequate  and  whether  it  has
achieved its objectives. For any identified shortcomings, the assessment will try to present the
reasons  behind  them.  These  findings  may  contribute  to  possible  future  changes  to  the
legislation.

2
BACKGROUND TO THE INTERVENTION

2.1
Description of the intervention and its objectives
Following  an  assessment  of  the  Deepwater Horizon  oil  spill  in  the  Gulf  of  Mexico  in  2010,
the  Commission  concluded  that  the  EU’s  own  offshore  drilling  conditions  left  the  Union
vulnerable to  similar incidents7.  In  response, the  Commission  launched a policy initiative in
2011 for a regulation aimed at preventing major offshore petroleum accidents. This regulation
was  intended  to  include  measures  for  more  stringent  licensing  arrangements  of  operators,
improved  public  consultation,  clearer  environmental  liability,  and  more  effective  financial
security provisions.
Significantly, the form of the instrument was changed from a regulation to a directive during
negotiations in the Council and “Directive 2013/30/EU of the European Parliament and of the
Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive
2004/35/EC” came into effect on 19 July 2013. In contrast to a regulation a directive leaves to
the Member States discretion as to the form and methods they choose to reach the result of the
Directive.8
The  Directive  provides  measures  that  encompass  cumulative  best  global  practice  regarding
the mitigation of major accidents in offshore drilling and oil and gas production. Furthermore,
the Directive attempts to improve levels of homogeneity across the sector by applying equal
standards  and  ensuring  consistent  implementation  across  geographical  areas.  Every  Member
State  was  required  to  overhaul  its  regulatory  systems,  and  the  industry  was  required  to
produce substantial improvements to its control of major accident hazards.
Furthermore,  the  Directive  specifies  an  entire  regulatory  framework  for  an  intensive  and
technically  challenging  system  for  the  prevention  of  major  accidents,  including  to  the

7 Commission Staff Working Paper Impact Assessment, SEC/2011/1293 final, chapter 2.5 “Need of EU action”.
8 Under the assumption that the regulation had followed the same structure as the Directive does, the advantages
of a regulation are its speed of application, efficient implementation at the EU level and clarity and consistency
through direct application. Given the need for EU action to establish a common minimum safety level in the
precise activity field of offshore oil and gas, the principles laid down in a regulation would have been
immediately applicable to all actors concerned.
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environment.  Since  North  Sea  Member  States  and  Italy  had  more  experience  with  offshore
operations than others, the efforts necessary for adopting new systems  and arrangements for
both Member States and operators were unevenly distributed in the EU.
The  Directive  was  introduced  to  remedy  the  inadequacy  of  EU  legislation  regarding  the
prevention of major accidents through offshore petroleum operations in EU waters, including
environmental concerns. Whereas the North Sea countries had overhauled their legislation in
the period 1982 to1992, other Member States had relatively undeveloped regulatory systems,
with the exception of Italy.
The  Directive  requires  regulators  and  industry  stakeholders  with  duties  relating  to  the
protection against accidents in offshore petroleum activities to undertake all suitable measures
to:
  Prevent a major incident from occurring during  adjacent offshore oil and gas activities9
(relating, in particular, to mechanisms to control major accident hazards); and
  Provide  affected  coastal  states  with  measures  for  effective  response  to  and  remediation
from a major emergency, should preventive systems fail.
The  following  figure  summarizes  the  intervention  logic,  illustrating  how  the  Directive  was
intended to work.

9 The term ‘adjacent’ is taken at its widest sense of being within prospect of adverse impact. For example a
blowout in N Australia in 2009 polluted 6,000km2 of the Timor Sea, extending to Indonesia’s coastal waters.

12

Primary drivers of the
Objectives
Tools for measures of attainment of
problem
the objectives
(key performance indicators)
(1) Duty to prevent major accidents by
requiring formal risk assessment for
Preventing major accidents
each installation
by implementing global best
practices in the EU on the
level of operators and owners
of offshore installations
(2) Corporate policies/management
systems to be deployed to ensure risk
controls remain effective
1. Despite availability of
means, risks were not
sufficiently lowered
(3) Independent, expert regulators to
operate in each Member State
Preventing major accidents
by implementing best
(4) Comprehensive verification of
practices for major accident
capability and experience to be
prevention and mitigation on
undertaken at the licensing stage
the level of the administration
(Competent Authorities)
(5) EU-wide information sharing and
transparency to be implemented
(6) Cross-border intervention
equipment to be available; and
response assets to be more
Implement fully joined-up
compatible
2. Response measures need
emergency preparedness and
improvement
response in all EU offshore
regions
(7) Establish a new duty to cooperate
and share information
(8) Scope of environment liability to be
extended to the full extent of Member
States Exclusive Economic Zone
Improve and clarify existing
3. Liability provisions to be
(9) Financial capacity requirements to
EU liability and compensation
levelled up
be adequate
provisions
(10) Compensation regimes to be
adequate

Figure 1: Intervention logic of the Offshore Safety Directive

13

Whereas  the  Directive  has  a  unique  focus  on  the  safety  of  offshore  operations  and  the
avoidance of major accidents a complex web of EU legislation, international conventions and
protocols regulate and frame the area and the way how the offshore sector operates. Part IV of
the Annex provides an overview on legislation and conventions applicable.

2.2
Baseline and points of comparison

The chapters below summarise the baseline situation, at the time of coming into effect of the
Directive on 19 July 2013, and the main problems faced at that time.

2.2.1 Problems related to industry evolution
The offshore oil and gas industry in the EU, and globally, had been facing significant changes
in  its  operational  environment.  These  challenges  persist  and  are  driven  by  three  key  issues.
Firstly,  ageing  infrastructures  related  to  many  of  the  industries  traditional  operations,
secondly,  structural  shifts  towards  smaller  specialist  companies,  thirdly,  discoveries  of  new
hydrocarbon reserves in complex environments.

Ageing infrastructure and maturing industrial environment

The  industry  was  and  continues  to  be,  increasingly  reliant  on  ageing  installations,  often  in
service  well  beyond  their  original  design  lifetime.  One  reason  is  that  new  technology  has
enabled mature installations to continue to access oil reserves that would otherwise have long
been stranded.
In the UK, more than half of the fixed platforms had exceeded the original design life of the
field10. The situation is similar for Italy in the Mediterranean. The consequence of the passage
of time on the integrity of structures and process equipment is that challenges accrue for the
maintenance of reliability. The costs of these challenges were compounded by declining profit
margins as production rates in these fields decline.
  Structural shift of the industry towards diversification
Ageing  platforms  and  declining  reservoirs  often  led  their  primary  owners  to  divest  these
assets into smaller, specialist oil companies who have low overheads and are in the business
specifically  for  these  low  yielding  operations.  This  can  lead  to  a  loss  of  corporate  memory
concerning the operation of the installation, thus posing a potential safety risk.
This  was  prevalent  in  2011,  but  the  involvement  of  smaller  companies  is,  however,  not
inherently undesirable as they generally operate with a shorter decision chain for expenditure
(including safety-related). On the other hand, smaller companies often have limited in-house
resources  (e.g.  for  well  design),  and  their  emergency  response  capabilities  are  usually  less

10  Source: http://www.offshore-mag.com/index/article-display/9114015229/articles/offshore/eauipment-
engineering/north-sea-northwest-europe/2010/08/hse-launches uk platform.html.
14

than those of the larger, original operators who developed the installation.
  Shift to "frontier" operations and new technologies
The scarcity of new discoveries of large, conventional reservoirs had, around the turn of the
century,  directed  the  industry  to  explore  more  challenging  frontier  environments.  These
include  high-temperature  and  high-pressure  (HPHT)  reservoirs,  and  reservoirs  in  hostile
climatic conditions, in deep water, or in geographically remote locations. For example, in the
North Sea the majority of operations had been at depths of 200 to 300 metres, whereas new
projects in 2011 were operating as deep as 1,700 metres11. Similarly, in the Mediterranean and
the Black Sea, there was a trend towards expanding offshore activities into more distant areas,
partly in deep water. New players were coming into the eastern Mediterranean and Black Sea
regions.

2.2.2 Problems related to company-specific corporate practice
Besides the drivers that are common to the industry as a whole, level of risks in the offshore
sector are impacted by the practices and behaviours of individual companies. Two main types
of  drivers  are  distinguished  here:  one  type  related  to  the  level  of  use  of  best  available
technology  and  practices,  the  other  reflecting  the  degree  of  compliance  with  the  regulatory
framework.  The  latter  is  often  related  to  the  existence  of  a  strong  safety  culture  within  a
company (or absence thereof). These factors are described in the three sections below.

Inconsistent use of state of the art practices and technology
Inconsistencies  amongst  offshore  operators  were  identified  in  the  degree  to  which  operators
and  owners  focused  on  major  accident  preventive  systems  and  systemic  corporate
responsibility.  There  was  an  uneven  focus  on  individual  responsibility,  and  occupational
safety compliance12. Despite progress in this area, greater divergence of practices were to be
expected  in  the  absence  of  a  consistent  template  for  industry  and  regulators.  The  reason  for
this was that a greater number of players were expected to engage in offshore exploration and
production, bringing their own corporate approaches.
  Failures of compliance with rules and standards
Investigations  of  offshore  incidents  frequently  found  that  whilst  the  planned  measures  were
indeed  appropriate  to  prevent  critical  events,  operators  did  not  maintain  or  follow  them.
According  to  available  reports,  this  was  clearly  evident  in  the  Deepwater  Horizon  and
Montara13  accidents.  Achieving  consistency  between  plans  and  actual  performance  is
dependent  on  the  degree  of  compliance  with  the  national  regulatory  framework  and  the

11 There are activities planned in the UK, west of Shetlands at sea depths of up to 1,600 metres, near the Faroe
Islands at sea depths of 1,100 metres and in Norway at up to 1,700 metres.
12 Occupational safety, and environmental protection measures are unwanted incidents occurring in day to day
operations, and are accounted for in risk reduction measures. Examples are slips, trips and falls from heights; and
accidental noxious emissions and polluting discharges to the sea. Major accidents are a special category of
events and are entirely unacceptable.
13 Further explanations see below.
15

internal  operating  rules  and  procedures  within  a  company.  These  rules  and  procedures  are
designed  to  comply  with  the  regulatory  requirements  and  often  go  further  than  is  legally
necessary.  Nevertheless,  if  they  are  not  properly  adhered  to,  they  cannot  support  the
prevention of incidents.
  Inadequate safety culture
Within  an  organisation,  the  degree  of  compliance  with  external  and  internal  safety  rules  is
directly related to the degree to which safety is prioritised as a standalone corporate value and
an  integral  part  of  the  business  model.  This  is  often  characterised  as  a  strong  "safety
culture"14. Gaps in safety culture significantly contributed to the Deepwater Horizon incident.
Reports  by  Member  States  and  professional  bodies  active  in  offshore  operations  in  the  EU
agreed  that  those  behaviours  were  having  global  impact,  including  in  other  European
companies. Analysis showed that levels of enforcement in the strongest EU regimes had been
broadly constant for the previous 10 years15.

2.2.3 Problems related to the regulatory framework
The  level  of  safety  and  prevalence  of  residual  risks  in  the  offshore  sector  is  determined  not
only  by  industry  practices  but  also  by  the  quality  of  the  regulatory  environment  and  the
oversight  enforced  by  the  competent  public  authorities.  Several  aspects  of  the  existing  EU
regulatory environment were deemed to adversely affect the industry's management of risk in
offshore oil and gas operations. These are described in three sections below.
  Uneven technical expertise amongst regulators
Various Member States responded to the accident at the Deepwater Horizon drilling rig in the
Gulf  of  Mexico,  which  happened  in  the  Macondo16  area  (Mississippi  Canyon  block  252,
offshore Louisiana, Gulf of Mexico, USA) by evaluating national regulatory systems17. Their
initiatives  showed  that  national  regulatory  practices  vary.  While  this  inconsistency  does  not
necessarily  mean  that  the  regimes  were  per  se  ineffective,  the  variable  degree  to  which
national  regulators  balanced  the  attention  given  to  major  hazards  and  to  occupational  safety
factors in their assessments and inspections influenced the behaviour of industry accordingly.

14 The UK HSE’s Advisory Committee on the Safety of Nuclear Installations (ACSNI: HSC, 1993) produced a
definition of safety culture that has been re-used extensively: ‘The safety culture of an organisation is the product
of individual and group values, attitudes, perceptions, competencies, and patterns of behaviour that determine the
commitment to, and the style and proficiency of, an organisation’s health and safety management. And:
'Organisations with a positive safety culture are characterised by communications founded on mutual trust, by
shared perceptions of the importance of safety and by confidence in the efficacy of preventive measures’ This is
referred to in the USA Presidential Commission report Ch.8 pp 217.
15 UK offshore enforcement statistics since 2001/02 (comprising the total number of prosecutions and statutory
improvement or prohibition notices) are broadly steady over the past 10 years at 49/year.
16 During the Macondo disaster, which happened in the Gulf of Mexico (US) in April 2020, 4.9 million barrels
were spilled across 68k miles2 (176k km2) the size of Oklahoma. Coastal pollution occurred across 1,074 miles
1,728km) of the US Gulf States. This was the most polluting incident in US history.
17 E.g. of OSPAR countries five (UK, N, NL, DK and D) have evaluated their operations and all have identified
improvement needs (source: Investigations of Drilling in Extreme Conditions and their Relevance to Potential
Environmental Impacts - Preliminary report).
16

National regulators play a role in verifying that operators correctly account for the safety and
long  term  integrity  of  their  undertakings.  It  is  the  regulators  that  need  to  provide  adequate
supervision and guidance to the industry in all relevant EU waters. To achieve this, regulators
need  to  have  access  to  expertise  to  underpin  their  interventions  and  judgements.  This  was
determined in 2011 to be problematic, especially in cases where Member States have only a
handful of offshore installations.
  Suboptimal transparency and sharing of information
Reports on industry performance are most authoritative when prepared by the regulator based
upon  statutory  submissions  of  the  duty  holder.  Good  initiatives  existed  between  some
Member  States  and  within  some  regions  for  information  and  experience  sharing  between
regulators.  However,  there  were  clear  differences  in  the  extent  to  which  key  safety
information  was  acquired  and  shared  across  EU  borders,  and  to  which  adequate  public
assurance concerning the integrity of offshore activities was provided. At the time, there were
no  EU-wide  mechanisms  for  sharing  intelligence  or  for  convening  regulatory  forums,
including  relevant  adjacent  regions.  Gaps  existed  in  the  quality  of  data  in  terms  of  regional
coverage  (no  EU-wide/global  data),  in  terms  of  comparability  (different  formats,  indicators
etc.),  and  in  terms  of  lack  of  precision  (e.g.  data  from  some  industry  databases  were  fully
anonymised  and  narrowly  focused).  These  shortcomings  were  conspicuous  in  contrast  to
arrangements in other high risk industries such as aviation or the chemical industry.
There was also a notable inconsistency in the way relevant information was made accessible
to the public. Most national regulators make available information concerning breaches of law
(prosecutions,  the  issue  of  enforcement  notices)  either  through  publishing  lists,  or  having
registers  that  can  be  viewed  by  the  public.  Such  enforcement  reports  give  an  incomplete
picture, however, and are not comparable between jurisdictions. At the time of preparing EU-
wide  legislation,  some  regulators  published  annual  reports  of  safety  performance  in  their
offshore jurisdictions. In view of the EU as a whole, there was no common system to provide
the  public  with  easily  accessible  and  comparable  information  on  the  offshore  activities  of
companies and their regulators in all EU regions/ Member States.
In  summary,  the  benefits  of  transparency  in  encouraging  key  learning  and  continuous
improvement  across  the  EU  were  being  missed.  Complex  procedures  for  accessing
information were hindering the development of new research and reducing inter-state pressure
for the deployment of state of the art safety practices.
  Fragmented regulatory framework
International  law  covering offshore  exploration and production is,  much less comprehensive
than  in  maritime  transport,  and  mainly  deals  with  rights  of  access  to  reserves  in  adjacent
seas18. Therefore wide differences exist in how the sector is regulated around the world. For
example, some European Member States and some other countries (Canada, Brazil, Australia
and  New  Zealand)  had  adopted  a  goal  setting  regime,  whilst  other  influential  countries  had

18 United Nations Convention on the Law of the Sea, 1964.
17

not19.  Some  countries  had  a  more  prescriptive  regulatory  regime  whilst  others  had  no
discernible safety regulation.
Discrepancies between different regulatory regimes lead to considerable variations in costs for
the  industry.  For  example,  in  countries  that  rely  on  self-regulation,  industry  can  decide  to
deploy  rigs  and  equipment  that  would  not  be  permitted  in  the  North  Sea.  Conversely,  high
integrity  operators  and  MODU  owners  may  be  inclined  to  maintain  North  Sea  standards
throughout  their  operations,  this  was  by  no  means  universal.  In  such  circumstances,  the  EU
had  an  interest  in  adopting  measures  to  encourage  a  global  level  playing  field  with  suitable
standards  of  performance.  One  clear  example  of  this  interest  is  that  Member  States  can  be
directly  affected  by  incidents  in  adjacent,  non-EU  waters.  Achieving  a  consistent  EU
approach to offshore safety and environmental protection would clearly be a great assistance
for the EU to promote higher standards beyond the Union’s footprint.
In  addition,  no  Member  State  had  developed  a  holistic,  independent,  single  offshore  regime
that encompassed major hazards to both humans and the environment, and that took account
of  civil  and  economic  liabilities.  Whilst  the  risks  arising  from  oil  and  gas  activities  are
broadly similar everywhere, the national institutions and arrangements in the  EU-2820 varied
considerably.

2.2.4 Problems related to the state of risk-based planning
Whilst  preventing  major  incidents  should  remain  the  primary  focus,  the  risk  can  never  be
entirely  removed,  and  therefore  provisions  need  to  be  present  to  ensure  a  suitable  and
sufficient response in the event of a major incident. The factors that make escalation a higher
risk  than  necessary  are:  inadequate  risk  assessment  in  emergency  plans,  lack  of  joined-up
responsibility for response (failure to maximise the  resources available), and incompatibility
of physical assets and expertise for intervention in an incident.
The contemporary regional arrangements for risk based maritime response planning across the
EU  were  not  optimal,  vis-à-vis  ensuring  oil  and  gas  activity  is  properly  considered.  Both,
regions such as the Mediterranean and the North Sea were developing a similar approaches.
At  the  time,  there  were  EU-wide  coordination  schemes  and  EU-level  instruments  like  the
Civil Protection Mechanism which played an important role in the coordination of emergency
response,  and  provided  information  on  the  availability  of  public  resources  for  emergency
response.
The two underlying drivers for this issue are further highlighted below.

19 Under this approach, operators are required to identify and assess the major risks case by case and
demonstrate to the national authorities how these risks would be managed. In certain jurisdictions,
the document used was called 'safety case' (which became the basis of the Directive’s Report on
Major Hazards – RoMH).
20 Croatia had not joined the EU-27 at the launch of the legal negotiations, but had done so at the coming into
effect of the Directive.
18

  Inconsistencies in emergency planning between Member States
The external emergency plans (those pertaining to a national emergency) also depend on the
adequacy  of  the  initial  risk  assessment  by  the  operator.  Therefore,  the  same  concerns  must
apply to preparedness for a national scale offshore incident as for a localised 'internal' incident
in  some  regions.  In  addition,  a  national  scale  emergency  will  require  the  deployment  of
national  assets,  coordination  by  national  representatives,  consideration  to  adjoining  Member
States  and  others,  and  the  support  of  EU  marine  contingency  organisations  such  as  EMSA
(European  Maritime  Safety  Agency).  Some  Member  States  were  cooperative  with  their
neighbours  on  emergency  planning,  particularly  where  risk  based  regimes  facilitated  the
development of site specific risk based scenario planning.
It  was  shown  to  be  necessary  to  coordinate  the  essential  environmental  sensitivity  data
relating to the state of the water column and the seabed so that the correct responses could be
planned  if  an  emergency  arises.  At  the  time,  this  data  was  not  consistently  collected  and
collated throughout the EU.
  Cross-border incompatibility of response assets
Industry  responded  with  resolve  to  the  Deepwater  Horizon  incident  by  actively  researching
means  of  dispersing  major  spills  as  well  as  multi-functional  devices  for  capping  damaged
wellheads.  This  was  commendable  and  encouraged  to  continue.  Nevertheless,  this  incident
illustrated the scope of the response required to manage a disaster of this scale. Including not
only the operating company and national civil contingency, but indeed the efforts of the entire
industry and the combined resources of all adjoining countries.
On  the  matter  of  compatibility  of  the  response  equipment  and  services,  only  the  immediate
response  tools  need  be  available  at  the  site  of  the  accident,  or  in  close  proximity.  Other
necessary equipment may be available at a distance, even if it is in a different continent. The
identified need was for the rapid transportation of equipment that can be connected to locally
available equipment and which may be handled using available lifting and transport systems.
This applied also to human expertise.

2.2.5 Problems  related  to  the  integration  of  public  and  industry  emergency  plans
and assets
The  maritime  safety  and  response  arrangements  in  the  EU  provided  for  joined  up  planning
and intervention in a maritime emergency, including for pollution incidents. Compared to this
benchmark it became clear that the offshore oil and gas sector could attain a greater degree of
joined up planning between Member States than was evident at the time, taking the  EU as a
whole. This is especially important given that the capacity of the offshore oil and gas sector to
cause pollution is many times greater than any single shipping incident. Given the specialised
nature  of  the  offshore  sector  as  a  sea  based  factory  environment  and  not  a  shipping  sector,
maritime  standards  were  not  fully  adequate  and  therefore  the  risk  of  a  major  incident
escalating further than necessary remained an issue. The specific drivers for this category are
discussed below.

19

  Lack of information on industry emergency response inventories
In order for the national emergency response plan to be effective, it was essential that the plan
account for all emergency response assets and inventories that could be made available at the
start of and during a major incident. As such, this would ensure the coordination of assets and
inventories  required  for  the  incident  to  make  effective  and  efficient  use  of  all  available
resources.
Before  the  Macondo  incident,  there  were  indications  of  insufficient  coordination  of  assets
between  industry  and  national  authorities,  often  resulting  in  ad  hoc  responses.  After  the
Deepwater Horizon incident, the oil and gas industry reviewed and in certain cases extended
and  increased  their  response  inventories.  National  authorities  dealing  with  emergency
response  of  some  of  the  Member  States  (mainly  the  countries  around  the  North  Sea)  were
involved  in  this  process,  which  rectified  the  coordination  deficits  to  some  extent.  However,
this was seen to be insufficient to remedy similar issues around the Mediterranean and Black
Seas.
  Consistency in the quality of company emergency plans
Analysis of the Deepwater Horizon incident revealed shortcomings in the preparedness of the
companies involved, both in the initial response and in the race to cap the well and contain the
spilled  oil.  The  report  of  the  US  Coastguard  was  instructive  that  in  spite  of  the  obvious
potential scale of the pollution and the challenges of ensuring a good prospect of survival of
the  personnel,  the  risk  assessments  and  response  plans  were  relatively  modest.  It  was  also
found that major operators in the Gulf of Mexico were prone to copy-out similar emergency
response plans rather than develop site specific plans based on proper risk assessments.
It was noted that the situation in the EU was different from the US, particularly where a risk
based  or  goal  setting  regime  was  deployed  such  as  the  North  Sea.  Also,  the  EU  had  a  long
tradition of maritime response against which the provisions for the offshore oil and gas sector
could  be  tested.  However,  emergency  planning  can  only  be  as  good  as  the  risk  assessment
undertaken  for  the  activity  as  a  whole.  The  first  responsibility  would  be  to  limit  the
consequences of an incident once it has occurred to the area under the control of the operator
(i.e.  the  immediate  vicinity  of  the  rig  or  platform  or  subsea  facility).  Because  such  'internal
emergency  plans'  are  a  natural  derivative  of  an  effective  risk  assessment  of  the  entire
undertaking,  and  because  only  some  Member  States  had  a  risk  based  offshore  regulatory
regime, it followed that emergency planning was, in some regions, inadequate to ensure rapid
and effective response.

2.2.6 Problems related to clarity and comprehensiveness of liability provisions
The operator of the Macondo license, BP, estimated the final outcome costs of the incident at
$  63bn.  Very  few  companies  could  then  or  now  accommodate  such  a  sum,  which  would
therefore leave the host country exposed to unwarranted financial risk. The insurance market
cannot  furnish  an  instrument  that  guarantees  unlimited  financial  indemnity.  In  order  to
prevent  liability  transferring  to  the  citizens  of  Member  States  in  which  the  incident  occurs
20

some form of financial instrument would be required. In the UK the OPOL21 scheme is a risk
pooling instrument amongst licensees, but as the limit is set at $250m the arrangement is not
sufficient in the extreme situations such as Macondo. However OPOL had evaluated that the
$250m  safety  net  was  sufficient  for  all  but  the  main  outlying  incidents  This  is  a  complex
issue, and it is accompanied by the issue of how to make compensation available quickly to
businesses and communities stricken by the effects of a major offshore incident such that they
are  prevented  from  failing  (compensation  that  is  paid  too  late  to  a  community  that  is
permanently  damaged  is  not  reasonable).  The  three  drivers  for  this  problem  are  discussed
below.
  Clarity and scope of EU legislation on environmental liability
The  Environmental  Liability  Directive  (ELD22)  2004  was  not  applicable  beyond  territorial
waters  (a  distance  of  20km/12miles  from  the  shores).  This  was  in  line  with  the  Waste
Framework  Directive23  (WFD)  2000.  However,  the  Marine  Strategy  Framework  Directive24
(MSFD)  2008  extended  protection  to  all  marine  waters  in  Member  States  jurisdiction.  This
difference  created  an  ambiguity  in  delineating  which  regulation  was  applicable  in  a  given
circumstance. For example, "water damage" only applied to inner and coastal waters, whereas
current EU policy was to treat all EU waters as common good. Therefore this issue needed to
be determined in the light of the review of offshore major incidents in the EU.
The  status  quo  would  have  caused  the  consequences  of  a  marine  accident  to  continue  to  be
limited  to  the  Member  State,  in  contradiction  to  the  polluter  pays  principle.  Also,  during  an
extreme  emergency  the  prevailing  framework  did  not  make  it  clear  whether  Member  States
could  enforce  compensation  from  the  polluter  for  the  deployment  of  national  contingency
assets.
  Lack of financial capacity guarantees
It  was  evident  that  not  all  Member  States’  licensing  authorities  fully  accounted  for  the
capacity  of  applicants,  who  may  be  consortia,  or  joint  ventures,  to  deal  with  the  financial
challenges  of  responding  to  a  major  incident.  This  was  a  missed  opportunity  to  provide
assurance  of  capacity  and  to  reinforce  to  operators  that  their  responsibility  for  the  adverse
consequences of offshore activity is without limitation.
  Inadequate compensation schemes for traditional damages
Even  when  the  financial  capacity  of  an  applicant  has  been  established  by  the  licensing
authority, there is no assurance that sufficient funds would be made available in time to settle
third  party  claims.  The  funds  made  available  in  the  event  of  a  major  incident  would  most

21 http://www.opol.org.uk/downloads/OPOL%20Agreement%20-%2021%20June%202017.pdf.
22 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental
liability with regard to the prevention and remedying of environmental damage, OJ L 143, 30.4.2004, p. 56–75.
23 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and
repealing certain Directives (Text with EEA relevance), OJ L 312, 22.11.2008, p. 3–30.
24 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a
framework for community action in the field of marine environmental policy (Marine Strategy Framework
Directive), OJ L 164, 25.6.2008, p. 19–40.
21

likely be initially required for this incident itself (e.g. capping and containing the flow from a
well).  Without  clear  and  unambiguous  provisions  to  swiftly  settle  third  party  claims,  local
business and communities would suffer unduly the consequences of a major incident entirely
without control or responsibility.

2.2.7 Baseline costs of a major accident
The cost of accidents in the offshore oil and gas industry is related to the extent of undesired
consequences of these accidents, namely:
  Injuries or deaths;
  Damage to equipment and facilities;
  Environmental pollution;
  Fines due to non-compliance;
  Lost work time and lost revenues due to installation down time.

Indirect impacts of accidents include:
  Legal costs and lawsuits;
  Effects on oil prices;
  Damage to offshore industry reputation;
  Effects on security of energy supply.

The quantification of all direct and indirect impacts of accidents is a complex undertaking due
to  the  scarcity  of  comparable  data.  For  this  reason,  the  Commission’s  Impact  Assessment25
covered only the two largest directly quantifiable categories of cost: infrastructure losses, and
costs  associated  with  the  clean-up  of  oil  spills.  In  this  respect  the  results  were  considered
conservative.
The  annual  cost  of  offshore  accidents  was  estimated  by  the  cost  of  the  damages  caused  by
such accidents, annualized over their recurrence time. The calculations of recurrence time, or
of  the  frequency  with  which  these  accidents  occur,  were  performed  based  on  publicly
available historical data26, with adjustments for trends. A detailed and complete account of the
calculations can be found in Annex I of the Impact Assessment.
Two main categories of accidents were identified:
a)  oil well blowouts; and
b)  other  major  accidents  (e.g.  releases,  fires  and  explosions,  with  multiple  injuries  or
fatalities,  total  loss  or  severe  damage  to  offshore  units  and/or  environmental
pollution).


25 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011SC1293&from=EN.
26 Sources: “Risk Assessment Data Directory – Major Accidents”, Report No. 434-17, March 2010,
International Association of Oil and Gas Producers; “Risk Assessment Data Directory – Blowout Frequencies”,
Report No. 434-2, March 2010, International Association of Oil and Gas Producers; “Blowout and Well Release
Frequencies – Based on SINTEF Offshore Blowout Database, 2005”, 26/06/2006, Scandpower.
22

The cost of an oil well blowout depends on the duration and flow rate of the blowout, i.e. on
the amount of oil spilt into the sea. The main cost component here is the clean-up of the oil
spill.  The  average  per-tonne  cost  varied  among  different  countries,  ranging  from  Euro  2500
for UK to Euro 18500 for Norway. This brought the estimated average clean-up cost for an oil
well blowout lasting for ca. 50 days to Euro 5 billion. This figure was the lower bound of the
blowout cost, with upper bound being the cost of the accident, which was taken at the time to
be  Euro  30  billion.  Therefore,  taking  note  of  Macondo  accident,  the  blowout  cost  from  one
accident was estimated to be in the range Euro 5-30 billion.
The calculation of the recurrence period of an oil well blowout was based on historical data,
which indicated a probability of 0.65 per year for a blowout of any type and duration to occur
in  European  waters.  Annualizing  the  blowout  cost  (Euro  5-30  billion)  over  the  period  of  35
years (dividing them by 35), gives an annual oil well blowout cost in the range of Euro 140-
850 million. Added to this was the annual figure of Euro 65 million in property losses of less
costly, but more common, major accidents.
The cost of other major offshore accidents, smaller but more common, reflect mainly loss in
property. Taking into consideration case histories which indicated a range in costs from tens
of millions to over Euro 1 billion, it was estimated at an average of Euro 50 million. Historical
data  from  major  accidents  occurring  in  the  North  Sea  in  the  years  1970-2007  indicated  an
aggregated  rate  of  2.6  major  accidents  per  year,  with  a  declining  trend  for  the  years
immediately preceding 2011. Adjusting for this trend, the rate became 1.3 major accidents per
year.  This  brought  the  annualized  cost  of  major  offshore  accidents  to  Euro  65  million.
Therefore the total annual direct tangible cost of offshore accidents in Europe was estimated
at  Euro  205-915  million.  This  was  the  baseline  that  the  implementation  measures  of  the
Directive were intended to deal with.

3
METHOD

3.1
Short description of methodology
The  baseline  scenario  described  demonstrates  potential  safety  concerns  and  shortcomings  in
the  period  before  the  Directive  came  into  force;  new  legislation  was  supposed  to  address
them.  With  reference  to  the  experience  of  implementing  the  Directive  and  specifically  with
regard  to  establishing  adequate  levels  of  safety  for  offshore  oil  and  gas  operations,  and
environmental protection, by this assessment the Commission has verified whether:
  The main objectives of the Directive have been achieved and if not, whether the problem
is one of implementation of the rules or with the rules themselves;
  Any gaps in legislation exist that have an impact on the level of safety in offshore oil and
gas operations;
  Certain  provisions  of  the  Directive  impose  undue  burden  on  Member  States  or  the
industry;
23

  The  Directive  has  adequately  harmonised  the  regulatory  structure  and  level  of  safety
across  the  EU  offshore  operations,  proportionate  to  the  activity  levels  of  the  Member
States;
  The Directive is effective, efficient, coherent, relevant, and provides added value at EU
level.
The Commission has carried out its’ analysis by using a broad range of information channels.
To deal with the experiences of the Directive, both experts and the wider public were asked to
contribute to the knowledge base. With regard to the expert input, the Commission focussed
on the EUOAG27. Although the UK has left the European Union on 31 January 2020 the UK’s
experiences  and  contributions  to  the  knowledge  used  for  the  assessment  are  taken  into
account.
In a first step, the Commission consulted competent authorities in order to obtain feedback on
their  technical  and  regulatory  experience  of  implementing  the  Directive.  Secondly,  the
Commission  consulted  stakeholders  represented  in  the  EUOAG’s  plenary  meetings,  which
included  industrial  associations,  unions,  and  NGOs.  These  meetings  facilitated  fact  finding
and thematic discussions on liability, handling of compensation claims, the financial security
of operators and owners of installations, as well  as a  further  stakeholder event,  and several
workshops.  Data  gathering  from  these  diverse  sources  incorporated  input  from  parties
involved  in  the  practical  implementation  of  the  Directive,  and  the  handling  of  rules  and
legislation on offshore safety. Details on data collection and consultations are included in the
annex (part I and II).
To complete the knowledge base, the Commission carried out  a broad public consultation28,
based  on  a  comprehensive  questionnaire  targeting  both  the  Directive  and  the  Implementing
Regulation  on the reporting of accidents.  All  interested parties, e.g. private, business,  public
entities, were asked to provide views and comments.
Within  the  Commission,  the  relevant  services  contributed  to  the  assessment  actively  in  the
framework of an Inter-Service-Group and a bilateral dialogue with the Directorate-General for
Energy.
Both Member States and industrial associations have shared their views on the assessment of
the  Directive  with  the  Commission,  and  NGOs  actively  contributed  to  the  discussions.  The
assessment  has  taken  this  information  into  account  in  the  context  and  comparison  with  the
Directive’s  objectives,  as  established  in  the  Impact  Assessment  from  2011  preceding  the
adoption  of  the  Directive.  Furthermore,  for  the  years  2016,  2017  and  2018  quantitative
information on the safety performance of the EU offshore sector as a whole or in individual

27 Its members are designated by Article 4(1) of the Commission Decision of 2012 concerning the functioning of
the EUOAG as the responsible authorities (competent authorities) for the regulatory oversight of offshore oil and
gas activities and related policy issues.
28 https://ec.europa.eu/info/consultations/public-consultation-on-the-assessment-of-the-offshore-safety-
directive_en.
24

Member States is available, in the form of Commission annual reports29. This information in
combination allowed for conclusions to be drawn on the assessment criteria of effectiveness,
efficiency, coherency, relevance and value-added.
Through  this  methodology  the  Commission  attempted  to  incorporate  the  perspectives  of  a
representative  range  of  stakeholders.  Firstly,  the  assessment  considers  the  experience  of
Member States with the implementation of this Directive. Secondly, through the stakeholder
consultation, the experiences of competent authorities enforcing the Directive’s provisions are
accounted for, in addition to owners and operators of offshore oil installations working within
the  national  legal  frameworks.  Thirdly,  the  methodology  also  collected  and  analysed  the
views of parties not directly involved in these activities, for example citizens and NGOs.

3.2
Limitations and robustness of findings
Member States were obliged to implement the Directive by 19 July 2015. However, additional
transitional  periods  for  applying  laws,  regulations  and  administrative  provisions  in  Member
States, following the implementation of the Directive, ended only on 19 July 2018. Therefore,
so far the Directive had a full impact on the safety of offshore oil and gas operations only for
a relatively short period of time.
Although the Directive requires implementation by Norway – the Directive is EEA relevant -
Norway  did  not  take  steps  to  comply  with  this  legal  obligation.  The  Commission  could  not
persuade Norway to change its negative stance; accordingly the EEA committee may work on
a solution to settle this dispute.
As a former Member State, after Norway the UK is the most important producer of offshore
oil and gas. It contributed constructively to the design and drafting of the Directive, which it
implemented in  a very satisfactory manner. Since the assessment and implementation  report
shall analyse the experiences with the Directive and shall cover the years from the adoption of
the Directive until recent days, and the UK has been a Member State during this period, it was
included in the assessment. Depending from the final Treaty between the UK and the EU, it is
unclear whether the UK may apply at least some parts of the Directive’s provisions.
Despite the loss of more than 70 % of the EU’s indigenous offshore oil and gas production
due  to  the  departing  UK,  the  Directive  remains  of  outmost  importance  for  the  safety  of
installations in the North Sear, the Baltic Sea, the Mediterranean and the Black Sea.

29 (i) REPORT FROM THE COMMISSION Annual Report on the Safety of Offshore Oil and Gas Operations in
the European Union for the Year 2016, COM/2018/595 final.
(ii) REPORT FROM THE COMMISSION Annual Report on the Safety of Offshore Oil and Gas Operations in
the European Union for the Year 2017, COM/2019/358 final

25

Due  to  consultations  with  stakeholders  concerned,  the  assessment  is  rich  in  qualitative
information.  This  information  includes:  anecdotal  evidence,  commentary  supporting
assessment of the themes, assisting determination of the efficiency, effectiveness, coherence,
relevance,  and  EU-added  value  in  implementing  the  Directive  in  the  context  of  the  original
design intent.
The  analysis  incorporates  data  to  establish  a  North  Sea  performance  benchmark,  based
primarily on trend data published by the UK. From international data Europe can be placed as
a regional performer, but doubts persist as to the completeness of international reporting on a
voluntary basis.
The Commission established three reports, for the  years 2016, 2017 and 2018, on the safety
performance  of  the  EU  offshore  sector,  based  on  reporting  templates  of  the  Implementing
Regulation.  Taking  also  note  of  data  from  the  global  operators’  association  (IOGP)  and  the
UK the assessment attempts to establish trend data.
Regarding  the  financial  cost  of  implementation,  it  does  not  appear  that  there  has  been  a
calculation by operators or regulators of one-off costs of implementation and uplift of running
costs against which we may compare the estimate in the Commission’s Impact Assessment.
North Sea Operators and some regulators have claimed, anecdotally, that start-up costs have
been excessive, but the organisations concerned have not investigated the data to support their
claims.
There  is  some  data  from  south-east  Member  States  that  have  introduced  the  regime  as
virtually  a  starting  point  for  regulation  in  this  area,  providing  no  insight  into  uplift  of  prior
running  costs,  nor  one-off  costs.  Furthermore,  data  is  provided  by  34  of  the  37  North  Sea
MODU fleet from which introductory costs can be identified. These are relatively modest, in
line  with  expectation  that  the  change  in  operational  requirements  are  themselves  relatively
modest in the North Sea region.
At this stage there is insufficient data to differentiate incident performance between Member
States,  and  to  compare  with  the  baseline.  In  the  coming  years  new  data  will  allow  for  the
establishment of trends in EU offshore safety and to compare them with the situation before
application of the Directive.
Currently however, it is not possible to estimate the risk of a major polluting blowout in EU
waters  following  the  application  of  the  Directive,  nor  to  compare  it  with  the  baseline
calculation in the Commission’s 2011 impact assessment.
Not all initial  suggestions  and proposals  required a follow-up. For example, it appeared that
cyber  security  at  offshore  installations  do  not  require  more  specific  measures  than  other
industrial sectors, and that horizontal legislations provides the necessary legal frame.

26

4
STATE OF PLAY AND IMPLEMENTATION

4.1
The offshore oil and gas sector

4.1.1 Offshore operations and the Green Deal
End  of  2019,  the  European  Commission  published  the  “European  Green  Deal”
Communication30,  with  the  objective  to  reset  the  Commission’s  commitment  to  tackling
climate and environmental-related challenges that is this generation’s defining task …”.It is a
new growth strategy that aims to transform the EU into a fair and prosperous society, with a
modern,  resource-efficient  and  competitive  economy  where  there  are  no  net  emissions  of
greenhouse gases in the year 2050; economic growth shall decouple from the use of resources.
It also aims to protect, conserve and enhance the EU's natural capital, and protect the health
and well-being of citizens from environment-related risks and impacts”. The European Green
Deal also introduces the “green oath to do no harm” principle.  As part of this strategy, the
European  Commission  intends  to  assess  EU  legislation  –  that  includes  the  Offshore  Safety
Directive - to bring it in line with the objectives of the Green Deal. .
The  offshore  hydrocarbons  industry  has,  by  virtue  of  the  Green  Deal,  a  clear  instruction  to
further improve its environmental performance within the EU. Operators and Member States
alike  are  now  expected  to  suggest  and  implement  more  ambitious  means  of  reducing  their
environmental  footprint.  These  may  include  large-scale  approaches  ranging  from  examples
such  as  carbon  capture  and  storage  (CCS),  to  facility-specific  measures  like  increasingly
stringent targets for offshore flaring, as well as other more novel solutions.
The  Offshore  Safety  Directive  is  concerned  with  the  prevention  and  management  of  major
accidents, which  –  if they  occur  –  are typically comprised of both  safety  and environmental
aspects.  For  example,  an  accident  that  results  in  injuries  or  fatalities  to  offshore  personnel
may  also  be  responsible  for  a  release  or  spill  of  hydrocarbons  into  the  environment.    The
Directive is  a tool for nudging operators and Member States, also  via industry and EU fora,
towards more sustainable environmental practices.
As  the  transition  to  a  low  carbon  economy  occurs,  personnel  safety  will  continue  to  be  a
priority for society and there is hence little doubt of the continuing relevance of the Offshore
Safety  Directive  for  Member  States  with  an  upstream  hydrocarbons  industry.  In  an  era  in
which  operators  strive  to  make  the  most  of  ageing  assets  this  must  certainly  be  the  case.
However, regardless of the level of activity occurring within the sector at any given moment,
a  comprehensive,  risk-based  and  functional  Directive  is  considered  a  minimum  requirement
for ongoing high EU safety performance.

4.1.2 Offshore Safety and COVID-19
The COVID-19 viral pandemic of 2019-2020 brought about unprecedented global change in
terms  of  societal  adaptation  to  new  health  and  safety  issues,  cross-border  and  domestic
mobility  restrictions,  and  social  and  cultural  norms.  While  the  long-term  effects  of  this
pandemic are still being evaluated throughout the EU and elsewhere, and although the scale of

30 https://ec.europa.eu/info/sites/info/files/european-green-deal-communication_en.pdf
27

economic  impact  is  yet  to  be  fully  realized,  a  number  of  immediate  repercussions  within
specific sectors are clear, including in the offshore hydrocarbons industry.
One  important  impact  of  the  crisis  on  the  industry  was  that  the  price  of  crude  oil  fell
significantly  in  a  short  time,  taking  billions  off  the  stock  prices  of  major  oil  and  gas
companies.  This  left  many  offshore  projects  in  doubt  due  to  their  vulnerability  in  what  is
typically  a  higher  operating  cost  environment.  For  existing  facilities  this  meant  trying  to
achieve  required  output  without  adding  new  infrastructure,  while  for  planned  projects
cancellation or suspension were preferred, pending market stabilization.
In the early days  of the  pandemic, understanding  the spread of COVID-19 was challenging,
leading  to  varied  approaches  by  individual  Member  States  and  industry  to  limit  its  spread
within  their  own  contexts.  For  the  offshore  industry,  an  immediate  concern  was  preventing
infections  in  a  workforce  with  personnel  commuting  from  a  wide  geography.  This  brought
with it several implications, not least of which was ensuring personnel could be tested for the
virus and their health status tracked.
As offshore facilities have limited space and hence potential for higher infection risk, interim
strategies  were  adopted  to  try  to  reduce  this  risk.  One  example  was  “minimum  manning”
whereby  Operators  limit  the  number  of  personnel  offshore  by  temporarily  deferring  non-
essential tasks. On some facilities, workers were also requested to remain offshore for longer
shifts, to limit  the risk of infection brought  about by the arrival  of any new personnel.  Such
strategies could be considered a stopgap rather than a long-term sustainable strategy.
In the event of a drawn-out crisis, Member State Competent Authorities have an increasingly
important  role  in  ensuring  that  offshore  strategies  adopted  by  operators  do  not  compromise
safety.  Although  the  Offshore  Safety  Directive  was  not  developed  with  a  pandemic  such  as
COVID-19  as  context,  it  is  nevertheless  considered  fit-for-purpose  in  this  situation.  It
provides  meaningful  steer  on  how  Competent  Authorities  may  adapt  to  ever-changing
circumstances,  including  a  focus  on  risk  management  approaches,  key  roles  and
responsibilities and reporting requirements.
It  is  to  consider  whether  the  Directive  in  light  of  COVID-19  is  warranted  to  strengthen  its
remit, or for considering renewed policies relating to different ways of working offshore and
throughout industry.  With regard to national rules and legislation that are implementing the
Directive, Member States may identify potential amendments extenuating circumstances as a
viral pandemic.

4.1.3 Oil prices, investments and offshore safety
The first quarter of 2020 began with a gradual fall in the world crude oil price following the
outbreak  of  the  COVID-19  virus  in  China.  The  global  market  viewed  the  virus  as  likely  to
affect  oil  demand,  and  the  Organization  of  Petroleum  Exporting  Countries  (OPEC)
subsequently  met  to  negotiate  supply  cuts.  Due  to  the  unstable  nature  of  these  negotiations
against the backdrop of an ongoing pandemic, dramatic price falls ensued leaving parts of the
hydrocarbons industry facing unsustainable operating costs.
Fluctuations in oil prices are not uncommon, the most recent substantial falls having occurred
in  2014,  also  because  of  market  oversupply.  The  effect  on  the  offshore  industry  at  the  time
28

was  similar,  with  many  unviable  projects  cancelled  or  suspended,  and  major  cost-cutting
exercises implemented amid significant  industry  consolidation.  The lessons from  this period
are  perhaps  useful  in  the  current  crisis,  particularly  with  respect  to  the  challenges  faced  by
operators of reducing operating costs without compromising safety.
In  order  to  ensure  high  safety  performance,  close  links  between  company  safety  strategies,
their  implementation,  critical  spending  decisions  and  appropriate  performance  indicators  are
required.  Previous  surveys  conducted  within  the  offshore  industry  indicate  that  many  feel
industry cost reductions have an inevitable impact on safety performance. However, it is also
true  that  major  operators  tend  to  set  high  standards  for  safety  and  have  active  programs  in
place to embed the values of their Safety Management Systems within workforce culture.
Going forward, the mandate for applying the Directive as implemented by Member States is
as  strong  as  ever,  particularly  when  the  global  industry  is  in  a  state  of  flux.  The  Directive
stands  as  a  benchmark  for  rules  and  legislation  in  Member  States,  which  ultimately  push
companies towards better safety and environmental performance. Equally clear is the remit of
the  EU  and  competent  authorities  working  closely  with  operators  to  provide  them  with  the
best advice and to facilitate continuous improvement in all of their offshore activities.
Looking back to recent years and summarising the prospects and ambitions of the petroleum
sector  in  European  waters,  there  was  a  sharp  decline  in  exploration  activity  and  capital
expenditure  for  the  development  of  production  throughout  the  period  of  implementing  the
Directive (2014-2018). This change was caused by a fall in crude oil prices from $110 down
to $30 per barrel. Since 2016 but only until February 2020 when oversupply and the impact of
the corona virus hit the oil markets, a ‘new normal’ price has stabilised at ca. $65 per barrel.
The sharp decline of oil prices in the first and second quarter of 2020 threatens the business
model of EU offshore oil and gas production and may lead to the closure of production sites
due to the operation’s lack of profitability.
Looking  forwards  from  2019  and  2020  there  appears  to  be  a  confidence  in  (i)    the  critical
mass of expertise in  the  region,  (ii) the proximity of the  consumer  base for natural  gas, and
(iii) new petroleum basin prospects. Due to the vast consequences of the spread of the corona
virus, the expectation is therefore negative for growth, particularly in the North Sea and North
East  Atlantic,  but  less  negatively  pronounced  for  the  southern  offshore  sectors.  In  the
Mediterranean  benefits  are  derived  from  the  experience  in  cost  reductions  and  efficiency
gains achieved in the North, as well as developments in technology that enable more reliable
identification of petroleum reservoir prospects in southern EU waters.
Before  the  spread  of  the  coronavirus  and  the  economic  decline,  the  UK,  Netherlands  and
Denmark were projecting capital expenditure of $20bn, $1.5bn and $1bn respectively in their
offshore sectors by 2025. Even without the economic downturn that started in the first half of
2020,  overall,  growth  was  expected  to    remain  slow,  incremental,  and  fragile  due  to  much
cheaper sources of oil and gas in the Middle East and onshore USA (from shale deposits).
29

4.1.4 The European offshore sector
Eight  of  the  ten  largest  European  oil  and  gas  fields  are  in  Norway,  and  two  are  in  the  UK,
jointly  producing  13.3  billion  tonnes  of  remaining  oil  equivalent.  In  2019,  the  UK  alone
produced 72 % of EU offshore oil and gas. After the withdrawal of the UK from the EU on 31
January 2020, both the most important EU producers of offshore oil and gas are Denmark, the
Netherlands  and  Italy.  The  operators  and  main  co-ventures  comprise  the  super-major  oil
companies: Exxon Mobil, Shell, BP, Total, Chevron, Equinor, and Conoco Phillips. Large oil
companies  are  also  present:  Lundin,  Petoro  (100%  owned  by  Norway),  Suncor,  INEOS,
CNOOC (China), Idemitsu Kosan (Japan), Wintershall DEA, and Eni.
Third  country  companies  are  purchasing  an  increasing  share  of  European  oil  and  gas
production  with  Chinese  companies  most  predominant.  The  Italian  Adriatic  is  the  major
offshore active country outside the North Sea, with Eni predominant, others include: Edison
and Zorh.
The following table illustrates the distribution of off-shore oil and gas production in the EU,
based on the annual Commission report on offshore safety published in 201831.
REGION
Country
Total production in 2018 in
% EU Total
ktoe*
Baltic Sea

210.98
0.19%

Poland
210.98
0.19%
Black Sea

1138.87
1.01%

Bulgaria
4.71
0.00%

Romania
1134.16
1.01%
Mediterranean

4139.61
3.69%

Croatia
528.20
0.47%

Greece
211.01
0.19%

Italy
3311.00
2.95%

Spain
89.40
0.08%
North Sea and Atlantic

106727.60
95.11%

Denmark
9589.00
8.55%

Germany
915.00
0.82%

Ireland
311.17
0.28%

The Netherlands
11681.00
10.41%

United Kingdom
84231.43
75.06%
Total

112217.06
100.00%

Figure  2:  Offshore  oil  and  gas  production  in  the  EU  in  kilotons  of  oil  equivalent  (ktoe),  source:  Annual
Report on the Safety of Offshore Oil and Gas Operations in the European Union for the year 2018.
* All petroleum: crude oil, condensate; natural gas; kilo tonnes oil equivalent; no offshore production: CY; FR;
MT; PT
Of the 112 million tonnes (ktoe) produced in EU countries in 2018, the main contributor is the
North Sea (UK, Netherlands and Denmark) but Italy is also significant.


31 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2019:0358:FIN.
30

Looking back to decades of EU offshore oil and gas operations, the following table recalls the
entry  of  operation  of  installations  in  EU  regions  from  1950.  Figures  underline  a  clear
downward trend in new installations from the year 2010 onwards.

Year of
Region
construction
Baltic Sea
Black Sea
Mediterranean
North Sea and
EU Total
Atlantic
1950-1959
0
0
0
4
4
1960-1969
0
0
7
21
28
1970-1979
0
0
14
41
55
1980-1989
0
2
53
82
137
1990-1999
1
3
42
119
165
2000-2009
1
3
40
70
114
2010-2019
0
0
10
43
53
2020
0
0
0
0
0
EU Total
2
8
166
380
556

Figure 3: Number of installations present in EU waters, by decade of entry into operation and by region,
source, Annual Report on the Safety of Offshore Oil and Gas Operations in the European Union for the
year 2018.

4.1.5 Incident rates and safety performance
The Commission assesses the safety of the EU’s offshore oil and gas operations based on the
data  provided  by  Member  States  in  accordance  with  the  provisions  of  the  Implementing
Regulation on reporting. Accordingly, the accuracy of the Commission’s assessment depends
on  the  information  submitted  by  Member  States.The  table  below  provides  a  snapshot  of
incidents by categories in line with the reporting requirments set out in the Directive and its
Implementing Regulation.

31

Annex IX categories
Number of
Share of events
Share of
events
in category
total events
(a)
Unintended releases – Total
99
100.0%
79,8%

Ignited oil/gas releases – Fires
1
1,06%
0,8%

Ignited oil/gas releases – Explosions
0
0.0%
0.0%

Not ignited gas releases
56
56,5%
45,2%

Not ignited oil releases
31
31,3%
25,0%

Hazardous substances releases
11
11,1%
8,9%
(b)
Loss of well – Total
17
100.0%
13,7 %

Blowouts
0
0.0%
0.0%

Blowout / diverter activation
8
47.1%
6,4%

Well barrier failure
9
52.9%
7,3%
(c)
Failures of SECE
2
100.0%
1,6%
(d)
Loss of structural integrity – Total
2
100.0%
1,6%

Loss of structural integrity
0
0.0%
0.0%

Loss of stability/buoyancy
0
0.0%
0.0%

Loss of station keeping
2
100.0%
1,6%
(e)
Vessel collisions
0
0.0%
0.0%
(f)
Helicopter accidents
0
0.0%
0.0%
(g)
Fatal accidents(*)
0
0.0%
0.0%
(h)
Serious injuries of 5 or more persons
0
0.0%
0.0%
in the same accident
(i)
Evacuation of personnel
2
100.0%
1,6%
(j)
Environmental accidents(**)
2
100.0%
1,6%
Total32
124
100.0%
100.0%
(*) Only if related to a major accident
(**) According to reports of Member States, the major accidents did not qualify as environmental accidents

Figure 4: Incidents by categories (Annex IX of the Offshore Safety Directive, EU level), source, Annual
Report on the Safety of Offshore Oil and Gas Operations in the European Union for the year 2018.

In its report for the year 2018, the Commission concluded: “As in 2016 and 2017, no fatalities
were  reported  in  2018  but  10  injuries  and  17  serious  injuries  occurred.  According  to  the
reports of competent authorities, the number of accidents significantly increased in the United
Kingdom, which requires both an in-depth analysis of causes and follow-up measures by the
competent  authority.  The  Commission  will  seek  cooperation  with  the  United  Kingdom  to

32 A single incident may appear more than once, for example: the evacuation of personal linked to the loss of
well control would count for the total as two points.
32

bring the safety performance level back to that of recent  years. Apparently, following a high
level  of  safety  in  2016  and  2017,  maintaining  an  adequate  performance  of  safety  requires
additional efforts.

4.2
Implementation of the Directive by Member States
The  Commission  has  assessed  the  transposition  of  the  Directive  by  Member  States  and  has
found that the overall level of transposition was adequate, although the integrity and quality of
implementation  across  the  Member  States  varies  significantly.  Member  States  presented
different  approaches  for  the  implementation  of  the  Directive  (either  in  full  or  in  relation  to
specific  provisions).  Some  Member  States  have  adopted  new  legislation  that  transposes  the
provisions  of  the  Directive,  whereas  others  have  amended  existing  legislation  and  included
the  transposition  of  the  Directive’s  different  provisions  into  several  pieces  of  legislation.
Certain Member States have largely literally included the provisions of the Directive in their
national law, while others have partly or fully adapted the wording of the Directive with the
intention to convert it better into their specific legislative culture.
Drawing attention to specific parts of the Directive, it appears that the implementation of the
principles  of  risk  management  is  satisfactory.  Furthermore,  most  Member  States  did
completely and correctly transpose the rules on the submission of major hazard reports. The
same is true for the provisions on the internal emergency response plans and the schemes for
independent  verification.  The  overall  level  of  implementation  of  rules  for  co-operation
between  Member  States  was  very  comprehensive.  Provisions  on  public  participation  and
involvement  in  planned  offshore  oil  and  gas  operations  were  implemented  in  a  satisfactory
manner.  The  Directive’s  Article  regarding  the  liability  for  environmental  damages  was
correctly transposed.
Almost  all  Member  States  did  correctly  transpose  provisions  on  confidential  reporting  of
safety  concerns,  for  example  by  workers.  The  same  is  true  for  Articles  on  the  sharing  of
information  between  owners,  operators  and  competent  authorities,  and  the  establishment  of
rules for investigations following major accidents.
In  contrast,  some  Member  States  had  difficulties  in  setting  up  effective  criteria  for  the
assessment  of  the  technical  and  financial  capability  of  an  applicant  for  a  license.  Denmark
provides  an  example  of  a  very  good  implementation  of  this  part  of  the  Directive.  In  some
Member States there are weaknesses of transposition regarding external emergency response
plans  and  emergency  preparedness.  With  regard  to  the  obligation  of  Member  States  to
establish effective proportionate and dissuasive penalties applicable to infringements, further
analysis  is  necessary  to  determine  whether  this  part  of  the  Directive  was  adequately
implemented.  Despite  the  formal  implementation  it  remains  unclear  whether  penalties  are
effective, proportionate and dissuasive in the individual social, legal and economic framework
of Member States that are active in offshore oil and gas production.
33

Regarding the set-up of Competent Authorities, Member States did less closely implement the
provisions  (e.g.  public  availability  of  information,  providing  adequate  human  and  financial
resources) than expected. The Commission services are in contact with several Member States
to clarify the rules for the functioning of the Competent Authority. Additional information on
the  assessment  of  the  Directive’s  implementation  by  Member  States  Article  by  Article
provides the Staff Working Document in its Annexe IX.
Annex  III includes detailed, additional information on the implementation of the  Articles of
the Directive, which highlights shortcomings. The dialogue with Member States is an ongoing
process.  If  necessary,  in  order  to  achieve  improvements  and  a  fully  adequate  level  of
implementation  the  Commission  may  start  infringement  proceedings  in  case  of  severe
shortcomings.
Technology  is  constantly  developing,  however,  without  major  technological  pushes.
Improved  shelter  booths  and  detection  devices,  supported  by  artificial  intelligence,  are
deployed  on  offshore  installations.  Following  the  Commission’s  analysis  of  safety
performance as published in the annual reports, offshore safety performance appears adequate
in all Member States.
Member  States  with  offshore  waters  that  do  not  have  offshore  oil  and  gas  operations  under
their  jurisdiction  (e.g.  Belgium,  Estonia,  Finland,  Latvia,  Lithuania,  Portugal,  Slovenia,
Sweden),  and  which  do  not  plan  to  license  such  operations  shall  implement  only  those
measures,  which  are necessary to  ensure compliance with  Article 20 (operations outside the
EU),  Article  32  (transboundary  emergency  preparedness)  and  Article  34  (penalties).  In
general terms, these Articles were adequately transposed.
In  line  with  the  provisions  of  the  Directive,  landlocked  Member  States,  e.g.  as  Hungary,
Austria,  the  Czech  Republic  and  Slovakia,  adequately  implemented  Article  20  of  the
Directive.
5
ACHIEVEMENTS ASSESSED BY THEMES

5.1
Overview on the themes analysed
The  assessment  has  been  structured  around  themes  that  each  bring  together  several  Articles
from the Directive and issues proposed during consultations with stakeholders, the public and
experts. The majority (10) of themes concern the functionality of the Articles in the Directive.
The next largest category (3) emerge from stakeholder representation on issues only indirectly
related to functional Articles. Two themes derive from direct mandated actions in Article 39
(liability,  compensation  claims,  financial  security  and  criminal  sanctions).  An  assessment
matrix  served  as  data  and  information  tool  for  analysing  themes  and  for  concluding  on  the
Directive’s achievements measured by criteria (see annex. Part 4, specifically table 4).
(1)
Themes of
(2)
Themes directly
(3)
Themes of
functioning of the Directive
mandated by the Directive
special interest to
34

stakeholders
Article /
Description
Source

Applying risk management principles for control of major accidents
Art.3(1)(3)(4)
Public participation in release of new areas for licensing
Art.5
Assignment of the competent authority
Art.8,9
Functioning of scheme of independent verification for installations and wells
Art.17
Safety in operations conducted outside EU
Art.19(8), 20
Arrangements for worker involvement in major accident prevention, (relating to
Art.22, 6(8)
protection of whistle-blowers and tripartite consultation mechanisms
Transparency concerning reporting of incidents
Art.23, 24, 25
Emergency preparedness and response arrangements of operators/ owners
Art.14, 28, 29, 30
Emergency preparedness and response arrangements of Member States
Art.28, 29, 30, 31
Availability of dissuasive penalties for breaches of duty
Art.34
Assignment of liability; financial responsibility; and schemes of civil compensation
Art.4, 7, 39(1)(2)
Parliament resolution 2015/2352(INI)
Prospect of extending criminal sanctions to breaches of duty to safeguard the
Art.39(3)
environment from major accidents (within the scope of Directive 2008/99/EC)
Post- decommissioning responsibility for ensuring permanent sealing of wells, and
Art.12, Annex
for determining extent of removal of fixed installations
I(6)
Deepening of the internal market through mutual recognition between Member
States of mobile installations and of common systems that are not Member States-
Art.13
specific
Recovery of costs of maintaining the competent authority
Art.8(5)(7)
Figure 5: Overview of themes subject to the assessment

5.2
Applying risk management principles for control of major accidents
The  foundation  of  risk  assessment  in  major  hazard  sectors  is  the  identification  of  all
foreseeable  hazards,  and  the  assignment  of  scale  of  harm  or  the  consequence  of  the  hazard
being realised (see also Article 3 of the Directive).
Both industry and authorities observed an occasionally inconsistent use of risk assessment by
both operators and regulators as the precursor to a decision on suitability of control measures
for  identified  major  hazards.  The  historical  concern  of  risk  assessment  is  that  methodology
may  be  directed  to  achieve  a  preferred  outcome,  for  example,  deliberately  selecting  a
statistical assumption in the risk calculus that gives a bias in the result.
However, there is no statistical evidence that bias is widespread or frequent. The provisions in
the  Directive  directly  attempt  to  mitigate  bias  in  the  areas  of:  independent  verification  of
safety,  environmentally  critical  elements,  and  well  plans.  In  addition,  the  expert  and
independent  competent  authority’s  assessment  of  the  operator’s  or  owner’s  risk  assessment
35

report for the installation (Report on Major Hazards or RoMH)33 is a further control against
bias in risk assessment.
There  is  a  reported  inconsistency  when  the  condition  of  ‘risks  tolerable  and  as  low  as
reasonably  practicable  (ALARP)’  is  achieved.  This  may  result  in  disagreement  between  the
operator or owner of the installation and the Competent Authority, regarding the adequacy of
the  risk  assessment  presented  in  the  installation  RoMH.  Alternatively,  there  may  be
agreement  between  the  operator/owner  and  the  competent  authority  where  the  ALARP
condition  may  not  have  in  fact  been  achieved:  this  can  be  the  case  where  the  competent
authority fails to undertake a thorough, expert assessment of the RoMH.
Linked  to  the  matter  of  inconsistency  in  identifying  the  ALARP  threshold  in  complex  risk
assessment,  are  reports  that  risk  assessment  measures  adopted  by  Member  States  are
insufficiently  stringent.  This  is  a  generic  concern  that  applies  to  different  forms  of
intervention, such as the threshold for taking enforcement action.
Although  there  is  no  statistical  data  that  supports  these  concerns,  it  appears  that  there  is
inconsistency  in  applying  risk assessment  methodologies between Member States. Since the
legal instrument bringing the measures into effect was a Directive, different approaches were
anticipated  because  most  of  the  16  focal  Member  States  are  relatively  unfamiliar  with  risk-
based regulation.
Accordingly, upskilling of Member States unfamiliar with risk-based regulation may provide
substantial added-value. Joint peer reviews carried out by smaller competent authorities from
the North Sea and Italy may reveal where weaknesses persist.
Civil society needs assurance that industry has improved its control of major accident hazards.
Former North Sea joint audits34, for example from the North Sea Offshore Authorities Forum
(NSOAF), demonstrated that there is room for improvement. Taking note of their contribution
to offshore safety, the methodologies deployed in the North Sea joint audits could be usefully
transferred  to  the  Mediterranean  and  Black  Sea  regions,  and  the  results  published  by  the
EUOAG.
According  to  the  views  of  workers  unions,  efforts  may  be  needed  by  employers  to  upskill
their  field  staff.  Unions  argue  that  worker  representatives  in  particular  should  reserve  more
input  time,  to  contribute  both  more  confidently  and  more  comfortably  to  the  formulation  of
the installation’s RoMH.
Finally,  according  to  views  received  from  experts,  risk  assessment  and  management  should
take note of climate change. Predictions suggest that in the coming years and decades, climate
change  may  lead  to  extreme  heat,  stronger  winds,  and  higher  waves.  To  adequately  address

33 A RoMH is an ex ante report by the operator or owner of an installation demonstrating that all major hazard
risks are ALARP. Comments of the workforce are to be taken into account. The competent authority must issue
an acceptance of the RoMH prior to operations starting.
34 http://www.hse.gov.uk/offshore/NSOAF-Supervision-report.pdf.
36

these  risks,  safety  and  environmental  critical  elements  at  installations  may  require
adjustments.

5.3
Public participation in release of new areas for licensing
Environmental assessment is a procedure that ensures environmental implications of decisions
are  taken  into  account  before  the  decisions  are  made.  Environmental  assessment  can  be
undertaken for individual projects, such as a dam, motorway, airport or factory, on the basis
of Directive 2011/92/EU35 (known as 'Environmental Impact Assessment' – EIA Directive) or
for public plans or programmes on the basis of Directive 2001/42/EC36 (known as 'Strategic
Environmental Assessment' – SEA Directive). The common principle of both Directives is to
ensure  that  plans,  programmes  and  projects  likely  to  have  significant  effects  on  the
environment  are  made  subject  to  an  environmental  assessment,  to  provide  a  high  level  of
protection  of  the  environment  and  to  contribute  to  the  integration  of  environmental
considerations  into  the  preparation  of  such  projects,  plans  and  programmes  with  a  view  to
reduce their environmental impacts, prior to their approval or authorisation. Consultation with
the public is a key feature of environmental assessments.
The  provisions  of  Article  5  of  the  Directive  for  public  participation  apply  to  new  areas  for
licensing from 19 July 2013. These areas are regions in the sea anticipated to be utilised for
exploration  and  production.  Article  5  should  prevent  drilling,  including  explorative  drilling
unless the public was consulted and the results of the assessment accommodated. Paragraph 2
(a)  to  (f)  describes  minimum  suitable  arrangements  to  achieve  the  aims.  According  to
information provided for the assessment by NGOs, it appears that Member States have taken
due note of these aims of the Directive but did not always fully implement these provisions.
The  environmental  NGO  community  has  raised  certain  concerns,  primarily  directed  at
licensing and re-licensing in mature basins, which partially have been exploited for decades.
The practice that the Member States’ licensing authority may re-license a previously licensed
area  without  recommencing  the  full  SEA  procedures  and  associated  public  participation,  is
not  transparent.  However,  it  has  not  been  possible  to  collect  data  that  demonstrates  the
approaches adopted in different Member States under the provisions of the Directive.
In general, there is limited public awareness of the offshore oil and gas sector in general, with
its technology and functions scarcely understood. These factors may prevent the public from
taking  a  deeper  interest  in  consultations.  Most  citizens  may  not  be  aware  of  public
consultations  or  may  hesitate  to  participate,  due  to  a  perceived  lack  of  expert  knowledge.
However,  if  stakeholders  as  NGOs,  enterprises,  local  authorities  carry  out  a  campaign
participation rates can substantially increase.

35 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment
of the effects of certain public and private projects on the environment Text with EEA relevance, OJ L 26,
28.1.2012, p. 1–21.
36 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the
effects of certain plans and programmes on the environment, OJ L 197, 21.7.2001, p. 30–3.
37

Taking note of national rules and legislation regarding public participation in Member States,
the provisions for stimulating public consultation relating to offshore projects appear suitable.
However,  their  practical  application  may  require  additional  efforts  from  national
administrations.
Member States may publish citizen’s guidance to facilitate access of citizens to the sector and
to  encourage  their  informed  participation  in  consultation  exercises.  Furthermore,  NGOs
would  welcome  arrangements  made  by  the  Member  States  that  ensure  consultees  can  be
confident that their views are processed effectively in decision making.

5.4
Assignment of the Competent Authority
Whenever six or more installations operate in a Member State, according to Articles 8 and 9
of  the  Directive,  Member  States  shall  establish  a  Competent  Authority  to  assure  structural
independence  from  economic  interests  (e.g.  maximising  revenues  from  offshore  activities).
The  upward  reporting  chain,  within  which  the  priorities,  strategies  and  work  plans  of  the
competent authorities are agreed, should be entirely separated from economic regulation.
It follows from consultations with stakeholders and NGOs that it is often not entirely clear as
to  whether  or  not  suitable  and  sufficient  independence  has  been  attained  in  all  competent
authorities, following the formal implementation of the Directive.
Some  respondents  and  interviewees  from  the  industry  have  expressed  a  reservation  that  the
intended  unification  of  environmental  and  safety  oversight  by  regulators  is  insufficiently
joined-up  compared  to  expectations,  and  that  duplication  of  effort  and  an  additional
administrative burden results from this. However, even where the competent authority is not
fully  integrated,  it  seems  that  with  the  Directive,  Member  States  are  in  a  better  position  to
avoid duplication of interventions and unaligned strategies, which may impact efficiency and
costs of the sector.
The  strong  fragmentation  of  regulatory  approaches  around  the  EU,  as  explained  in  the
Commission’s impact assessment, was a major driver to establish the Directive. It seems that
systems  and  arrangements  have  been  less  harmonised  than  expected.  This  is  supported  by
survey’s  respondents  and  workshops.  Therefore,  whilst  Member  States  may  well  have
implemented  the  Directive  in  an  appropriate  manner,  the  process  of  harmonising  the
regulatory  playing  field  in  the  EU  remains  incomplete.  Therefore,  the  full  benefits  of  inter
alia, standardisation, efficiency, benchmarking, and effectiveness are unlikely to be realised,
compared to the situation of adopting a common Regulation.
A number of respondents and interviewees, mainly from the industry, have reported that the
organisational arrangements of some competent authorities remain unstable, and that the full
depth of skills and expertise is yet to be integrated into the body of the regulator.
38

The  Commission  produced  a  report  in  2016  concerning  the  adequacy  of  resources  of  the
Member  States’  competent  authorities37  to  carry  out  their  functions  under  the  Directive.  It
noted that Member States were on average 10% under-staffed, recruitment was demonstrably
difficult and that pay levels were often a root problem. The report called on Member States to
ensure they provide sufficient resources to attract and train expert staff, relative to the size and
complexity  of  the  offshore  activity  of  each  Member  State.  It  is  also  important  to  recall  that
such inconsistency and instability does impose administrative burdens on industry.
There is a lack of clarity concerning whether or not suitable and sufficient independence has
been attained in all competent authorities. Given the importance of safety and environmental
protection in the management of the marine space, the independence of judgement of offshore
competent authorities is a matter of public interest. There is an ongoing dialogue between the
Commission and the Member States in the framework of the European Offshore Authorities
Group.  In  forthcoming  sessions  this  Group  may  discuss  arrangements  for  ensuring  full
compliance  with  Articles  8(2)  and  9(a)  of  the  Directive  on  independence  from  economic
regulation, with the objective to provide more information to social partners and civil society.
Competent  authorities  may  specifically  analyse  the  increased  decommissioning  of  fixed
installations.

5.5
Functioning of scheme of independent verification for installations and wells
Major technical projects of high capital investment will be subject to independent verification
by the project owner as a safeguard. The danger from not referring to independent verification
is the adoption of unknown bias into project risk assessments.
The  Directive  adopted  best  international  regulatory  practice  by  requiring,  in  Article  17,  the
adoption  of  independent  verification  for  installations  and  well  plans  within  the  safety
management systems of operators and owners. The main provisions are:
  The system is to be integral to the operator or owner’s management system rather than a
stage of compliance or permitting.
  The arrangements must pass strict tests:
o  of  independence  of  the  verifier  from  any  connection  to  the  installation  or  well
project; and
o  of the integrity of the working environment of the verifier such that their work is
free of influence from the operator or owner.

37 REPORT FROM THE COMMISSION on the adequacy of national expert resources for complying with the
regulatory functions pursuant to Article 27(4) of Directive 2013/30/EU, COM/2016/0318 final.

39

  The  scheme  is  applied  to  verification  of  safety  and  environment  critical  elements
(SECE’s)38 and their continuing effectiveness in practice, and to wells including changes
to design intent.
  The  records  are  to  be  retained,  and  made  available  to  the  competent  authorities  on
demand.
Most contributors to the assessment express approval of the conceptual system. The Member
States  active  in  offshore  operations  in  the  North  Sea  area  (UK,  the  Netherlands,  and
Denmark)  report  a  ‘significant  advantage’  in  their  major  accident  prevention  systems  by
virtue of the availability of the independent verifiers’ reports.
In contrast, there are also some concerns and misinterpretations of the various entities.
  Member States with decades’ long experience with offshore oil and gas operations (e.g.
North  Sea  and  Italy)  and  co-located  operators  found  introduction  of  the  scheme  too
difficult.  This  was  due  to  independent  verifiers’  market  unreadiness,  and  lack  of
specificity in the requirements allowing numerous options.
  Some Member States’ Competent Authorities, and NGOs consider 2nd party verification
unsuitable, either on an objection of principle, or because of potential societal aversion.
  Some  actors  (mainly  from  large  verification-based  vendors)  favoured  strict  3rd  party
verification  but  only  using  large  players  with  extensive  experience  of  independent
verifiers’  services.  They  claim  smaller,  niche  companies,  lack  capability  in  depth  and
become captured by the client. They also claim the Directive spawns an increase of niche
vendors.
  The Trade Unions (TU’s) observe that there is insufficient depth of resources with all the
relevant  expertise and experience to  underpin the introduction and proper functioning of
the schemes.
  Other actors (the smaller niche vendors) warned of the large verification companies who
may  encourage  homogeneous  rather  than  independent  approaches.  They  also  warn  of
profiteering  through  standardisation  of  systems,  irrespective  of  the  individual  nature  of
production installations.
  Some Member States consider that there is a lack of sufficient clarity in Article 17 and
Annex  V  relating  to  the  operation  of  schemes  for  independent  verification,  and  ask  for
additional Commission guidelines.
According to the information obtained, it appears that the scheme of independent verification
complies with the minimum requirements as set out in the Directive. To facilitate the handling
of  schemes  in  Member  States,  it  would  be  useful  to  collect  and  disseminate  all  available
guidance of industry and regulator.

5.6
Safety in operations conducted outside EU
Analysis

38 Safety and environment critical elements (SECE) i.e. parts of an installation including computer programmes,
the purpose of which is to prevent or limit the consequences of a major accident, or the failure of which could
cause or contribute substantially to a major accident.
40

Article 19(8) of the Directive establishes the principle that an operator’s or owner’s CMAPP39
is  to  be  the  policy  of  the  main  board  of  the  company  and  should  apply  throughout  the
organisation.  Operators  should  be  able  to  demonstrate  this  without  ambiguity  to  their
Competent  Authority.  The  measure  is  in  response  to  apparent  and  largely  unexplained
differences of performance of operators as measured by incident reports in different regions of
the world.
Annex  I  Part  8  of  the  Directive  provides  the  minimum  components  to  be  incorporated  in  a
CMAPP, and these broadly reflect the worldwide standard for a high integrity organisation40.
The  components  of  the  CMAPP  address  corporate  behaviour  such  as  process  auditing,
rewarding  desirable  behaviours  for  major  accident  prevention  amongst  staff,  extemporising
corporate goals, values and capabilities, and requiring high levels of competency throughout
the organisation.
There  are  reports  from  duty  holders  regarding  inconsistency  of  requirements  by  Member
States’ Competent Authorities for the demonstration of the CMAPP in the set of productions
submitted  for  assessment  alongside  the  installation  RoMH  by  the  duty  holder.  There  are
further  reports,  also  in  the  framework  of  stakeholder  consultation,  that  the  practical
application of national laws transposing the Directive, via competent authorities, has included
additional features that may be out of context of a CMAPP.
It has not been possible within the assessment of the Directive to verify these reports. In any
case it would be necessary to take evidence from duty holders, which they may be reluctant to
give. However, in the context of a CMAPP, there should by definition be only one version per
company throughout its global operations. Any additional relevant requirements should be an
addendum to the safety and environmental management system document (SEMS).
On the subject  of the SEMS, it has  been reported that some duty holders  do not  themselves
identify the difference between the SEMS and the CMAPP. The relevant lists of content in the
Directive for CMAPP (Annex I Part 8) and SEMS (Annex I Part 9) are distinctively different.
If  the  distinction  is  not  understood  by  a  duty  holder,  or  duplication  arises  from  a  Member
State’s approach to the handling of, and the relationship between, the two documents, actors
may not have fully understood the subject.
In the framework of the public consultation, the NGO’s have expressed particular concern on
this point by issuing a joint statement:
“Companies  registered  in  the  EU  should  be  bound  worldwide  by  all  Directive  obligations

39 CMAPP: Corporate Major accident prevention policy, i.e. a document setting out the owner’s or operator’s
corporate policy for the avoidance of major accidents at their installations located anywhere in the world.
Suitable arrangements to be made for monitoring the effectiveness of the policy which is to apply throughout the
lifecycle of any installation controlled by the operator or owner, and in the case of an operator to take account of
their primary responsibility for control of major accident risk.
39 Formal tripartite consultation is required under auspices of each Member States’ to allow operators, regulators
and worker representatives to discuss formulation of major accident prevent policy and standards.
40 A high integrity organisation possesses strong safety culture and conducts itself so as to achieve a high
probability of safe and continuous operations.
41

that can be applied directly to operators. Allowing companies to skip Directive standards in
developing countries does  not  sit well with the initial intention of  avoiding  a  second  Deepwater
Horizon…/…  In  addition,  the  obligations  already  applicable  for  extraterritorial  activities
should be enforced in a consistent and transparent manner. At this point it is not very clear
whether Member States do in fact ask for accident prevention plans covering extraterritorial
activities, and even more so if and how they verify that that the plans are applied.”
Conclusions
The  Directive  may  not  always  ensure  effective  accident  prevention  outside  of  the  EU.
However, further research and fact finding appears necessary before being able to draw a firm
conclusion. Furthermore, the consistency between Member State provisions for assuring EU-
based operators maintain high and equivalent standards in their overseas activities, is a topic
that  Member  States  might  consider  collaboration  on.  For  example,  in  a  management  audit
exercise  for  operations  outside  the  EU.  As  a  preliminary  exercise,  Member  States  may
consider a joint  audit to examine the mechanisms that Member States’ deploy for verifying
operators’  effectiveness  in  examining  joined-up  safety  management  of  their  operators
throughout their global operations. Safe offshore operations contribute to the protection of the
environment and the fight against climate change. For example, by preventing large leakages
of methane.

5.7
Arrangements for worker involvement in major accident prevention
Analysis
The  practice  of  tripartite  consultation  was  already  adopted  by  the  International  Labour
Organisation  (ILO  144  1976)41  as  the  foundation  of  its  strategy  making  and  policy
formulation.  The  ILO  has  produced  a  principal  standard  (#144)  for  strategic  consultation
between representatives of workers, regulators and employers, both generically and related to
sectors.  Despite  the  maturity  of  ILO  144  1976  and  the  widespread  adoption  of  tripartism  in
the EU, some Member States had no mechanisms for it prior to the Directive.
Article  6(8)  requires  Member  States  to  establish  mechanisms  for  effective  tripartite
consultation  between  the  competent  authority,  duty  holders,  and  worker  representatives  in
formulating standards and policies relating to major accident prevention.
Aligned  to  the  measure  in  Article  6(8)  is  the  requirement  in  Article  22  for  owners  and
operators  to  put  in  place  arrangements  for  confidential  reporting  of  concerns  by  staff  on
installations and for protection of whistle blowers. The arrangements are to be communicated
to all workers on the installation. Typically information and contact details for the competent
authority will be posted on notice boards and staff trained on this subject.
The  competent  authority  is  to  make  compatible  arrangements  for  conducting  investigations
into confidential reporting, and making authoritative reports, whilst preserving anonymity.

41 https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C144.
42

The  Commission  has  examined  how  these  arrangements  are  working  out.  It  found  wide
approval  of  all  stakeholders  of  the  fundamental  right  bestowed  under  Article  22.  Similarly,
whilst some Member States have practiced tripartite consultation since the ILO standard, duty
holders  in  previously  non  participating  Member  States  were  vocal  in  support  to  new
arrangements  under  which  they  have  a  voice  in  strategy.  Duty  holders  report  significant
value-added  where  the  scheme  of  tripartite  consultation  was  newly  introduced,  especially
outside the North Sea region where no specific safety legislation was formerly in place.
Some Member States reported that their tripartite committees had become somewhat torpid.
Moreover,  in  some  Member  States  there  are  excellent  tripartite  arrangements  under  the
auspices of the operators associations attended by top management and leaders from Member
States  and  TU’s.  An  example  is  the  UK’s  ‘Step  Change  in  Safety’42,  formed  more  than  40
years ago and probably the most influential standing safety body of its type.
It  is  a  major  key  performance  indicator  and  a  leading  indicator  for  offshore  major  accident
prevention,  that  industry  establishes  and  maintains  effective  consultative  forums  under  its
own auspices. The statutory committees have the added driver of law. Furthermore, it appears
that the establishment of a level aspect of statutory tripartite consultation throughout the EU
will of itself will add value in policy terms.
With  regard  to  the  Directive’s  provisions  on  whistle  blowing43,  there  are  signs  from  the
Commission’s interactions with stakeholders that Member States take insufficient interest in
training for workers and managers and in developing the applications of whistle blowing as a
surrogate to the values of transparency, safety culture, and integrity issues for the sector.
The  TU’s  consider  the  protection  of  whistle-blowers  is  insufficient  across  the  sector  as  a
whole,  and  favour  a  link  between  whistleblowing  arrangements  and  tripartite  consultation
mechanisms relating to policy and standards. No concrete examples of a lack of rigour have
been  forwarded  to  support  the  TU  assertions,  but  no  doubt  the  position  will  be  kept  under
review.
Tripartite consultation may not yet be fully embedded in many Member States, and time and
encouragement  will  make  the  difference.  However,  we  note  that  at  present,  no  voluntary
sharing  of  learnings  or  other  information  exists  or  has  been  encouraged  between  tripartite
committees of Member States (not required by the Directive).
Conclusions
Although  taking  note  of  critical  comments,  it  appears  that  in  general  terms  the  confidential
reporting  mechanisms  for  workers  to  directly  contact  the  competent  authority  in  their  area
appear  to  be  working,  and  is  welcomed  particularly  in  Member  States  where  no  such
provisions existed before the Directive. In the future, competent authorities and the EUOAG

42 https://www.stepchangeinsafety.net/about.
43Recital 41 of the Directive provides: “To ensure that no relevant safety concerns are overlooked or ignored, it
is important to establish and encourage adequate means for the confidential reporting of those concerns and the
protection of whistle-blowers.”.
43

may  receive  advice  from  TU’s  and  other  worker  representatives  on  the  functioning  of  the
arrangements throughout the EU.
Apparently,  there  is  also  considerable  support  to  the  measures  relating  to  tripartite
consultation, and that the development of a tripartite culture is improving.

5.8
Transparency concerning reporting of incidents – the Implementing Regulation
Articles  23,  24,  and  25  of  the  Directive  concern  measures  for  EU-wide  reporting  systems,
under  which  the  Commission  is  to  make  an  implementing  regulation  for  common  reporting
parameters.  This  Implementing  Regulation  (1112/2014/EU)  includes  a  simplified  reporting
format for Member States’ for publishing incident data and other relevant information.
The Member States are to make public important information relating to incidents occurring
in  their  territory  and  to  report  to  the  Commission  annually.  Finally,  the  Commission  is
required to make annual reports.
The cycle of reporting to the EU-level is as follows.
Year 1: Member States’ Competent Authorities receive data from duty holders.
Year  2:  Competent  authorities  aggregate  data  and  carry  out  a  quality  check.  Member  States
send  a  report  in  the  format  of  the  Implementing  Regulation,  to  the  Commission.  The
Commission undertake a quality check and subsequently transfer all information provided by
Member States into the Commission’s own data base, in order to assemble an EU-wide report
(latest 1st of June).
Year 3. The report is published at the beginning of year 3.
As  illustrated  by  the  above  timeline,  there  is  a  lag  between  the  focus  year  (of  industry
reporting  incidents  to  the  Member  States)  and  the  Commission  report.  Already  two  reports
have been published to date (2019) covering 201644 and 201745. There is now a baseline for
future trend analysis.
The scheme is functional; it is the first statutory inter-country reporting system anywhere and
therefore represents a significant step. Given that there is a widely held  public view that the
oil  industry  and  its  regulators  are  not  transparent,  the  requirement  for  a  common  reporting
system is key to greater public acceptance.
Looking  through  the  data  for  the  first  of  the  EU  annual  reports,  there  is  a  disparity  of  data
reporting  and  handling  between  Member  States  that  suggests  the  system  needs  time  to
stabilise.

44 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A595%3AFIN.
45 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2019:0358:FIN.
44

Some  Member  States  believe  the  current  guidance  is  insufficiently  detailed.  This  was  not
expected as the expert committee that assisted in the preparation of the Commission’s draft
Regulation assembled a detailed guidance document, including practical examples of how to
complete and provide information on incidents.
The work of the expert committee took into account advice and guidance from regulators and
industry and was a compromise of systems. Nevertheless, some duty holders are dissatisfied
with some of the incident severity thresholds (e.g. relating to release volumes of hydrocarbon
escapes) where these are different to standards that are already in use. Consequently, there is
an  inevitable  disparity  between  the  new  system  and  some  of  the  pre-existing  thresholds  of
reporting.
Some Member States active with offshore operations in the North Sea region, specifically the
UK,  have  claimed  that  the  data  set  to  be  collected  and  published  under  the  Implementing
Regulation  is  not  a  useful  tool  to  determine  leading  indicators  for  major  accident  risk.  The
Member  States  concerned  suggest,  notwithstanding  their  representatives  were  on  the  expert
comitology committee, which agreed on the templates, that significant revision is required to
allow more meaningful reporting.
The EU-wide incident reporting system that collates all qualifying incidents, including near-
misses in EU waters, reported under obligation from all actors (duty holders, Member States
and  the  Commission)  that  this  reporting  initiative  represents  a  significant  advance  in
transparency of the sector from a global perspective.
All  of  the  actors  need  to  focus  on  the  efficacy  of  the  system,  specifically  regarding  full,
prompt and accurate reporting. The EUOAG monitors the system, is the interlocutor to civil
society, and ensures continual improvement in the system over time.
Where  stakeholders  perceive  that  critical  improvements  need  to  be  made,  the  EUOAG  (and
the  initiator  of  further  implementing  regulations)  should  be  appropriately  advised  with
justifications.  However,  it  should  be  underlined  that  not  all  actors  have  experience  with  the
Implementing Regulation.

5.9
Emergency preparedness and response arrangements of operators/ owners
This  particular  obligation  concerns  the  emergency  response  arrangements  of  the  operator  or
owner to  contain an incident  to  the vicinity of the installation, usually taken to  mean within
the 500 meter safety zone surrounding it.
Articles 14, 28, and 30,  with  a related obligation under Article 29,  concern arrangements  of
the  Member  States,  namely,  national  contingency  plans.  These  should  be  integrated  as
necessary  with  those  of  adjacent  installations  and  with  national  contingency  plans  of
neighbouring  Member  States.  The  entire  plan  that  encompasses  procedures,  equipment,
responsibilities, and contingencies, with the goal of containment of any incident, is referred in
the Directive as the Internal Emergency Response Plan (IERP).
45

Additionally,  the  operators’  or  owners’  relevant  expertise  and  equipment  for  emergency
response is to be always available, and emergency response exercises are to be conducted by
Member States, operators, and owners.
According  to  information  provided  by  Member  States  in  EUOAG  meetings,  installations
present  in  EU  waters  have  appropriate  emergency  response  plans  (IERP)  in  place.  Some
Member  States  have  agreed  extensive  procedures  with  their  duty  holders  that  govern  the
overall  response  within  that  Member  States’  jurisdiction.  Nevertheless,  it  is  not  shown  the
extent to which internal emergency response plans are harmonised with national contingency
plans  of  Member  States  throughout  the  EU.  Focused  exercises  with  Member  States’
authorities and operators, as for example carried out by the UK, are the most effective means
to validate the effectiveness of the integrated arrangements.
The industry’s response to implementing the Directive has been for owners of non-production
mobile installations (mainly mobile drilling units for exploration of oil and gas (MODUs)) to
develop fit for purpose response plans that were different from the plans for the operators of
installations for the production of oil and gas. Prior to the Directive, the requirements varied
between  Member  States,  and  owners  had  claimed  that  the  plans  required  of  them  by  some
Member  States  were  more  suited  to  production  installations  with  their  concentrations  of
hazardous process plant and inventories of flammable substances and less to MODUs.
Duty holders have also readily acknowledged that the requirements under the Directive have
added value by improving the integration of installation-based emergency response plans with
national contingency plans.
Under the Directive, the IERP is required to consider all relevant emergency scenarios as an
absolute duty, i.e. the plan will not need to quantify the risk of a potential scenario in order to
make response arrangements to deal with it.
There  is  a  significant  uplift  in  confidence  of  the  integration  of  the  modern  sophisticated
inventories of the industry, and the Member States. The requirements for internal emergency
response plans by operators and owners appear to be working as intended.
Requirements  for  internal  emergency  response  plans  by  operators  and  owners  appear  to  be
working  as  intended.  It  is  anticipated  that  the  regulators  and  social  partners  will  request
operators  in  particular  to  develop  more  inventive  scenarios  to  exercise  and  test  the
arrangements  they  have  made.  The  appropriate  regulatory  authorities  in  the  Member  States
may take a close interest in the effectiveness of installation-based emergency response plans.

5.10
Emergency preparedness and response arrangements of Member States
Analysis
Articles  29,  30,  and  31  of  the  Directive  apply  to  the  emergency  response  arrangements
obligated  to  Member  States,  known  as  External  Emergency  Response  Plans  (EERP)  or
46

national  contingency  plans. Article 28 requires  Member States to ensure that the  IERP’s of
duty holders are integrated and coherent with the Member States national contingency plans.
Under  the  measures,  Member  States  must  ensure  EERPs  are  executed  immediately  upon
report  of  a  major  incident.  Furthermore,  investigations  by  Member  States  into  the
circumstances  of  the  incident  are  to  be  conducted  without  delay,  giving  due  regard  to  the
circumstances. Member States should not take actions that may have an adverse impact on the
emergency response or recovery operations.
Although  emergency  response  is  initiated  at  the  national  level,  emergency  arrangements
should ensure that  equipment  and expertise is  compatible and interoperable beyond national
borders, and also in Member States that do not carry out offshore operations themselves, due
to potential implication for further Member States.
In  all  circumstances,  emergency  response  exercises  are  to  be  conducted  by  Member  States,
operators  and  owners.  The  transboundary  risks  of  pollution  are  to  be  specifically  addressed
and suitable cooperation is to be arranged including with third countries.
Member  States  that  do  not  have  active  offshore  oil  and  gas  operations  are  required  under
Article  32  to  establish  focal  points,  to  cooperate  with  active  Member  States  in  contingency
planning  and  to  make  their  own  arrangements  for  responding  to  a  major  accident  that
threatens their marine and coastal environment. Adjacent Member States are also required to
cooperate  with  a  major  accident  investigation  launched  by  the  Member  States  in  which  the
accident occurred.
Duty holders and Member States acknowledge that the requirement for national EERPs to be
integrated  with  IERPs  has  added  value  by  improving  coherence  between  installation-based
emergency response plans with national contingency plans.
Around five Member States and regions were still preparing national contingency emergency
response  plans  during  the  year  2019.  The  Commission  provided  technical  assistance  at  a
technical  workshop  in  2017,  attended  by  competent  authorities,  national  intervention
authorities and agencies, specialist systems providers, IADC, and IOGP. The proceedings of
the event represent a compendium of the depth of experience and expertise that exists in the
North Sea/Atlantic region, and the Mediterranean region coordinated by REMPEC (Malta).
Under Article 10 of the Directive, the EMSA also has obligations. For the most part European
Maritime  Safety  Agency  (EMSA)  is  required  to  respond  to  requests  by  Member  States  to
assist in both preparations and interventions. Some arrangements are agreed with EMSA and
Member  States.  According  to  Article  10(3)  EMSA  may  assist  the  Commission  in  assessing
the suitability of Member States' EERPs.
The Commission services carried out a survey on the availability of national plans in 2017. At
that  time,  data  showed  some  fragmented  approaches  to  consideration  of  transboundary
pollution.  However,  industry  claims  there  is  an  effective  interoperability  of  expertise  and
equipment between Member States in contiguous maritime regions, and that harmonisation of
47

expertise and equipment is continually improving. Major inventories or emergency equipment
maintained by specialist service providers are available on a regional/transnational basis in the
UK, Norway, and Italy. The Commission continues its co-operation with Member States and
industry to ensure effective and up-to-date EERPs.
Conclusions
1.
Even though there is collaboration and sharing of expertise, it is not clear whether this
happens  consistently  across  all  concerned  MS  and  whether  the  efforts  made  are  due  to  the
Directive.  It  seems  that  the  measures  in  the  Directive  including  the  particulars  on  external
emergency response plans in Annexes VII and VIII have further stimulated collaboration and
associated sharing of inventories and  expertise of Member States’ personnel  throughout  the
EU. Nevertheless, it remains unclear how far the harmonisation of equipment is adequate to
react to large scale offshore accidents.
It would be beneficial to undertake assessments of practical exercises, simulating the response
to  accidents.  Given  the  limited  information  available  and  the  importance  of  this  topic,  there
might  be  value  in  further  cooperating  with  EMSA  on  evaluating  Member  States'  exercises,
specifically  related  to  the  effectiveness  of  transboundary  cooperation.  Commission  services
may be asked to provide assistance in up-grading and up-dating the EERP.

5.11
Availability of dissuasive penalties for breaches of duty
Analysis
There  is  an  apparent  disparity  between  Member  States’  approaches  to  penalties  for  causing
accidents and the enforcement of an appropriate follow-up. Article 34 requires Member States
to  specify  rules  on  penalties  applicable  to  infringements  of  the  national  provisions  adopted
pursuant to the Directive, specifying that those penalties should be “effective, proportionate
and  dissuasive”.  Article  34  also  requires  Member  States  to  notify  their  provisions  to  the
Commission  by  July  2015.  Only  few  Member  States  submitted  information  referring  to  this
duty.
Member States may apply in the offshore oil and gas sector administrative, as well as criminal
sanctions.  Article  34  of  the  Directive  does  not  specify  the  type  of  penalties  and  so  Member
States  may  choose  whether  to  use  criminal  or  administrative  sanctions.  In  some  cases,  as
under  the  Directive  2008/99/EC  (Environmental  Crime  Directive46  (ECD)),  Member  States
are obliged to criminalise certain behaviour.
Whilst  most  sanctions  applied  by  Member  States  require  the  offence  to  include  both
negligence  and  harm,  other  Member  States  prosecute  the  breach  of  duty,  not  the  effect.  In

46 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the
protection of the environment through criminal law (Text with EEA relevance), OJ L 328, 6.12.2008, p.
28–37.
48

others,  a  near-miss  major  accident  is  treated  as  if  a  major  accident  has  indeed  occurred.  In
some Member States it is not a criminal offence to spill oil from offshore petroleum activities
(although it is an offence to spill oil from a tanker).
It  has been  clarified in  the discussions with  the  Member States that  no consistency  between
their  measures  exists,  both  in  terms  of  powers,  functional  arrangements,  and  enforcement.
One  Member  State  has  embedded  criminal  enforcement  powers  within  its  Competent
Authority.  A  number  of  Member  States  prefer  direct-acting  sanctions  which  mandate
improvements, or prohibit activities, rather than engaging with potentially resource intensive
enforcement  processes  through  the  courts.  At  the  end  of  court  proceedings,  the  financial
penalties  are  often  modest  or  insufficient  to  deter  certain  behaviour,  potentially  leading  to
further accidents.
Concerning  the  type  of  sanction,  many  Member  States  argue  that  the  publicity  attached  to
enforcement is  of itself a significant  sanction, as the impact  on corporate reputation  is  more
significant than financial penalties themselves. This may be true to an extent, but the level of
financial penalties applied to the oil and gas sector across the EU is extremely low. It is rare
for a penalty exceeding 1 million Euro to be levied, which relative to the whole market value
of  the  operators'  companies  may  not  be  significant.  Substantially  higher  penalties,  as
appropriate  for  the  case  at  hand,  might  actually  make  more  of  an  impact  on  the  aspect  of
dissuasion. Certainly, the social partners (TU’s and NGO’s) call for bigger financial penalties
that are proportionate to the commercial scale of the sector, the high frequency of accidents,
and their potentially wide-reaching impacts.
There also appears to be no obvious relationship between offences in the context of a major
accident hazard, and sanctions under licensing clauses. The Commission services are unaware
of any license holder that has had its license revoked following a proven gross breach of duty.
It  seems  that  several  factors  contributed  to  this  situation.  Firstly,  a  licensing  auction  for
selecting  the  best  candidate  for  exploring  and  exploiting  a  new  offshore  area  tends  to  be  a
buyer’s market, and Member States may be unwilling to drive out an operator. Secondly, the
view  is  often  expressed  that  a  major  accident  caused  by  a  breach  of  duty  is  a  retrospective
indicator.  From  the  industry’s  view,  under  this  argument,  an  operator  having  had  a  major
accident will invariably become a better operator going forwards. To remove the license from
an  operator  for  a  past  breach  is  a  severe  penalty.  Finally,  the  forced  disposal  of  assets  to
another operator, even a member of the joint venture under the license involves commercial
trading  and  potential  loss  and  denial  of  income.  Most  Member  States  would  avoid  being
drawn into this difficult area, and perhaps being caught under legal summonses.
As  mentioned  earlier,  there  has  been  no  major  offshore  accident  with  large  scale  effects  on
workers  and  the  environment,  occurring  anywhere  in  the  EU  since  the  Directive  came  into
effect.  Some  Member  States  had  no  experience  of  enforcing  sanctions  previous  to  this
Directive.

49

Conclusions
There are many different approaches amongst Member States to enforcement and to decisions
concerning the follow-up to offences and breaches of duty. For offshore oil and gas operations
no information is available to determine the superiority of either the administrative or criminal
penalties’ effectiveness.
However, Member States’ level of financial penalties for breaches of duty does not seem to be
suitable  to  both  the  need  for  public  interest,  and  the  potential  consequences  of  a  major
accident in  EU waters,  irrespective of the level  of escalation  in  the accident  concerned.  It  is
unlikely that the current penalties will make a significant impact with either investors or the
public.
License  authorities  are  already  required,  pursuant  to  the  Directive,  to  take  into  account  the
major  accident  prevention  performance  of  applicants.  Whilst  there  have  been  no  major
accidents  with  blow-outs  in  recent  times,  competent  authorities  should  continue  to  pursue
their right to provide independent expert advice to the licensing authorities with the objective
to complement the information available for the selection decision.

5.12
Recovery of costs of maintaining the competent authority
Analysis
Under Article 8(5) of the Directive, Member States may establish mechanisms by which the
financial  costs  accruing  to  the  competent  authority  in  carrying  out  its  functions  under  the
Directive, may be recovered from licensees, operators or owners.
During Commission's workshops, duty holders also raised concerns about the cost of applying
the existing regulation.  All but a very few competent authorities now practice some form of
cost recovery. Member States that did not recover their costs prior to the Directive now do so.
Funding levels of the different competent authorities do appear to be proportional to whether
there is cost recovery, and the level of recovery. Funding has of course direct impact on the
assurance  of  adequate  performance  of  the  duties  of  the  competent  authority  under  the
Directive.
There  are  some  considerations  attached  to  cost  recovery  schemes.  Member  States  have
discretion  to  recover  their  costs  from  primary  duty  holders  (operators  of  production
installations, owners of non-production installations). Equally, they may choose not to do so.
Where  Member  States  choose  to  recover  costs,  they  should  act  in  an  accountable  and
responsible  manner.  Therefore,  Member  States  may  envisage  to  publish  accounts  to
demonstrate  that  only  pertinent  costs  are  being  recovered  so  that  duty  holders  are  not
subsidising expenditures of the state unrelated to functions under the Directive.
50

Duty  holders  point  out  that  where  Member  States  use  a  charge-out  rate  mechanism  (based
upon  an  hourly  rate  for  competent  authority  staff,  usually  front  line  inspectors47)  they
sometimes  are  being  overcharged.  For  example,  where  a  meeting  with  the  competent
authority is attended by a large number of inspectors, all of whom count as a cost under the
charge-out  system  but  where  some  of  the  attendees  are  unnecessary  to  the  business  under
discussion.  Duty  holders  also  report  that  where  one  Member  States  may  require  a  single
RoMH  for  a  production  facility  comprising  several  linked  installations,  another  Member
States may require a RoMH for each individual installation, increasing costs by Euro1million
per additional RoMH. Duty holders also claim that competent authorities are not forthcoming
with estimating charges for the next financial cycle, which complicates financial planning.
All  such situations  are likely to  be, in  the opinion of the Member States  concerned, entirely
necessary  for  the  discharging  of  their  responsibilities.  Therefore,  these  become  matters  of
reconciliation  between  the  ‘parties’.  However,  the  central  point  is  that  cost  recovery
introduces an obvious tension in the duty holder – regulator relationship, the management of
which is primarily the responsibility of the regulator.
Where the operators' sector of a Member State is fully or partially state owned, cost recovery
between  the  competent  authority  and  the  duty  holder  may  be  a  public  accounting  exercise.
However,  there  have  been  calls  from  some  members  of  EUOAG  for  the  recovery  of  costs
from  duty  holders  to  be  made  an  obligation,  so  as  to  create  a  level  playing  field  for  all
competent authorities.
Member States are obligated to ensure that the competent authority has adequate human and
financial resources to discharge its functions under the Directive (Article 8(5)), as well as to
review  the  activities  of  the  competent  authority  and  make  necessary  improvements  (Article
8(9)). If reviews revealed that competent authorities are under-resourced, Member States are
obligated to make the necessary resources available, in line with the Directive's provisions.
The  Commission  published  a  report  in  2016,  pursuant  to  Article  27(4),  on  the  adequacy  of
resources  of  competent  authorities  to  discharge  their  functions48.  This  report  found  that  on
average  Member  States  had  a  10%  staffing  deficit  for  specialist  experts  in  areas  such  as:
diving, naval architecture, and environmental engineering. The report also noted a slowdown
in activity caused by a rapid fall in the oil price from $105 per barrel in 2013 to $40 at the end
of 2015.  It  called on Member States  to  ensure they  recovered  their costs  from  industry, and
ensured the competent authorities had appropriate resources to attract and train expert staff.
In  2016,  the  Commission  also  asked  Member  States  to  contribute  to  a  stocktake  of  national
arrangements  for  discharging  their  functions  under  the  Directive,  pursuant  to  Article  27(5).
Regrettably,  only  6  of  the  16  focal  Member  States  mentioned  previously,  provided
information.  Broadly  speaking,  North  Sea  Member  States  replied  that  their  prior  resource-

47 These vary greatly between Member States’, e.g. €165/hr (RO) and €247/hr (UK/HSE),b UK has joint
Competent Authority and environmental regulator, OPRED, charges €206/hr.
48 COM(2016) 318 final Report from the Commission on the adequacy of national expert resources for
complying with the regulatory functions pursuant to Article 27(4) of Directive 201330/EU. See also the Staff
Working Document for further details: SWD (2016) 182 final.
51

bases  were  adequate,  having  been  improved  by  combining  safety  and  environmental
regulators  into  a  single  competent  authority.  Smaller  Member  States  indicated  the  nature  of
their  tentative  arrangements  to  reach  out  to  pools  of  external  expertise,  should  there  be  an
uptick in activity.
Conclusions
Some stakeholders consider it desirable to have all Member States recover the costs of their
activities  under  the  Directive,  using  responsible  and  accountable  mechanisms.  There  are
several possible mechanisms for this, including but not limited to: a levy, a charge per activity
(RoMH  assessment;  installation  inspection,  etc.),  or  an  hourly  charge-out  rate  per  inspector.
For  these  measures,  the  costs  of  regulation  would  be  entirely  transparent  for  each  Member
State  and  could  be  an  additional  parameter  in  a  subsequently  revised  taxonomy  of  the
Commission’s annual reporting. However, since the Directive leaves flexibility for achieving
certain  goals,  it  does  not  prescribe  procedural  issues  such  as  a  statutory  duty  on  Member
States to recover costs from industry.
The requirement at  Article 8(9) of the  Directive  for Member States to  review and thereafter
ensure  the  effectiveness  of  their  competent  authorities  provides  a  future  insight  to  the  key
point of this theme; that sufficient human and financial resources are available for competent
authorities to discharge their responsibilities.

5.13
Special  theme:  Liability,  compensation  claims  and financial  security  of  offshore
oil and gas producers

5.13.1
The framework

5.13.1.1 Overview
This part of the assessment presents the:
  Legal frame of the Directive,
  A summary of the preceding Commission's report on these subjects,
  The issues in the context the European Parliament’s resolution, which includes requests
how to deal with these themes,
  A  summary  of  rules  and  legislation  in  Member  States,  including  the  quality  of  the
Directive’s implementation,
  A summary of the views of stakeholders, received via the public consultation and expert
consultation (see annexe ….).
Finally, this assessment presents an approach taken by the UK to ensure financial security in
the event of a costly accident: the Offshore Pollution Liability Agreement (OPOL).

5.13.1.2 Legal provisions of the Directive
The  themes  of  liability,  the  handling  of  compensation  claims  and  financial  security  of  the
licensee are closely linked to each other. Article 7 of the Directive, with reference to Directive
2004/35/EC  (ELD)  concerns  “liability  for  environmental  damage”,  which  establishes
52

“financial liability for the prevention and remediation of environmental damage as defined in
the  Directive”.  Furthermore,  Article  4(3)  of  the  Directive  uses  the  term  “liabilities”,
apparently  establishing  a  broader  notion.  Regarding  the  financial  capability  of  the  applicant
for  a  license  authorising  offshore  operations,  the  Directive  requires  the  ability  to  cover
“potential economic damages where such liability is provided by national law” (Article 4(3c)
of the Directive).
The  Offshore  Safety  Directive  frequently  refers  to  the  environmental  liability  regime,
designed  by  Member  States  when  implementing  the  Environmental  Liability  Directive.
Member  States  had  to  implement  provisions  on  liability  of  the  Offshore  Safety  Directive
(Article 4, paragraphs 2 and 3). This assessment uses the term “liability” in reference to “civil
liability”.
The Directive attributes liability to the licensee (see recital 58, Articles 4 and 7) and requests
the  licensing  authority  to  take  into  account  the  financial  security  of  the  applicant  before
granting a license. However, given that the Directive has merely established a framework, the
specific rules in  each Member State, for example the assessment of the financial strength of
an applicant, depends on national legislation regarding the implementation of the Directive.
The  Directive  does  not  establish  procedures  for  dealing  with  financial  claims  under  civil
liability,  for  example,  regarding  polluted  property,  personal  injury,  or  economic  losses.
According to Article 4 (paragraph 3, point 4), “Member States shall, as a minimum, establish
procedures for ensuring prompt and adequate handling of compensation claims including in
respect  of  compensation  payments  for  trans-boundary  incidents.”  The  Directive  does  not
provide further details on how such rules should be designed, nor does it provide criteria for
examining  the  financial  security  of  the  licensee.  Member  States  set  these  rules  themselves
taking into account its culture on legislation and the particular regional situation.
The Directive contains further provisions on liability. It recalls “the party responsible should
always be clearly identifiable before offshore oil and gas operations are commenced” (recital
9).  It  also  clarifies  “that  holders  of  authorisations  for  offshore  oil  and  gas  operations
pursuant  to  Directive  94/22/EC49  are  also  the  liable  ‘operators’  within  the  meaning  of
Directive  2004/35/EC  of  the  European  Parliament  and  the  Council  of  21  April  2004  on
environmental  liability  with  regard  to  the  prevention  and  remedying  of  environmental
damage,  and  should  not  delegate  their  responsibilities  in  this  regard  to  third  parties
contracted by them” (recital 11).
The  Directive  requires  Member  States  to  ensure  that  their  respective  legal  systems  do  not
allow  the  exclusion  or  limitation  of  the  operator’s  duties  by  entrusting  the  performance  of
tasks (possibly leading to or contributing to major accidents) to other entities on a contractual
basis (Article 3(2)).

49 Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for
granting and using authorizations for the prospection, exploration and production of hydrocarbons, OJ L 164,
30.6.1994, p. 3–8.
53

Furthermore,  its  Article  4  (2  c)  on  “safety  and  environmental  considerations  relating  to
licenses” provides for that already in the phase of granting licenses the authority should take
into account “the applicant’s financial capabilities, including any financial security, to cover
liabilities potentially deriving from the offshore oil and gas operations in question including
liability for potential economic damages where such liability is provided for by national law”.
Article 4(3) of the Directive obliges Member States to require evidence of licensee’s technical
and  financial  capacity  for  effective  emergency  response  and  subsequent  remediation,  and  to
assess  provided  evidence.  It  also  requires  Member  States  to  facilitate  the  deployment  of
sustainable  financial  instruments  and  other  arrangements  to  assist  prospective  licensees  in
demonstrating  their  financial  capacity,  as  well  as  to  “establish  procedures  for  ensuring
prompt and adequate handling of compensation claims”.
Furthermore, the Directive’s Article 7 on “liability for environmental damage” underlines that
“Member  States  shall  ensure  that  the  licensee  is  financially  liable  for  the  prevention  and
remediation of environmental damage as defined in that Directive [ELD], caused by offshore
oil and gas operations carried out by, or on behalf of, the licensee or the operator.”.
The Directive sets only a frame for aspects as liability, financial security and the handling of
compensation  claims.  Furthermore,  it  requires  the  Commission  to  report  on  the  issue  of
liability.  The  Commission’s  report  published  in  2015  provides  an  assessment  of  the
effectiveness  of  the  liability  regimes  in  the  Union,  with  respect  to  the  damage  caused  by
offshore oil and gas operations50.

5.13.2
Commission report on liability, compensation and financial security
At  the  time  of  publication  of  the  requested  report  by  the  Commission,51  on  14  September
2015,  only  a  few  Member  States  had  implemented  the  Directive  into  national  law.
Accordingly, the Commission could neither draw final conclusions nor issue recommendation
on the potential follow up. Instead, its analysis found the following:

50 REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on
liability, compensation and financial security for offshore oil and gas operations pursuant to Article 39 of
Directive 2013/30/EU, COM/2015/0422 final
COMMISSION STAFF WORKING DOCUMENT Liability, Compensation and Financial Security for Offshore
Accidents in the European Economic Area Accompanying the document Report from the Commission to the
European Parliament and the Council on liability, compensation and financial security for offshore oil and gas
operations pursuant to Article 39 of Directive 2013/30/EU, SWD/2015/0167 final.
51 REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on
liability, compensation and financial security for offshore oil and gas operations pursuant to Article 39 of
Directive 2013/30/EU, COM/2015/0422 final
COMMISSION STAFF WORKING DOCUMENT Liability, Compensation and Financial Security for Offshore
Accidents in the European Economic Area Accompanying the document Report from the Commission to the
European Parliament and the Council on liability, compensation and financial security for offshore oil and gas
operations pursuant to Article 39 of Directive 2013/30/EU, SWD/2015/0167 final.
54

“Broadening liability provisions through EU legislation does not appear appropriate at this
point of time. In certain cases, the Brussels I52 and Rome II53 regulations prevent differences
in  national  regimes  from  disadvantaging  claimants  from  other  EU  Member  States.  In
addition,  some  Member  States  may  be  reappraising  their  existing  liability  regimes  for
offshore accidents in tandem with other changes introduced by the Directive.
However, the Commission will be able to conclude on the need for further steps by the time of
the Directive’s first implementation report. Notably the Commission can54:
• Continue to advance liability issues through structured EUOAG discussions;
• Focus on liability-related provisions in the Directive conformity checks; and
• Use EUOAG meetings for systematic data gathering covering all liability-related aspects of
newly transposed laws.
There  is  currently  a  lack  of  uptake  of  financial  security  instruments  to  fully  cover  the  more
infrequent  and  costly  offshore  accidents  in  the  EU.  In  addition,  there  are  just  two
compensation  mechanisms  currently  in  place  specifically  for  oil  and  gas  accidents  in  the
Focal States. However, provisions in the Directive should lead to significant improvements in
both of these areas.
Should  the  new  national  laws  not  improve  the  availability  of  financial  security  instruments
and  put  in  place  procedures  for  ensuring  prompt  and  adequate  handling  of  compensation
claims,  the  Commission  may  reassess  whether  and  what  further  EU  action  could  achieve
these objectives.
The Commission  encourages  Member States to  share their experiences on financial security
instruments, liability, compensation and criminal penalties…”
The Commission report concludes that “on the basis of this, the Commission should be well
placed to conclude on the need for further steps. The effects of the Directive, as implemented
by  Member  States,  will  show  in  the  coming  years  whether  it  is  appropriate  to  bring  certain
conduct  leading to  major  offshore accidents within  the scope of  criminal law for further re-
enforcing  offshore  safety.  When  appropriate,  the  Commission  will  put  forward  a  legislative
proposal.”
Taking into account the late transposition of the Directive by Member States, it is considered
that the report’s conclusions are still valid.

52 REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12
December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters, OJ of 20 December 2012, L 351, p. 1 – 32.
53 REGULATION (EC) No 864/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11
July 2007 on the law applicable to non-contractual obligations (Rome II), OJ of 31 July 2007, L 199, p. 40 – 49.
54 Commission services have dealt with all three work streams.
55

5.13.2.1 The European Parliament’s resolution on liability and compensation claims
In the  year following the Commission’s report on liability, the European Parliament carried
out an in-depth assessment on “Liability, compensation and financial security for offshore oil
and  gas  operations”  and  issued  a  resolution  on  this  subject  on  1  December  201655.
Specifically, with regard to liability, the European Parliament:
• “Calls on the Commission to assess the appropriateness of introducing further harmonised
rules on liability, compensation and financial security with a view to preventing any further
accidents with cross-border implications;” (page 159)
• “Regrets, in this context, that the Directive does not deal with liability for civil damage to
either  natural  or  legal  persons,  be  it  bodily  injury,  property  damage  or  economic  loss,
whether direct or indirect;” (page 160)
•  “Stresses  that  there  is  no  liability  in  many  of  the  Member  States  with  offshore  and  gas
activities for  most  third-party claims for  compensation for  traditional damage caused by an
accident;” (page 160)
• “Is of the opinion that strict civil liability rules should be established for offshore accidents
in order to facilitate access to justice for victims (both legal and natural persons) of offshore
accidents, as this can provide an incentive for the offshore operator to properly manage the
risks of operations; believes that liability caps should be avoided;” (page 160)
•  “Emphasises,  therefore,  that  it  is  of  the  utmost  importance  to  update  existing  liability
systems in the Member States in order to ensure that, should an incident occur in their waters,
it would not adversely affect the future of the offshore oil and gas operations of the state in
question, nor that of the EU as a whole were it to occur in an area that is largely dependent
on tourism for revenue.” (Page 161)
At  several  occasions,  the  Commission  has  discussed  questions  of  liability,  compensation
claims  and  financial  security  with  Member  States  in  the  European  Offshore  Authorities
Group,  also  in  the  context  of  the  European  Parliament’s  resolution.  At  the  same  time,  the
Commission  has  analysed  and  assessed  to  what  extent  and  depth  Member  States  have
strengthened  the  notion  of  “liability”  in  legislation  related  to  the  implementation  of  the
Directive.  Furthermore,  the  Commission  has  asked  Member  States  whether  horizontal
legislation would be effective and adequate in the absence of specific legislation for offshore
oil  and  gas  installations.  However,  the  variety  of  positions  and  the  incomplete  set  of
information  requires  further  analysis  before  conclusions  on  a  potential  follow-up  can  be
drawn.

55 Liability, compensation and financial security for offshore oil and gas operations European Parliament
resolution of 1 December 2016 on liability, compensation and financial security for offshore oil and gas
operations (2015/2352(INI)), OJ of 27 June 2018, C 224, p 157 – 162.
56

5.13.3
Diversity  of  rules  on  liability,  handling  of  compensation  claims,  and
financial security instruments in Member States’ jurisdictions
The  applicable  environmental  liability  regime  under  the  2004/35/EC  ELD  and  the  Offshore
Safety Directive (Article 7) is a strict liability system for all types of environmental damage if
caused by certain dangerous activities, among which are also offshore oil and gas operations.
As mentioned  above,  all Member States apply the same rules for environmental  liability,  as
established  by  Art.  7  of  the  Directive  (with  reference  to  the  definitions  of  the  ELD):
“…Member States shall ensure that the licensee is  financially liable for the prevention and
remediation of environmental damage as defined in that Directive, caused by offshore oil and
gas operations carried out by, or on behalf of, the licensee or the operator.”. In contrast, on
the matter of civil liability, rules and legislation reflect cultural and historical developments in
Member States and therefore vary considerably. Liability provisions may have a major impact
and potentially significant costs on different actors depending how arrangements are operating
in different jurisdictions.
With  regard  to  Member  States’  legislation,  it  is  important  to  distinguish  between  strict
liability and fault based (tort based) liability regimes following a major accident, including to
the  environment,  as  well  as  within  the  traditional  damage  category  of  ‘economic  losses
between  consequential  and  pure  economic  loss56.  Strict  liability  means  that  the  identified
liable  party  will  be  subject  to  liability,  e.g.  by  compensation  payments,  without  the  need  to
establish  fault  and  even  if  it  properly  applied  all  legal  obligations  and  expected  safety
measures.  In  contrast,  fault  based  liability  may  lead  to  a  financial  compensation  only  in  the
case of negligence or intent leading to the major accident.
Regarding  the  remediation  of  losses  arising  from  a  major  accident,  Member  States  have
different  rules on liability and compensation payments in place, which may lead to different
financial liabilities for the operators and owners of offshore installations.
Here is an overview of characteristics of applicable Member States’ legislation:
General framework:
  Effects  of  liability  provisions  may  act  offshore  specific  (i.e.  geography),  sector  specific
(i.e. industry) or as general rules (i.e. national generic provisions).
  Some Member States did not establish clear legislation on liability, leaving liability and
compensation determinations subject to the judgements of national courts.
Specific characteristics of liability and compensation are:
  Liability of the licensee as requested by the Directive at Article 7.

56 Member States’ legislation distinguishes between pure economic loss and consequential economic loss. Pure
economic loss occurs independent of any physical damage to the person or property of the victim. Hence,
liability for consequential economic loss is in general much wider accepted.

57

  Strict liability versus fault based liability: the majority of Member States operate a strict
liability regime, meaning that the identified liable party may be subject for compensation
payments,  even  if  it  applied  all  rules  and  safety  measures  (fault  or  culpa  is  not  a
condition), but caused nonetheless the damage.
  Some Member States operate fault-based liability, with the burden of proof for the fault
either on the defendant (that would normally be the operator/licensee) or the claimant.
  Beyond environmental liability established under Directive 2004/35/EC, in most Member
States,  further  to  compensation  for  bodily  injuries  and  property  damage  and  other
economic  loss,  an  entity  liable  for  an  accident  (in  the  offshore  sector,  normally  the
operator) shall also compensate for environmental pollution.
  In certain Member States, only bodily injuries and property damages qualify for financial
compensation.
In  summary,  the  liability  regimes  applicable  in  Member  States  vary  substantially,  and  each
Member State applies,  a mix of specific and general  provisions, some unique to  a particular
Member States.
According  to  Article  14  of  the  ELD  “Member  States  shall  take  measures  to  encourage  the
development of financial security instruments and markets by the appropriate economic and
financial  operators,  including  financial  mechanisms  in  case  of  insolvency,  with  the  aim  of
enabling  operators  to  use  financial  guarantees  to  cover  their  responsibilities  under  this
Directive.”.  Since  the  Directive  does  not  provide  additional  legislation,  Member  States  are
largely free to set rules on the acceptance of financial security instruments.

5.13.4
Implementation by Member States and the effectiveness of rules
Article 3(2) of the Directive aims at ensuring that legal systems of focal Member States do not
allow  the  exclusion  or  limitation  of  the  operator’s  duties  by  entrusting  the  performance  of
tasks  to  other  entities  on  a  contractual  basis.  Its  application  should  not  be  limited  to
organisational  aspects  of  offshore  oil  and  gas  operations,  but  should  be  also  reflected  in
liability regulations related to this type of industrial activity.
It should be noted that the legal systems of some Member States allow for the limitation of an
entity’s liability, obliged to take or refrain from a specific action, in case of an assignment of
this obligation to a contractor (culpa in eligendo). The usual prerequisites of such a limitation
are  the  professional  character  of  the  contractor  and  a  due  diligence  taken  by  the  assigning
entity  before  the  assignment.  Application  of  the  rule  in  question  may  lead  to  a  complete
transfer of a potential liability, arising from non-performance or improper performance of the
required task, from  the initially obliged entity to  its contractor.  If applied to  the relationship
between the licensee and any of its contractors, the said rule would limit, at least partially, the
liability  of  the  former  and  transfer  it  to  the  latter  (i.e.  an  entity  usually  of  a  lower  financial
capacity than the licensee), possibly stopping potential claims from being fully satisfied. Such
a  result  would  contradict  the  basic  principles  of  the  Directive.  Thus  Article  3(2)  should  be
implemented  by  the  Member  States  by  putting  into  effect,  if  necessary,  regulations  not
allowing for the licensee’s liability to be limited in case of contracting of certain obligations,
arising  from  offshore  oil  and  gas  operations,  to  a  third  party.  Several  Member  States  have
58

amended  the  rules  existing  in  their  respective  legal  systems  to  comply  with  the  Directive’s
provisions.
It should be added that the accepted protocol in the offshore sector, upheld in all commercial
legal  instruments  used  in  the  offshore  sector  (usually  English  or  US  commercial  law
provisions),  is  that  the  operator  is  liable  for  all  financial  damages  from  accidents  involving
subsurface substances. This protocol has been thoroughly tested right up to the present time as
operator  BP  has  unsuccessfully  pursued  its  contractors  for  a  contribution  to  the  financial
liabilities arising from the Deep Waster Horizon (Macondo) disaster in the Gulf of Mexico57.
Member  States  had  difficulties  demonstrating  adequate  implementation  of  Article  4  of  the
Directive,  which  includes  provisions  on  safety  and  environmental  considerations  relating  to
licenses,  specifically  basic  provisions  on  liability,  compensation  claims  and  the  financial
capabilities of applicants for a license. However, Member States’ existing horizontal national
legislation frequently provides for the principles of Article 4. In certain Member States where
this  is  not  the  case,  jurisprudence  by  the  national  courts  may  ensure  that  Article  4  is  in
principal  applied.  Where  Member  States  do  not  have  adequate  provisions  in  place,  the
Commission follows up this issue.
Under  Article  4(3)  of  the  Directive,  Member  States  “shall,  as  a  minimum,  establish
procedures for ensuring prompt and adequate handling of compensation claims including in
respect of compensation payments for trans- boundary incidents.” At the current stage, due to
the absence of major accidents involving considerable damage, the Commission cannot fully
assess the effectiveness of the implementation of this part of Article 4.
It  has  been  noted,  however,  that  the  approach  to  this  implementation  varies  significantly.
Many  Member  States  did  not  amend  their  legislation  to  comply  with  the  Directive’s
provisions,  considering  that  legal  frameworks  ruling  on  compensation  schemes  in  their
respective systems are sufficient to handle any compensation claim arising from offshore oil
and  gas  operations.  Other  Member  States  have  foreseen  some  amendments  leading  to,  inter
alia, prioritisation of enforcement of such claims or imposition on licensees of an obligation to
set up internal handling procedures applicable to claims arising from offshore incidents.
Prompt handling of compensation claims depends significantly on the efficiency of particular
legal systems, especially expressed in the average length of proceedings58. In Member States
where  civil  courts  have  jurisdiction  to  handle  claims  arising  from  offshore  oil  and  gas
operations, and where resolving civil cases takes particularly long, ensuring prompt handling
of  compensation  claims  may  prove  especially  challenging.  Putting  in  place  specific  rules
might  help  Member  States  to  ensure  that  the  compensation  claims  covered  by  the  Directive
are handled within a reasonable timeframe.

57 See: https://www.govinfo.gov/content/pkg/GPO-OILCOMMISSION/pdf/GPO-OILCOMMISSION.pdf
58 See: The 2018 EU Justice Scoreboard - Communication from the Commission to the European Parliament, the
Council, the European Central Bank, the European Economic and Social Committee and the Committee of the
Regions COM(2018) 364 final.
59

For example, in the UK any affected party needs to file the claim in line with national rules
and legislation (e.g. to an authority, an intermediary or a specialised compensation scheme). If
the claim is valid and the financial compensation attributed, the liability party shall settle the
claim. The competent authority requires the liable licensee to take the necessary preventive or
remedial  action to  restore the baseline condition  of the damaged natural  resources  (clean-up
and primary, complementary, or compensatory remediation) and to bear the full liability.
It  remains  a  political  decision  whether  to  consider  additional  or  reinforced  EU-wide
harmonisation measures, targeting both the environmental and civil liability regimes.
According  to  the  Directive,  when  assessing  the  technical  and  financial  capability,  including
any  financial  security,  of  the  applicant  for  a  license,  due  account  should  be  taken  of  the
applicants financial capabilities to cover liabilities deriving from offshore operations (Article
4(2)c). Liabilities apply both for environmental pollution and potential economic liability for
economic  damages  where  such  liability  is  provided  by  national  law.  However,  despite  the
importance  of  this  provision,  from  a  total  of  16  Member  States  with  exploration  or
production, 8 did not fully or not correctly implement paragraph 2 of this Article.
According to Article 4, paragraph 3, Member States shall ensure that the licensing authority
does  not  grant  a  licence  unless  it  is  satisfied  with  evidence  from  the  applicant  that  the
applicant  has  made or will  make adequate provision,  to  cover liabilities. Six Member States
did not adequately transpose this part of the Directive.
In  the  EU  so  far,  enterprises  have  covered  costs  from  accidents  with  their  financial  means.
However,  even  the  largest  enterprise  may  face  difficulties  to  deal  with  accident  costs  at  the
scale of the Deepwater Horizon case.
Since  Member  States  had  to  report  accidents  to  the  Commission  (from  2016),  no  major
accidents  incurring  serious  pollution  or  damage  have  occurred.  As  a  result  neither  practical
experiences nor examples regarding the appropriateness of operators/owners financial means
for the effective handling of large scale and numerous compensation claims are available for
recent years.

5.13.5
The Oil Pollution Liability Agreement (OPOL)
The Atlantic region’s Member States are members of the Oil Pollution Liability Agreement.
This system is operated by a not-for-profit management group, and provides a financial safety
net  wherein  members indemnify a liability where the liable entity defaults  on their financial
responsibility.
License-holders  active  on  the  UK  Continental  Shelf  are  party  to  the  OPOL,  as  are
licensee/operators of offshore facilities located in the territorial waters of Denmark, Germany,
France, Ireland, the Netherlands, and Norway (essentially the Atlantic/OSPAR region).
Under the OPOL Agreement (dated 4 September 1974, as subsequently amended), operating
companies agree to accept liability for pollution damage and the cost of remedial measures up
60

to a maximum of US$250 million per incident, with only certain exceptions. Within this limit
there may also  be included the cost  of remedial measures undertaken by  the party to  OPOL
involved in the incident.
The parties must demonstrate:
  Financial  responsibility  to  meet  claims  arising  under  OPOL  safety  net  (i.e.  qualifying
incidents)  by  producing  evidence  of  insurance  from  insurers  with  the  financial  credit
strength rating required by the OPOL rules, and/or,
  Guarantees from companies with acceptable financial or credit strength rating required by
the rules and/or,
  By  demonstrating  with  acceptable  evidence  that  they  qualify  as  a  self-insurer  that  also
meets the financial or credit strength rating required by the rules.
They also jointly agree that in the event of a default by one of the parties, each will contribute
proportionally to meet claims.
The  responsibility  for  meeting  claims  under  OPOL  rests  solely  with  the  operator.  As  in  all
joint  ventures,  the  operator  may  wish  to  make  its  own  arrangements  as  to  financial
responsibility with other participants (known as non-operators) in a venture, but these will not
involve a submission to or scrutiny by OPOL of any financial documentation concerning non-
operators.
OPOL initially applied to offshore installations within the jurisdiction of the UK. Membership
is  a  prequalification  item  for  application  for  a  license  and  must  be  maintained  in  order  to
continue  to  hold  a  license.  The  OPOL  system  was  later  extended  to  apply  to  offshore
installations within the jurisdiction of other countries as well, although only the UK requires
OPOL membership as a license condition.
To sum up, the OPOL system is set up to:
  Provide an orderly means for the expeditious settlement of claims arising out of an escape
or discharge of oil from offshore exploration and production operations;
  Stimulate immediate remedial action by the parties;
  Ensure the financial responsibility of the parties to meet their obligations;
  Provide a mechanism for ensuring that claims are met up to the maximum liability under
OPOL;
  Avoid complicated jurisdictional problems.
Under the OPOL system, each operator agrees that it will reimburse the public authorities the
costs of remedial damage and pay compensation to third parties for pollution damage arising
from  a  discharge  of  oil  from  offshore  facilities  up  to  an  aggregate  maximum  of  US$  250
million per incident.
OPOL members must submit  evidence of  financial  responsibility for their offshore  facilities
throughout the period of their membership. This must be for an amount not less than US$250
61

million  per  incident  and  US$500  million  in  the  annual  aggregate.  Should  a  member’s
financial  status  alter  such  that  it  cannot  meet  its  obligations  under  the  Rules,  the  entity’s
OPOL  membership  will  be  suspended.  In  the  UK  suspension  of  OPOL  membership  would
automatically suspend the license holding.
The arrangements for monitoring and enforcement under the rules are robust.  In the 45  year
history  of  OPOL,  during  which  operators  and  owners  have  dealt  with  the  cost  of  major
accidents, OPOL members have never been called upon to indemnify a loss where the liable
entity cannot meet its obligations.

5.13.6
Financial security
In industry’s estimation, several Member States have brought into effect robust and workable
financial  responsibility  requirements,  specifically  to  implement  Article  4.  For  example,  the
2018 publication “Liability Provision Guidelines for Offshore Petroleum Operations” by Oil
& Gas UK.
The  UK  licensing  authority  (the  Oil  and  Gas  Authority,  OGA)  has  adopted  guidance  first
brought  into  effect  by  the  UK  trade  body  (Oil  and  Gas  UK),  a  model  code  of  practice  to
comply with the Directive, specifically Member States obligation to grant a license pursuant
to  Article  4(3).  This  has  attracted  wider  interest  as  a  generic  good  practice  guide  for  other
jurisdictions, including third countries.
The  Guidelines  (which  have  been  adopted  by  the  UK  government  as  a  suitable  code  of
practice  for  both  the  licensing  authority  and  the  applicants  for  licenses)  encapsulate  a
straightforward process to determine the level of financial responsibility to be maintained by
licensees  for  their  operations.  The  objective  is  to  cover  all  foreseeable  costs,  including:
bringing  a  well  under  control,  clean-up,  and  potential  third-party  compensation.  It  uses
information which must in any case be prepared as part of the IERP59.
The guidelines identify the type of financial instruments necessary to satisfy the required level
of capacity acceptable to the regulator, as well as the means of verification of security by the
licensing authority.
In the UK, licensees can use different forms of financial instruments to demonstrate financial
responsibility. The level of financial responsibility is based on the results of an oil spill cost
modelling  performed  by  an  external  consultant.  The  modelling  uses  a  range  of  inputs  to
determine  the  level  of  exposure  and  subsequent  financial  responsibility.  These  include:
reservoir characteristics,  well fluids,  potential direct  loss or damage suffered by users of the
polluted sea areas, as well as the length of coastline impacted and the estimated volume of oil
that may land on the shoreline and associated clean up and remediation costs thereof.

59 In the North Sea region the IERP is historically called the Oil Pollution Emergency Plan or OPEP.
62

The  UK  model  might  help  other  Member  States  shape  financial  responsibility  requirements
adequate  for  their  environment.  It  is  indeed  possible  that  adequate  requirements  can  be
stipulated  and  implemented  at  the  level  of  each  Member  State;  however  each  jurisdiction
would be required to identify their specific criteria.

5.13.7
Conclusions
Several  Member  States  did  not  fully  implement  the  provisions  of  the  Directive  on  liability,
handling  of  compensation  claims  and  financial  security  of  the  licensee.  However,  in  certain
Member  States,  existing  horizontal  laws  and  case  law  may  nevertheless  include  adequate
provisions.  For  clearer  conclusions  an  in-depth  assessment  of  Member  States  legislation,
specifically their civil  code, may provide more detailed information.  Such an assessment, to
be carried out on an individual basis, should take into account data concerning the efficiency
of  national  justice  systems.  This  assessment  would  aim  to  identify  whether  significant
differences  in  the  scope  of  liability,  effectiveness,  and  length  of  court  proceedings  can  be
identified and what consequences these have.
Views from the industrial associations clearly express satisfaction with the current situation of
legislation applicable in this context whereas NGOs and the very few citizens who took part
in the public consultation, express concerns and propose looking more closely at the option of
a European approach (details please seen in the annex, part VII). This is partly in line with the
above mentioned resolution of the European Parliament.
The OPOL may serve as an example of how to deal with liabilities going beyond the financial
means of the licensee liable for damages, although it has never been used in practice. Clearly,
the  contribution  of  OPOL  is  limited  (at  $250m)  to  cover  the  most  likely  major  accident
scenarios in the region but would not be able to cover the extreme major accidents. The UK
has  produced  guidance  for  industry  and  regulators  on  how  to  comply  with  Article  4  of  the
Directive,  providing  mechanisms  for  determining  liability  based  upon  risk  (i.e.  the  severity
levels  of  geographical  locations),  and  for  verifying  financial  guarantees  of  license  holders.
This  has  been  put  into  effect  by  the  UK  licensing  authority  and  may  serve  as  a  model
elsewhere.
Due to the short period of time since the Directive has been implemented and applied for all
installations,  there  is  a  lack  of  practical  experience.  No  major  accident  leading  to  major
damages  has  been  reported  in  the  last  decade.  Therefore,  it  is  difficult  to  draw  clear
conclusions as to the Directive’s effectiveness now.
Should, however, a major accident occur, the statutory provisions on liability, the handling of
compensation claims, and the financial status of the liable party are of major significance for
the Member States, the license holder, entities sustaining consequential loss, and citizens. Due
to  the  low  level  of  specificity  in  this  area  of  the  Directive,  and  often  not  fully  consistent
implementation of the relevant parts of the Directive across Member States, national rules and
procedures differ. Member States adopt systems in line with their culture and specific regional
63

situation. Although the channelling of liability to the licensee by the Directive provides a high
added-value, the Directive contributes only by setting some basic aims for a broader detailed
framework  of  legislation  on  compensation  and  financial  security  that  exists  to  a  greater  or
lesser  extent  in  each  Member  State.  In  Member  States  where  operators  and  owners  are  not
subject  to  a  strict  liability  regime,  meaning  that  they  were  liable  only  if  negligence  was
proved, substantial costs caused by accidents may remain with taxpayers and other parties.

5.14
Special  theme:  Criminal  sanctions  to  breaches  of  duty  to  safeguard  the
environment from major accidents
Introduction
With  regard  to  the  Offshore  Safety  Directive  the  Commission  addressed  this  matter  in  its
2015 report to the Parliament and Council60 and concluded:
“It  is  therefore  too  early  at  present  to  assess  whether  penalties  to  be  devised  by  Member
States  in  the  context  of  the  OSD  transposition  and  subsequent  implementation  will  provide
sufficient deterrence consistently across the EU, or whether EU criminal penalties would be
essential to ensure the fully effective safety of offshore operations”.
The ECD contains obligations for Member States to establish certain environmental offences
as criminal  offences,  if  committed intentionally or with  serious  negligence. To some  extent,
the Directive harmonises sanctions, as it requires that natural persons are subject to criminal
sanctions  that  are  effective,  proportionate,  and  dissuasive.  In  relation  to  legal  persons,  the
Directive does not require criminal sanctions.
Under the ECD, Member States must attach criminal sanctions to certain acts that cause or are
likely to cause death or serious injury, or substantial damage to the quality of air, the quality
of  soil,  the  quality  of  water,  or  to  animals  or  plants.  However,  those  acts  are  only  to  be
criminalised when certain acts of EU legislation that are listed in the Annexes of the ECD are
infringed.  The  criminalised  acts  include,  the  illegal  discharge  of  hazardous  substances  into
surface water (if it causes or is likely to cause death or injury to persons or significant damage
to  the  environment),  the  illegal  shipment  of  waste  from  the  European  Union  (only  if  a
significant quantity of waste is involved and if there is a clear intention to make a profit out of
it),  and  the  illegal  export  of  ozone  depleting  substances  to  developing  countries.  However,
activities covered by the Offshore Safety Directive are not included.
The current situation in the EU
As reflected in Article 39(3) of the Directive, this lack of application prompts considerations
about  the  implication  of  not  having  certain  conduct,  leading  to  offshore  accidents  under  the
scope  of  criminal  law  through  EU  legislation.  While  criminal  liability  for  offshore  safety

60 COM (2015) 422 final dated 14 September 2015.
64

breaches would not directly affect the remediation of damage caused, in theory it may add a
separate layer of deterrence beyond environmental civil and administrative liability.
Offshore safety breaches already fall under the criminal  code of some focal  Member States.
For example, the laws of both the UK and Denmark contain provisions criminalising certain
compliance  failures61.  However,  neither  the  definition  of  the  criminal  offences,  nor  the
minimum  type  and  level  of  sanctions  are  harmonized  in  the  EU.  There  are  strict  legal
preconditions that must be fulfilled before considering whether to criminalise offshore safety
breaches  through  EU  legislation.  Article  83(2)  of  the  Treaty  on  the  Functioning  of  the
European  Union  establishes  the  legal  basis  for  creating  minimum  rules  to  define  criminal
offences and sanctions in a particular EU policy area. This expressly enables EU legislators to
adopt: "minimum rules with regard to the definition of criminal offences and sanctions in the
area concerned" if this "proves essential to ensure effective implementation of a Union policy
in an area which has been subject to harmonisation measures".
The adoption of EU criminal law measures is therefore subject to the assessment of whether
they  are  "essential"  to  achieving  effective  policy  implementation.  As  such,  the  decision  to
include breaches of the Directive under the scope of criminal law can only follow a thorough
necessity  and  proportionality  test  on  whether  criminal  law  measures  would  be  essential  to
achieve the stated objective. This cannot be done before more experience with the Directive’s
effectiveness has been gained62. The Commission is currently doing an ex-post assessment of
the  ECD,  with  a  view  to  establish  whether  the  Directive  has  achieved  its  objectives  to
contribute to better protection of the environment. The assessment started in 2019 and will be
concluded  in  the  first  half  of  2020.  It  will  assess  results  for  the  time  the Directive  has  been
applicable  (2011  to  2018)  and  from  all  Member  States.  The  focus  will  be  on  waste  and
wildlife crimes, as these are the areas that Member States are most concerned with, and where
most data and information exists in the public domain.
Considering  major  polluting  offshore  disasters,  the  offshore  petroleum  industry  has  the
potential to cause more damage than any other maritime activity to the waters of the EU and
its coastline. The NGO’s have argued strongly for criminalisation of behaviour that recklessly
or  negligently  causes  a  major  accident  as  defined  by  the  Directive.  In  this  context  the
Commission received a statement by the NGO Consortium:
“In the 2015 Commission report on liability [i.e. the original to this report – COM(2015)422
final,  it  was  stressed  that  it  is  important  that  the  Commission  returns  to  the  subject  of
criminalisation  in  the  Directive  assessment.  The  undersigned  organisations  hold  that  spills
caused by serious negligence should be criminalised by adding  major offshore accidents to
the Environmental Crime Directive. As held in the abovementioned 2015 Commission report,
criminalisation  could  add  a  separate  layer  of  deterrence  beyond  civil  and  environmental

61 SWD(2015) 167 final ANNEX II.
62 Communication from the Commission: Towards an EU Criminal Policy: Ensuring the Effective
Implementation of EU Policies through Criminal Law ', 20 September 2011, COM (2011) 573,
available at http://ec.europa.eu/justice/criminal/files/act_en.pdf.
65

liability, which could improve the protection of the environment and compliance with offshore
safety legislation.
It is to highlight that impunity for environmental crimes seriously undermines environmental
protection.  With  the  financial  muscles  of  some  of  the  major  oil  companies,  liability  with  its
financial consequences is not always enough of a deterrent. A separate layer is needed, and
we ask that this is ensured at this juncture.”
Conclusions
Article  39  of  the  Directive  requires  the  Commission  to  examine  the  appropriateness  of
bringing  certain  conduct  leading  to  a  major  accident  within  the  scope  of  the  ECD.  At  this
point  in  time,  there  has  been  numerous  discussions  with  competent  authorities  under  the
auspices of the EUOAG. There has also been public consultation on the subject.
Synthesising  the  majority  of  inputs  gives  the  perspective  that,  in  the  absence  of  major
accidents  and  concomitant  enforcement  activity  in  the  EU,  it  remains  too  early  to  properly
assess whether EU criminal law measures would be essential for achieving effective levels of
offshore safety in the Union. In order to conclude whether certain conduct leading to a major
accident should be brought  under the scope of the ECD, more experience with  the Offshore
Safety Directive’s effectiveness would need to be gained.
The Commission will continue to exchange views with Member States on this issue.

5.15
Special  theme:  Post-decommissioning  responsibility  for  ensuring  permanent
sealing of wells, and for determining extent of removal of fixed installations

5.15.1
Overview
As  the  North  Sea  Member  States  and  Italy  approach  a  new  era  of  major  decommissioning
projects,  there  is  heightened  societal  awareness  and  anxiety  for  the  integrity  of  the
decommissioning  operations.  It  is  to  assess  whether  there  are  gaps  in  the  machinery  of
existing  requirements  and  standardisation  addressing  the  extent  of  removal  and  how  far  the
Directive provides rules for the installations’ end of life cycle.
The Directive does not provide definitions of the terms “decommissioning”, “abandonment”
and “removal”. To fully understand potential environmental implications of the end of the life
cycle of an installation we summarize the common understanding of these terms:
  Decommissioning involves the safe plugging of the hole in the seabed and disposal of the
equipment used in offshore oil production.
  An abandoned well is a well that is plugged in permanently due to some technical reasons
in the drilling process. An oil well is referred to as abandoned if the economic limit of the
well is reached. Thereafter, the tubing of the well should be removed and sections of the
wellbore filled with concrete.
66

  Removing  installations  means  first  that  the  topsides  are  taken  apart  and  lifted  onto  the
derrick  barge.  Topsides  can  be  removed  all  in  one  piece,  in  groups  of  modules,  reverse
order of installation, or in small pieces. Removing supporting structures is the second step
in the demolition process and the most costly. First, divers using explosives, mechanical
means,  torches,  or  abrasive  technology  make  the  bottom  cuts  on  the  piles  15  feet  below
the mudline. Then the jacket is removed either in small pieces or as a single lift. 63.
Alternatively, there is the possibility to reuse the platform or leave the cement structure in the
sea as an artificial reef.
Decommissioning activities can be explained in four fundamental stages:
  The permanent sealing of the wells;
  The  removal  (and  treatment)  of  any  hazardous  substances  and  waste  including  drilling
cuttings;
  The removal (and recycling or reuse) of the installation's structure and equipment; and;
  The future monitoring and maintenance of the decommissioned site.
Permanent well sealing is addressed directly under the Directive (Annex I, point 6 (4a)) and is
discussed in detail below.
To avoid long term pollution, the removal of all hazardous substances (as such or in waste) is
to  be  expected:  for  example  chemicals  stored  in  tanks,  petroleum  sludge  and  petroleum
mixtures  in  the  closed  drain  system  and  storage  cells,  toxic  and  irradiating  materials  and
deposits  such  as  barium  sulphate  (low  specific  activity  material  which  is  found  in  some
formation fluids) and the contents of pipelines connected to the installation.
Following  clean-up,  the  installation's  structure  and  components  would  be  expected  to  be
removed  and  the  recovered  components  would  ideally  be  reused  or  recycled  onshore.  As  a
general perspective, all structures would be removed to several meters below the sea floor. In
addition, here the issue of partial removal is entered, for example where
  Sections may be too heavy for current lifting technology or capacity;
  Too  dangerous  to  be  safely  lifted  such  as  very  large  concrete  structures  and  structural
footings;
  Parts of the installations were installed with the intention to remain in place.
Once  removal  is  completed,  with  the  end  of  the  installation’s  life  cycle,  it  becomes  unclear
whether the Directive ceases to have effect or whether it requires liable owners of the former
installation to carry out further monitoring of potential leaks.
In  the  event  that  certain  parts  of  the  original  structure  remain  in  place,  maintenance  of  the
remaining structure is necessary to ensure the relict does not pose a risk for navigation and to
the environment. In practice this means that monitoring is required to assure ongoing integrity
and to deal adequately with environmental impacts, governed under, inter alia, the conditions
of the license following relinquishment.

63 https://petrowiki.org/Offshore_decommissioning.
67

5.15.2
Provisions of the Directive on the decommissioning of installations
Since  the  Directive  covers  the  whole  life  cycle  of  an  installation  it  applies  also  to  the
decommissioning phase, both  to  safety  and  environmental  aspects  that are directly linked to
potential incidents from decommissioning.  However, once the decommissioning is finished,
it does not address future environmental concerns.
Furthermore, other legislation as for example the amended EIA Directive applies, which if the
requirements of Art. 2(1) thereof are met, covers the whole life cycle of the project, including
the  demolition  phase.  Authorities  are  required  to  take  all  relevant  legislation  into  account
prior to the issuance of a license.
Subsequent  to  the  interest  in  the  permanent  sealing  of  wells,  public  interest  has  arisen
concerning the extent of removal of fixed production installations. In such an eventuality, it is
determined by the Member States that the physical circumstances of fixture are such that it is
justified  to  leave  some  (possibly  most)  of  the  installation  in  situ.  This  eventuality  is  not
addressed in the Directive, nonetheless according to the public consultation there is significant
interest in the matter due to its potential implications for the environment and navigation.
The legal provisions of the Directive apply to the decommissioning of an installation as part
of  a  platform’s  lifecycle.  According  to  the  Directive,  the  offshore  safety  regime  covers  the
whole lifecycle of exploration and production activities from design to decommissioning and
permanent abandonment (recital 24). It uses the term “decommissioning” in the definition of
“offshore  oil  and  gas  operations”  which  are  defined  as:  “all  activities  associated  with  an
installation  or  connected  infrastructure,  including  design,  planning,  construction,  operation
and  decommissioning  thereof,  relating  to  exploration  and  production  of  oil  or  gas,  but
excluding conveyance of oil and gas from one coast to another.” (Article 2(3)).
In order to obtain authorisation for exploring or producing oil and gas offshore, the licensee
should  submit  a  major  hazard  report  to  the  relevant  competent  authority  and  request  the
report’s approval (Articles 12 and 13).
According  to  Annex  III  of  the  Directive  on  “provisions  relating  to  the  appointment  and
functioning of the competent authority”, in undertaking a thorough assessment of reports on
major  hazards,  the  competent  authority  should  ensure  that  certain  conditions  are  met.    The
risk  management  has  to  take  into  consideration  all  relevant  stages  in  the  lifecycle  of  the
installation  and  anticipate  all  foreseeable  situations,  including  how  the  decommissioning  of
the  installation  will  be  undertaken  (Annex  III,  point  3  v).  Accordingly,  the  Competent
Authority  should  assess  the  plan  for  decommissioning  before  it  grants  an  authorisation  for
starting oil and gas production.
Furthermore, in the event of a material change or dismantling of an installation, the licensee is
obliged to prepare an amended report on major hazards for the Competent Authority (Article
12(5)). The Member States should ensure that the planned modifications are not brought into
use  nor  any  dismantlement  commenced  until  the  Competent  Authority  has  accepted  the
68

amended  report  on  major  hazards  for  the  production  installation  (Article  12(6)).  The  same
provisions apply for non-production installations (Article 13(4) and 5)).
For taking a fixed production installation out of use, the amended major hazard report should
at least include “a description of major hazard risks associated with the decommissioning of
the  installation  to  workers  and  the  environment,  the  total  exposed  population,  and  the  risk
control measures” (Annex I Directive, point 6.4 b). Future environmental hazards associated
with decommissioning should thus be taken into account.
As  a  consequence,  the  decommissioning  is  subject  to  the  approval  of  Member  States’
Competent  Authorities,  which  may  require  measures  and  procedures  to  ensure  a  safe
decommissioning.  For  example,  the  operator  or  owner  of  an  installation  should  submit  a
description  of  major  hazard  risks  associated  with  the  decommissioning  of  the  installation  to
the authorities (Annex I, point 6). In contrast, the Directive does not stipulate whether, to what
extent and how the operator/owner should remove the platform.

5.15.3
The requirements for extent of removal of fixed production installations

5.15.3.1 The Offshore Safety Directive
The RoMH as accepted by the Member States’ competent authority is only valid provided that
the circumstances on which it was based remain unchanged. Where there is a material change,
the  RoMH  is  to  be  amended  by  the  licensee/operator  or  owner  (Article  12  (5)  of  the
Directive). The intended changes may not  be put into effect until the RoMH is submitted to
and accepted by the competent authority.
Accordingly, for decommissioning any production installation, under the requirements in the
Directive,  licensees/operators  must  prepare  an  amended  RoMH  addressing  the  planned
decommissioning  of  fixed  production  installations  on  the  basis  of  risk  of  a  major  accident
occurring  as  a  result  of  the  decommissioning  operations.  Significant  damage  to  the
environment that may arise as a result of a major accident during decommissioning operations
and as a consequence of decommissioning must also be taken into account in the RoMH.
An amended RoMH for the decommissioning of a production installation does not determine
the  extent  of  removal  of  the  installation.  It  should  demonstrate  that  the  risks  of  a  major
accident  from  the  decommissioning  phase  as  planned  by  the  licensee  and  agreed  with  the
Member  States’  licensing  authority  are  ALARP64.  Nevertheless,  risks  assessments  and
measures for management of risks could influence the extent of removal.
Considering  the  above,  it  becomes  clear  that  the  risk-based  mechanisms  required  under  the
Directive  do  not  pre-determine  the  extent  of  removal  of  a  fixed  production  installation.
Instead,  it  is  a  mechanism  for  assurance  that  the  risks  of  a  major  accident  from  the
decommissioning  of  the  installation  (including  the  extent  of  the  planned  removal)  are
controlled ALARP.

64 For the definition please refer to http://www.hse.gov.uk/risk/theory/alarpglance.htm.
69

The Directive leaves the primary responsibility at the licensee/the operator. If under national
law  the  competent  authority  was  authorised  to  determine  the  extent  of  removal,  the
responsibility would be shared between the licensee and the competent authority.

5.15.3.2 Other EU law
In general, there is no specific EU legislation regulating the extent of removal of installations
during decommissioning. Removal is, subject to achieving certain conditions (specifically the
obligation  to  achieve  good  environmental  status  under  the  Marine  Strategy  Framework
Directive) a matter of national policy.
The Marine Strategy Framework Directive (MFD) identifies offshore installations as a human
activity  affecting  the  marine  environment  (Annex  III  as  revised  through  Directive
2017/845/EU65).  More  particularly,  the  main  pressures  on  the  marine  environment  from  oil
and  gas  activities  include  operational  and  accidental  discharges  of  chemicals,  crude  oil  and
produced  water  but  also  underwater  noise,  marine  litter  including  micro  plastics  and  the
drilling and placement of installations and pipelines on the seabed. For decommissioning, this
concerns in particular the contamination of leakage from plugged wells, and disintegration of
abandoned installations. As a result, the impacts of oil and gas activities and in particular of
decommissioning  on  the  marine  environment,  are  both  the  responsibility  and  obligation  of
Member States.
Abandoned offshore installations that are anchored onto the seabed are not within the scope of
the  Waste  Framework  Directive  (WFD)66,  given  that  Art  2(1)  (b)  excludes  buildings
permanently  connected  with  land.  The  notion  of  “land”  in  this  context  covering  also  the
seabed. However, movable property that the holder discards or intends/ is required to discard,
such  as  the  contents  of  storage  cells  and  drilling  cuttings,  could  be  subject  to  the  WFD.
Moreover,  given  the  nature  of  the  contents  of  such  storage  cells  (oil  and  oily  water  and
residues) these often can be classified as hazardous waste.
The Ship Recycling Regulation67 addresses floating offshore installations and requires they be
dismantled  in  EU-listed  yards  if  they  are  flagged  to  an  EU  Member  State.  This  is  a  legal
obligation since 2019, resulting from the full entry into force of the Regulation.
The  Environmental  Impact  Assessment  Directive  (EIA)68  applies  to  the  whole  project,
including  its  dismantling.  For  projects  after  May  2017,  it  requires  the  application  of

65 Commission Directive (EU) 2017/845 of 17 May 2017 amending Directive 2008/56/EC of the European
Parliament and of the Council as regards the indicative lists of elements to be taken into account for the
preparation of marine strategies, OJ L 125, 18.5.2017, p. 27–33.
66 Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018 amending Directive
2008/98/EC on waste, OJ L 150, 14.6.2018, p. 109–140;
Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and
repealing certain Directives, OJ L 312, 22.11.2008, p. 3–30
67 Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship
recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC, OJ L 330, 10.12.2013, p. 1–
20.
70

monitoring  measures  for  projects  with  significant  adverse  effects,  applying  therefore  to
decommissioning  sites,  the  question  here  being  raised  whether  decommissioning  should  be
considered as a new project, to which this provision applies, or as part of the original project
(in which case this requirement would not apply).
Other environmental directives also apply to decommissioning offshore installations including
the  Environmental  Liability  Directive.  This  Directive  addresses  the  licensee’s  sole  liability,
and  obliges  them  to  prevent  damage  in  case  of  imminent  threat  (and  remedy  damage  if  it
occurred already).  The Birds and Habitats Directive69, mandates a step-by step assessment of
plans and projects (including decommissioning of sites) for their effect on Natura 200070 sites,
and  compatibility  with  a  favourable  conservation  status  of  habitats  and  species.  In  relevant
circumstances,  also  the  Strategic  Environmental  Assessment  Directive71  and  the  Maritime
Spatial Planning Directives72 apply.

5.15.3.3 International policies
All  European  governments’  policies  for  the  extent  of  removal  are  in  alignment  with
international conventions. These conventions and public expectation call for total removal of
decommissioned installations as the default condition.
Not  all  international  conventions,  which  are  further  summarized  below,  are  ratified  or
equitably enforced throughout the EU. Of the EU Member States’, with offshore oil and gas
activities  in  their  jurisdiction,  Denmark,  Germany,  Spain,  France,  Ireland,  the  Netherlands,
and  Portugal,    are  contracting  parties  to  the  OSPAR  Convention73.  Germany,  Denmark,  and
Poland  are  contracting  parties  to  the  Helsinki  Convention;  only  Croatia  and  Cyprus  have
ratified individually the Offshore Protocol to the Barcelona Convention, covering all coastal
states in the Mediterranean area, EU and third countries. However, by virtue of ratification by
the EU of this protocol, all Member States are legally bound.
Under the relevant  regional  seas  convention of the Member States, which specifically target
the protection of the marine environment, the protocol of decommissioning methods presumes
total  removal  of  the  installation  and  restoration  of  the  sea  bed  and  water  column.  But  more
explicitly,  the  goals  are  the  protection  of  navigation  and  other  economic  activity  in  parallel
with  protection  of  the  marine  environment.  These  are  matters  of  policy  pertaining  to  the

68 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive
2011/92/EU on the assessment of the effects of certain public and private projects on the environment, OJ L 124,
25.4.2014, p. 1–18.
69 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the
conservation of wild birds, OJ L 20, 26.1.2010, p. 7–25.
70 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and
flora, OJ L 206, 22.7.1992, p. 7–50.
71 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the
effects of certain plans and programmes on the environment, OJ L 197, 21.7.2001, p. 30–37.
72 Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a
framework for maritime spatial planning, OJ L 257, 28.8.2014, p. 135–145.
73 The UK is also a contracting party of OSPAR.
71

restoration of the environment at the end of an episode of industrial use, and not an outcome
of case-by-case risk assessment.
Concerning  the  alignment  of  national  policy  with  international  conventions,  the  OSPAR
convention  and  IMO  guidelines  include  provisions  for  the  post-decommissioning  phase  on
monitoring. However, obligations under various instruments in the EU environmental acquis
apply  to  post  decommissioning,  and  indeed  to  matters  that  bear  on  Member  States’  policy
regarding the extent of decommissioning or removal of fixed structures and detoxification of
the relicts.
The  OSPAR  decision  98/374  prohibits  dumping  or  leaving  wholly  or  even  partly  in  place
installations  that  are  taken  out  of  use.  It  allows  for  derogations  for  certain  categories;  and
there is a mechanism for considering alternative disposal options. Alternative disposal options
have been considered for installations defined in Annex I75 of the decision, where justified on
the basis of an alternative options assessment76. In this case, the contracting party may issue a
permit  for  such  a  derogation  after  having  first  consulted  OSPAR  contracting  parties  on  the
decision. If one of them expresses an objection, a mediation shall be organised and eventually
a  consultative  meeting  shall  be  created  if  required  by  at  least  two  contracting  parties.
Nonetheless, the final decision is left to the contracting party whether to permit the alternative
option.
Regular review of this decision is foreseen by the decision itself every 5 years based on new
knowledge and technological developments for decommissioning. It was last discussed at the
2018 Meeting of the OSPAR Offshore Industry Committee (OIC).
The 1982 UN Convention on the Law of the Sea (UNCLOS)77 requires safe and sustainable
removal of all or part of decommissioned installations having regard to safe navigation, other
users of the sea and protection of the marine environment. Along with sovereign rights over
exploitation  of  natural  resources,  states  have  obligations  to  protect  and  preserve  the  marine
environment.

74 OSPAR Convention for the protection of the marine environment of the North-East Atlantic, OSPAR Decision
98/3 on the disposal of disused offshore installations. Ministerial meeting of the OSPAR Commission, Sintra, 22
– 23 July 1998, Annex 33.
75  The  following  categories  of  disused  offshore  installations,  excluding  their  topsides,  are  identified  for
derogations :
a. steel installations weighing more than ten thousand tonnes in air;
b. gravity based concrete installations;
c. floating concrete installations;
d. any concrete anchor-base which results, or is likely to result, in interference with other legitimate uses
of the sea.
76  This  option  assessment  should  consider  facility  type,  disposal  methods,  disposal  sites,  and  environmental
and  social  impact,  including  interference  with  other  sea  users,  impacts  on  safety,  energy  and  raw  material
consumption, and emissions.
77 https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
72

The  1989  International  Maritime  Organisation  (IMO)  guidelines  and  standards  for  the
removal of offshore installations78 establishes the general requirement of full removal except
where  partial  removal  options  are  consistent  with  certain  guidelines  and  standards.
Importantly, the IMO standard addresses the permanent integrity of any remaining structures,
i.e. stability and degradation over time in the sea.
Furthermore,  the  Convention  on  the  Prevention  of  Marine  Pollution  by  Dumping  of  Wastes
and Other Matter 197279, and the 1996 London Protocol to the Convention on the Prevention
of  Marine  Pollution  by  Dumping  of  Wastes  and  Other  Matter  (which  is  to  replace  the  1972
Convention, subject to ratification) both apply. The 1996 London Protocol reflects the global
trend towards precaution and prevention and the “polluter pays” principle. It has a general ban
on  dumping  of  waste,  but  with  exemptions  for  some  specific  categories  of  waste  based  on
consideration and permitting procedures to be carried out by the national authorities. In order
to  assist  the  national  authorities  in  such  assessments,  the  London  Protocol  has  developed
Guidelines for the relevant waste categories.
Subject to assessment, offshore installations and other man-made structures at sea are among
the categories that may be considered for dumping into the sea, instead of removal, according
to  these  Guidelines.  The  London  Protocol  also  has  Guidelines  on  artificial  reefs.  Should
installations  be  considered  to  be  'reused'  as  an  artificial  reef,  this  would  require  compliance
with the Guidelines.
The existing 'Specific Guidelines for assessment of platforms or other man-made structures at
sea80' were issued in 2010, and were up-dated in 2019.81 The London Protocol itself is not up
for revision, so the new guidelines cannot appear stricter than the Protocol itself.
Other  international  agreements  and  conventions  apply  to  the  decommissioning  of
installations. Leading works are the Geneva Convention on the Continental Shelf 195882 and
Basel  Convention  on  Control  of  Transboundary  Movements  of  Hazardous  Wastes  and  their
Disposal 198983.
The  1992  Helsinki  Convention  on  the  Protection  of  the  Marine  Environment  in  the  Baltic
Area84,  requires  zero  discharge  during  decommissioning  and  removal  of  installations  in  an
environmentally  friendly  manner.  The  EU,  Germany,  Denmark,  Estonia,  Finland,  Lithuania,
Latvia, Poland Russia and Sweden are contracting parties of this Convention.

78 https://cil.nus.edu.sg/wp-content/uploads/formidable/18/1989-Guidelines-and-Standards-for-the-Removal-of-
Offshore-Installations-and-Structures-on-the-Continental-Shelf-and-in-the-Exclusive-Economic-Zone.pdf.
79 http://www.imo.org/en/OurWork/Environment/LCLP/Documents/LC1972.pdf
80 https://www.gc.noaa.gov/documents/gcil_imo_platwag.pdf.
81
http://www.imo.org/en/OurWork/Environment/LCLP/Publications/wag/Documents/2019%20Revised%20guida
nce%20for%20platforms.pdf
82 Geneva Convention on the Continental Shelf 1958.
83 https://www.basel.int/Portals/4/Basel%20Convention/docs/text/BaselConventionText-e.pdf
84http://www.helcom.fi/Documents/About%20us/Convention%20and%20commitments/Helsinki%20Convention
/1992_Convention_1108.pdf.
73

The  Barcelona  Convention  for  the  Protection  of  the  Mediterranean  Sea  against  Pollution
197685  has  a  specific  Protocol  on  offshore  exploration  and  exploitation  activities.  This
Convention  requires  the  removal  of  installations  so  as  to  ensure  safety  of  navigation,
compliance  with  guidelines  and  standards  of  competent  international  organisations,  and
regard  for  other  economic  users,  the  marine  environment  and  rights  and  duties  of  other
contracting parties. There is an obligation to prevent discharges.
For the removal of installations, countries operating in the North Sea and North Atlantic pay
full  attention  to  the  OSPAR  convention.  In  the  convention’s  framework  Member  States  are
bound to consult both in writing and in formal meetings how best to apply OSPAR guidance.
Currently OSPAR members are working to clarify provisions (e.g. by developing a catalogue
of criteria) that facilitate the decision making process and enable a consensus on cases where
installations may remain in situ after the decommissioning.


5.15.3.4 Current practice of decommissioning
The  OSPAR  region  serves  as  an  illustrative  case  for  the  functioning  of  decommissioning
decisions vis a vis removal. The most problematic installations are legacy designs that would
not  be  installed  today,  but  for  which  nonetheless,  solutions  must  be  found.  The  OSPAR
region covers the northern Atlantic of the UK to Portugal, with 1,357 active installations. Of
these,  22  are  concrete  gravity  based,  and  58  are  steel  jackets  weighing  more  than  10,000
tonnes in air, potentially covered by the scope of article 3 of OSPAR decision 98/3 defining
derogations to the principles of complete removal. It appears that all other installations can be
physically removed.
Between  2002  and  2014,  170  installations  have  been  decommissioned,  with  9  derogations
granted  and  a  further  one  in  the  initial  stage.  Of  the  9  installations,  5  are  gravity  concrete
structures, and 4 are of steel construction.
On  the  issue  of  safety,  it  is  unlikely  that  thorough  clean-out  becomes  a  major  accident
potential  hazard86.  However,  the  framework  of  Directive  92/91/EEC87  applies  to  work
planning  for  worker  safety;  the  specific  measures  in  Part  C  (special  minimum  requirements
applicable to the offshore sector) notably at sections 1 and 12 ensure continuing protection of
the safety of workers outside of the major accident envelope of the Directive, in both normal
and  ‘critical’  conditions.  Directive  92/91/EEC  does  not  address  environmental  factors  that
need not necessarily be taken into account in these circumstances.

85 http://wedocs.unep.org/bitstream/id/53143/convention_eng.pdf.
86 For a major accident to the environment to be addressed under the Directive, the initiating event must be a
major accident.
87 Council Directive 92/91/EEC of 3 November 1992 concerning the minimum requirements for improving the
safety and health protection of workers in the mineral- extracting industries through drilling (eleventh individual
Directive within the meaning of Article 16 (1) of Directive 89/391/EEC), OJ L 348, 28.11.1992, p. 9–24.
74

On  the  issue  of  technical  capability,  the  EU  environmental  acquis,  and  conventions  such  as
OSPAR and IMO pay due regard to the stability of the partially removed structure over time,
and  also  require  keeping  the  technical  capabilities  under  review  and  to  revisit  decisions  on
decontamination. Whereas it is self-evidently necessary to monitor the relict of the installation
to  ensure  structural  stability  and  ongoing  containment.  The  EU-level  legislation  and
international  conventions  do  not  address  whether  or  not  there  must  be  an  effective  interval
and effectiveness of submarine surveys.
It  appears  that  in  some  Member  States  the  tax  payer  may  have  to  contribute  to  the  cost  of
decommissioning.  Accordingly,  on  cost  for  the  removal,  the  independence  of  the  relevant
authority  of  the  Member  States  in  taking  decisions  that  are  free  of  conflict  of  interest  may
become a point of discussion.
With  regard  to  the  OSPAR  convention,  environmental  NGOs  challenge  the  rigour  in  the
decision  making  processes  for  derogations,  and  challenge  the  thoroughness  applied  to  the
obligation  to  protect  and  preserve  the  environment  falling  to  Member  States.  The
methodology  for  evaluating  decommissioning  options  are  discussed  in  OSPAR,  aiming  at
more harmonised approaches to be applied by the Contracting Parties.
Particular  concerns  are  raised  concerning  the  dismantling  of  mobile  installations.  The  press
reported on bad examples of mobile installations being broken up in third countries causing a
significant  toll  of  human  life  and  environmental  degradation.  There  are  recent  examples  of
mobile  production  installations  removed  from  the  EU  to  undesignated  breaking  ports,
potentially not in line with the Ship Recycling Regulation.

5.15.3.5 The decommissioning of Brent platforms
According  to  the  industry  and  the  Competent  Authority  of  the  UK,  Brent  platforms  have  a
weight  which  does  not  allow  lifting  and  removal  with  currently  available  technologies.  The
authorities examine which of them may remain in the sea “in situ”.
The  example  of  the  Brent  platforms  illustrates  the  difficulties  arising  from  the  lack  of  an
existing  harmonized  legal  framework  at  EU  level  and  the  shortcomings  of  existing
international legislation.
As the owner of the Brent platforms Shell prepared the following decommissioning activities:
  Plugging the 154 wells across the Brent Field;
  Removing the platform’s topsides;
  Recovering oil and gas debris from the seabed across the Brent field;
  Removing the oil – known as ‘attic oil’ – trapped at the top of some of the storage cells;
  Cutting the upper portion of the Brent Alpha steel jacket;
  Leaving  in  place  the  Gravity  Base  Structures  (GBS),  Brent  Alpha  footings,  the  drill
cuttings and GBS cell contents.
75

Pursuant to OSPAR Decision 98/3, Shell informed the UK authorities that, due to the safety
risks and lack of appropriate technology, they intend to leave in place, inter alia, a significant
quantity of oil and oily residues in storage cells (around 640 000 m3 of oily water and 40 000
m3 of sediment containing 11 000 tonnes of crude oil), as well as drill cuttings and concrete
platform  legs,  after  the  decommissioning  of  the  Brent  field.  The  UK  considers  the  Shell
request  justified  and  informed  other  OPSAR  Contracting  Parties  of  its  intention  to  grant  a
derogation under the above-mentioned OSPAR Decision.
Following  a  formal  objection  from  Germany  to  this  derogation  (based  on  a  report  from
independent  experts),  a  bilateral  meeting  between  Germany  and  the  UK  took  place  in  June
2019.  Germany,  supported  by  other  Contracting  Parties,  then  requested  that  a  special
consultative  meeting  on  the  Shell  Brent  decommissioning  be  arranged88.  The  special
consultative  meeting  between  UK,  Germany  and  other  interested  Contracting  Parties  took
place on 18 October 2019.
Germany’s  concerns  address  procedural  issues  (e.g.  biased  comparative  assessment  of
options,  insufficient  transparency  regarding  documentation,  inadequate  response  to
stakeholder concerns), and the plans to leave in situ the oily residues in the storage cells, parts
of the metallic platform, and the concrete based platforms as well as other residues (such as
drill cuttings).
During  the  OSPAR  consultation  process,  but  also  directly  through  bilateral  exchanges  with
the  UK  administration,  the  Commission  expressed  concerns  regarding  the  leaving  in  situ  of
parts of installations. In particular the Commission was concerned about the option proposed
by Shell to  leave in  place the content of the storage cells, which could  qualify as hazardous
waste  according  to  EU  law,  as  well  as  the  potential  cumulative  effects  of  decommissioning
activities in the northeast Atlantic.
The special consultative meeting of OSPAR on 18 October 2019 highlighted knowledge gaps
and the need for additional information on the storage cells’ contents and on the availability of
technologies to extract the residues from the cells.
With regard to the question of whether there are gaps in coverage and where these are found,
there  are  numerous  conventions,  guidelines,  and  standards  addressing  safe,  sustainable
decommissioning  of  production  installations.  This  information  covers  a  diversity  of  issues,
including: securing the integrity of the marine space for further economic use as well as the
protection and preservation of the environment. In assessing disposal options it is necessary to
consider  what  management  measures  might  be  required  to  prevent  or  mitigate  adverse
consequences of the disposal at sea, and shall indicate the scope and scale of any monitoring
that would be required after the disposal at sea.
Member States take different views on whether current provisions are adequate for ensuring
that installations are removed safely and to the maximum desirable extent, whereas industry

88 As foreseen by Annex 3 point 5 of OSPAR Decision 98/3.
76

clearly does not see the need for additional rules. Less clear is the subject of detoxification of
remnants  of  installations  subject  to  only  partial  removal,  as  demonstrated  in  the  example  of
the  Brent  case.  Furthermore,  this  case  demonstrates  the  need  to  further  examine  all  risks
involved  with  emptying  fuel  storage  cells  in  deep  sea,  both  for  the  workers  and  for  the
environment.  Additional  analysis  may  determine  which  level  of  costs  for  a  thorough
decontamination may qualify as being prohibitive for to the state and the license holder (e.g.
risk of bankruptcy).

5.15.4
Conclusions
The example of the Brent platforms demonstrates that international rules are in place but that
they leave a large margin of discretion on the final decision on the removal of a platform.
Under  the  Offshore  Directive,  operators  of  fixed  production  installations  (and  the  very  few
owners of fixed non-production installations) are required to submit an amended RoMH to the
competent  authority,  addressing  all  aspects  of  decommissioning  (e.g.  wells,  structure,
hazardous  materials.)  The  operator  is  not  allowed  to  proceed  with  the  intended  operations
until  the  competent  authority  has  accepted  the  amended  RoMH.  Many  other  consents  and
authorisations  are  required  from  the  Member  State  prior  to  decommissioning,  due  to  either
national  legislation  or  international  obligations.  Once  the  decommissioning  is  complete  and
the structure removed, the Directive ceases to  apply as there are no relevant activities under
the  Directive.  However,  other  conditions  continue  to  apply  regarding  the  operators
responsibilities  for  seabed  surveys  and  so  on,  pursuant  to  licensing  regulations  and  other
national and international legislation.
Whereas OSPAR’s general principle is full removal and partial removal is a derogation from
the  general  principle,  the  Directive  does  not  address  the  matter  of  whether  a  fixed  structure
should be partially or wholly removed. This is entirely consistent with the Directives aim to
prevent  major  accidents,  including  to  the  environment,  by  reducing  risks  ALARP.  For
example, it may  be demonstrated that the risks of attempting full  removal  of a structure  are
intolerable under current knowledge and technical capability, or that the risks are significantly
higher than partial removal.
The  decision  on  the  extent  of  removal  is  therefore  remitted  to  other  parts  of  the  Member
States  legal  framework,  and  the  Directive  will  be  applied  to  ensure  the  major  accident  risks
are ALARP for the selected method (and if not ALARP, a different decommissioning plan is
to be formulated).
In  the  context  of  discussions  in  OSPAR,  the  Brent  case  points  to  potential  gaps  in  EU
legislation. These may create an uneven playing field between EU regions that may be subject
to different protocols in their respective sea convention. This issue would need to be carefully
assessed in the future in view of the upcoming decommissioning projects, in particular in the
North-East  Atlantic.  The  Directive  includes  an  important  measure  pertinent  to
decommissioning. At the stage of bringing a new production installation into use, the operator
is  to  provide  information  concerning  the  decommissioning  of  the  installation  at  the  end  of
field  life  in  their  RoMH  (Article  12).  The  assumption  is  for  total  removal  under  the  recent
77

conventions  and  protocols  and  EU  law.  The  competent  authority,  when  conducting  its
thorough assessment of the RoMH must, by virtue of the Directive’s Annex III(3)(c)(v), take
into consideration how the decommissioning of the installation will be undertaken. Whilst the
decommissioning  plans  cannot  be  known  in  detail  at  the  commissioning  stage,  the  main
concepts must be made part of the original design intent.
Above  analysis  takes  into  account  the  whole  framework  of  the  existing  obligations  under
other relevant legislation, specifically the EIA Directive, which, if the requirements of Article
2(1) thereof are met, addresses the issues of public consultation, the demolition phase and also
monitoring. Therefore, the presumption is that no new installations will be accepted for use in
EU waters where they are not capable of being fully removed at the end of their life. For the
future,  this  would  secure,  throughout  the  Union,  an  obligation  for  commissioning  new
installations that are so designed as to be totally removed at the end of the installation’s life.
However, this does not address the “legacy” issues of older installations that have been built
in the 1970’s and which must now be decommissioned, such as the Brent installation in the
OSPAR region.
Doubts remain as to whether the Directive, also in the context of international conventions, is
sufficiently  effective  in  setting  adequate  rules  for  decommissioning.  Further  work  appears
necessary to address remaining questions:
  Is there sufficient understanding of the whole of the framework of obligations that exist
under EU and international law, and is this framework appropriate?
  The standards that exist, are they capable for protecting the marine environment from the
after-effects of offshore oil and gas production?
  Does  the  licensee/operator  community,  and  just  as  critically,  the  Member  States’
authorities  for  decisions  on  removal,  embrace  the  entire  framework,  and  are  they
responsive to evolving expectations?
  Should  more  clarity  be  provided  regarding  the  frequency  and  effectiveness  of  seabed
surveys  where  there  is  full  removal,  in  addition  to  surveying  of  the  integrity,
environmental  impacts  and  environmental  risks  of  partially  removed  installations?  What
are the obligations for regular monitoring by the licensee and liabilities when installations
change ownership in future decades?
The same questions are to be asked regarding the permanent sealing of wells, which remains
an integral part of decommissioning. In the forthcoming wave of decommissioning, it is vital
that the public can have full confidence that the competent authority is free from a conflict of
interest,  when  exercising  its  function  to  accept  risk  assessments  relating  to  the  permanent
abandonment of production installations and their wells.
In  addition  to  the  rigour  expected  of  Member  States  in  coming  to  decisions  on  safe  and
sustainable decommissioning, Member States need to adopt more transparent obligations into
their legislative policy.
At the current stage of analysis, there are arguments in favour of creating additional standards
for the degree of removal of offshore installations that would in effect, reinforce obligations
that  already  exist  on  license  holders  and  Member  States.  This  would  reduce  potential
78

environmental  risks  associated  with  leaving  contaminated  residues  in  the  sea  bed  as  well  as
potentially  damaging  cumulative  effects  of  decommissioning  activities  in  the  marine
environment.

5.15.5
The permanent sealing of wells

5.15.5.1 The Offshore Safety Directive
Notwithstanding the current application of the Directive to the dismantling and/or removal of
production  installations,  there  is  no  specification  for  the  temporal  meaning  of  ‘permanent
sealing  of  the  wells  from  the  installation  and  the  environment’,  when  wells  on  fixed
production installations are to be abandoned, as referred to above.
However, the duty to permanently seal the wells from the environment is stated in these exact
terms solely in respect of wells connected to a fixed production installation that is to be taken
out  of  use.  Otherwise  the  permanent  sealing  of  the  wells  is  considered  an  implied  duty
residing  in  the  term  ‘permanent  abandonment’  (Annex  I  Part  6(4)(a))89.  There  may  be  a
difference in understanding of the terms ‘permanent abandonment’ and ‘permanent sealing of
a well’.
The Directive applies to all petroleum activities carried out on offshore installations, including
all well abandonments. Leakages from wells or near installations is a clear major hazard, and
is covered by the Directive. When the MODU leaves location, or the production installation is
removed, the Directive ceases to apply. Should there be a subsea leak from an abandoned well
in EU waters requiring a MODU to return to remedy the leakage, then the measures pertinent
to the Directive re-enter into effect.

5.15.5.2 Technical challenges and available technologies
Well  seepages  (from  reservoirs,  not  shallow  gas  seepages)  and  more  energetic  escapes  of
reservoir fluids at the sea floor are not identified as an issue of concern by Member States’ or
by license holders. But, with what is becoming seen as a ‘wave of plug and abandonments’
looming  for  the  North  Sea  region  in  particular,  there  is  a  heightened  societal  interest  in
decommissioning, coordinated by environmental NGO’s. In order to ensure the primary aim
of permanently restoring the environment at the production site the most important element of
the decommissioning process is to permanently seal the wells.
Isolating  the  zones  of  flow  potential  from  each  other  and  ultimately  from  the  seabed  by  the
placement of permanent barriers in the well bore and the spaces between the well casings, is
the overall purpose of the plugging and abandonment process. After this process is complete,
it is intended that no further leakage or seepage would be possible between the zones of flow
potential or to the sea floor. Should well fluids reach the sea floor they will either be dispersed
into the water column or, in shallow water or where the seep rate is high, to the sea surface.

89 Information to be provided to the competent authority: “Means of isolating all hazardous substances and in the
case of wells connected to the installation, the permanent sealing of the wells from the installation and the
environment”.
79

Fluids  would  induce  a  potential  contamination  of  the  marine  waters,  which  would  therefore
have to be monitored in the context of the Marine Strategy Framework Directive (MFD).
Standards  for  permanent  abandonment  of  wells  have  been  updated  continually  over  the  65-
year  lifetime  of  the  offshore  sector,  in  the  form  of  authoritative  global  standards  and  best
practices under ISO, API, NORSOK, and the Energy Institute. Additionally, the Directive sets
international  best  petroleum  practice  through  the  requirement  for  a  scheme  of  independent
verification of well design, which applies equally to permanent abandonment.
In  some  Member  States’  jurisdictions,  decisions  and  actions  taken  during  the  plugging  and
abandonment  are  required  to  be  fully  documented,  and  records  retained.  Changes  to  plans
must  also  be  referred  to  independent  well  examiners  for  a  second  opinion  concerning
integrity.
For  context,  there  are  less  than  1,000  active  onshore  wells  in  Europe,  most  of  them  in  the
Netherlands,  UK  and  Poland.  It  is  difficult  to  identify  the  number  of  abandoned  wells  in
Europe, but in the UK and the Netherlands the total is between 5,500 and 6,000. There is not a
significant  recorded  history  of  leaking  from  permanently  abandoned  wells  in  the  EU.  The
Netherlands  recently  published  a  report  on  methane  leakage90  where  185  wells  of  the  1,312
abandoned wells in the selected areas were studied in detail. The report concluded there is no
evidence of any leakages from the abandoned wells in the study. Overall, in Europe, there are
recorded minor incidents of hydrocarbon leaks from abandoned oil and gas wells in the past,
however,  there  is  no  authoritative  data  on  frequency  or  type.  As  a  result,  no  major
environmental accident potential has been identified at off or onshore well locations in north
Western Europe.
However, the raised and levelled standards for preventing the risks of a major accident from
wells  by  virtue  of  the  Directive  are  highly  relevant  to  the  increasing  volume  of  well
abandonments in the offshore waters of the EU. Modern offshore wells are considerably more
complex in their architecture than the vast number of abandoned older wells in both Europe
and elsewhere.
Competent authorities required to assess RoMHs for abandonment of production installations
should take particular interest in the risk assessments, planned measures, and barrier integrity
assurance procedures for well sealing as a precursor to permanent abandonment. These issues
are  relevant  for  of  HPHT  wells  and  all  wells  of  complex  design,  or  where  internal  integrity
problems  are  known  from  the  well’s  history.  The  schemes  for  independent  examination  of
well plans will need to consider these factors.
The  so-called  ‘wave  of  plugging  and  abandonments’  upcoming  in  the  North  Sea  region  to
which  is  referred  to  above,  will  undoubtedly  place  cost  pressures  on  operators.  Where  field
abandonment costs are defrayed through concessions (wherein the state allows liable parties’
revenue  tax  payments  to  be  set  against  abandonment  costs)  a  high  proportion  of  the

90 https://www.sodm.nl/onderwerpen/methaan/documenten/rapporten/2018/06/05/methaan-emissiemetingen-aan-
buiten-gebruik-gestelde-olie--en-gaswinningsputten.
80

abandonment  costs  will  become  internalised  to  the  Member  States,  placing  pressures  on  the
economic regulator.
Therefore  two  things  become  apparent.  Firstly,  in  order  to  fully  address  environmental
concerns,  operators  of  development  wells  may  prepare  convincing  risk  assessments  for
permanent  sealing  of  the  wells  on  installations  that  are  to  be  decommissioned.  In  a  further
step, independent experts would then verify the well plans’ risk assessments. At the end of the
procedure,  the  competent  authority  may  then  issue  a  decision  on  the  risk  assessment
incorporating the permanent sealing of the wells before any decommissioning work may start.
Secondly,  it  is  vital  that  the  public  can  have  full  confidence  that  the  competent  authority
appointed under the Directive is entirely free of influence. This issue principally regards cost
pressures confronting the operators and the economic regulators of the Member States when
assessing risk assessments relating to the permanent abandonment of production installations
and their wells.

5.15.5.3 Conclusions
There is  an  absolute duty  to  ensure the well is  sealed permanently when abandoned. This  is
one  of  two  absolute  duties  of  the  Directive,  where  the  standard  is  not  qualified  by  the
‘reasonably  practicable’  condition.  The  other  duty  is  to  rescue  personnel  from  a  stricken
installation (that would include the immediate sea vicinity) ‘so as to secure a good prospect of
personal safety and survival’ (Article 28(4)).
Given  the  potentially  vast  financial  liabilities  accruing  to  parties  involved  with  the
abandonment (including potentially the state), further research may provide proposals for best
means.  This  could  help  ensure  that  all  development  wells  are  permanently  sealed  from  the
environment as a consequence of the removal from use of any production installation.

5.15.6
Biogenic methane seepage
Offshore methane seepage mostly happens due to natural processes and geology. With regard
to  industrial  activities;  explorative  drilling,  as  well  as  oil  and  gas  production  may  have  a
causal  link  to  methane  seepage  and  increase  the  emitted  volume  of  gas.  This  is  an  issue
principally  because  methane  breaks  down  ozone  through  a  destructive  chemical  chain
reaction, contributing to  ozone depletion  and subsequently  climate change. Furthermore, the
same as carbon dioxide, methane absorbs the sun’s heat and warms the atmosphere. Recently,
attention  has  been  drawn  to  shallow  gas  seepages  from  the  central  North  Sea  region  where
there is a dense cluster of shallow gas pockets. A study conducted offshore by the GEOMAR
institute91  has  attracted  interest  on  environmental  grounds.  It  observed  seepage  of  biogenic
gas at locations of abandoned wells in the North Sea, which the study attributes to the well's
trajectory through shallow gas pockets. In other words, the penetration of the pocket of gas by

91 “Oil & Gas Wells as a Strong Source of Greenhouse Gases”, 28 August 2017; GEOMAR
https://www.geomar.de/en/service/kommunikation/singlepm/article/oel-und-gasbohrungen-als-starke-quelle-
von-treibhausgasen/.
81

the well creates a pathway to the sea floor around the outside of the well. On the occasion of
the  Geomar  study,  the  three  wells  were  exploration  wells,  however  there  was  a  significant
eruption of shallow methane under a production platform (the Forties Delta platform (UK)) in
1983.  On  this  occasion,  the  penetration  of  a  shallow  pocket  in  the  central  North  Sea  region
was  conducted  directly  underneath  the  platform,  causing  a  massive  explosion  and  fire,  in
which 9 workers were seriously injured.
A response to the Geomar study made by industry challenges the methodology of the Geomar
study, claiming it extrapolates.
Biogenic  methane  accumulations  are  covered  by  the  Directive  should  the  gas  pockets  be  in
the well trajectory as identified from shallow focussing geophysical surveys, or known to be a
local  hazard  and  therefore  taken  into  account  in  the  risk  assessment  of  the  well  plan  and
incorporated into the scheme of independent verification of it. The preferred control method
(i.e. relevant to the hazard) is to move the well and therefore avoid the shallow gas pocket92.
Biogenic  methane  seeps  are  not  relevant  under  the  Directive  in  the  post-decommissioning
period where qualifying installations are not present. Such seeps per se are not major hazard
events as related to the Directive because there are no qualifying installations stationed at the
location. However, should the seepages be sufficiently serious as to require the deployment of
a  qualifying  installation  (a  drilling  MODU  for  example)  to  intervene  then  the  Directive
returns into effect. There is no recorded event where a biogenic methane seep has caused an
intervention by a MODU or other qualifying installation.
Whilst  methane  seeps,  are  unlikely  to  have  the  potential  to  create  a  major  accident  hazard,
they  would  potentially  be  subject  to  environmental  scrutiny  under  the  broad  acquis  of  other
EU environmental legislation (e.g. MFD, EIA/SEA and ELD).

5.16
Special theme: Mutual recognition of mobile drilling units (MODU)
Analysis
As  we  have  seen  in  previous  thematic  discussions,  there  has  been  quite  wide  variation  in
approach.  For  example,  in  the  contents  of  corporate  major  accident  prevention  plans  and  in
combining safety and environmental functions in the competent authority.
The recognition between Member States of a mobile production installation (overwhelmingly
a MODU) that has a RoMH accepted by another Member State, is a criteria for attaining the
desired goal of a level regulatory playing field throughout the EU.
In the Offshore Safety Directive the relevant measure is contained in Article 13 on the “report
on major hazards for a non-production installation”. As mentioned above, the measure relates

92 It is most unusual to site a platform over a major shallow gas pocket as in the Forties Delta case, where it
should be noted the shallow gas was penetrated only by the 23rd well from that platform.
82

predominantly  to  drilling  rigs  (MODU’s),  referring  to  a  common  acceptance  approach
between Member States of compliance with Directive related measures.
The  principle  of  common  applications  also  applies  to  systems  deployed  by  operators  on
production installations where such systems  are not Member State specific. The information
received  from  duty  holders  is  that  the  outcome  from  implementation  of  the  Directive  is  the
opposite to that which was intended:
  In  general,  operators/licensees  operating  production  installations  or  well  operations  in
more than one Member  State report additional  burdens following the introduction of the
Directive.
  Specifically, industry reports that MODU movements between Member States are delayed
by the authorities of Member States, who conduct thorough assessments of RoMHs after
each new entry of an MODU into their jurisdiction.
  MODU’s returning to the same Member States that issued acceptance within the previous
compliance  interval  (5  years),  are  also  reportedly  subject  to  a  lengthy  re-acceptance
process.
  Operators  and  owners  report  CMAPP  (Corporate  Major  Accident  Prevention  Plan)
requirements  vary  indiscriminately  between  Member  States,  creating  an  administrative
burden for duty holders working in more than one Member State.
  In some contradiction to the preceding points, Member States report that a procedure  is
‘type-based’ and fast-tracked for returning, previously accepted MODUs.
  Some Member States suggest they would acknowledge other Member States acceptance
of a RoMH for MODU’s, subject to strategic checks and reviews of additional Member
States requirements, where these may exist.
On  the  positive  side  it  appears  that  in  line  with  the  Directive,  all  Member  States  request
RoMHs’ and associated productions such as the CMAPP.
Notwithstanding the obvious advantages in resource management, and indeed the higher goals
under  the  pursuit  of  an  internal  market  (vis  a  vis  TFEU),  it  seems  that  Member  States  are
reluctant to explore solutions to freer movement of MODU’s.
It is, on the other hand, clear that there are variations of social requirements between different
Member  States.  For  example  in  the  arrangements  for  single  cabin  accommodation,  or  in
requiring  additional  capacity  of  escape  capsules.  However,  we  believe  it  is  necessary  to
discriminate  between  the  technical  components  in  the  RoMH  and  the  additional  social
components (single occupancy cabins) and emergency response (escape capsule seats) that a
Member State may require.
In the Commission’s discussions with stakeholders, all duty holders support the concept of an
internal  market  for  MODU’s  and  are  therefore  disappointed  that  the  situation  has  reversed
since implementation of the Directive.
Considering  that  the  fixed  capabilities  of  the  MODU  for  the  geological  and  geographical
conditions  are  acceptable  for  the  proposed  location,  it  is  difficult  to  envisage  what  is  the
added-value of the receiving Member States duplicating a thorough assessment of the MODU
83

under  the  Directive.  It  could  easily  accept  the  RoMH  of  the  MODU  that  has  already  been
accepted  by  the  Competent  Authority  of  the  dispatching  Member  States  that  has  itself
conducted  a  thorough  assessment  under  the  Directive.  Given  estimates  for  handling  of  a
MODU  RoMH  by  duty  holders  is  estimated  around  Euro  200,000,  the  subject  is  valid  for
consideration.
Should  there  be  additional  particulars  required  by  the  receiving  Member  State  regarding
number  of  escape  craft  and  single  occupancy  cabins  and  so  on,  these  matters  could  be
addressed as  an  addendum  to  the accepted RoMH. There ought  to  be, in  any case, a quality
assurance exercise for the record of the receiving Member States.
Some  Competent  Authorities  appear  to  merge  the  RoMH  assessment  with  validation  of  the
well  plan.  An  MODU  rated  to  be  able  to  undertake  the  well  plan  and  having  an  accepted
RoMH  albeit  accepted  by  another  Member  States’  Competent  Authority,  is  in  effect
prequalified to execute that well plan.
Conclusions
No  technical  case  was  identified  for  a  Member  State  to  undertake  a  full  assessment  of  an
MODU for the acceptance of a RoMH that has been approved within the previous 5 years by
another Member State.
The  current  status  appears  out  of  line  with  the  aims  of  the  internal  market.  Nonetheless,  it
seems  difficult  to  alter  the  status  quo,  should  Member  States  not  voluntarily  acknowledge
their mutual  authorisations  of offshore installations. The pursuit  of a level  playing field  will
certainly be thwarted if Member States do not reinforce their ambitions in that area.
There  is  also  an  identified  impact  of  differential  implementation  of  provisions  by  Member
States, requiring duty holders to amend the intent of certain measures (such as the corporate
major accident prevention policy) to satisfy  additional particulars to  those in  the Directive’s
relevant  annex.  Such  differential  measures  ought  to  be  made  transparent  by  the  Member
States requiring them.
The  situation  should  be  kept  under  review.  More  information  should  be  gathered  by  the
Member States which have additional requirements and by industry, which claims to have to
deal with unnecessary administrative burdens.
84

6  ACHIEVEMENTS ASSESSED BY HORIZONTAL CRITERIA

6.1.1 Overview
Further  to  the  analysis  by  themes,  for  assessing  the  achievements  of  the  Directive,  the
Commission has used five criteria93:
Relevance  looks  at  the  relationship  between  the  needs  and  problems  relating  to  the  societal
segment  targeted,  namely  the  maritime  and  coastal  users  and  the  environment  where  the
offshore petroleum activities occur, and the objective of the intervention.
Coherence  is  a  factor  of  the  external  coherence  with  other  EU  legislation  and  policy,  and
where  relevant,  at  the  Member  State  or  International  level.  It  also  is  an  indicator  of  how
different components of the Directive, as implemented, operate together to achieve particular
objectives.
Effectiveness analysis considers how successful the Directive may have been in achieving or
progressing  towards  its  objectives.  Where  objectives  may  not  have  been  achieved,  the
assessment  will  attempt  to  assess  the  extent  to  which  progress  falls  short  and  attempt  to
explain the shortfall.
Efficiency  is meant  as  the relationship  between  the resources required to execute a measure
and  the  gain  (i.e.  an  assessment  of  costs  and  benefits).  The  cost-benefit  analysis  will  be
quantified where possible and identify reductions or increases in regulatory burdens.
EU-added  value  is  a  deduction  of  the  relative  efficacy  between  the  implementation  of  the
directive,  and  the  Member  States  acting  alone  in  regulating  the  offshore  sector’s  control  of
major accident risk.
For the analysis by criteria, the assessment is guided by questions which were addressed for
each of the themes. The following sets of questions were applied for the different parts of the
analysis:
Relevance
  To what extent is the intervention still relevant?
  Did  the  change  in  framework  conditions  for  offshore  operation  make  the  Directive  less
relevant?
  To  what  extent  have  the  original  objectives  proven  to  have  been  appropriate  for  the
intervention?
  How well do the objectives of the intervention correspond to the needs within the EU?
  How  well  did  the  intervention  reduce  the  risks  for  accidents  and  the  number/quality  of
offshore accidents?

93 These criteria have been developped for formal evaluations of EU legislation and are provided by “better
regulaiton guidelines”.
85

  How relevant is the EU intervention to EU citizens?
Coherence
  To what extent is the intervention internally coherent?
  Specifically, how far is the intervention coherent with environmental legislation?
  To what extent is the intervention coherent with wider EU policy?
  Specifically, to what extent is the intervention coherent with environmental policy?
  To what extent is the intervention coherent with international obligations?
  Specifically, to what extent is the intervention coherent with international conventions of
offshore operations?
EU added-value
  What is the additional value resulting from the EU intervention, compared to what could
reasonably  have  been  expected  from  Member  States  acting  at  national  and/or  regional
levels?
  What  is  the  added  value  from  avoided  accidents,  which  may  have  caused  damage,
environmental pollution, direct and indirect economic losses?
  What is the added value from the intervention regarding public acceptance of offshore oil
and gas operations?
Effectiveness
  What have been the effects of the intervention?
  How far did the intervention contribute to the avoidance of accidents?
  How far did the intervention reduce the risk of accidents?
  How did the intervention influence public perception and support for offshore operations?
  To what extent do the observed effects link to the intervention? Or do you attribute them
to different causes?
Efficiency
  To what extent are the costs associated with the intervention proportionate to the benefits
it has generated?
  What  factors  are  influencing  any  particular  discrepancies  (e.g.  regional)  of  the
intervention’s effectiveness?
  How do these discrepancies link to the intervention?
  To what extent do factors linked to the intervention influence the efficiency with which
the observed achievements were attained?
  What other factors influence the costs and benefits?

6.1.2 Relevance
The intervention has  caused a comprehensive overhaul of EU offshore petroleum legislation
to bring it at least up to the most relevant jurisdictions that practice major accident prevention
(e.g.  UK,  Denmark,  Italy,  and  Netherlands).  However,  the  intervention  has  not  encouraged
Member States to make steps towards adjustment of liability provisions.
86

Regarding the aims of the Directive, there is good qualitative and quantitative evidence from
competent authorities and industry to suggest that the measures in the Directive remain highly
relevant  to  introducing  global best  industry practices in  the EU. This  is  particularly relevant
for prevention and mitigation measures, introduced to ensure that the risks of a major accident
in  EU  waters  are  reduced  as  far  as  possible.  The  intervention  has  directly  addressed
coordinated  national  contingency  planning,  with  industry  emergency  planning  and  response
systems.
No  information  was  received  suggesting  that  the  best  practice  measures  under  the  Directive
have  been  superseded  or  are  no  longer  relevant.  The  intervention  attempts  to  maintain
relevance by setting aims and goals, rather than prescribing detailed measures. This provides
scope  for  responsiveness  to  new  knowledge  and  technical  innovation,  keeping  the  Directive
applicable  as  the  sector  develops.  Moreover,  transparency  provisions  open  the  sector  to
greater visibility and scrutiny by civil society in the EU.

6.1.3 Coherence
The intervention is aligned with wider EU legislation for the safety of workers, assignment of
liability, and protection of the environment. The implemented measures co-exist comfortably
with occupational safety and environmental protections under EU law.
The Directive strictly focuses on preventing major accidents. Occupational safety and day-to-
day  environmental  protection  are  adequately  provided  for  in  other  legislation.  The
intervention’s  measures  are  consistently  adapted  from  global  best  international  offshore
petroleum practices for industry and regulators, enabling verifiable tests of these measures.
Furthermore,  levels  of  coherence  with  related  EU  legislation  were  evaluated.  Concerning
worker protection from a major accident (i.e. an accident with multiple serious injuries and/or
fatalities),  the  intervention  has  prompted  Member  States  to  replace  the  Safety  and  Health
Document  previously  required  under  Directive  92/91  EEC  (Mineral  Extraction  Through
Drilling Directive94). This has been superseded by an ex ante risk report for each installation,
to  be  verified  by  the  competent  authority  prior  to  commencement  of  activities  on  the
installation.
The EU intervention has compelled Member States to extend liability for water damage to the
extent of the exclusive economic zone95 (previously limited to territorial waters). This change
has  established  an  unambiguous  coherence  with  the  functioning  of  the  Environmental
Liability Directive in other sectors.
Regarding coherence with wider EU policy, the intervention’s requirements to implement best
international  practices  for  regulators  and  industry  ascribes  responsibilities  to  entities  that

94 Council Directive 92/91/EEC of 3 November 1992 concerning the minimum requirements for improving the
safety and health protection of workers in the mineral- extracting industries through drilling (eleventh individual
Directive within the meaning of Article 16 (1) of Directive 89/391/EEC), OJ L 348, 28.11.1992, p. 9–24.
95 In most cases, the Exclusive Economic Zone (EEZ) may comprise an area from 3 to 12 nautical miles, up to
200 nautical miles (370 kilometres) off the coast.
87

control  the  risks  of  major  accidents,  and  for  the  assurance  that  major  accidents  will  be
prevented.  This  is  in  line  with  the  integrated  maritime  policy  to  create  a  level  regulatory
playing field for petroleum activities in all EU offshore waters, and requires good governance
jointly with maritime spatial planning.
Under  the  broad  generic  framework  of  EU  environmental  legislation,  there  is  intentional
coherence of the Directive’s responsibilities on owners and operators with the Environmental
Impact  Assessment  Directive  relating  both  to  preventive  measures  and  emergency
preparedness and response.
Regarding  coherence  with  international  obligations,  the  intervention  allows  application  of
external  protocols  and  obligations  relevant  to  the  sector.  These,  least  effect  day  to  day
operations,  and  most  effect  navigation  of  mobile  installations,  emergency  preparedness  and
response,  cross-boundary  pollution  prevention,  and  decommissioning  of  installations
including  detoxification  of  partly  removed  structures.  For  example,  in  the  context  of  safety,
the  Directive’s  internal  coherence  means  that  it  does  not  regulate  the  extent  of
decommissioning,  which  usually  does  not  directly  affect  safety,  but  it  does  regulate  for
control  of  risks  of  a  major  accident  during  the  activity.  The  issue  is  pertinent  as  a  wave  of
decommissioning  is  underway  and  key  standards,  e.g.  the  1996  London  Protocol  to  the
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter96,
are being updated.

6.1.4 Effectiveness
The effectiveness of the EU intervention has been in securing a levelled regime that takes into
account  global  best  offshore  petroleum  practices  for  industry  and  regulators  for  preventing
accidents. The Directive has set the necessary conditions to reduce  the likelihood of a major
offshore  petroleum  accident  in  EU  waters.  Despite  the  largely  adequate  quality  of
implementation  by  Member  States,  overall  implementation  has  not  always  been  fully
consistent. The Commission services are engaged in a formal dialogue with Member States to
address these concerns.
The Directive has clear, direct effects for a number of reasons. Firstly, the intervention creates
explicit  responsibilities  and  liabilities  for  the  license  holder,  operator,  mobile  installation
owner,  and  contractors.  Secondly,  it  mandates  the  assignment  of  a  Competent  Authority  to
conduct  oversight  functions,  and  finally,  the  Directive  introduces  a  verified  risk  report  for
every installation. These are the most fundamental elements by which a major accident will be
prevented in EU waters.
Public  consultation  and  expert  meetings  undertaken  in  this  assessment  suggest  that  more
effective  integration  and  interfaces  have  been  built  amongst  and  between  duty  holders  in
industry  and  regulators,  as  a  direct  result  of  the  Directive.  These  qualitative  findings  are
complemented by quantitative date from the first two annual EU-wide reports of incidents in
the offshore petroleum sector. For the first time at EU level, they provide new statistical data

96 http://www.imo.org/en/OurWork/Environment/LCLP/Documents/PROTOCOLAmended2006.pdf.
88

on accident risk, thanks to the Directive and its Implementing Regulation. At the current stage
of analysis, drawing on the data from these two annual reports, the safety level of EU offshore
petroleum sector appears adequate.
Furthermore, the Directive has had extended effects on regulation and reporting. It is apparent
that  a  strong  legal  hierarchy  of  duty,  an  expert  regulator,  and  the  obligation  to  undertake  a
verified risk report for each offshore installation, forms an effective template for risk control
across the EU.
The  intervention  has  led  to  a  horizontal  adoption  of  best  international  practices  by
operators/owners  and  competent  authorities  within  key  areas.  For  example,  in  safety  and
environmental  management  systems  based  on  risk  control,  as  well  as  the  incorporation  of
independent verification of critical control systems and well drilling plans. The Directive also
impacts  duty  holders, obliging  them to report on  major accidents in  the EU. Moreover, it is
evident  from  this  assessment  that  corporate  policy  amongst  duty  holders  at  the  EU  level  is
often  mirrored  in  their  operations  at  a  global  level,  improving  global  standards  of  incident
reporting,  for  example.  The  implementation  of  the  Directive  occurred  over  a  period  where
price  of  oil  dropped  dramatically  to  a  steady  low  level.  In  absence  of  the  Directive,  the
resulting cost squeeze may have risked compromising the high level of risk control.
Following  the  Gulf  of  Mexico  disaster  that  triggered  this  EU  intervention,  there  was  an
unprecedented  wave  of  industry  initiatives  in  technical  equipment  and  in  measurement  that
focused  on  major  accident  prevention  and  response.  Through  creating  transparency  of
regulation and levelling standards, the Directive has undoubtedly contributed to sustaining the
industry’s progressive initiatives.
More directly, the integration of environmental protection and mitigation into installation risk
reports significantly reduces major accident risk in the Union. The integration of installation
based emergency response plans with national contingency plans is a further major advance.
One  Member  State  (UK)  has  produced  a  new  best  practice  for  liability  and  financial
responsibility in direct response to the Directive that may provoke more effective mechanisms
elsewhere. Beyond preliminary reports on the overall implementation of the Directive, other
Member  States  have  yet  to  conduct  surveys  and  assessments  on  the  effectiveness  of  the
intervention and how their workers perceive the situation.
The Directive has set a framework that allows Member States to establish national legislation
in  line  with  their  specific  requirements.  Accordingly,  the  functioning  of  the  internal  market
has been inhibited by wide-ranging interpretations of both technical goals (e.g. standards for
installation  risk  reports)  and  processes.  There  is  no  evidence  of  insufficient  measures  in  the
Directive,  however,  national  policy  and  cultural  objectives  contribute  to  differing
implementations, as far as compatible with the Directive.
89

6.1.5 Efficiency
Financial  and  practical  efficiency  gains  for  industry  duty  holders  and  regulators  may  also
benefit  social  partners,  particularly  in  developing  a  more  consistent  approach  towards
Member States’ implementation of the Directive.
Certain  aspects  of  the  cost-effectiveness  of  the  intervention  have  been  examined.  The
arrangements  brought  into  effect  by industry to  acquire  and maintain interoperable response
equipment and expertise in accessible locations in EU waters, and to integrate those resources
with national contingency plans, is a major efficiency gain as well as a highly effective step. It
considerably  increases  the  resources  available  to  react  in  the  event  of  a  major  accident,  and
limit the potential pollution from oil contamination.
The costs of introducing the formulation of risk assessment into the management systems, and
the costs of demonstrating compliance to the regulator, are not unjustifiably excessive. So far,
neither  industry  nor  Member  States  have  suggested  the  running  costs  of  the  intervention’s
requirements  are unjustified (see also  in  the annex, part VII). The  cost  of introducing  a  risk
based  control  system  that  is  installation-centred  is  a  relatively  small  component  of  the
estimated  benefit  for  significantly  reducing  the  annualised  cost  of  a  major  accident  in  EU
waters  (the  total  cost  for  BP  are  estimated  at  $65  billion).  This  assumption  is  based  on  the
available information from industry and competent authorities’ data.
Other factors are influencing efficiency. The south Mediterranean region (outside the EU) has
experienced some of the world’s worst major accidents and blowouts. No region in the world
has  escaped  the  consequences  of  a  major  accident,  and  the  southern  EU  Member  States,  as
they enter offshore petroleum operations, are not exempt from the hazards. There is no data to
make  meaningful  assessment  of  risk  trends  outside  of  the  North  Sea  area,  however  the  risk
management approach of the intervention is demonstrably effective wherever it is deployed,
globally. Feedback from Competent Authorities and duty holders outside the North Sea region
is  strongly  in  favour  of  the  intervention.  Industry  however,  has  challenged  some  of  the
administrative cost burdens applied by some new entrant Competent Authorities.
Regarding  proportionality,  it  appears  that  the  cost  burden  on  industry  (including
administrative  costs  paid  to  competent  authorities)  has  been  accepted  as  necessary  in  the
North  Sea  region,  where  the  historical  major  accident  record  has  been  particularly  high.  It
remains unclear whether the same proportionality applies to the southern seas where the major
accident  record  is  reportedly  light  (relative  to  the  number  of  installations).  The  value  in  the
goal-setting  nature  of  the  Directive  is  that  Member  States  are  facilitated  to  develop  their
specific  regimes  on  an  individual,  fit  for  purpose  capacity  basis.  Crucially,  the  intervention
also enables Member States to recover the associated costs of this development from the duty
holders, whose activities create the major hazard risks the intervention aims to prevent.
Industry  leading  representatives,  IADC  (drillers)  and  IOGP  (producers)  continue  their
development  of  guidance  and  standards  for  best  offshore  practices  in  risk  control.  The
intervention  requirements  for  risk  reporting  and  risk  management  encourage  industry  to
90

improve,  and  are  inherently  economically  efficient.  These  obligations  help  form  the  bridge
between the stated aim of the industry and what actually happens on the installation.
Elements of the risk management systems required by the intervention identified by industry
as causing unwarranted administrative burdens, are typically related to the functioning of the
competent  authority.  In  contrast,  the  competent  authorities  believe  their  systems  to  be  cost
efficient.

6.1.6 EU-Added Value
The  Directive’s  measures  have  brought  EU-added  value  to  Member  States  by  introducing
improved offshore regulation and response from industry. Such a comprehensive overhaul of
EU practices would not have occurred without the Directive.
According  to  the  most  consistently  expressed  views  of  Member  States’  regulators,  industry,
NGO’s,  and  TU’s,  the  Directive  has  added  value  compared  with  Member  States’  acting
without EU intervention. The regulators and industry have taken positive views, whilst those
of NGO’s and TU’s are more nuanced. Nevertheless, it can be said with some confidence that
even  the  most  advanced  regimes  have  adopted  measures  that  add  value  to  their  regulatory
oversight that would not have occurred without the Directive coming into effect.
There  are specific  example of added value that  can be  attributed to  the intervention. Firstly,
amongst the new entrant risk-based regimes (outside the North Sea and Italy), both industry
and competent authorities note new and better interfaces where there were previously few, or
none.  Secondly,  the  intervention  established  an  EU  expert  group  (EUOAG)  based  on  a
Commission  decision97,  thereby  establishing  the  conditions  for  continuous  improvement  of
Competent  Authorities.  Thirdly,  the  Directive  created  a  consistent  standard  for  all  EU
regulators.  Fourthly,  the  EU-wide  incident  reporting  system  is  the  world’s  first  statutory
international  database.  Finally,  the  integration  of  national  contingency  plans  with  industry
arrangements, and the sharing of response resources, represent significant tools for mitigating
the  consequences  of  a  major  accident  anywhere  in  EU  waters.  Moreover,  the  public
consultation revealed that social stakeholders believe offshore petroleum operations in the EU
would be less safe had the intervention not been made.
It is especially clear that those Member States that previously did not have risk based regimes
would not have adopted such practices without EU intervention. But even the most advanced
regimes have adopted measures that have added value to their region that would not, by direct
admission, have occurred in the absence of the intervention.

97 Commission Decision of 19 January 2012 on setting up of the European Union Offshore Oil and Gas
Authorities Group, OJ C 18, 21.1.2012, p. 8–10.

91

7
CONCLUSIONS

7.1
Strengths and weaknesses
The  decision  by  the  Commission,  as  accepted  by  both  the  Council  and  Parliament,  was  to
focus  on  the  prevention  and  mitigation  of  major  accidents  based  on  risk  management.
Therefore  the  Directive  overlooks  measures  that  do  not  specifically  address  major  accident
prevention, most notably occupational safety and health, as well as day to day discharges and
emissions.  Furthermore,  the  intervention  does  not  prescribe  detailed  arrangements  to  be
followed,  but  instead  establishes  aims  to  be  achieved.  This  approach  has  undoubtedly
provided clarity of intent which has been reflected in the implementation.
Furthermore,  the  strategy  of  proliferating  existing  best  practices  rather  than  experimenting
with  unpractised  solutions,  has  been  very  effective.  As  a  consequence,  for  every  measure
there is an analogue already in place, usually in one or more Member States. Taking such an
approach  has  assisted  in  rapidly  upskilling  new  entrant  Competent  Authorities,  as  well  as
catalysing  the  comprehension  of  risk-based  management  practises  for  duty  holders
inexperienced in this area.
The  nature  of  the  intervention’s  approach  also  has  inherent  limitations,  namely  diluting  the
degree  of  regulatory  overlap  across  Member  States  by  permitting  discrepancies  in
implementation.  This  outcome  is  the  result  of  the  decision  to  opt  for  the  creation  of  a
Directive  rather  than  a  Regulation,  as  originally  planned.  Consequently,  the  benefits  of
standardisation,  efficiency,  benchmarking,  and  effectiveness  through  shared  applications  are
less pronounced than initially intended.
A  comprehensive  vertical  sector-based  regime  such  as  that  introduced  by  the  Directive
requires significant supporting clarification and guidance. In particular, because the Directive
sets goals to be attained rather than detailed steps to be followed. Duty holders and Member
States  have  extensive  discretion  on  how  to  implement  and  apply  the  Directive  whilst
remaining in compliance with its provisions. Some Member States prioritise the development
of such material for themselves and their duty holders, whilst others do not. Under the loose
parameters  of  this  Directive,  Member  States  are  not  strongly  incentivised  to  follow  the
guidance published by other Member States.
Another associated limitation is that Member States are less likely to collaborate at their own
cost to the production of EU-level guidance, despite the fact that guidance and model practise
at the EU-level makes a very beneficial contribution to efficacy of the measures.
Since no disastrous accident has occurred in the EU since the Directive has come into effect,
some themes analysed in the SWD lack a practical test.

7.2
Areas to follow-up
With  regard  to  liability,  financial  security  and  the  handling  of  compensation  claims,  it  is
evident from this assessment that rules in Member States differ substantially. This is true for
offshore installations, but also on an upper horizontal level regarding civil code. Owing to the
92

avoidance of catastrophic accidents in recent years, it remains unknown how Member States’
national rules and regulation would work in practice.
According to the Directive, the decommissioning of installations is an inherent element of the
installations’  life  cycle.  Powers  to  deal  with  this  aspect  have  been  delegated  to  Member
States’  Competent  Authorities,  which  request  and  assess  a  major  hazard  report  before
authorisation. These reports shall include provisions for the end of the installation’s lifetime,
including  environmental  risks.  As  soon  as  decommissioning  is  envisaged,  competent
authorities shall assess an up-dated major hazard report.
The Directive does not include provisions going beyond the requirement to decommission in a
safe  manner,  including  environmental  concerns.  At  the  same  time,  it  neither  prescribes  nor
recommends certain processes or guides on when and how to dismantle an installation or the
criteria for leaving an installation exceptionally “in situ”. Furthermore, the Directive does not
address follow-up monitoring of the site and the sealed wells. The question remains whether
the Directive requires an update to deal with these subjects.
On  Mutual  recognition  between  Member  States  of  mobile  drilling  units  regarding  the
authorisation  process,  Member  States  and  stakeholders  took  completely  different  views  on
this  matter.  Member  States  insisted  on  the  need  to  re-assess  the  major  hazards  of  an
installation,  even  if  already  assessed  (e.g.  by  a  neighbouring  Member  State).  Conversely,
industrial stakeholders called for the abandonment of this procedure, arguing that it creates an
unnecessary  administrative  burden,  which  both  delays  operations  and  leads  to  substantial
additional costs.
In an effort to resolve this issue, this practice of not recognizing the authorisation issued by a
different  Member  State  should  be  cross-referenced  with  existing  legislation  on  the  internal
market.

7.3
Overall assessment
The Commission carried out an in-depth assessment of the Directive’s application in practice.
It was structured by bundling articles from the Directive into a number of overarching themes.
These themes were drawn from stakeholder consultations, public consultation, the work of the
Commission’s Inter-Service-Group, and a European Parliament report on liability.
The  assessment  examined  how  Member  States  implemented  the  Directive,  reaching
conclusions  on  the  strengths,  weaknesses,  options,  and  challenges  of  this  process.  Overall,
transposition was carried out to an adequate quality, nevertheless, the Commission follows-up
certain  weaknesses  with  Member  States  individually.  Both  in  terms  of  implementation  and
practical application, there has been a comprehensive adoption of the Directive throughout the
EU.  here  is  firm  evidence  that  the  measures  in  the  Directive,  as  implemented  by  Member
States  and  responded  to  by  industry,  are  relevant  to  ensuring  best  industry  and  regulatory
practices  for  major  accident  prevention  and  mitigation,  in  the  EU  as  well  as  globally.  Best
93

practise can subsequently contribute to the aim of mitigating unacceptably high risks of major
accidents in EU waters.
The intervention of the Directive caused a comprehensive overhaul of EU offshore petroleum
regulation,  including  all  relevant  jurisdictions  and  regions  for  major  accident  prevention.
Furthermore,  the  Directive  successfully  ascribed  primary  duties  to  operators  and  owners  for
the prevention of major accidents on their installations, as well as the mitigation of the effects
thereof. As such, the primary objective of the intervention was achieved.
The  Directive  has  clearly  established  a  hierarchy  of  control,  including  the  license  holder,
operator and owner, in addition to the assignment of an independent expert regulator. These
are the most critical and fundamental aims of the Directive because they form the foundation
of risk control and major accident mitigation. Effective control and regulation are at the core
of a wider, common objective to reduce the risk of major accidents to a level where they are
unlikely to occur again in EU waters. Other key measures in the Directive address: means by
which responsible actors are effective, mitigation measures in the event of a major accident,
as well as the issue of raising overall standards throughout the Union and in third countries.
On  the  basis  of  available  data,  the  cost  of  introducing  the  risk  based  system  is  a  relatively
small  component  of  the  estimated  benefit  of  significantly  reducing  the  annualised  cost  of  a
major accident in EU waters.
The  Directive’s  measures  have  brought  EU-added  value  to  all  Member  States  through
introducing more robust offshore regulation and a concomitant response from industry. Such a
comprehensive overhaul of EU practices would not have occurred without the Directive.
Amongst the new risk-based regimes, industry has reported the development of constructive
relationships  with  regulators,  where  previously  there  were  none.  The  public  consultation,
though nuanced in its affirmation of the Directive in other areas, was decisively in support of
the  position  that  offshore  petroleum  operations  in  the  EU  would  be  less  safe  without  the
implementation of the Directive.
Environmental NGO’s call for stronger protection of the environment and stronger financial
responsibility  mechanisms,  whilst  broadly  aligning  themselves  with  the  positive  indicators
from  the  implementation  experience.  Regulators  and  primary  duty  holders  express  that  the
new  regulatory  measures  and  subjective  industry  arrangements  need  to  stabilise  before  any
consideration  can  be  given  to  further  legal  intervention.  Further  incident  and  information
reports at the EU-level will indeed consolidate the baseline of EU performance indicators and
identify critical trends in the major accident risk levels in the EU.
Regarding  stakeholders  that  use  the  Directive  in  practice,  both  Member  States’  Competent
Authorities  and  operators/owners  seem  to  be  largely  satisfied  with  the  functioning  of  the
Directive, as implemented by Member States. They feel that potential benefits (derived from
avoided accidents) largely outweigh the costs of implementation and the adjustments required
at the level of offshore installations.
94

The experience of implementing the Directive has been broadly positive, with the majority of
measures successfully in place. Although further interventions at the EU-level are sometimes
unwarranted,  issues  of  concern  or  thematic  indicators  have  been  mapped  across  the
Commission’s  standard  assessment  questions.  Where  these  grievances  are  found  to  have  a
reasonable foundation, they  can broadly be handled at  the administrative level.  This  kind  of
response  is  facilitated  by  increasing  levels  of  maturity  and  stability  across  Member  States’
regimes.
The  preceding  analysis  illustrates  a  clearly  positive  trajectory  of  development  within  the
industrial  safety  culture  of  the  EU  as  a  whole.  This  includes  the  establishment  of  regulators
and duty  holders  who share  clear, mutual  objectives in  a common pursuit of major accident
prevention, including with regard to the environment.
Through  the  assessment  process  three  key  issues  were  particularly  prevalent,  they  may
therefore  warrant  a  thorough  follow  up:  (i)  liability,  financial  security  and  the  handling  of
compensation  claims,  (ii)  the  decommissioning  of  installations  including  questions  on
removal  or  leaving  in  situ,  as  well  as  the  follow  up  after  decommissioning  (including  the
monitoring  of  sealed  wells  and  (iii)  the  mutual  recognition  of  mobile  drilling  installation  in
the EU.

95

8  ANNEXES TO THE STAFF WORKING DOCUMENT (SWD)
9
ANNEX I: ORGANISATION AND TIMING

9.1
Lead DG & DECIDE planning info
Lead DG: DG Energy
DECIDE PLAN

9.2
Organization and Timing
20-21 September 2017  Meeting with Commission expert committee (EUOAG) and
industry stakeholders to initiate engagement with the project
21 November 2017
First meeting of the inter-services group (ISG) on the assessment
of the OSD.
21-22 March 2018
Meetings with expert committee (EUOAG) and industry experts
to generate first responses to project background.
3 May 2018
Publication of the Evaluation's roadmap and background
document. Invitation for comments by stakeholders98.
May – June 2018
Analysis of comments
19 July 2018
Deadline for full compliance with the Directive by industry
24 July 2018
Publication of draft assessment strategy and preliminary meeting
of Regulatory Scrutiny Board
July–September 2018
Preparation of public consultation questionnaire and organisation
of stakeholder workshop
19 September 2018
Stakeholder workshop. Launch of public consultation
4-6 December 2018
Interviews with stakeholder groups
21 December 2018
Close of public consultation
16-17 January 2019
Workshops with EUOAG and stakeholder experts. Release of
analysis of public consultation
31 January 2019
Second ISG Meeting on the assessment of the OSD
22 March 2019
Interviews with North Sea Regulators forum members
7 May 2019
Commission ISG meeting with expert committee on platform
decommissioning
25 October 2019
Third ISG Meeting on the assessment of the OSD
27 November 2019
Fourth ISG Meeting on the assessment of the OSD
12 March 2020
Meeting with the Regulatory Scrutiny Board and proposal to draft
an assessment on the experiences with the implementation of the
Directive

98 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-2361494_en
96

9.3
Evidence and Sources
The assessment was based on the following evidence and sources of information:
  Data collected from Stakeholders
  Data collected from Member States
  Information exchanged during stakeholder consultation meetings and workshops
  Information gathered from the public consultation process
  Information exchanged during the proceedings of the EU Offshore Authorities Group
  Information collected from experts in the sector
  Various relevant reports and legislation.

9.4
Discussions in the Commission's Inter Service Group
DG ENER has set up an Inter Service Group with representatives from various relevant DGs
specifically for the purposes of the assessment of the OSD, which was consulted on a regular
basis.  The  DGs  participating  in  this  group  were:  CLIMA,  COMP,  ENV,  FISMA,  GROW,
HOME, JRC, JUST, MARE, NEAR, MOVE, SG, SJ and EMPL. On its meeting on the 31st of
January 2019, the ISG has discussed the results of the stakeholder and public consultations. In
addition, bilateral meetings were held with several DGs for more technical follow-up. During
its meeting on 25th of October 2019 the ISG has further refined the assessment SWD and its
Annexes.

97

10  ANNEX II: STAKEHOLDER CONSULTATION

10.1 Consultation scope and objectives
In  assessing  the  effectiveness  of  the  Offshore  Safety  Directive  with  regard  to  its  objectives,
for  example  the  implementation  of  adequate  levels  of  safety  and  environmental  protection
across the EU, the review aims to verify whether:
  the  main  objectives  of  the  Directive  have  been  achieved  and  if  not,  whether  an
amendment of the Directive or other legislation is appropriate.
  any gaps in legislation exist which need to be covered for improving the level of safety
and environmental protection in offshore oil and gas operations.
  certain  provisions  of  the  Directive  impose  undue  burden  on  Member  States  or  the
industry and whether their removal should be considered.
  the Directive has  adequately harmonised the  regulatory structure and level of safety
and environmental protection across the EU offshore operations, proportionately to the
activity levels of the Member States.
  the Directive is effective and proportionate with regard to the objectives set.
The  European  Commission  involved  in  this  task  several  Directorates-General  with  DG
Energy in the lead. These Directorates-General co-operate in the framework of a formal Inter-
Service-Group  to  gather  and  analyse  information  for  addressing  the  review  and  report.  The
Directorate-General  for  Energy  informed  the  members  of  the  EUOAG  (Competent
Authorities of Member States, associations and unions) on its intention to evaluate and review
the Directive, in September 2017.
The  consultation  process  has  opened  the  discussion  on  all  relevant  topics,  including  (non-
exhaustive list):
  Liability, compensation claims, financial security and criminal law – also with regard
to  Resolution  2015/2352(INI)  of  December  1st  2016  of  the  European  Parliament  on
liability, compensation and financial security for offshore oil and gas operations:
  Decommissioning and abandonment of installations and wells;
  External  threats  (e.g.  cyber  security;  sabotage,  terrorist  and  criminal  attacks,  hybrid
attacks);
  Independent verification;
  Mutual recognition of Mobile Offshore Drilling Units in Member States' jurisdictions;
  Inconsistencies, shortcomings or unclear wording of the Offshore Safety Directive.
Participants  of  the  consultation  are  expected  to  provide  their  opinion,  experience  and
proposals preferentially supported by facts and figures.

10.2
Mapping and participation of stakeholders
Article 4(1) of the European Commission Decision of 2012 concerning the functioning of the
EU  Offshore  Authorities  Group  (EUOAG)  designates  the  Member  States’  Competent
Authorities  responsible  for  the  regulatory  oversight  of  offshore  oil  and  gas  activities  and
related policy issues as the members of the Group.
In a first step, the Commission has consulted these competent authorities to get feedback on
their technical and regulatory experience of implementing the Directive.
98

Secondly,  the  Commission  has  consulted  stakeholders  represented  in  the  EUOAG’s  plenary
meetings.  These  were  the  European  Community  Shipowners'  Association,  the  International
Association  of  Drilling  Contractors,  the  International  Marine  Contractors  Association,  the
International Association of Oil and Gas Producers and the IndustriAll trade union.
Thirdly,  the  Commission  has  contacted  regional  groups  and  conventions.  These  were  the
OSPAR Convention, the Barcelona Convention, REMPEC, the Commission on the Protection
of  the  Black  Sea  against  Pollution,  the  International  Maritime  Organization  and  the
International Labour Organization.
Fourthly,  further  consultation  of  an  enlarged  circle  of  stakeholders  and  Non-Governmental
Organizations took place from international, European and national level. Stakeholders were
asked to provide the Commission with the information necessary for an in-depth assessment
of  the  Directive’s  effectiveness,  as  well  as  their  opinion  on  related  matters.  Numerous
organizations  were  contacted  and  response  /  involvement  was  received  by  Sea  Shepherd
Global, the Bellona Foundation, World Wildlife Fund, the Nature Conservancy and Surfrider
Foundation Europe.
Finally, all other interested parties, e.g. private, business, public entities, have provided views
and comments via a public consultation carried out by the European Commission.

10.3 Selection of consultation activities and their accessibility
The Commission has carried out the following consultation activities:
February-March  2018:  Contributions  from  external  experts  with  specific  expertise  in  safety
legislation, including health and safety at work and protection of the environment;
March  2018:  Start  of  consultation  with  the  experts  and  key  stakeholders  through  the  EU
Offshore Oil and Gas Authorities Group;
September  2018:  Stakeholders’  Workshop  organised  by  the  Commission  in  Brussels.  The
Commission  invited  participants  from  organized  European  groups  relevant  to  the  offshore
sector.  Range  and  extent  of  participants  invited  took  into  account  contributions  and  interest
expressed during the public consultation.
September - December 2018: 12-week long public consultation99;
January 2019: Additional Stakeholder's Workshop

10.4 Summary  /overview  on  consultation  activities  by  stakeholder  groups  and
indicative timing

Table 1: Overview of consultation activities

99 Published on Europa Public Consultations Page at https://ec.europa.eu/info/consultations_en
99

Public
Workshop
Consultation Activity
EUOAG
EUOAG
Consultation
Workshop
Sept-Dec
Jan-19
Indicative Planning  19/09/2017  21/03/2018
2018
Sept-18
Targeted Stakeholders

Member States

Authorities
x
x
x
x
x
Industry Associations

x
x
x
x
Regional Groups and
Regional Sea
Conventions

x
x
x
Worker Union
Associations

x
x
x
Relevant Third

Countries

x
x
x
Relevant EU Agencies

x
x
x
NGOs


x
x
x
Citizens


x
x
x
Research bodies


x
x
x

10.5 Consultation webpage & communication activities

The  Commission  has  published  the  roadmap  document  on  the  consultation  webpage
specifically  created  for  this  assessment.  Announcements  at  the  webpage  of  the
Directorate-General  for  Energy  have  further  informed  the  public  on  this  review  and
provided the link to the webpage for the public consultation.

10.5.1 Roadmap of the Evaluation
The  Roadmap  document,  published  in  plain  language,  explains  the  context  of  the
Directive and its assessment. It clearly sets out the purpose, scope and methodology of
the assessment process. Full text of roadmap attached as pdf document.

10.5.2 Questionnaire for public consultation
Text of questionnaire is separately attached as pdf document.

10.5.3 Position Statements received from Stakeholders
Official statements were received by the following organizations:
-  Irish Offshore Operators' Association
100

-  European Community Shipowners' Association, International Association of Drilling
Contractors and International Marine Contractors Association (joint statement)
-  LUKOIL
-  International Association of Oil and Gas Producers
-  The Bellona Foundation, World Wildlife Fund, Friends of the Earth Europe, Surfrider
Foundation Europe, Young Friends of the Earth Norway (joint statement)
-  World Wildlife Fund Greece

10.6 Synopsis of Consultation Activities

10.6.1 February-March 2018:
Contributions from external experts with specific expertise pursuant to the scope of the OSD
The  first  step  of  the  consultation  strategy  aimed  at  collecting  information  to  consolidate  the
Commission’s  knowledge-base  on  the  evolution  of  offshore  safety  systems  since  the  entry
into force of the OSD.
The  consultation  involved  independent  national  experts,  representatives  from  EU  countries
and groups from the offshore industry affected by the OSD. Other General Directions of the
Commission (e.g. DG ENV and JUST) were also consulted.
Five  topics  previously  identified  as  “specific  areas  for  an  in-depth  assessment”  were
addressed through a questionnaire previously sent to participants:
-
Liability,  compensation  claims,  financial  security  instruments  and  criminal
prosecution
-
Decommissioning of offshore installations and abandoning of wells
-
External Threats and Cyber Security
-
Independent Verification
-
Mutual recognition of Mobile Offshore Drilling Units in MS jurisdictions
The result of the first step led to the drafting of an “issue paper”, which was presented to the
EU Offshore Authorities Group (EUAOG) ahead of the meeting of 21 March 2018.


10.6.2 March 2018:
Consultation with external experts and key stakeholders through the EU Offshore Authorities
Group
Article 4(1) of the European Commission Decision of 2012 concerning the functioning of the
EU  Offshore  Authorities  Group  (EUOAG)  designates  the  Member  States’  Competent
Authorities  responsible  for  the  regulatory  oversight  of  offshore  oil  and  gas  activities  and
related policy issues as the members of the Group.
In  a  second  step,  the  Commission  consulted  these  competent  authorities  to  get  feedback  on
their  technical  and  regulatory  experience  of  implementing  the  OSD.  This  approach  went  on
101

throughout  the  whole  assessment  process  along  succeeding  EUOAG  meetings  from
September 2017 to January 2019.
Members of the EUOAG’s plenary and ordinary  sessions had been already informed of the
procedures  and  time  line  of  the  assessment  process  at  their  previous  meeting  of  September
2017. The discussion also recalled the Resolution of the European Parliament of 1 December
2016  on  liability,  compensation  and  financial  security  for  offshore  oil  and  gas  operations
which calls the Commission to take new initiatives in this field.
Most  of  the  agenda  of  the  ordinary  session  of  the  EUOAG  meeting  of  21  March  2018  was
dedicated  to  the  consultation  of  the  EUOAG  on  the  review  and  assessment  of  the  Offshore
Safety  Directive.  The  consultation  aimed  at  identifying  best  practices  in  selected  areas  and
collect regulators’ views. The Commission announced the upcoming public consultation and
future workshops back-to-back with the 16th EUOAG.
The  following  technical  issues  were  discussed  both  in  ordinary  and  plenary  settings  of  the
EUOAG:
-
EU cross-sector legislation for environmental liability;
-
Liability, financial security and handling of compensation claims;
-
National and international rules applicable for decommissioning;
-
Cyber Security: specific threats for industrial installations (other sectors);
-
Experiences with the mutual recognition of platforms while crossing borders.

10.6.3 03 May 2018 to 31 May 2018:
Feedback period on the consultation roadmap
Following the publication of the consultation roadmap, the broader public had the chance to
give comments. Four contributions were received from business associations and one from the
Polish  national  oil  and  gas  company  PGiNG.  All  comments  are  publically  available  on  the
consultation webpage.

None  of  the  received  comments  let  to  identify  new  areas  for  an  in-depth  assessment.
Therefore, there has been no change in the Commission’s approach in evaluating the OSD at
this stage, or in the drafting of the questionnaire for public consultation.

10.6.4 19 September and 4-5 December 2018:
Stakeholder  consultation  meeting  in  Brussels,  completed  by  face  to  face  interviews  with
targeted stakeholders
The primary purpose of the workshop held on 19 September 2019 was to launch the project to
the  broad  base  of  stakeholders  and  add  to  the  consultation  which  took  place  between  the
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Commission  and the primary  duty holders (regulators and industry). This resulted in  further
broadening the interest to the European community, namely the NGOs. At the workshop, the
Commission  announced  the  launch  of  the  public  consultation  and  encouraged  delegates  to
participate in it.
A  total  of  82  delegates  have  participated  in  the  event.  Participation  from  regulators  and
industry was considerably larger in comparison to that of non-governmental organisations (3
NGO’s,  one  phone-in  and  trades  unions  (2).  Despite  the  Commission’s  efforts,  it  was  not
possible to attract representatives of the marine economy or coastal communities to the event.
The  duty  holders  were  balanced  by  social  partners,  speakers  from  NGOs  and  trade  union
sectors,  whom  reflected  on  the  extent  to  which  the  Directive  had  met  the  ambitions  of  the
environmental  activists  and  offshore  workers.  The  final  item  was  an  introduction  to  the
liabilities  and  financial  indemnities  subject  from  subject  matter  experts,  joined  with
commentary from NGO’s and academia.
Prior to  the workshop,  the Commission  had identified 15 elements  of particular interest  that
were  notified  to  speakers  to  guide  their  preparations  for  the  workshop.  The  workshop  itself
prompted  discussions  around  twelve  major  topics,  five  of  which  were  not  amongst  the
elements previously identified by the Commission.
The workshop’s discussion broadly showed the value of the OSD among groups affected by
it.    However,  many  of  them  pointed  out  a  fragmented  implementation  of  the  Directive  by
Regulators. Regulators pointed to slow reaction of some duty holders in taking the necessary
steps  to  implement  the  OSD  requirements,  especially  operators  active  in  the  southern
maritime regions. All stakeholders pointed to a lack of maturity in the implementation of the
OSD.  Except  for  the  operators  and  NGOs,  the  audience  showed  a  generally  low  level  of
understanding of the topic “financial responsibility”. The commission’s services also note a
general low strategic positioning of trade-unions in the discussion.
In  order  to  complete  the  input  received  form  stakeholders  and  in  anticipation  of  the  next
workshops of January 2019, four face to  face interviews between targeted stakeholders with
both  the  industry  and  the  civil  society  were  conducted  on  4  and  5  December  2018  by  the
independent expert supporting the Commission’s services in the assessment of the OSD. The
interviews  involved  respectively  the  International  Marine  Contractors’  Association  (IMCA),
the  European  Community  Shipowners’  Associations  (ECSA)  and  the  International
Association  of  Drilling  Contractors  (IADC),  the  Bellona  foundation,  the  international
organization  of  oil  and  gas  producers  (IOGP)  and  finally  the  Offshore  Pollution  Liability
Association  (OPOL)  and  other  insurers  also  supported  by  IOGP.  These  interview  help  to
better clarify each duty-holder’s positioning vis-à-vis the OSD’s implementation.

10.6.5 19 September to 21 December 2018: public consultation

The  public  consultation  took  place  from  19  September  to  21  December  2018.  The
questionnaire comprised 102 questions, broken down into 17 chapters. Fifty-one replies were
submitted  to  the  survey  portal.  Additionally,  eleven  open  letters  from  National  authorities,
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business associations and oil and gas companies. About 60% of the contributions were public.
Out of the 51 answers received, 16 were submitted by entities registered in the transparency
register. Only few national regulators used the public consultation to provide their feedbacks
on the implementation of the OSD.  It is noteworthy that 200 draft replies to the questionnaire
remained after closure of the consultation period. No technical issue was reported nor could
be  identified  subsequently  that  could  explain  this  rate.  While  business  and  business
associations authored one-third of all contributions, individual citizens constitute the biggest
single contributor group.
Regarding the effectiveness of the Directive in reaching its objective to reduce risks of major
accidents  on  offshore  installations,  the  assessment  shows  an  overall  satisfaction  across  all
contributor groups, except for civil society organisations who showed a mitigated view of the
topic.  Yet,  one  third  of  all  contributors  believe  that  the  Directives’  provisions  needs  to  be
adjusted. Businesses and business associations disapprove this statement largely. The majority
of contributors believe that EU countries’ transposition of the OSD should be improved.
The detailed assessment of the fulfilment of the OSD’s specific objectives reflects the overall
satisfaction  across  all  contributor  groups.  Nevertheless,  all  contributors  agree,  also  within
each group, that the application of the OSD is not consistent across all EU Member States.
The general assessment of the results of the public consultation confirms the relevance of the
OSD. However, the businesses and business associations overly believe that some provisions
of the OSD can be simplified without compromising their objectives. The contributors believe
that the safety environment of offshore oil and gas operations would be worst, would the OSD
not have been adopted.
Comments  to  the  general  section  pointed  out  that  the  review  is  happening  too  soon.  The
general  view  of  the  industry  is  that  no  changes  or  additions  should  be  made  to  the  OSD’s
scope and content. Finally,  a recurrent  shortcoming of the OSD according to  the industry is
the lack of mutual and automatic recognition of safety cases between EU member states that
leads to increased difficulties and costs when moving rigs between countries.
NGOs  called  for  the  OSD  to  be  made  fully  consistent  with  the  EU  oceans  and  climate
policies,  targets  and  objectives  also  with  regards  to  the  impacts  of  offshore  drilling  and  oil
spills on the marine ecosystems.
The  public  consultation  confirmed  the  offshore  industry’s  position  on  liability,  financial
security,  financial  instruments  and  the  handling  of  compensation  claims.  The  clear  and
suitable  assignment  of  responsibilities  of  risk  management  between  licensees,  operators,
owners and third party contractors is also confirmed.
It  is  noteworthy  that  individual  contributors  do  not  consider  that  public  participation  in
strategic  decisions  concerning  the  effects  of  oil  and  gas  operations  is  assured  and  adequate
and  effective.  This  is  mostly  attributed  to  the  practical  application  or  enforcement  of  the
overall legal framework.
The offshore safety duty-holders strongly believe that the information requested in annex IX
OSD  is  sufficient  to  portray  the  safety  performance  levels  of  oil  and  gas.  However,
international  organisation and civil society organisation doubt  that the operators  and owners
provide to the competent authorities the requested information correctly and in a manner that
reflects reality or that the interested public has easy access to it.
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On the topic of internal and external emergency plans, individuals and civil society would like
measures  to  be  carried  out  by  the  Member  States  instead  of  the  operators  and  owners.  The
consultation shows a certain degree of uncertainty of contributors regarding the adequacy of
external  emergency  plans  in  successfully  dealing  with  transboundary  effects.  Finally,  civil
society  contributors  voiced  concerns  for  inadequate  transparency  towards  the  public
concerning  emergency  incidents.  In  addition,  individual  contributors  doubt  that  financial
penalties  are  really  applied  or  even  an  effective,  proportionate  and  dissuasive  tools  for
preventing violation of the OSD standards.
No clear patterns emerged from the question whether the application of criminal law to gross
breaches  of  duty  leading  to  a  major  accident,  or  a  near-miss,  or  a  major  environmental
incident,  consistently and across the EU, would enhance the performance of industry in  risk
management and reduction.
A vast majority of contributors agree that the OSD provisions are adequate for major accident
prevention  and  environmental  protection  during  the  decommissioning  process  and  for
providing  long  term  environmental  protection  after  decommissioning.  Yet,  many  responses
(businesses,  civil  society  and  individuals)  support  the  need  for  additional  provisions  and/or
financial  schemes  for  post  decommissioning  environmental  protection  and  liability  and  call
for  additional  technical  guidelines  for  decommissioning  and  plugging  and  abandonment.
IOGP submitted a statement on the subject with arguments in favour of the current regulatory
setup, which they see as adequate.
One third of all contributors consider that additional, sector-specific measures are necessary to
adequately protect offshore oil and gas installations from external threats, sabotage and cyber
security threats. The business sector disagrees with this statement.
Businesses and their associations do not consider that there is adequate mutual recognition of
Mobile  Offshore  Drilling  Units  across  borders  between  Member  States,  without  undue
restrictions and undue administrative burden. Some propose to regulate mutual recognition at
EU level (via a regulation), other argue that bilateral consultation at national level can solve
the issue.
Finally, throughout the replies to the public consultation, the offshore industry challenged the
meaningfulness  of  the  Corporate  Major  Accident  Prevention  Policy  (CMAPP),  while  at  the
same  time,  individual  contributors  called  for  safety  cases  to  be  made  part  of  the  public
domain. It must be noted that on some questions related to specific articles of the OSD and on
specific areas of the review, business associations representing different level of the offshore
industry life chain submitted coordinated replies, or referred to the contribution of the IOGP.
Preliminary  results  of  the  public  consultation  were  presented  to  the  stakeholders  in  the
EUOAG  ordinary  and  plenary  meetings  on  16  and  17  January  2019  and  were  positively
received. The Commission’s services explained that the results do not prejudge any outcomes
of  the  assessment  regarding  a  potential  revision  of  the  OSD,  but  were  going  to  be  used  to
strengthen the knowledge base.

105

10.6.6 16 and 17 January 2019:
Two additional workshops with regulators and stakeholders in Brussels.
An  additional  round  of  consultation  with  stakeholder  (not  announced  in  the  consultation
roadmap)  took  place  in  the  form  of  two  workshops  on  the  side-line  of  the  ordinary  and
plenary meetings of the EUOAG in Brussels on 16 and 17 January 2019. The first workshop
was opened only for national regulators; the latter was addressing all stakeholders.
They  served  the  purpose  to  stabilise  the  confidence  in  the  Commission’s  assessment  work,
keep on building the community of purpose between all groups impacted by the OSD, re-visit
key underlying risk drivers of the Directive and intensify the discussion around key areas for
an in-depth assessment. Additionally, the workshop served to secure the stakeholders support
in accessing key data for the assessment.
The two workshops were considered successful. No new theme emerged from the discussion.
The  fault  lines  between  stakeholders  emerged  more  precisely  along  the  discussions  on  the
outcomes of the public consultation and the thematic indicators of the assessment.
Replies to the Commission’s request for data arrived in March and April 2019, and allowed
the  Commission’s  service  to  strengthen  and  refine  its  assessments  on  key  aspects  of  the
OSD’s assessment.

10.7 Stakeholder positions
Throughout the consultation process, various arguments were expressed. On certain subjects,
there were clear, distinct positions amongst the various stakeholder groups with regard to the
themes and subjects  analysed in  the discussions. The text  below gives a synopsis were such
convergence was evident.
On  the  subject  of  decommissioning,  the  industry  has  strongly  advocated  that  all
decommissioning  activities,  including  the  plugging  and  abandonment  of  wells,  take  place
according to safety and environmental legislation and that wells are fully sealed at the end of
operations. Some MS have supported the above, adding that the industry is liable to perpetuity
for any need of intervention. Other MS however, expressed doubt about the sealing of wells.
NGOs  have  expressed  concern  about  certain  derogations  granted  to  decommissioning
projects, which involve leaving in place amounts of oil or harmful substances.
With regard to the mutual recognition of mobile drilling units, the industry has made a strong
plea for harmonizing the assessment of the RoMH and other documentation within EU MS, in
order  to  simplify  and  expedite  the  process  of  transferring  the  units  between  various
jurisdictions. However, MS have strongly opposed such approach, which they consider both
risky in terms of the responsibility of the competent authorities, as well as unnecessary due to
the low occurrence of such transfers entailing 'first entry' of a unit. According to MS views,
the assessment of safety documentation is adequately fast.
On  matters  involving  financial  liability  and  the  capacity  to  cover  any  environmental  or
property  damage  caused  by  potential  accidents,  there  was  a  clear  discrepancy  between  the
views of MS and industry on the one hand and NGOs on the other. The first consider that the
systems in place are adequate to cover any potential damages caused, while the latter express
serious doubts.
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Overall,  both  MS  and  industry  consider  that  the  Directive  is  fit  for  purpose.  In  some
occasions, the public has expressed concern about important small incidents and leakages not
being  reported,  as  well  as  the  effectiveness  of  the  internal,  external  and  transboundary
emergency response systems in place.

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11   ANNEX III: MEMBER STATES’ IMPLEMENTATION OF THE DIRECTIVE
The  assessment  conducted  by  the  Commission  has  shown  that  the  overall  level  of  the
transposition  of  the  Directive  in  the  Member  States  is  adequate,  although  the  integrity  and
quality  of  implementation  across  the  Member  States  varies  significantly.  Member  States
presented  different  approaches  for  the  implementation  of  the  Directive  (either  in  full  or  in
relation  to  specific  provisions).  Some  Member  States  have  adopted  new  legislation  that
transposes the provisions of the Directive, whereas others have amended existing legislation
and  included  the  transposition  of  the  Directive’s  different  provisions  into  several  pieces  of
legislation.
Certain Member States have largely literally included the provisions of the Directive in their
national law, while others have partly or fully adapted the wording of the Directive with the
intention  to  convert  it  better  into  their  specific  legislative  culture.  The  assessment  puts  the
focus on the most important provisions of the Directive, having the largest impact on offshore
safety.  It  follows  a  summary  from  the  assessment  of  the  quality  of  Member  States’
implementation:
  The overall implementation of Article 3 of the Directive, containing general principles
of  risk  management  in  offshore  oil  and  gas  operations  and  describing  fundamental
scope of  responsibility of operators under the Directive, is  considered satisfactory.  It
should  be  noted  however  that  several  Member  States  had  difficulties  with  the
transposition  of  its  second  paragraph,  dealing  with  the  exclusion  or  limitation  of  the
operator’s duties.
  Article 4 of the Directive deals with safety and environmental considerations relating
to  licences.  It  underlines  the  Directive’s  objective  to  ensure  the  protection  of  the
environment  by  avoiding  offshore  accidents.  Some  Member  States  had  difficulties
appropriately  implementing  the  Article’s  second,  third,  and  fifth  paragraphs.  These
paragraphs respectively include: criteria for the assessment of technical and financial
capability of an applicant, licensee's liabilities, and the availability and assessment of
information  collected  as  a  result  of  exploration.  The  transposition  assessment
conducted  by  the  Commission,  followed-up  by  an  individual  dialogue  with  Member
States, has also shown room for improvement in respect of the fourth paragraph. This
paragraph  relates  to  the  appointment  of  an  operator  by  a  licensee  or  the  licensing
authority  (e.g.  rules  of  procedure  for  co-operation  between  licensing  authority  and
competent authority).
  Article 5 of the Directive covers fundamental rules for public participation on the issue
of  environmental  impacts  associated  with  planned  offshore  oil  and  gas  exploration.
The implementation of the first paragraph (no drilling without public participation) is
considered  satisfactory.  However,  Member  States  did  not  always  fully  implement
applicable rules for when public participation is not undertaken, covered in paragraph
2.
  The  Commission  has  identified  a  good  level  of  implementation  for  Article  6  of  the
Offshore  Safety  Directive,  setting  out  rules  applicable  to  offshore  oil  and  gas
operations  within  licensed  areas.  However,  transposition  of  its  sixth  and  eighth
paragraphs  has  proven  challenging  for  some  Member  States.  Paragraph  6  covers  the
obligation  to  submit  a  notification  of  well  operations  or  a  notification  of  combined
operation.  Paragraph  8  covers  the  obligation  to  undertake  tripartite  consultation
between the competent authority, operators and owners, and workers’ representatives
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in the formulation of standards and policies dealing with major accident prevention. It
should  also  be  noted  that  the  definitions  provided  in  Article  2,  points  21  Directive
('connected infrastructure') and 22 Directive ('acceptance') of the Directive, referred to
in  the  Article  in  question,  have  not  been  correctly  and  completely  implemented  by
several Member States.
  Article  7  of  the  Directive,  concerning  the  licensee’s  potential  liability  for
environmental  damages,  has  been  completely  and  correctly  transposed  by  almost  all
Member States.
  Article 8 of the Directive concerns the appointment of a national competent authority.
Implementation  of  its  second  and  fourth  paragraphs  has  posed  difficulties  for  many
Member States. These paragraphs refer to rules relating to the design of the competent
authority,  as  well  as  public  availability  of  the  information  on  the  organisation  of  the
competent  authority,  respectively.    Some  Member  States  have  also  experienced
problems  with  the  transposition  of  the  first  and  fifth  paragraphs.  These  paragraphs
address  regulatory  functions  of  the  competent  authorities,  and  the  provision  of
adequate human and financial resources to competent authorities, respectively.
  For Article 9 of the Directive, which sets out rules for functioning of the competent
authority,  the  Commission  services  are  in  contact  with  several  Member  States  to
obtain additional information.
  The  vast  majority  of  Member  States  have  also  completely  and  correctly  transposed
Article 12 of the Directive, setting out detailed rules for the submission of the report
on major hazards related to production installations. It should be noted, however, that
implementation  of  the  definition  of  'major  hazard',  referred  to  in  Article  12  of  the
Directive, has proven challenging for some Member States.
  A good level of implementation of Article 13 of the Directive was identified, setting
out  detailed  rules  for  the  submission  of  the  report  on  major  hazards  for  the  non-
production installations.
  Article 14 of the Directive deals in its entirety with internal emergency response plans.
It has been adequately implemented by the Member States.
  Implementation  of  Article  17  of  the  Directive  was  overall  successful,  setting  out
requirements  for  schemes  for  independent  verification  prepared  by  operators  and
owners. However, transposition  of its second paragraph has posed  certain  challenges
for  some  Member  States.  This  paragraph  states  that  the  results  of  the  independent
verification  should  be  without  prejudice  to  the  responsibility  of  the  operator  (or  the
owner)  for  the  correct  and  safe  functioning  of  the  equipment  and  systems  under
verification. A few Member States also experienced problems with the implementation
of  the  definition  of  'independent  verification',  referred  to,  inter  alia,  in  Article  17  of
the Directive.
  Article  18  of  the  Directive  sets  out  powers  of  the  competent  authority  regarding
operations  on  installations.  The  national  transposition  measures  of  a  number  of
Member  States  require  improvement  (e.g.  independence  of  the  authority,  unclear
mandate, or rules of procedure).
  Article 19 of the Directive, setting out detailed rules for major accident prevention by
operators  and  owners,  has  been  correctly  and  completely  implemented  by  Member
States. However, the fourth paragraph (concerning tripartite consultation) and seventh
paragraph (dealing with the obligation to prepare and revise standards and guidance on
best practice in relation to the control of major hazards) have proven challenging for
several Member States.
  Article  20  of  the  Directive  concerns  the  offshore  oil  and  gas  operations  conducted
outside  the  Union,  and  should  have  been  transposed  by  all  Member  States.  This
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includes  landlocked  Member  States  and  Member  States  with  offshore  waters  that  do
not have offshore oil and gas operations under their jurisdiction and that do not plan to
licence such operations.  Implementation of its first  paragraph, obliging companies  to
report the circumstances of any major accident they have been involved in globally to
the  Member  State  where  they  are  registered,  requires  further  improvement  by  a
significant number of Member States. Particularly regarding the empowerment of the
competent authority to request adequate documentation and enforce its submission.
  Almost  all  Member  States  have  fully  and  correctly  transposed  Article  22  of  the
Directive,  providing  the  foundations  for  confidential  reporting  of  safety  concerns.
Nevertheless,  improvements  to  the  national  transposition  measures  notified  by  a  few
Member States are still necessary.
  Article  23  of  the  Directive  concerns  the  obligation  to  share  information  between
owners,  operators,  and  competent  authorities,  Article  24  deals  with  transparency,
Article 25 relates to reporting on safety and environmental impact, and Article 26 sets
out rules for investigation following a major accident. All of these Articles have been
overall well implemented by the Member States.
  The overall level of implementation of Article 27 of the Directive, setting out rules for
cooperation  between  Member  States,  is  also  highly  satisfactory.  Only  its  final  (fifth)
paragraph  has  posed  some  difficulties  for  several  Member  States.  It  should  also  be
noted that implementation of the definition of 'industry' provided for by Article 2(35)
of the Directive, and referred to in many provisions thereof (including Article 27), has
proven challenging for some Member States.
  Article  28  of  the  Directive,  providing  the  requirements  for  internal  emergency
response plans, has been correctly and completely implemented by the vast majority of
Member States.
  The overall level of implementation of Article 29 of the Directive, concerning external
emergency  response  plans  and  emergency  preparedness,  is  satisfactory.  However,
there  are  still  some  weaknesses  in  national  transposition  measures  in  a  few  Member
States.
  Article 30 of the Directive deals with emergency response, and has been completely
and correctly transposed by almost all Member States. Only the Article’s final (third)
paragraph, obliging Member States to  collect  the information  necessary  for thorough
investigation, has proven problematic for some Member States.
  The  large  majority  of  Member  States  have  adequately  transposed  Article  31  of  the
Directive,  concerning  the  transboundary  emergency  preparedness  and  response  of
Member States with offshore oil and gas operations under their jurisdiction. In several
Member  States  there  are  weaknesses  regarding  the  second,  fourth,  and  sixth
paragraphs.  These  respectively  include:  major  hazards  in  internal  and  external
emergency  response  plans,  coordination  of  measures  outside  of  the  EU,  and
information obligations.
  Article  34  of  the  Directive  obliges  Member  States  to  specify  rules  on  effective,
proportionate,  and  dissuasive  penalties  applicable  to  infringements  of  national
provisions and to ensure that such penalties are enforced. Further analysis is required
to assess whether the rules enforced by Member States are effective, proportional and
dissuasive.
The  dialogue  with  Member  States  is  being  continued  to  achieve  improvements  and  a  fully
adequate  level  of  implementation.  If  necessary  the  Commission  may  start  infringement
proceedings  in  case  of  severe  shortcomings.  Following  the  Commission’s  analysis  of  safety
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performance as published in the annual reports, offshore safety performance appears adequate
in all Member States.

111

12  ANNEX IV: METHODOLOGY FOR THE ASSESSMENT

12.1 Consolidated list of 15 thematic indicators undergoing analysis

Table 2: Thematic Indicators
Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

1. OSD-embedded elements
1.1
Applying risk
Art.3(1)(
  Operators to take
  (+) General principle of control of major accident
management
3)(4)
‘all suitable’
hazards through management of risk is broadly
principles for
measures to prevent
welcomed
control of major
major accidents
  (~) Inconsistent use of risk assessment by both
accidents

operators and regulators as precursor to a decision

Operators to take

‘all suitable’

(-) Reported inconsistency when the condition of ‘risks
ALARP’ is achieved
measures to limit

consequences
(-) Risk assessment measures adopted by Member
States insufficiently stringent (generic – applies to
  All operations c/o
different forms of intervention)
on basis of
  (-) Lack of support to worker involvement in Reports
systematic risk
of Major Hazards100 (related to risk assessment, above)
assessment to
o  Too tight time frames for assessment –
achieve major risks
insufficient time given by employer
‘ALARP’
o  Workers not prepared/trained
  Suggestion to incorporate into tripartite consultation
mechanisms
1.2
Public
Art.5
  No new licensing
  (+) Broad appreciation that the measure is important
participation in
without previous
  (-) Inconsistent application of MS ‘to dormant
release of new
public consultation
licensing
areas for
  MS’ to make
  (-) Inconsistent regard to changes in sea conditions
licensing
suitable and
over recent time (10 years)
sufficient
  (-) Some licensing authorities avoid full application of
arrangements for
EIA and PP requirements in previously licensed areas
consultation and
that have nonetheless been inactive for a number of
transparency
years
o  (~) COM invited to consider relinquishment of
licenses as a matter of public information and
comment
1.3
Assignment of
Art.8,9
  MS’ to assure
  (+) Consensus of approval to principle of independent
the competent
structural
CA for safety and environment
authority
independence from
  (~) Duty holders concerned that some CA’s have yet to
conflicts of interest
stabilise and to acquire all relevant skills and expertise
with economic

100 a RoMH is an ex ante report by the operator or owner of an installation demonstrating that all major hazard risks are
ALARP. Comments of the workforce are to be taken into account. The competent authority must issue an acceptance of the
RoMH prior to operations starting.
112

Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

regulation
  (-) Observed difference of assignment in each
  Functional
jurisdiction  fragmentary approach to transposition
separation
of OSD and different regulatory approaches
acceptable where
  (-) Doubtful separation of CA from economic
the number of
regulation in some jurisdictions
installations <6.
  (-) Perceived duplication of safety and environmental
  MS’ to ensure
regulation leading to increased regulatory burdens
integration of

safety &
environment
functions
  CA may appoint
external experts to
support its
functions
  Where CA
comprises 2+
bodies, duplication
to be avoided: lead
body may be
appointed
  CA to publish
policies and
procedures
1.4
Functioning of
Art.17
  Integral to the
  (+) Most MS’ express approval of the system
scheme of
operator/ owner
  (+) Advanced N Sea MS reports finding significant
independent
SEMS, equivalent
advantage to major accident risk control once scheme
verification for
to “2nd pair of eyes”
had stabilised
installations and
  Requires

wells

(~) Advanced MS’ found introduction of scheme
conformance to
difficult – market unready and numerous design
tests of
options for IV schemes
independence of

verifiers and
(~) Some MS express reluctance to accept 2PV (cross-
integrity of work
verification) as completely independent. – interest in
system
making 3PV mandatory, but capacity must be ensured



Applies to
(-) Some approaches expressed by MS’ as possible
verification of
approaches in applying the OSD provisions:
SECE101 and to
o  In prescribing mandatory third party
wells including
verification
changes to design
o  In prescribing or approving the independent
intent
verification body
  2nd  or 3rd party
o  (Latter could be considered contrary to goal-
verification
setting, outcome-based design intent of OSD)
permitted strictly
  (-) MS’ claim lack of clarity of Article 17 & Annex V
where standards for
relating to operation of independent verification
independence are
schemes – expressed need for COM guidelines

101 Safety and environment critical elements (SECE) i.e. parts of an installation including computer programmes, the purpose
of which is to prevent or limit the consequences of a major accident, or the failure of which could cause or contribute
substantially to a major accident
113

Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

met
  (~) Independent verification bodies (i.e. companies
who specialise in IV on a global scale) claim smaller
niche companies lack capability and become captive to
the client
  (~) IVB’s also claim OSD spawns growth of
inexperienced small niche IV providers
1.5
Safety in
Art.19(8)  
Corporate MAPP102  
(-) Apparent fragmentary approach to implementation
operations
Art.20
to apply even to
by MS’ with some adding rules of tenuous relationship
conducted
operations outside
into the generic measure
outside EU
the Union
  (-) Inconsistency reported in MS’ requirements for
  Operators’
duty holders demonstration of CMAPP, and for MS’
registered in a MS
verification of it
to report on
  (~) Unknown whether a major accident in a 3rd
incidents occurring
country occurred that would trigger a report by a EU-
outside the Union
registered corporation to its MS
  (-) Some duty holders unclear of distinction between
CMAPP and SEMS and report duplication
1.6
Arrangements
Art.22
  CA to make
  (+) Wide approval of all stakeholders of fundamental
for worker
right bestowed under Article 22
Art.6(8)
arrangements for
involvement in
reports and to
  (~) Signs that MS’ take insufficient interest in training
major accident
preserve anonymity
for workers and managers and in relationship of
prevention,

whistle blowing to transparency, culture and integrity

Operators/owners’
(relating to
issues for the sector
to communicate
protection of
  (-) TU’s report protection of whistle-blowers
their arrangements
whistle-blowers
insufficient taken as a whole, and favour a link to
to workers
and tripartite
tripartite103 consultation mechanisms relating to policy

consultation

Operators/owners’
and standards
mechanisms)
to include training
  (+) Duty holders report significant value-added where
  Tripartite
scheme of tripartite consultation first introduced (esp.
mechanisms to be
outside N Sea region)
established by MS’
  (~) Tripartite consultation not yet fully embedded in
for consulting on
many Member States
major accident

prevention policy
(~) At present, no sharing of learnings or other
and standards
information exists between tripartite committees of
MS’
1.7
Transparency
Art.23
  Commission to
  (+) Scheme is functional (but not fully mature). Is the
concerning

102 CMAPP: Corporate Major accident prevention policy, i.e. a document setting out the owner’s or operator’s corporate
policy for the avoidance of major accidents at their installations located anywhere in the world. Suitable arrangements to be
made for monitoring the effectiveness of the policy which is to apply throughout the lifecycle of any installation controlled
by the operator or owner, and in the case of an operator to take account of their primary responsibility for control of major
accident risk (see element #1.1)
103 Formal tripartite consultation is required under auspices of each MS’ to allow operators, regulators and worker
representatives to discuss formulation of major accident prevent policy and standards.
114

Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

reporting of
Art.24
make implementing
first statutory inter-State reporting system anywhere
inciden
Art.25
regulation104 for
  (~) There is a widely held public view that oil industry
common reporting
and regulators are not transparent and industry/MS’
parameters
not forthcoming during preparation of directive
  Commission to
  (-) Remains a disparity of data reporting and handling
publish simplified
between MS’ (and globally)
reporting format
  (~) Some MS’ believe current guidance is
  MS’ to make public
insufficiently detailed
information relating  
to incidents
(~) Some duty holders dissatisfied with some incident
severity thresholds (e.g. relating to release volumes of
  MS’ to report to the
hydrocarbon escapes)
Commission
  Commission to
make annual
reports
1.8
Emergency
Art.14
  Operators/owners’
  (+) All installations present in EU waters have
preparedness and  Art.28
to make relevant
appropriate plans. Some MS’ have agreed extensive
response
internal emergency
procedures with duty holders
Art.29
arrangements of
response plans for
  (~) some doubts as to extent to which internal
operators/
Art.30
containment of
emergency response plans are harmonised with
owners’
incidental releases
national contingency plans of MS?
  IERP’s to be
  (+) Duty holders acknowledge the requirement has
integrated as
added value by improving integration of installation-
necessary e.g. with
based emergency response plans with national
those of adjacent
contingency plans (see #1.9)
installations and
with national
contingency plans
of the MS
  IERP relevant
expertise and
equipment to be
always available
  Emergency
response exercises
to be conducted by
MS’, operators and
owners
1.9
Emergency
Art.28
  MS’ to prepare
  (+) Duty holders and MS’ acknowledge the
preparedness and  Art.29
external ERP
requirement has added value by improving integration
response
coherent with
of installation-based emergency response plans with
Art.30
arrangements of
IERP’s
national contingency plans (see #1.8)105

104 Comitology committee of experts chaired by Inspector General of NL regulator. Work on common reporting format
completed with publication of Commission Implementing Regulation (EU) 1112/2014:
http://data.europa.eu/eli/reg_impl/2014/1112/oj
105 Since 2018, a number of devices – capping stacks – have been strategically deployed to be used to seal a subsea well
blowout. These large devices may be lowered over the spewing wellhead on the sea floor and are designed to effect a seal and
stem the flow. The equipment is stored in component form and deployable anywhere by large commercial aircraft such and
115

Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

MS’
Art.31
  MS’ to ensure plans    Certain MS’ and regions continue to prepare
executed and
emergency response plans (Commission JRC has
investigations
provided technical assistance)
conducted without
  (-) Fragmented approach to consideration of
delay
transboundary pollution effects (including 3rd
  Equipment to be
countries)
compatible and
  (~) The extent of harmonisation of arrangements
interoperable
across state boundaries unclear
between adjacent
MS’


(+) Industry claims effective interoperability of
expertise and equipment between MS’ in contiguous
  Emergency
maritime regions
response exercises
to be conducted by
MS’, operators and
owners
  Transboundary
risks of pollution to
be addressed and
suitable
cooperation to be
arranged with 3rd
countries
1.1
Availability of
Art.34
  To be: effective;
  (~) Apparent wide disparity in approach between MS’
0
dissuasive
proportionate;
in powers, sanctions and enforcement
penalties for
dissuasive
  (+) MS’ and duty holders claim transparency of
breaches of duty
  MS’ to advise
enforcement is significant sanction (i.e. impact on
Commission of
corporate reputation more significant than financial
penalties by July
penalties)
2015
  (-) Lack of harmonisation between MS’ in relationship
between criminal sanctions and licensing conditions
  (~) Social partners (TU’s, NGO’s) call for bigger
financial penalties to reflect commercial scale of duty
holders
  (~) July 2015 report?
2. Arms-length elements
2.1
Assignment of
Art.4
  Financial capability    (+) Article 7 imposes strict liability on license holder,
liability;
without exception.
Art.7
to meet all
financial
liabilities to be
  (+) Two MS’ have produced specific detailed guidance
Art.39(1
responsibility;
assessed during
for both regulators and license holders / applicants for
)(2)
and schemes of
licensing
compliance with financial responsibility guidelines
civil
Europea

provisions of Article 4106

Ongoing

then to be assembled and transported to location by ship within 24 hours of demand. To meet the 24 hours demand time,
devices are located in the Gulf of Mexico, UK, Norway, Italy, Angola, Brazil and Singapore.
106 Potential exemplar provisions are in Oil & Gas UK publication specifically drafted in pursuit of Article 4 compliance:
“Liability Provision Guidelines for Offshore Petroleum Operations” OGUK, 2018. Provides a ready reckoner for
compensating potential clean-up costs and economic losses in all regions (modest to harsh; mechanisms for financial security
and verification methods are provided. Regional spread of financial responsibility for a major petroleum release accident to
the environment is US$250m – 1.5bn
116

Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

compensation
n
commitment to
  (+) Broad preference of industry to maintain exposure-
Parliame
maintain capability
based approach over ‘blanket’ universal tariff liability
nt
  All relevant marine
provision
resolutio
environmental
  (+) Data exists on EU claims and pay-outs (to be
n
factors to be
provided to COM)
Decemb
incorporated
  (+) NGO’s direct COM interest to International Oil
er 2016

Pollution Compensation Fund (IOPC)107

(2015/23
Liability for
  (-) Clear that liability and financial responsibility
52(INI))
petroleum pollution
regimes in MS’ are equally fragmented as prior to
ascribed to license
holders
OSD



(-) NGO’s108 claim liabilities and financial

Availability of
responsibility models are based on outdated sea models
financial
– backward looking to pre 2010 and do not account for
responsibility and
rapidly increasing fragility of the marine environment
compensation
due to human and climate effects
schemes to be
  (~) Influx of smaller less financially capable operators
reported to
in some regions, including frontier harsh environments,
Parliament/Council
is more prevalent than 2010
by 2014
  (~) NGO’s point out that where pure economic loss
  Commission to
where applied in other jurisdictions (particularly in
report on
USA and NO fishing sector) it has ‘not opened flood
effectiveness of
gates’
liability regimes
  (~) Industry point out where pure economic loss
and whether to
models are applied, limited liability and/or exclusions
broaden EU
also apply
measures
  (~) Broad debate between operators and NGO’s on
Parliament requires
what does the assessment for Parliament aim to solve
Commission to make a
regarding financial responsibility and liability?
report and
  (~) Would EU legislation apply vertically (by sub-
recommendations
sector, in this case offshore upstream petroleum sector)
taking account of all
or horizontally (to level up all civil liability law in
factors to be submitted
MS’)
July 2019
  (~) Operators challenge whether OSD is the relevant
instrument in the EU acquis for intervention in MS’
civil liability legislation
(~) Any change in EU legislation spawns the question of
who drives the liabilities and compensation market (EU,
MS, or Industry) Unlimited losses are currently not
insurable above US$1.5bn
2.2
Prospect of
Art.39(3
  Commission to
  (+) Criminal sanction applies in certain MS’
extending
(within
report in December
  (+) Unlikely to be strongly opposed by sector
criminal
the scope
2014

sanctions to

(~) Some new civil legislation in MS’ imposes
of
  Commission to
stronger civil financial penalty than criminal courts

107 IOPC Fund is based on the oil tanker sector following a series of major European spills (Torrey Canyon, Erika …).
Transferrable elements are: strict liability – polluter (tanker owner) pays; liability cap per tanker size (<US$285m) but which
includes any compensation paid out under Civil Liability Convention (current maximum US$125m); based on levy of
members (receivers of the cargo); only applies to MS’ signatory to the fund.
108 Notwithstanding at least one CA is arbiter of financial responsibility provisions pursuant to Art.4, the discourse on this
critical topic is entirely between industry associations represented by IOGP and NGO’s
117

Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

breaches of duty
Directive
consider legislative
and can be straightforward to enforce penalties
to safeguard the
2008/99/
proposals
  (-) Criminal proceedings are time consuming and
environment
EC)
  MS’ to make
costly to MS’ with typically insignificant fines
from major

relevant

accidents
(~) Damage to corporate reputation cited as 1ry
information
aversion factor under criminal action
available to the
  (-) Requires new legislation – presents legal
Commission
timetabling issues 2019/20
3. Additional elements
3.1  Post
Art.12
  All OSD measures
  (+) All regional seas have governing marine
decommissioning
conventions that addresses decommissioning
Annex
apply where
responsibility for

I(6)
installation is

(~) Post decommissioning surveying (for a limited
ensuring
stationed in a
time) for hydrocarbon emissions109 may be a
permanent
licensed area,
requirement of MS’ licensing arrangements, (before
sealing of wells,
including scrutiny
operators are released from responsibility on the site).
and for
of
It doesn't currently take place before handover of site
determining
decommissioning
and responsibility to state. Post-decommissioning
extent of removal
wells and physical
liability provisions do not exist under EU law.
of fixed
structures
  (~) Surveying is not required under EU Hydrocarbons
installations

Licensing Directive 94/22/EC

OSD ceases to

apply where field

(~) Industry favours all regional seas conventions be
has been
aligned with OSPAR with no additional intervention
decommissioned
via the Directive/ However, recent practice suggest that
and the license has
Conventions offer a large degree of derogation to
been relinquished
Contracting Parties. It should also be noted that EU
MS are bound by conventions where EU is a signatory,
  OSD is reactivated
such as the Barcelona Convention and the Offshore
should an
Protocol thereto.
installation be
  (~) Ongoing technical debate on how many abandoned
stationed again in
wells facilitate gas seeps in North Sea110 and their
the area
consequences
  Currently, regional
  (+) Industry contends there is no history of
seas conventions
environmental harm from gas seepages around
(e.g. OSPAR,
abandoned wells and no change to legislation
Barcelona) require
necessary
total removal of
  (-) Surveys suggest seepage of gas from shallow
fixed installations
geological pockets disturbed by exploration wells now
at end of field life.
abandoned in the North Sea. No surveys could be
Derogations may
conducted on seabed of abandoned production wells as

109 Seepages of oil at abandoned production locations would normally indicate a failure to isolate the oil-bearing residues
from the wells, causing migration and leakage over time. It is not known whether there are oil leaks from abandoned
production sites. Gas and condensate seepages may come from shallow methane bearing gas pockets that have been disturbed
by the making of the wells causing migration along the outside casings of the well (‘biogenic’ gas). gas from deep reservoirs
insufficiently sealed during abandonment, may leak directly from the well or outside casing (‘thermogenic gas’).
110 Report: “Shallow Gas Migration along Hydrocarbon Wells – An Unconsidered, Anthropogenic Source of Biogenic
Methane in the North Sea” by GEOMAR Helmholtz Centre for Ocean Research Kiel, 24148 Kiel, Germany, 2017; response:
“Biogenic methane seepage - background information on the natural methane seepage landscape and a critical
review/response to/of the Geomar report…/… (2017)” a Position Paper by IOGP, January 2019.

118

Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

be sought on
they fall under no-access areas.
technical safety
  Surveys conducted around on-shore abandoned wells
grounds
in Canada confirm unexpected leakage/seepage. Some

examples in EU also exist.
  (~) Mature basins (N Sea, Italy) preparing for new era

of intense physical decommissioning of production

installations, fixed and mobile. OSD regulates major
accident prevention during decommissioning – wells
and physical structures.
  (~) By design, OSD does not prescribe extent of
physical removal –  leave in place, partial or complete
removal – but regulates major accident prevention
relating to the operation on whatever physical removal
is agreed between licensee and MS
  (-) CA obligated to avoid conflict of interest with MS’
authorising authority for granting exemption from total
removal, however current practice in UK and NL
shows that decommissioning projects are co-financed
and co-managed by State (sometimes CA) and
operators/licensees.
(~) Procedures of OSPAR are under current examination
regarding efficacy of measures to enable other Contracting
Parties (e.g. EU) to scrutinise derogation applications.
3.2
Deepening of the
Art.13
  Relates mainly to
  (+) All MS’ implement the requirement to receive
internal market
drilling rigs
submissions of RoHMs and associated productions
through mutual
(MODU’s)
(CMAPP, SEMS etc.), and to undertake acceptance
recognition

measures

Refers to common
between Member
  (-) Industry reports mobile installations movements
acceptance between
States of mobile
between MS’s are inhibited by OSD measures in
MS’ of compliance
non production
operations in MS’ whereby MS’ conduct
with OSD-related
installations and
  (-)Operators/licensees operating production
measures
of common
installations or drilling operations in several MS’ also

systems that are

Article 13 creates a
report additional burdens following introduction of
not MS-specific
level playing field
OSD
and in the absence
  (-)MODU’s returning to same MS that issued
of further and
acceptance within previous 5 years, are also subject to
higher standards for
lengthy approval process as suggested by industry.
control of major
Worth noting that MS support that procedure is
accident risks
"typical" and fast for returning, previously approved
applying, a RoMH
MODUs
accepted in a MS
  (-) Operators and owners report Corporate Major
should be
Accident Prevention Plan requirements vary
acceptable in all
indiscriminately between Member States:
MS’
o  Creates an administrative burden for duty
Also applies to systems
holders working in more than one Member
deployed by operators
State because CMAPP, by requirement, may
on production
not be subject to change in different
installations where such
jurisdictions
systems are common
o  Possible advantage taken of the requirement
i.e. not MS-specific
by MS’ to add further requirements, leading to
differences across MS’
119

Description
Article /
Components
Experience of Stakeholders in implementation:
Source

(+): overall positive, (-): overall negative, (~)
Ref
overall neutral but commented

  (~) Some MS’ suggest they would acknowledge other
MS’ acceptance of a RoMH for MODU’s, subject to
strategic checks and any necessary reviews of
additional requirements
  (-) Some MS’ appear to misconstrue requirements for
acceptance of RoMH’s – e.g. that there is an
incontrovertible requirement for thorough review prior
to acceptance of RoMH’s.
  (-) Apparent lack of interest in MS’ to explore
solutions to freer movement of RoMH’s. Also due to
the variation of environmental conditions, operating
conditions, labour laws etc.
3.3
Recovery of
Art.8(5),
  MS’ may establish
  (+) Most MS’ took advantage of cost recovery
costs of
(7)
mechanisms
measure in Art.8 to argue for funding via industry
maintaining the
according to which
  (~) Relates to the issue of levels of MS’ funding of
competent
the financial costs
their CA’s - see also #1.4 relating to adequate funding
authority
to the CA in
by MS’ of CA’s to enable adequate performance of
carrying out its
duties under OSD
duties may be
  (~) Some MS’ argue for a mandatory requirement to
recovered from
recover costs
licensees, operators
  (+) In keeping with goal-setting nature of OSD, MS’
or owners
adopt different recovery mechanisms; charge-out rate;
fees for service; levy

12.2 Matrix for the detailed assessment

Actions required of the commission pursuant to the directive
(To include recommendations as appropriate)
  Action 1 (Article 40): To assess the experience of implementing the directive;
  Action  2  (Article  39(3)  (Within  the  scope  of  Directive  2008/99/EC)):  To  assess  the
appropriateness  of  applying  criminal  law  to  certain  breaches  of  environmental  duty;
and
  Action 3 (Article 39(1)(2) & EP Resolution 2015/2352(INI)): To report on the status
of liabilities for damages and compensation mechanisms

Primary objectives of the directive by which actions are to be evaluated
(Being the principal objectives underpinning the directive)
  Objective 1: That the significant and unacceptably high risks of a major accident in
EU  waters  be  lowered.  The  sub-objectives  being  to  attain  global  best  industry
practices  in  the  EU;  and  to  implement  global  best  regulatory  practices  for  major
accident prevention and mitigation.
120

  Objective 2: That the insufficient arrangements for responding to a major accident in
EU  waters  be  improved.  The  sub-objective  being  to  implement  fully  joined-up
emergency preparedness and response in all EU offshore regions.
  Objective  3:  That  the  arrangements  for  discharging  financial  liabilities  and  civil
compensation  for  economic  loss  be  more  consistently  effective  in  the  EU
(Subsequently updated by the European Parliament in 2015). The sub-objective being
to improve and clarify existing EU liability and compensation provisions.

12.2.1 Structure of the assessment matrix
Action 1 to capture Objectives 1 and 2
Pursuant  to  Article  40,  the  Commission  will  evaluate  whether  and  to  what  extent  the
experience of implementing the directive by MS’ has:
(i)
lowered the risks of a major accident in EU waters (and the degree of significance and
level of residual risk)
(ii)
improved the arrangements for responding to a major accident in EU waters (and the
degree of sufficiency attained)
Action 2 (stand-alone)
Pursuant  to  Article  39(3)  and  within  the  scope  of  Directive  2008/99/EC  -  The
Environmental  Crime  Directive  -  to  assess  the  appropriateness  of  applying  criminal
law to certain breaches of environmental duty
Action 3 to capture Objective 3
Pursuant  to  Article  39(1)  &  (2)  and  Parliament  resolution  of  1  December  2016  -  on
liability,  compensation  and  financial  security  for  offshore  oil  and  gas  operations
(2015/2352(INI)) – to report on the status of MS’ with regard to the consistency and
effectiveness of schemes for financial liability and compensation for economic loss
Brief summary of how assessment guidelines are to be applied to the assessment matrix.
The assessment aims to consider progress in relation to how things were expected to
happen i.e. referring to the intervention logic behind the directive, and changes against
the  assessment  baseline,  and  other  relevant  points  of  comparison.  The  criteria
conventionally  adopted  by  the  Commission  are:  relevance;  coherence;  effectiveness;
efficiency; and EU-added value.
The assessment also  describes the extent to  which the practical  aims of the Offshore
Directive  2013/30/EU  have  been  attained  at  a  substantial  factor.  The  Directive  was
intended  to  introduce  a  substantially  complete  physical  system  of  primary  measures
for  MS’  regulators  and  petroleum  license  holders  and  installation  owners  and
operators  and  an  assessment  of  whether  the  practical  aims  of  the  measures  are
physically  in  effect,  i.e.  attained,  is  required  before  the  assessments  of  efficiency,
coherence achieved by such measures are made.
The assessment will also attempt to explore the potential for simplification and burden
reduction as an implicit factor.
121

Assessment criteria
Relevance: looks at the relationship between the needs and problems relating to the targeted
societal  segment,  namely  the  maritime  and  coastal  users  and  the  environment  where
the offshore petroleum activities occur, and the objective of the intervention.
Coherence:  is  a  factor  of  the  external  coherence  with  other  EU  legislation  and  policy  and
where  relevant,  at  the  Member  State  or  International  level.  It  also  is  an  indicator  of
how  different  components  of  the  directive,  as  implemented,  operate  together  to
achieve particular objectives.
Effectiveness:  considers  how  successful  the  directive  may  have  been  in  achieving  or
progressing towards its objectives. Where objectives may not have been achieved, the
assessment will attempt to assess the extent to which progress falls short and attempt
to explain the shortfall.
Efficiency: meant as the relationship between the resources required to execute a measure and
the  gain  attained  (i.e.  an  assessment  of  costs  and  benefits).  The  cost-benefit  analysis
will  be  quantified  where  possible  and  identify  reductions  or  increases  in  regulatory
burdens  (Where  useful,  potential  (future)  savings  identified  from  the  assessment
findings will be estimated)

EU-added  value:  a  deduction  of  the  relative  efficacy  between  the  implementation  of  the
directive,  and  the  Member  States  acting  alone  in  regulating  the  offshore  sector’s
control of major accident risk.
Note  on  the  hierarchy  of  the  assessment  factors:  Relevance  and  coherence  were  intensively
processed  in  the  impact  assessment  accompanying  the  draft  directive  (originally  a
draft regulation) and the assessment of these factors in the assessment has therefore, a
substantial focus on validation of the original design intent. Conversely, the efficiency
and  effectiveness  factors  are  the  key  determinants  of  the  extent  and  degree  of
attainment of the directive’s objectives, namely, reducing the risk of a major accident
occurring, and mitigating the impact should a major accident nonetheless occur. EU-
added value will be a deduction based upon some permutation of the efficacy factors
processed in the assessment.
122

Table 4: Assessment Matrix
Colour key:

Measures that secure best
Measures that implement
Measures that improve
Measures that improve
industry
best regulatory
emergency
and clarify
practices in
practices in
preparedness &
existing EU
major accident
major accident
response in all
liability &
prevention &
prevention &
EU waters
compensation
mitigation
mitigation
provisions

Full heading
PRIMARY
PERFORMANCE INDICATORS OF
EXTENT OF
AIMS
EFFECTS OF 1ry and 2ry AIMS
EU
OF THE
SUBSIDIARY
(answers to questions)
CONCLUSIONS TO
INTE
INTERV
AIMS
DATA SOURCES &
BE DRAWN
R-
ENT-
RELIABILIT
VEN
ION
expressed as
Y
Inc. further steps to be
TIO
questions
suggested
expressed as
Quantitative
Qualitative
N
question
s
Abbreviated heading
Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
ACTION 1
Pursuant to Article 40, the Commission will evaluate whether and to what extent the experience of implementing the directive by MS’ has:
(i)
lowered the risks of a major accident in EU waters (and the degree of significance and level of residual risk)
(ii)
improved the arrangements for responding to a major accident in EU waters (and the degree of sufficiency attained)
123

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
OBJECTIVE 1
That the significant and unacceptably high risks of a major accident in EU waters be lowered.
The sub-objectives being to attain global best industry practices in the EU; and to implement global best regulatory practices for major accident prevention
and mitigation.
(1) Duty to prevent major accidents to be made to rest with industry, requiring formal risk assessment for each installation
Attainment
Is  a  clear  duty  to  (i)  Is  control  of  (i)  #  MS’  (as  a  (i)
Positive
and  (i)  Article  3  ascribes  (i)
Is
it
to
be
prevent
major
percentage  of
inferred
the
relevant
considered
major
accident
the  16  focal
evidence
duties.
whether
the
accidents
hazards
MS’)
regarding:
scope  of  the

ascribed
based
transposing

intervention
Operators
to
and
upon
the
relevant
Reliable
evidence
should
be
arrangements
and
accepted
holistic
articles;
derives from:
contractor  oversight
widened
to
by
risk
encompass
#
industry
duty
can  manage  risks  2016
consultant’s
industry,
assessment
ALARP112;
cyber  security
holders111
report
to
requiring
,
with
 clarity
of
roles
and  counter-
implementing
Commission
formal
directly
between  key  actors
terrorism
the  hierarchy
on  degree  of
risk
related
in
high
hazard
measures?
of
risk
transposition
assessme
principal
functions;
management

of
the
nt
for
duties
all  suitable  measures
controls  as  a
being
taken
to
Directive  by
each
assigned
Are  the  principles  of
percentage  of
prevent
major
MS’;
installati
to  license
control
of
the
sector
accidents  and  limit
on?
holders
Workshops
and
major  hazards
population.
their consequences;
and

interviews
overarching
by
risk
operators?
responsibility
with
assessment
accepted  by  license
stakeholders;
broadly

111 Scope of the ‘industry duty holders’ under the Directive is: license holders, operators of production installations, and owners of non production installations.
112 ALARP is the globally accepted condition of risks reduced as low as reasonably practicable. In the field of reduction in occurrence of an accident, the ALARP condition is achieved where the
risk is both tolerable in societal terms and where further expenditure in terms of financial cost, time and trouble does not achieve an appreciable reduction in the risk
124

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

holder
and
welcomed and
 high
hazard
adopted?
Are
significant
Observed  experience
operations
being
duties
raising  issues

conducted
under
coherently
systematic
of concerns;
Is  there  discernible
assigned

continuous
risk

drift  by  MS’
to  owners
assessments
from  the  core
of
non-

Subjective
evidence
intent  of  the
production
derives from:
(ii)
Positive
and
interevention?
installation

inferred
Data submissions from
s?

evidence
stakeholders;

including
Is  the  application  of
Reports
from

from  primary
risk

EUOAG114

stakeholders
assessment

113  pertaining  Public consultations;
universally

to
changes
accessible  eg

Unsolicited
written

evident
submissions;
to
workers,

regarding:
citizens?

 formal  engagement

between
operators/  (ii) Article 11 ascribes

owners
and
relevant

competent
duties to MS’.  (ii)
Have
risk

authorities

assessment
considering
design

reports
re-

options
for  Reliable
evidence
defined
the
(ii)
#
of
reports
installations;

113 Scope of the ‘primary stakeholders’ under the Directive is: MS’ regulators, including economic regulators where appropriate, industry duty holders (footnote 1), Trades Union, representatives
of coastal and marine economies, and environmental NGO’s
114 EUOAG: EU offshore oil and gas authorities group being a formally convened group pursuant to Commission Decision 19 January 2012/C 18/07. It has been established to serve primarily as
a forum for the exchange of experiences and expertise between national authorities and the Commission. It has met 16 times

125

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

submitted  to   optimistaion
of
derives from:
relationship
regulators
major  accident  risk
between  MS’

2016
consultant’s
competent
reduction  in  high
and
duty
report
to
(ii)  Are  competent
authorities  as
hazard  operations  on
holders?
Is
Commission
risk
installations
and
a  percentage
there
a
relating  to  all  well
on  degree  of
assessment
of  the  number
distinct
operations;
transposition
reports
of  qualifying  
upwards
management
of
of
the
prepared
installations,
change in risk
trajectory
in
Directive  by
by
the
classified
as   enhanced
decision
MS’;
the  industrial

relevant
production,
making
regarding
safety
duty
and
non
removal
of
fixed  Workshops
and
culture?
holders?
production,
installations
interviews

Are
they
installations;

with
submitted
stakeholders;
Is  there  a  lifecycle

to
the
approach
to
Factual  data  openly
competent
#  MS’  transposing
risk
available; and
authority
relevant
assessment
of the MS?
articles;
Observed  experience
for  preventing
raising  issues
major

of concerns;
accidents  on
#  of  reports  accepted

all  petroleum
by  Competent
installations,
Authorities
Subjective
evidence
namely:
derives from:
design:
Data submissions from
commissionin
stakeholders;
g
and
operation;
Reports
from
modification;
EUOAG; and
relocation;
Public consultations.
and
permanent
126

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
abandonment
and  removal?
Are  all  well
operations
integrated into
the
risk
assessment
framework?
Relevance
#  of  reports  submitted  Is  there  evidence  that  Reliable
evidence  What  more  may  be
to  regulators
the
risk
derives from:
done
to
competent
management
MS’
reports
to
enhance
the
authorities  as
measures
direct
Commission
a  percentage
under
the
relevance
to
under
the
Do  aims  1,(i)-(ii)  directly  address
of  the  number
Directive  no
lowering
of
implementing
lowering  of  major  accident
of  qualifying
longer
major
regulation115
risks?
installations;
represent
accident risk?
and
via
international

Operational
density
EUOAG;

best
criteria
Are  adverse  effects  of  major  accidents
practices?
formally
authorised  Are
additional
(production
to  the  environment  on  coastal
technical
measures
volumes;
#
communities  and  the  marine
reports;
and
required at the
offshore
habitats  and  economic  users
Does
any
shortfall
observed
EU-  level?  In
workers;
#
likely to be mitigated?
derive
from
experience
the  form  of
wells  drilled;
evolution
of
raising  issues
guidance
#
best  practices
of concerns;
and/or
installations;
elsewhere?  or
clarification?
etc) as trends;
workshops
and
failure
of
interviews

Trending  deployments
effective
with

115 Implementing regulation No. 1112/2014 on common reporting format for offshore petroleum activities
127

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
of
major
implementatio
stakeholders
Or  in  the  form  of
capital  mobile
n
of
the
revised

assets  (IADC
measures?
measures?
/
IMCA
/
Subjective
evidence
ECSA)
derives from:
Europe
&
Are  the  provisions  in
suggested  experiences
global, 2008 –
the  Directive
raising  issues
present;
capable
of
of concerns;
ensuring
BOP reliability reports
public
consultations;
protection
from
JIP
and
from
further
failure  trend-
hazards
summaries
Unsolicited
written
submissions;
related
to
operations
after
the
installations
are  removed
and
the
license
relinquished?
Coherence
What  correlation  exists  between  the  Is
it
shown
that  Is  the  Directive  in  The  duties  ascribed  to  Is
additional
aims  and  EU  legislation  when
duplication
alignment
primary  duty
coherence
addressing  reduction  in  major
occurs
with  Articles
holders
are
required
accident risks?
between
the
194,
required
between
the
Directive  and
153(1)&(2),
under  Article
effects  of  the
other  specific
and  191(2)  of
3;  Article  11
Directive  and
EU
legal
TFEU?  (This
requires
other
measures
describes
a
measures  for
elements
of
relating  both
generic
preparing  risk
the
EU
to  the  sector
question)
assessment
acquis?
128

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
and relating to  Equally,
is
there
reports
for
risk  reduction
alignment
installations
Is the Directive shown
and
with  the  EU’s
and wells.
in  practice  to
preparation  of
Integrated

be  internally
reports?
Maritime
coherent?
Policy  (IMP)  Reliable
evidence

and
related
derives from:

Is
it
shown
that
management
2016
consultant’s  If
further
conflict
of
tools/instrume
report
to
consideration
legislative
nts  such  as
Commission
at
the
EU
intent  occurs
Maritme
on  degree  of
level  is  to  be
between
the
Spacial
transposition
suggested,
Directive  and
Planning
of
the
should
the
other  specific
(MSP)
and
Directive  by
internal
EU
legal
Marine
MS’;
coherence  of
measures
Knowledge
the  Directive
relating  both
2020116
Conflicts  with  other
be  preserved
to  the  sector
requirements
Is
coherence
(i.e.
as
an
and relating to
(eg
under
maintained  in
instrument  for
risk  reduction
92/91/EEC) in
practice
the prevention
and
MS’  reports
between
the
of
major
preparation  of
to
Directive  and
accidents
reports?
Commission
the
related
including
to
under
the

Council
the
implementing
Directives
environment
How numerous are the
regulation117
occurring  as  a
duplicative
89/391/EEC
and
via
and
result
of

116 See COM(2008) 791 final of 25.11.2008 and COM(2010) 771 of 17.12.2010 and COM(2010) 461 final of 8.9.2010
117 Implementing regulation No. 1112/2014 on common reporting format for offshore petroleum activities
129

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
and
92/91/EEC?
EUOAG;
offshore
conflicting
Is  a  conflict
petroleum
Observed  experience
elements?
observed
operations)?
raising  issues
between
118
of
concerns;
Annex  C  of
and

92/91/EEC
(referring
to  Workshops
and  Is
there
improved
offshore
interviews
coherence
petroleum
with
between
the
operations)
stakeholders
EU  petroleum
and
the
sector
and

Directive?
other
Subjective
evidence
advanced

derives from:
jurisdictions;

Data submissions from
and  does  this
signify  a  shift

stakeholders;
towards
a
Subjective
technical
more
level
reports;
international
Suggested  experiences
playing  field
raising  issues
as  anticipated
of concerns;
by the TFEU?
Public  consultations;
and
unsolicited
written

118 Note this is a generic question that applies throughout the assessment

130

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
submissions.
Effectiveness
How  is  it  demonstrated  that  the  Major  accident  risk  Diversification
of  Reliable
evidence  Is
it
becoming
intervention
leads
to
a
trends
as
license
derives from:
apparent  that
reduction  in  the  risk  of  an
formulated  by
holders;
MS’
reports
to
industry
offshore  major  accident?  Is  it
advanced
population
license
Commission
clear  that  the  required  efforts
regulatory
trends
holders  have
under
the
are  manifestly  good  offshore
regimes
towards
overarching
implementing
petroleum practices.
(annualised
smaller,  niche
responsibility
regulation and
reports);
companies;
for  reduction
via EUOAG;
in  risk  from
Well  control  incident  Industry
initiatives  Formally  authorised
major
report  trend-
adopted
by
technical
accidents?
summaries;
operators  and
reports;
contractors

BOP reliability reports
for continuous  Observed  experience
from
JIP
Are  there  indications
improvements
raising  issues
failure  trend-
of weaknesses
in
of concerns;
summaries;
in
perfomance;
Workshops
and
management
Major  accidents  as  Availability  of  KPI’s
interviews
of
risk
by
compared  to
and
other
with
industry?
global data
statistical
stakeholders;

Major  accidents  to  the
publications
and
environment
bearing
on
Are
there
further
Factual  data  openly
as  compared
risk  trends  to
means
to
available;
to global data
major
increase

effectiveness

accident  risk,
occupational
Subjective
evidence
of
risk
Risk
assessment
health
&
management
derives from:
reports
for
safety
and
in
offshore
installations
environmental  Data submissions from
petroleum
131

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
as  a  %  of
protection;
stakeholders;
operations?
production

Subjective
technical
installations
reports;
in operation

Is  there  a  sufficient
Suggested  experiences
record
of
Risk
assessment
raising  issues
attainment
reports
of concerns;
and  effect  for
accepted
for
consideration
installations
Public  consultations;
of
further
as  a  %  of
and
intervention at
MODU’s  in
Unsolicited
written
the EU-level.
operation;
submissions;

Is
the
overall
trajectory
of
industry
suitable
and
sufficient?
Efficiency
What  are  the  costs  associated  with  the  Compliance  costs  for  Significance  of  aging  Reliable
evidence  Can  it  be  established
introduction  of  formal  risk
offshore
infrastructure,
derives from:
that  the  costs
assessment  systems  and  the
operators/
including
2016
consultant’s
of  introducing
promulgation
of
MODU
MODU’s:  age
the
report
to
comprehensive  risk  assessment
owners
(€
profile
of
formulation of
Commission
reports  by  duty  holders  in
opex;
€
fixed
and
risk
on  degree  of
relation to the estimated cost of
capex;
€
mobile
assessment
transposition
a major accident occurring?
administrative
installations;
into
the
of
the
burdens costs;
management

Directive  by

systems
and
Averaged
cost  of
MS’;
Operational
density
compliance
producing
a
risk
criteria
MS’
reports
to
assessment
report
demonstration
132

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
for: MODU;
(production
Commission
s  of  primary
 production
volumes;
#
under
the
duty  holders
installation  -    mid
offshore
implementing
were
water depth oil;
workers;
#
regulation and
unjustifiably
 fixed
production
wells  drilled;
via  EUOAG;
excessive?
installation  -  shallow
#
and
water gas;

Availability  of  KPI’s
installations;
Workshops
and
etc) as trends;
Is  industry  able  to
and
other
interviews
establish  that
statistical

with
the
ongoing
markers
stakeholders
Trending  deployments
or
running
bearing
on
of
major
costs  of  a  risk
risk  trends  to
capital  mobile
based  system
major
Subjective
evidence
assets  (IADC
for
the
accident  risk,
derives from:
/
IMCA
/
prevention  of
and
ECSA)
Data submissions from
major
environmental
Europe
&
stakeholders;
accidents  are
protection
global, 2008 –  Suggested  experiences
excessive?

present;
raising  issues
Can  elements
of  the  risk
Cumulative  elements
of
concerns;
management
of
cost
and
public
Oil price trends
systems
be
derived  from
consultations
discretely
the

identified
as
implementatio
Industry
initiatives
causing
n
of
the

adopted
by
unwarranted
Directive  set
operators  and
administrative
against
the
contractors
burdens?
perceived
for continuous
annualised

improvements
costs of major
in
Is  it  possible  to  derive
133

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
accidents,
performance;
a  cost  versus
including
to
benefit
term

the
for
this
environment,
Availability  of  KPI’s
requirement
from  offshore
and
other
of
the
petroleum
statistical
Directive?
operations.
publications

bearing
on
risk  trends  to

major
accident  risk,
occupational
health
&
safety
and
environmental
protection

EU-value
Is  it  likely  that  the  intervention  has  Indicators
may
be
Reliable
evidence  What  are  the  most
adde
increased  the  adoption  of  such
integrated  to
derives from:
frequently
Major  accident  risk
d
good  practices  across  the  EU
derive
expressed
trends
as  2016
consultant’s
where  otherwise  would  not
cost/benefit
views of:
formulated  by
report
to
have been the case?
terms from:
advanced
Commission
 MS’ regulators
 Well control incident
regulatory
on  degree  of   Operators
and
report
trend-
regimes
transposition
license holders
summaries
(annualised
of
the   Owners
on
non
 BOP
reliability
production
reports
Directive  by
reports
from
JIP
installations
134

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
failure
trend-
Aging  infrastructure,
MS’;
 NGO’s
summaries
including
 Trades Union

MS’
reports
to
Exploration
wells
MODU’s.
whether  the  Directive
drilled
Commission
Age profile of
has
per
se
 Trending
under
the
fixed
and
added
value
deployments
of
implementing
mobile
compared
major  capital  mobile
regulation119
installations
with
MS’
assets
(IADC
/
and
via
acting without
IMCA
/
ECSA)  Diversification
of
EUOAG; and
EU
Europe  &  global,
license
2008 – present; and
Workshops
and
intervention?
holders;
 Oil price trends
interviews
population

with
trends
stakeholders;
Is
there
a
more
towards

levelled-
smaller,  niche
upwards
companies
Subjective
evidence
approach
to
derives from:
Operational
density
risk
criteria
Data submissions from
management
(production
stakeholders;
comparing
volumes;
#
EU  MS’  with
Subjective
technical
offshore
IRF
and
reports;
workers;
#
NSOAF
wells  drilled;  Suggested  experiences
states?120
#
raising  issues
installations;
of concerns;
etc) as trends
Is  it  conceivable  that
Public  consultations;

119 Implementing regulation No. 1112/2014 on common reporting format for offshore petroleum activities
120 IRF = International Regulators Forum (of offshore petroleum operating countries) comprising: Australia; Brazil; Canada (Nova Scotia, Newfoundland, and Federal Governments); Denmark;
Mexico; Netherlands; New Zealand; Norway; UK; and USA. NSOAF = North Sea Offshore Authorities Forum, comprising: Denmark; France; Germany; Iceland; Ireland; Netherlands; Norway;
and UK
135

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
Post  2010  Industry
and
MS’  without
initiatives
prior
risk
Unsolicited
written
adopted
by
assessment
submissions;
operators  and
regimes
contractors

would
have
for continuous
adopted
this
improvements
practice
in
without
EU
performance
intervention?
(2) Corporate policies/ management systems to be deployed to ensure risk controls remain effective
Attainment
Are
there  (i)
Have  (i)  #  MS’  (as  a  Positive  and  inferred  (i) Article 19 describes  (i)  Is  there  a  clear
corporate
operators/
percentage  of
evidence
relevant
relationship
policies/
owners
the  16  focal
including
duties
for
between
manage
developed
MS’)
from  primary
corporate
license
ment
a
transposing
stakeholders
policy; Article
holders
/
systems
comprehen
the
relevant
pertaining  to
17
requires
operators,
deployed
sive
risk
article  and  its
changes
integration  of
their
by
manageme
relatives;
evident
independent
workforce and
operators
nt
model
regarding:
contractors


and
extending

based
upon
overarching
owners
from
the  # industry duty holders
Reliable
evidence
corporate
responsibility
which
main
implementing
derives from:
accepted  by  license
level
policy
ensure
board
to
the
holder
Formally
authorised
for  preventing
risk
the
management
 high
hazard
technical
major
controls
offshore
model  as  a
operations
being
accidents?
reports;
remain
front line?
percentage  of
conducted
under
Is
the
scheme
of
effective
the
sector
systematic
Major  accident  reports

independent
on  every
population.
continuous
risk
published  by
assessments
verification
applicabl
Is  there  provision
MS’;
 clarity that policy for
for
136

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
e
for

prevention  of  major  Observed  experience
installations
installati
continuous
accidents
applies
raising  issues
and
wells
Schemes
of
on,  and
improvem
globally and emantes
of
concerns;
consistently
independent
relating
ent
and
directly
from
and
applied  in  all
verification  in
governing board
to
preservatio
focal MS’?
place  as  %  of   reported  failures  of  Workshops
and
emergen
n
of
installations
SECE’s12
via
interviews
Is  the  control  of  risk
cy
critical
implementing
with
vertically
intervent
data
to
regulation.
stakeholders;
applicable  to
ions?
sustain
(NB
qualitative
the
entire
corporate

indicators

lifecycle
of
memory?
likely  to  be
Subjective
evidence
installations

counted in the
derives from:
from
design
breach
ie
to
Have all operators /
Major  accident  reports
where  action
abandonment
owners

issued by duty
taken
by
?
established
holders;
regulators  for
schemes
Is  it  also  horizontally
non
Suggested  experiences
of

applicable  to
compliance.)
raising  issues
independe
safety
and

of concerns;
nt

health
of
verificatio

Public  consultations;

workers,
n
within
and

environmental
their

Unsolicited
written
protection,
SEMS121
(ii)
Positive
and

submissions;
and protection
for
their
inferred
of
major
installation

evidence

capital  assets,
including

121 SEMS = safety and environment management system, a component of the overall management system of an installation, encompassing policy through execution. All industrial sectors’
SEMS are addressed in authoritative standards, such as ISO and BS.
137

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
s’

from  primary
including
SECE’s122,
stakeholders
petroleum

and
for
pertaining  to
reserves?
well

changes

plans?

evident
(ii) Article 20 ascribes
regarding:
Is
their
sufficient

relevant

elapsed  time
 elevation of accident
duties.

for  objective

preventive
policies  Reliable
evidence
conclusions

to the corporate level

derives from:
of duty holders;
regarding

 management
of  2016
consultant’s
further

change  in  risk  of  a
report
to
enhancement

major
accident
Commission

(ii)
As
previous
occurring;

on  degree  of
all  suitable  measures
(ii)  Is it perceived that

element
–
transposition
being  taken  to  limit
likely  to  be
the  main  duty

the  consequences  of
of
the
honoured
in
holders
major acidents to the
Directive  by

the  breach  -  #
conduct  their
environment
MS’;
of
non-
operations

compliances
Major  accident  reports
overseas
to

monitored  by
issued
by
the
same
MS’; and
standards
as
(ii)
Have
EU-
regulators
(iii)  Positive  evidence
(competent
in EU waters?
registered
can  be  seen  interviews
with
operators
authorities  for
which denotes
stakeholders

incorporat
safety
and
positive

environment);
Is it seen that the main
ed
a
change
duty  holders
function in
Subjective
evidence

regarding:
are, upon their
their

122 SECE = safety and environmentally critical element, and means any part of an installation, including computer programmes, the purpose of which is to prevent or limit the consequences of a
major accident, or the failure of which could cause or contribute substantially to a major accident;
138

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
manageme
#  overseas  incidents    formal  engagement
derives from:
own
nt  systems
reported
by
between
operators/
initiatives,
Suggested  experiences
to report to
operators
to
owners
and
adopting  and
raising  issues
their
MS
the  competent
competent
promoting
authorities
of concerns;
the
authority
new
considering
circumstan
Major  accident  reports
knowledge

integration
of
ces of their
issued
by
and  technical
response assets;
overseas
#
of
MODU  
operator/owne
Availability of cross-
invention?
major
emergency
EU well capping and
r

accidents?
response
transferable
ER  Public  consultations;
plans
and
equipment
and

and
production
expertise

Have operators and
installation

Unsolicited
written
owners
OPEP’s123
submissions

deployed
submitted  to

effective
competent

measures
authorities?
(iii)
Article
28

to  contain
describes  the

emergenci

relevant
es  within
requirements.

the  area  of
Reliable
evidence

control  of
derives from:

their

installation
Formally
authorised

?
technical

reports;

Observed  experience

raising  issues

123 OPEP = oil pollution emegency plan which relates to the collection of all measures available on a production installation – fixed or floating – to contain a major accident and prevent its
escalation beyond the 500m ‘safety zone’ circumscribing the installation
139

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

of concerns;
(iii)  Is  it  seen  that
installation-

Major  accident  reports
issued by MS’
based

(iii)  #  MS’  (as  a
emergency
percentage  of
Workshops
and

plans
are
the  16  focal
interviews
integrated

MS’)

with
with  national
transposing
stakeholders;

contingency
the
relevant
plans?

article  and  its

relatives;

Subjective
evidence
derives from:
Does  industry  appear
(iii) Have operators  #  of  cross-EU  well
to
make
a
and
capping
and
Data submissions from
suitable
and
owners
transferable
stakeholders;
sufficient
made
ER equipment
Subjective
technical
contribution
appropriat
and  expertise
reports;
to
the
e
available
in
Suggested  experiences
inventory
of
arrangeme
EU
and
raising  issues
response
nts
to
Norwegian
of concerns;
assets
make
ports;
available
emergency  #  %  of  petroleum
Major  accident  reports
across
EU
response
spills
that
issued
by
waters?
equipment
result
in
operator/owne
available
major
r
on demand
accident
to
Public  consultations;
to  the  MS
the
and
where they
environment
operate?
and
Unsolicited
written
deployment of
submissions
national
140

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
contingency
plans
Relevance
Do  aims  2(i)-(iii)  directly  address  Relevance
may
be  Indications
of  Reliable
evidence  Is  there  evidence  that
lowering  of  major  accident
deduced from,
relevance may
derives from:
the  corporate
risks  by  licensees,  operators
inter alia:
be
deduced,  MS’
reports
to
policy
and  owners  of  non  production  
inter
alia,
measures
environmental
Commission
installations?
from:
under
the
performance data for
under
the
Directive  no

EU cf global trends;
 Industry  initiatives
implementing
 Major  accident  risk
longer
adopted by operators
regulation and
control
(process
and  contractors  for
represent
via  EUOAG;
safety)  performance
continuous
international
and
data for EU cf global
improvements
in
best
trends
performance
observed
experience
practices?
 Operational  density   Availability of KPI’s
raising  issues
criteria  (production
Does
any
shortfall
and  other  statistical
of concerns;
volumes;  #  offshore
publications  bearing
derive
from
workers;
#
wells
on  risk  trends  to  workshops
and
evolution
of
drilled;
#
major  accident  risk,
interviews
best  practices
installations;  etc)  as
occupational  health
with
elsewhere? Or
trends;
&
safety
and
stakeholders
failure
of
 Incident  reporting  as
environmental
effective
%  of  requirement

protection
implementatio
under  Implementing

n
of
the
Act

Subjective
evidence
measures?
derives from:

suggested  experiences  Are
enhancements
raising  issues
required at the
of concerns;
EU-  level?  In
public
consultations;
the  form  of
guidance
141

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
and
and/or
clarification?
Unsolicited
written
submissions;
Or  in  the  form  of
revised
measures?
Coherence
What  correlation  exists  between  the  Does
duplication  Is
coherence  The  duties  ascribed  to  Can it be demonstrated
aims (i)-(iii) and EU legislation
occur between
maintained  in
primary  duty
that
when  addressing  reduction  in
the  Directive
practice
holders
for
intervention is
major  accident  risks,  including
and
other
between
the
maintenance
required
to
to the environment?
specific
EU
Directive  and
of
corporate
provide
legal
the
related
major
additional
measures
Council
accident
coherence
relating  both
Directives
prevention
between
the
to  the  sector
89/391/EEC
policies  are  at
effects  of  the
and relating to
and
Article
19.
Directive  and
risk  reduction
92/91/EEC?
Article
20
other
and
Is  a  conflict
requires
elements
of
preparation  of
observed
measures  for
the
EU
reports?
between
preparing  risk
acquis?
Annex  C  of
assessment

92/91/EEC
reports
for
Is  there  conflict  of
(referring
installations
Is the Directive shown
legislative
specifically  to
and wells.
in  practice  to
intent  occurs
offshore
be  internally

between
the
petroleum
coherent?
Directive  and
operations)
Reliable
evidence
other  specific
and
the
derives from:
EU
legal
Directive?
If
further
2016
consultant’s
measures
consideration

report
to
relating  both
at
the
EU
142

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
to  the  sector  Is
there
alignment
Commission
level  is  to  be
and relating to
with
on  degree  of
given,  should
risk  reduction
provisions
transposition
the
internal
and
under
the
of
the
coherence  of
preparation  of
various
Directive  by
the  Directive
reports?
machinery
MS’;
be  a  priority
and
aim (i.e. as an

Conflicts  with  other
equipment
instrument  for
requirements
How numerous are the
legislation?
the prevention
(eg
under
duplicative
Namely,
the
of
major
92/91/EEC) in
and
Machinery
MS’  reports
accidents
conflicting
Directive,  the
including
to
to
elements
Pressurised
the
Commission
Equipment
environment
under
the
Directive,  and
occurring  as  a
implementing
the
ATEX
result
of
regulation125
Directive?124
offshore
and
via
petroleum

EUOAG;
operations)?
Observed  experience
raising  issues
of
concerns;
and
Workshops
and
interviews

124 Refer to Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (Machinery Directive), Directive 97/23/EC of
the European Parliament and of the Council of 29 May 1997 on the approximation of the laws of the Member States concerning pressure equipment (Pressure Equipment Directive) and
Directive 94/9/EC of the European Parliament and the Council of 23 March 1994 on the approximation of the laws of the Member States concerning equipment and protective systems
intended for use in potentially explosive atmospheres  (ATEX Directive).
125 Implementing regulation No. 1112/2014 on common reporting format for offshore petroleum activities
143

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
with
stakeholders
Subjective
evidence
derives from:
Data submissions from
stakeholders;
Subjective
technical
reports;
Suggested  experiences
raising  issues
of concerns;
Public  consultations;
and
unsolicited
written
submissions
Effectiveness
Do the aims (i)-(iii) as implemented by  Major  accident  risk  Diversification
of  Reliable
evidence  Are
further
efforts
MS’  and  responded  to  by
trends
as
license
derives from:
necessary
at
industry  attain  global  best
formulated  by
holders;
MS’
reports
EU-level
to

to
industry  practices  in  the  EU
advanced
population
increase
Commission
through their corporate policies
regulatory
trends
overall
under
the
and management systems?
regimes
towards
effectiveness
implementing
(annualised
smaller,  niche
of
industry
Are  adverse  effects  of  major  accidents
regulation and
reports);
companies;
policy
and
to  the  environment  on  coastal
via EUOAG;
management
communities  and  the  marine  Well  control  incident
Formally
authorised
systems
in
habitats  and  economic  users
report  trend-
Industry
initiatives
technical
offshore
likely to be mitigated?
summaries;
adopted
by
reports;
petroleum
144

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
BOP reliability reports
operators  and  Observed  experience
operations  in
from
JIP
contractors
raising  issues
reducing
failure  trend-
for continuous
of concerns;
major
summaries;
improvements
accident  risk
Workshops
and
in
and
Major  accidents  as
interviews
perfomance;
emergency
compared  to
with
response?
global data

stakeholders;
and

Major  accidents  to  the  Availability  of  KPI’s
environment
and
other  Factual  data  openly  Can  the  schemes  of
as  compared
statistical
available;
independent
to global data
publications
verification

bearing
on
for
Schemes
of
risk  trends  to  Subjective
evidence
installations
independent
major
derives from:
and/or
wells
verification  in
accident  risk,
be made more
place  as  %  of
Data submissions from
occupational
effective?
installations
stakeholders;
health
&

safety
and  Subjective
technical
environmental
reports;
Are
there
further
protection;
enhancements
Suggested  experiences
necessary
to

raising  issues
of concern;
increase

availability  of
Public  consultations;
shared
and
industry
Unsolicited
written
expertise  and
submissions;
assets
for
emergency
response?
145

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)


Efficiency
What  are  the  costs  associated  with  the  Compliance  costs  for  Demographic trends in  Reliable
evidence  Can  it  be  established
introduction  of  formal  risk
offshore
aging
derives from:
that  the  costs
assessment  systems  and  the
operators/
infrastructure,
2016
consultant’s
of  introducing
promulgation
of
MODU
including
the
report
to
comprehensive  risk  assessment
owners
(€
MODU’s:  age
formulation of
Commission
reports  by  duty  holders  in
opex;
€
profile
of
risk
on  degree  of
relation to the estimated cost of
capex;
€
fixed
and
assessment
transposition
a major accident occurring?
administrative
mobile
into
the
of
the
burdens  costs
installations;
management

Directive  by
in
operation
systems
and

MS’;
of:
compliance
Operational
density  MS’
reports
to

demonstration
schemes
of
criteria
Commission
s  of  primary
independent
(production
under
the
verification;
duty  holders
 internal  emergency
volumes;
#
implementing
were
response plans;
offshore
regulation and
unjustifiably

workers;
#
via  EUOAG;
excessive?
wells  drilled;
and

#
Workshops
and
Cumulative  elements
installations;
Is  industry  able  to
interviews
of
cost
etc) as trends;
establish  that
with
derived  from
the
ongoing

stakeholders
the
or
running
implementatio
Trending  deployments
costs  of  a  risk
n
of
the
of
major
based  system
Subjective
evidence
Directive  set
capital  mobile
derives from:
for
the
against
the
assets  (IADC
prevention  of
perceived
/
IMCA
/  Data submissions from
major
146

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
annualised
ECSA)
stakeholders;
accidents  are
costs of major
Europe
&
excessive?
Suggested  experiences
accidents,
global, 2008 –
Can  elements
raising  issues
including
to
present;
of  the  risk
of
concerns;
the
management

and
public
environment,
systems
be
consultations
from  offshore  Oil price trends
discretely
petroleum

identified
as
operations.

causing

unwarranted
Availability  of  KPI’s
administrative
and
other
burdens?
statistical

publications
bearing
on
Is  it  possible  to  derive
risk  trends  to
a  cost  versus
benefit
term
major
accident  risk,
for
this
occupational
requirement
of
the
health
&
safety
and
Directive?
environmental

protection

EU-value
Is  it  likely  that  the  intervention  has  Indicators
may
be  Deriving  context  of  Reliable
evidence  What  are  the  most
adde
increased  the  adoption  of  such
integrated  to
SEMS
and
derives from:
frequently
good  practices  across  the  EU
derive
overarching
expressed
147

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
d
where  otherwise  would  not
cost/benefit
policies via:
2016
consultant’s
views of:
have been the case?
terms from:

report
to
Major  accident  risk
 MS’ regulators
Commission

 Well control incident
trends  as  formulated
 Operators
and
on  degree  of
report
trend-
by
advanced
license holders
summaries:
regulatory
regimes
transposition
 Owners
on
non
 BOP
reliability
(annualised reports
of
the
production
reports
from
JIP   Demographic
of
Directive  by
installations
failure
trend-
aging  infrastructure,
MS’;
 NGO’s
summaries
including  MODU’s
 Trades Union

MS’
reports
to
Failure  reports  from
and
fixed
whether  the  Directive
schemes
of
installations
Commission
has
per
se
independent
 Diversification
of
under
the
added
value
verification
license
holders;
implementing
compared
 Exploration
wells
population
trends
regulation and
with
MS’
drilled
towards
smaller,
via  EUOAG;
acting without
 Trending
niche companies
and
EU
deployments
of   Operational  density
intervention?
major  capital  mobile
criteria  (production  Workshops
and
assets
(IADC
/
volumes;  #  offshore
interviews

IMCA
/
ECSA)
workers;
#
wells
with
Europe  &  global,
drilled;
#
stakeholders;
Is
there
a
more
2008 – present; and
installations;  etc)  as

levelled-
 Oil price trends
trends
upwards


Subjective
evidence
approach
to
derives from:
Post  2010  Industry
risk
initiatives
Data submissions from
management
adopted
by
stakeholders;
comparing
operators  and
EU  MS’  with
Subjective
technical
contractors
IRF
and
reports;
for continuous
NSOAF
improvements  Suggested  experiences
states?
in
raising  issues
148

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
performance
of concerns;

Public  consultations;  What  has  been  the
and
increase
in
corporate
Unsolicited
written
accident
submissions;
prevention

policies,
SEMS,
and
schemes
of
independent
verification
caused  by  the
Directive?
(3) Independent, expert regulators to operate in each Member State
Attainment
Are  independent,  (i)
Is
there
a  (i)  Functioning  of  the  Has  each  MS  notified  (i)  Article  8  specifies  (i)  Has  the  experience
expert
competent
CA  deduced
appointment
the
of
regulator
authority
from:
of  a  unitary
arrangements
implementing
s
(CA)
to  
CA  for  both
and
the  Directive
Completeness
of
appointe
perform
safety  and  for
empowerment
secured
the
responses to COM re
d
to
functions
current
assessment
environmental
of the CA.
goal  of  best
operate
relating  to
project (by # MS)
protection
offshore
Reliable
evidence
in
each
major
 Allocation
of
from  a  major
petroleum
derives from:
Member
accident
resources
by
accident?
regulation
State
prevention
technical  discipline
2016
consultant’s
practice
for

?
per  MS  (technical
report
to
preventing
Including
and
environment;  Are  penalties  and
Commission
major
assessment;
major
sanctions
on  degree  of
accidents
inspection  &  audit;
accidents
made
transposition
consistently
enforcement)
to
the
available  (and
of
the
across
the
149

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
environme
 Penalties
and
reported
to
Directive  by
EU?
nt  arising
sanctions  applied  by
COM)?
MS’;

out  of  a
CA’s

Observed  experience
major
 Major
accident
Is  there  a  perceptible
investigations
raising  issues
accident
Do procedures address
broad
level
launched
of
concerns;
on
the
decommission
relationship in
 Prosecutions
and
installation
ing
of
the
EU
launched
by
?
CA’s/MS’
installations
Workshops
and
between
the
and
interviews
CA
and

prosecuting
authorities
permanent
with
operators  and
Is
the
CA
sealing
of
stakeholders;
owners
and
established
wells?
based  on  the

Subjective
evidence
to  ensure
control
of

derives from:
independe

major
nce
of
Are  there  indications  Data submissions from
accident risk.

conflicts
of  duplication
stakeholders;

of  interest
between
Suggested  experiences
with
safety
and
Is
further

raising  issues
economic
environmental
consideration
of concern;
regulation

regulation
at
EU-level
?
between  joint  Public  consultations;
necessary
to

agencies?
and
enhance
the

unsolicited
independence

(ii)  For  context  of
written
of
the
CA
Are  there  observed  or
submissions
from

scale
and
organisation
potential

economic

of the CA:
conflicts
of
regulation?
interest

 Taxonomy:
aging

between
the

infrastructure,
functions
of
Is
further
including  MODU’s.
the  CA  and
consideration
150

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

Age  profile  of  fixed
economic

at
EU-level
and
mobile
regulation
necessary
to

installations
functions?
enhance
the

 Operational  density

integration  of
criteria  (production

process
volumes;  #  offshore
(ii)  Article  9  specifies

the  functions
safety126  and

workers;
#
wells
major
drilled;
#
of
the
CA

installations;  etc)  as
(and
Annex
environmental
(ii)
Have
the
trends
risk?

III)
and

MS’/CA’s
Trending

Article
8

deployments
of
published
provides
for
major  capital  mobile
policies
and
(ii)  Has  their  been
(ii)  Is  the  CA
recoverey  of
assets
(IADC
/
procedures?
change
to
sufficientl
costs from the
IMCA
/
ECSA)
(Broadly
funding
y
Europe  &  global,
industry.
speaking)
systems
for
resourced?
2008 – present
Reliable
evidence
CA’s
.
 MS  staff  resources
derives from:
following  the
applied  to  CA cf  pre

Is
there
observed
implementatio
OSD
MS’
reports
to

levelling
of
n
of
the
Is  the  CA  enabled
Operating budgets of
Commission
the  regulatory
CA per active well cf
Directive?
to
act
under
the
pre OSD
baseline
in
And is there a
transparent
implementing
 Operating budgets of
EU  waters  so
concensus
ly?
regulation and
CA  per  installation
as
to
amongst CA’s
Specificall
via EUOAG;
cf pre OSD
potentially
regarding  cost
y,  has  the
deepen
the  Observed  experience
recovery  from
CA
internal
raising  issues
industry?
developed,
market
in
of concerns;
or
is
human
and
Has
the
Workshops
and

126 Process safety is the conventionally applied term to the practice of control of major accident risk in high hazard sectors such as offshore petroleum, refining, toxic chemicals production and
so on. Reducing risks ALARP in high hazard processes requires the application of complex probabilistic risk assessments throughout from initial design
151

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
developing
physical
interviews
implementatio
effective
assets?
with
n
of
the
policies
stakeholders;
Directive  led

for  major
and
to  calls  from
accident
Is  sufficient  guidance
industry
Factual  data  openly
prevention
available
to
and/or
available;
and
duty  holders
primary
making
to  make  clear  Subjective
evidence
stakeholders3
them
the
derives from:
for
further
available
requirements
clarification
Data submissions from
to
duty
of
stakeholders;
or  guidance?
holders
regulations?
At
what
and
the
Subjective
technical
level?

public?
reports;
(EUOAG,
Do
any
CA’s  Suggested  experiences
COM, EU?)
internalise
raising  issues
their  costs  (ie
of concerns;
not
recover
What is the experience
their
costs  Public  consultations;
regarding  the
from
the
and
free
industry)
unsolicited
movement  of
written

expertise,
submissions
installations
and
major
equipment
between
jurisdictions
as  a  result  of
implementing
the Directive?
152

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

Is
their
sufficient
elapsed  time
for  objective
conclusions
regarding
further
enhancement?
Relevance
Do  aims  (i)-(ii)  directly  address  For context:
Is there publication by  For
relevance,  Is  the  experience  of
lowering  of  major  accident
MS’ of:


Reliable
implementing
Aging  infrastructure,
risks by duty holders under the
including  MODU’s.  
evidence
the  Directive
Hydrocarbon
oversight
of
the
unitary
Age  profile  of  fixed
derives from:
regarding  the
releases
from
Competent  Authorities  of  the
and
mobile
permamently
2016
consultant’s
appointment
MS’?
installations
abandoned  platform
and
report
to
 Environmental
wells
functioning  of
Commission
performance data for   Hydrocarbon
the
CA’s
on  degree  of
EU cf global trends
releases
detected
broadly
 Major  accident  risk
transposition
from
subsea
approved  by
control
(process
locations  attributed
of
the
MS’ CA’s?
safety)  performance
to  decommissioned
Directive  by
data for EU cf global
production
facility
MS’;

trends
(platform or subsea)

MS’
reports
to  Are
there
regional
Major  accidents  as  Can  key  indicative
compared  to  global
Commission
differences  of
performance
data
under
the
view?
data
be
 Major  accidents  to
implementing
retrieved,

the  environment  as
regulation and
such as:
compared  to  global
via EUOAG;
Has  the  experience  of
data
 Environmental
establishing  a
Direct  indicators  as
Observed  experience
performance data for
baseline
of
follows
offshore
petroleum
raising  issues
best
153

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
 Is  a  unitary  CA
for  EU  cf  global
of concerns;
regulatory
established  for  both
trends
practices
Major  accident  reports
safety
and   Major  accident  risk
issued by MS’
across  the  EU
environment
control
(process

highlighted  a
 #
schemes
of
safety)  performance  Workshops
and
lack
of
independent
data
for
offshore
interviews
specifity
in
verification  in  place
petroleum  for  EU  cf
with
provisions.
as % of installations
global trends

stakeholders;
Completeness
of   Occupationalv safety
For  example
incident
reports
performance data for
and
in  removal  of
collected
and
EU cf global trends
installations,
Factual  data  publicly
reported  publicly/to
available.
and
COM  (as  %  of

hydrocarbon
required
reporting
releases
system)
Subjective
evidence
following

derives from:
field  or  well
Data submissions from
abandonments
stakeholders;
?
Subjective
technical
reports;
Has  the  creation  of
Suggested  experiences
similar
CA
raising  issues
arrangements
of concerns;
in  each  MS
led
to
a
Major  accident  reports
levelling
up
issued
by
of  consistent
operator/owne
requirements
r
as  perceived
Public
consultations
by
duty
and
holders?
unsolicited
154

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
written
submissions

Coherence
What  correlation  exists  between  the  What  has  been  the  %  As  generic  point,  is  Article  8  specifies  the  Is
there
sufficient
aims  and  EU  legislation  when
completeness
the  Directive
arrangements
elapsed  time
addressing  reduction  in  major
of  responses
in  alignment
and
for  objective
accident  risks  by  duty  holders
to
COM
with  Articles
empowerment
conclusions
under  the  oversight  of  the
regarding  this
194,
of  the  CA,
regarding
unitary  Competent  Authorities
assessment
153(1)&(2),
including  cost
further
EU
of the MS’?
project
by
and  191(2)  of
recovery.
interventions
MS’?
TFEU?
for
greater
Article  9  specifies  the
coherence

functions
of
between
the
the  CA  (and
Coherence  with  broad  Is
coherence
Directive  and
Annex III)
generic
maintained  in
the
relevant
legislative
practice
Reliable
evidence
EU
intent  can  be
between
the
derives from:
legislation?
deduced
as
measures
2016
consultant’s
follows:
relating  to  the
report
to

arrangements
Given
the
draft
Penalties
and
Commission
and  functions
instrument
sanctions  applied  by
on  degree  of
CA’s
of  the  CA  in
was
for
a
transposition
 Prosecutions
the  Directive
regulation,
of
the
launched
by
and
the
has
the
Directive  by
CA’s/MS’
related
MS’;
implementatio

prosecuting
Council
n
of
the
authorities
Directives
MS’
reports
to
Directive  by
 Major
accident
89/391/EEC
Commission
MS’
been
investigations
and
under
the
consistently
launched
92/91/EEC?
implementing
implemented
155

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
 Hydrocarbon
Is  a  conflict
regulation and
by focal MS’?
releases
from
observed
via EUOAG;

permamently
between
abandoned  platform
Formally
authorised
Annex  C  of
Does
any
wells
technical
92/91/EEC
inconsistency
 Hydrocarbon
reports;
(referring
with
the
releases
detected
specifically  to  Observed  experience
Directive
from
subsea
raising  issues
amongst
the
locations  attributed
offshore
to  decommissioned
petroleum
of concerns;
appointed
production
facility
operations)
CA’s
Major  accident  reports
(platform or subsea)
and
the
issued by MS’
introduce

 Environmental
Directive?
differential
performance data for
Workshops
and
coherence
EU cf global trends

interviews
with
other
 Major  accident  risk  And  maintained  with
with
legislation?
control
(process
the  Seveso  III
stakeholders;
safety)  performance

Directive127
and
data for EU cf global
Are  the  penalties  and
trends
Does
the  Factual  data  publicly

sanctions
Occupationalv  safety
implementatio
available;
performance data for
available
to
n
of
the

EU cf global trends
CA’s pursuant
Directive

ot
the
infringe
the  Subjective
evidence
Directive
broad  generic
derives from:
broadly
principles
consistent
enshrined  in  Data submissions from
with
the
the
primary
stakeholders;
principles  in
legislation,

127 Directive 2012/18/EU, the Seveso III Directive (full title: Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards
involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC Text with EEA relevance) is a European Union directive aimed at controlling major chemical
accident and explosion hazards.
156

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
mainly  of  the  Subjective
technical
TFEU
and
IPPC
reports;
with
closely
Directive128
related
HSE
Suggested  experiences
regulation129?

raising  issues
of concerns;

Major  accident  reports

issued
by

operator/owne
r
Public
consultations
and
unsolicited
written
submissions
Effectiveness
Do  the  aims  (i)-(ii)  as  implemented  by  Contextual  indicators  Practical
qualitative  Reliable
evidence  Is
there
sufficient
MS’  for  appointing  competent
of  scale  of
indicators  of
derives from:
elapsed  time
authorities  attain  global  best
industrial  risk
effectiveness
2016
consultant’s
for  objective
regulatory practices in the EU?
to
be
are:
conclusions
report
to
addressed:
regarding

 penalties
and
Commission

further
EU
Operational  density
sanctions  applied  by
on  degree  of
Are  adverse  effects  of  major  accidents
interventions
criteria  (production
CA’s
transposition
to  the  environment  on  coastal
volumes;  #  offshore   Prosecutions
in  regulatory
of
the
communities  and  the  marine
workers;
#
wells
launched
by
effectiveness?
Directive  by
habitats  and  economic  users
drilled;
#
CA’s/MS’
prosecuting

128 Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (IPPC Directive) and Council Directive
85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (Environmental Impact Assessment Directive), as amended by
Directive 97/11/EC, 2003/35/EC and 2009/31/EC?
129 HSE is a globally accepted acronym for the term ‘health, safety and enviroonment’.
157

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
likely to be mitigated?
installations;  etc)  as
authorities
MS’;

trends
 Major
accident


MS’
reports
to  What  are  the  sources
Trending
investigations
deployments
of
launched
Commission
and
major  capital  mobile   Intensity
of
under
the
significance
assets
(IADC
/
inspections of CA as
implementing
of  calls  for
IMCA
/
ECSA)
annualised inputs
regulation and
further
Europe  &  global,   Preventive
via EUOAG;
clarification
2008 – present
programmes
and guidance?

planned/executed  by  Formally
authorised
Is
there
CA’s
technical
Practical indications of
verification

reports;
effectiveness
available?
of the CA’s:
Is
a
unitary
CA  Observed  experience
established
raising  issues
 Completeness
of
for
both
of concerns;
Where  the  CA  is  a
incident
reports
safety
and
joint
rather
collected
and
Major  accident  reports
environment?
than
unitary
reported  publicly/to
issued
by
body, are  lead
COM  (as  %  of
MS’;
required
reporting
entities
system)

Workshops
and
appointed?
 RoMH’s assessed by
interviews

the  CA  as  %  of
with
number of MODU’s;
stakeholders;
Is  there  consistency
and # accepted
and
across  the  EU
 RoMH’s assessed by
in
the
the  CA  as  %  of
Factual  data  publicly
approach
to
number
of
available;
enforcement
production

against
installations;  and  #

breaches
of
accepted
Subjective
evidence
duty
by
derives from:
industry?
158

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
Suggested  experiences
raising  issues  Are  there  conclusions
of concerns;
to be drawn of
Major  accident  reports
efficacy
issued
by
comparing
operator/owne
civil
and
r
criminal
penalties  (for
Public
consultations
example
and
between  high
unsolicited
civil  penalty
written
fines (€multi -
submissions
millions)  and
criminal
financial
penalties?
Efficiency
What  are  the  costs  associated  with  the  Principal  quantitative  Is
a
unitary
CA  Reliable
evidence  Is
there
a
more
introduction
of
appointing
contexts
for
established
derives from:
levelled-
competent
authorities
in
the  scale  of
for
both  MS’
reports
to
upwards
relation  to  the  estimated  cost
the
sector
safety
and
approach
to
Commission
reduction  of  a  major  accident
requiring
a
environment?
risk
under
the
occurring  through  reduction  in
CA  response
management

implementing
risk?
are:
comparing
regulation and
What
different
EU  MS’  with

 Operational  density
via EUOAG;
charging
IRF
and
criteria  (production

provisions  are  Observed  experience
volumes;  #  offshore
NSOAF
workers;
#
wells
put into effect
raising  issues
countries?
drilled;
#
by MS?
of
concerns;
installations;  etc)  as
and

trends
Can it be seen that the
159

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
 Trending
What is the proportion  Factual  data  publicly
establishment
deployments
of
of
aging
available;
of a consistent
major  capital  mobile
infrastructure,

cohort  of  EU
assets
(IADC
/
including
offshore
IMCA
/
ECSA)
Subjective
evidence
MODU’s  in
petroleum
Europe  &  global,
derives from:
EU  offshore
CA’s
2008 – present
regions
Data submissions from
promotes  the

including  age
stakeholders;
efficiency  of
Practical
indicators
profile
of  Subjective  technical
individual
are:
fixed
and
MS’? And the
reports;
 MS  staff  resources
mobile
industry
Suggested  experiences
applied  to  CA cf  pre
installations
sector?
OSD
raising  issues

 Operating budgets of
of concerns;
CA per active well cf  What  are  oil  price  Public  consultations  How  are  the  running
pre OSD
trends and the
costs  of  CA’s

and
Operating budgets of
general
shared
with
unsolicited
CA  per  installation
direction
of
industry
as
cf pre OSD
written
the
sector’s
viewed  from
 Allocation
of
submissions
economy?
the
resources
by

perspective
technical  discipline

per  MS  (technical
of:
‘whom
and
environment;  What  are  the  relative
creates
the
assessment;
efforts
risk
and
inspection  &  audit;
between
benefits  from
enforcement)
established
the subsurface
 Cost  of  handling  a
advanced
treasure’?
RoMH  for  mobile
CA’s and new
NPI

jurisdictions
 Cost  of  handling
in  setting  up

operations
RoMH
160

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
for PI
their CA’s?

What  dependency  on

technical
consultancies
is, on average,
required
by
emerging  and
new CA’s?

Have  MS’  generally
avoided
duplication  of
HSE19
functions
between
separate
agencies?

EU-value
Is  it  likely  that  the  intervention  has  Indicators
may
be  Deriving  context  of
What is deduced of the
adde
increased  the  adoption  of  such
integrated  to
SEMS
and
experience  of
Reliable
evidence
d
regulatory  practices  across  the
derive
overarching
implementing
derives from:
EU where otherwise would not
cost/benefit
policies via:
the  Directive
have been the case?
terms from:
2016
consultant’s

in  relation  to
Major  accident  risk
report
to

establishing  a
Well control incident
trends  as  formulated
Commission
coherent  EU
report
trend-
by
advanced
on  degree  of
161

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
summaries:
regulatory
regimes
transposition
regime
for
 BOP
reliability
(annualised reports
of
the
CA’s
from
reports
from
JIP   Demographic
of
Directive  by
perspective
failure
trend-
aging  infrastructure,
MS’;
of:
summaries
including  MODU’s
 Failure  reports  from
and
fixed  MS’
reports
to   NSOAF10  MS’  and
schemes
of
installations
Commission
Italy?
independent
 Diversification
of
under
the   Southern EU MS’?
verification
license
holders;
implementing
What  are  the  broadly
 Exploration
wells
population
trends
regulation and
expressed
drilled
towards
smaller,
via EUOAG;
views
of
 Trending
niche companies
primary  duty
deployments
of   Operational  density  Formally
authorised
holders
major  capital  mobile
criteria  (production
technical
assets
(IADC
/
volumes;  #  offshore
reports;

IMCA
/
ECSA)
workers;
#
wells
What  can  be  deduced
Europe  &  global,
drilled;
#  Observed  experience
of
the
2008 – present; and
installations;  etc)  as
raising  issues
 Oil price trends
trends
of
concerns
establishment

and/or
of
the
approval; and
EUOAG4
Are  there  post  2010
regarding EU-
Industry
Workshops
and
added  value?
initiatives
interviews
Would  such  a
adopted
by
with
forum
be
operators  and
stakeholders.
extant without
contractors

the
for continuous
intervention
improvements  Subjective
evidence
of
the
in
derives from:
Directive?
performance?
Data submissions from
stakeholders;
Is
there
sufficient
162

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
Subjective
technical
elapsed  time
reports;
for  objective
conclusions
Suggested  experiences
regarding
raising  issues
further
EU
of
concerns
interventions?
and/or
approval; and

Public
consultations
and
unsolicited
written
submissions
(4) Comprehensive verification of capability and experience to be undertaken at the licensing stage
Attainment
Is
there  (i)  Are  licenses  Quantitative
For  context  to  scale  Article  4  describes  Has  the  experience  of
compreh
awarded in
deductions  on
and  nature  of
requirements
the  Directive
ensive
considerati
the
licensing  and
for
the
been  to  create
verificati
on
of
application  of
licensed
assessment
consistent
on
of
technical
technical
areas,
the
and
of
technical
capabilit
capability
capability
following
technical
capability
y
and
130  for  the
assessment
indicators
capability  of
assessments
experien
planned
may
be
apply:
applicants  to
of  applicants
ce
of
operations
available

be  considered
for licenses?
Exploration
wells
applicant
and
from:
by  the  MS;
drilled

s
emergency  
also
the
#    and  frequency  of   Frontier  areas  under,
undertak
response?
requirements
Is  it  noted  that  the
licensing
rounds
or
available
for,
en  at  the
CA’s
since July 2013?
license
for

130 Element (4) relates to the technical capability of the applicant for a license. The CA performs a significant role in the assessment of this aspect of the application. Element 9 evaluates
financial capability measures in the Directive (also provided for in Article 4).
163

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
licensing

 CA  participation  in   Oil price trends
monitoring  of
appointed
stage?
licensing  as  %  of   Diversification
of
maintenance
pursuant
to
Are
there
licenses
awarded
license
holders;
of
suitable
the  Directive
provisions
since 2016
population
trends
for  MS’  to
capability.
do  participate
 #
National
Oil
towards
smaller,
in
the
ensure
Companies  (NOC’s)
niche companies
(Article  6  contains
assessments
licensees
acting  as  Operators

general
of
technical
maintain
in licensed areas
provisions  for
Is  a  unitary  CA  for
capability?
capability
 #
licensed
areas
assurance  of
HSE
and
where
no
best

independent
oil
appointed  in
complianc
international
company  IOC)  is  a
each
focal
Is  the  number  of  new
e
during
practices
by
venturer?
MS?
licenses
operations
operators  and

awarded  since
?

well  operators
2016

in
licensed

Are  there  procedures
sufficient  for

published  as
areas)
an
objective

to
technical

assessment  of

requirements
any

in each MS’
Article
5
requires

improvement
public

in
technical

participation

capability

in
the

assessments?
seleciton
of

areas
for
(ii) Relevant data are

planned

exploration
 #
public

operations.

consultations
on
(ii)
Are
there

areas
to
be

considered
for
independent

licensing  since  July
licensing
Reliable
evidence
2013?
authorities  in
derives from:

164

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

 Number  of  EIA’s131
each MS?
2016
consultant’s
required
by
report
to

intervention  of  the
Commission

licensing  body  or  What  general  level  of
on  degree  of
Minister  in  areas  of
diversification

transposition
special
of  the  marine
of
the
ii)  Is    exploration
environmental
spaces is there
Directive  by
sensitivity?
(i.e
limited
in
EU
where  not  otherwise
MS’;
solely
to
mandated)
offshore
MS’
reports
to
areas

regions?
Commission
where

there  has
under
the
been
Do
licenses
lie
implementing
regulation and
public
dormant
for
consultatio
significant
via EUOAG;
n?
periods
of  Formal
notices
of
time?
licensing

rounds in OJ;
Are
there
arrangeme

Formal calls for public
nts in  MS’
participation

that
in selection of
encourage

areas
for
licensing;
active

public
Observed  experience
participati

raising  issues
on?

of
concerns;
and

131 Environmental impact assessments arerquired under Directive 85/337/EEC and amendments. MS’ may require operators to conduct full EIA’s prior to exploration drilling but normally an
EIA is required at the stage of considering consent to installing a production facility.
165

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

Factual  data  publicly
available;


Subjective
evidence
derives from:
Data submissions from
stakeholders;
Subjective
technical
reports;
Suggested  experiences
raising  issues
of concerns;
Public
consultations
and
unsolicited
written
submissions
Relevance
Do  aims  4,  and  (i)-(ii)  directly  address  Suitable statistical data  For  context  to  scale  Reliable
evidence  Is  the  experience  of
lowering  of  major  accident
include
(all
and  nature  of
derives from:
implementing
risks  by  actively  promoting
from  the  date
licensing  and  MS’
reports
to
the  Directive
public  participation    and  by
baseline  July
licensed
regarding  the
Commission
consistently
evaluating
2013):
areas,
the
licensing
under
the
technical  capability  of  license  
following
requirements
#    and  frequency  of
implementing
holders
and
operators
by
indicators
broadly
licensing rounds?
regulation and
competent authorities?
 #
public
apply:
approved  by
via EUOAG;
consultations
on
MS’ CA’s?


Exploration
wells
areas
to
be
Formal
notices
of
drilled

considered
for  
licensing
Frontier  areas  under,
166

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
licensing?
or
available
for,
rounds in OJ;
Are
there
regional
 Number  of  EIA’s
license
differences  of
Formal calls for public
conducted?
 Diversification
of
view?
 #  exploration  wells
license
holders;
participation
spudded?
population
trends
in selection of
 #  licenses  formally
towards
smaller,
areas
for  Has  the  experience  of
relinquished
niche companies
licensing;
establishing  a

Observed  experience
baseline
of

Are  there  indications
raising  issues
best
that Articles 4
of
concerns;
regulatory

and
6
no
and
practices
longer
across  the  EU
Workshops
and
represent  best
highlighted  a
interviews
international
lack
of
with
regulatory
specifity
in
stakeholders;
practice
in
provisions.

technical
For  example
capability
Subjective
evidence
in retention of
assurance  of
derives from:
license
license
approvals
in
Data submissions from
holders?
stakeholders;
dormant
licensing;  and

Subjective
technical
in
carrying
What  are  oil  price
reports;
forward
trends and the  Suggested  experiences
environmental
general
raising  issues
assessments
direction
of
of
concerns;
in
dormant
the
sector’s
and
licenses?
economy?
Public
consultations  Also  does  it  raise  a

and
question  over
167

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

unsolicited
CA’s
written
technical

submissions
involvement

at

relinquishmen
t  of  licenses
where
wells
have
been
drilled?
Coherence
What  correlation  exists  between  the  Suitable statistical data  Is
coherence  Article  4  describes  Is
there
sufficient
aims  and  EU  legislation  when
may
be
maintained  in
requirements
elapsed  time
addressing  reduction  in  major
integrated
practice
for
the
for  objective
accident
risks
through
from:
between
the
assessment
conclusions
promoting
active
public  
measures
and
of
regarding
Hydrocarbon
participation  in  new  licensing
relating  to  the
technical
further
EU
releases
from
and
assessing
technical
permamently
Directive
in
capability  of
interventions
capability during licensing?
abandoned  platform
the
applicants  to
for
greater
wells
hydrocarbons
be  considered
coherence
 Hydrocarbon
licensing
by  the  MS;
between
the
releases
detected
directive132 ?
also
the
Directive  and
from
subsea
requirements
the
relevant
locations  attributed
for
EU
to  decommissioned  And  in  respect  of  EU
monitoring  of
legislation?
production
facility
legislation
maintenance
(platform or subsea)

under
the
of
suitable

Aarhus
capability.
Is  it perceived that the
convention
Directive  has
(Article  6  contains
relating
to
increased

132 Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorizations for the prospection, exploration and production of
hydrocarbons
168

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
public
general
transparency
participation
provisions  for
in
national
in
assurance  of
licensing
environmental
best
arrangements
matters133?
international
?
practices
by

operators  and

well  operators

in
licensed
areas)

Effectiveness
Do  the  aims  (i)-(ii)  as  implemented  by  The
following  Is  a  unitary  CA  for  Reliable
evidence  Has  the  experience  of
MS’  and  responded  to  by
indicators
HSE
derives from:
the  Directive
industry  attain  global  best
may apply:
appointed  in  MS’
reports
to
been  to  create
industry  practices  in  the  EU  
each
focal
consistent
#  Exploration  wells
Commission
through  public  participation  in
MS?
technical
drilled
under
the
selecting  new  licensing  areas   #  Frontier  areas
capability

implementing
and  in  the  appointment  of
under,  or  available
assessments
regulation and
technically
competent
and
for, license
Are  there  procedures
of  applicants
via EUOAG;
suitably
resourced
license   #    and  frequency  of
published  as
for licenses?
holders and operators?
licensing
rounds
to
technical  Observed  experience

since July 2013?
requirements
raising  issues
Are  adverse  effects  of  major  accidents   CA  participation  in
of
concerns;  Is  it  noted  that  the

133 Directive 2003/04/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC;
Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to
the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC. Provisions for public participation in environmental
decision-making are furthermore to be found in a number of other environmental directives, such as Directive 2001/42/EC of 27 June 2001 on the assessment of certain plans and
programmes on the environment

169

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
to  the  environment  on  coastal
licensing  as  %  of
in each MS’?
and
CA’s
communities  and  the  marine
licenses
awarded
appointed

Workshops
and
habitats  and  economic  users
since 2016
pursuant
to
interviews
likely to be mitigated?
 #
National
Oil  Are  there  indications
the  Directive
Companies  (NOC’s)
with
that Articles 4
do  participate

acting  as  Operators
stakeholders;
and
6
no
in
the
in licensed areas


longer
assessments
#
licensed
areas
represent  best  Subjective
evidence
where
no
of
technical
independent
oil
international
derives from:
capability?
company  IOC)  is  a
regulatory
Data submissions from
venturer?
practice
in
stakeholders;

technical
Is  the  number  of  new
capability
Subjective
technical
licenses
assurance  of
reports;
awarded  since
license
Suggested  experiences
2016
holders?
raising  issues
sufficient  for
an
objective

of
concerns;
and
assessment  of
For  context  to  scale
any
and  nature  of  Public
consultations
improvement
licensing  and
and
in
technical
licensed
unsolicited
capability
areas:
written
assessments?
submissions
 Oil price trends

 Diversification
of
license
holders;
Does the integration of
population
trends
the  CVA  as  a
towards
smaller,
formal
niche companies
consultee
introduce
further
170

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
considerations
of
licensing
aspects,
eg
consultation
on  standards
of
relinquishmen
t?
Efficiency
What  are  the  costs  associated  with  the  Cumulative  elements  Can  costs  of  CA  Reliable
evidence  Are  the  measures  in
introduction
of
formal
of
cost
participation
derives from:
the  Directive
procedures  to  promote  public
derived  from
in
licensing
for  licensing
Formal
notices
of
participation  in  licensing  new
the
be
teased
and
public
licensing
areas,  and  in  CA  participation
implementatio
from  overall
participation
rounds in OJ;
in  technical  assessments  of
n
of
the
set up costs?
broadly
applicants?  How  do  these
Directive
at
Formal calls for public
welcomed  by
And running costs?
relate
to
the
estimated
Articles  4,  5,
participation
principal
annualised  cost  of  a  major
6
as
set
in selection of
stakeholders?
accident occurring?
against
the
areas
for
Is  it  assumed  that

perceived
licensing;

Article  5  acts
annualised
Do
social
partners
in
the  Observed  experience
costs of major
with  access  to
affirmative
raising  issues
accidents,
CA’s  identify
rather
than
of
concerns;
including
to
new
matters
creates  a  new
and
the
of
interest
duty
to
environment,
Workshops
and
connected  to
conduct
from  offshore
interviews
technical
public
petroleum
with
competence in
participation?
operations.
stakeholders;
licensing  and
related  public

Subjective
evidence
participation?
171

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

derives from:

Data submissions from
stakeholders;
Suggested  experiences
raising  issues
of
concerns;
and
Public
consultations
and
unsolicited
written
submission
EU-value
Is  it  likely  that  the  intervention  has  Relevance
of
EU-
Feedback  of  principal  Reliable
evidence  What  are  the  most
adde
increased the adoption of good
added
value
stakeholders:
derives from:
frequently
d
practices  in  licensing  and
contextualised  
expressed
affirming  the  value  Formally
authorised
public  participation  across  the
by:
views of:
of
the
new
technical
EU where otherwise would not   #  Exploration  wells  arrangements
in
reports;
 MS’ regulators
have been the case?
drilled
securing
the
 Operators
and
objectives
of  Formal
notices
of

 Trending
license holders
deployments
of
reducing
licensing
 Owners
on
non
major  capital  mobile
majoraccident  risk;
rounds in OJ;
production
assets
(IADC
/
and
installations
Formal calls for public
IMCA
/
ECSA)   identifying  areas  of
 NGO’s
participation
Europe  &  global,
other
interventions
 Trades Union
in selection of
2008 – present; and
to further imrove the
whether  the  Directive
 oil  price  trends  and
relationship
of
areas
for
has
per
se
the  general  direction
regulators  and  civil
licensing;
added
value
of
the
sector’s
society  with  sensible  Observed  experience
to
technical
economy?
licensing
raising  issues
licensing  and
172

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

of
concern;
concomitant
and
public
participation
Workshops
and
compared
interviews
with
MS’
with
acting without
stakeholders.
EU

intervention?
Subjective
evidence  Keeping  in  mind  MS’
derives from:
right
for
Data submissions from
determining
stakeholders;
offshore
petroleum
Suggested  experiences
licensing
raising  issues
policy,
and
of concerns;
the
original
Also
affirmatory
intent  of  a
feedback; and
regulation,
has
the
Public
consultations
Directive
and
achieved
a
unsolicited
more
level
written
and  upgraded
submissions
approach
to
technical
licensing  and
public
participation?

173

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
(5) EU-wide information sharing and transparency to be implemented
Attainment
Is  there  EU-wide  (i)  Does  industry  (i)  incident  reports  (i)
other
reports  Article  23  provides  Can  it  be  seen  that  a
informati
make
provided
to
available from
measures  for
new system of
on
reports  to
MS’
by
industry
industry
EU-wide
sharing
CA’s
in
operators  and
include
reports,
and
reporting
of
and
accordanc
owners  under
corporate
the  making  of
incidents  is  in
transpare
e
with
reg.1112/2014
annual
a
regulation
place?
ncy
implement
as
%
of
reports; also
by
the
relating
ing
qualifying
Commission
industry
trade
to  sector
regulation
incidents
for  a  common  Is
the
system
association
performa
#
reporting
sufficiently

reports134:
nce
in
1112/2014
format.
mature
to
major
?
Other
reports
as  • Well control incident
consider

accident
required
by
report
trend-
adaptations?

preventio
MS
or
summaries
Article  24  describes
• BOP
reliability

n?

regional  seas
duties  of  MS’
reports
from
JIP
conventions
to
publish  Is  action  required  to

failure
trend-
incidents  and
stimulate

summaries

•
complete
Availability of KPI’s
for

Commission
reporting?

and  other  statistical

publications  bearing
to
providea

on risk trends
format  for  an

• Environmental
EU
annual

performance data for
report.

EU cf global trends

• Major  accident  risk

control
(process  Article  25  describes

134 Main Trade Associations contributing to the assessment are: IOGP International Association of Oil & Gas Producers (London) – Operators and Licensees; IADC International Association of
Drilling Contractors (Houston, USA – Owners of MODU’s; ECSA European Commercial Ship Owners Association (Brussels) – Owners of commercial vessels which includes those servicing
the petroleum sector; IMCA International Marine Contractors Association (London) – owners of specialised service vessels for the petroleum sector
174

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

safety)  performance
duties  of  MS’
data for EU cf global
to
report

trends
annually
to

the

(ii)
Indicators
of
Commission
transparency
and  for  the

for
MS’
Commission

include:
to
make
annual
EU-

• Collection
of
level reports.
incident  data  using

10  point  taxonomy  Reliable
evidence

of the regulation;
derives from:
• Reports  of  major

accident
MS’
reports
to
investigations  made
Commission

public
under
the

(ii)
#
completed  • Reports
of
implementing
annual  reports
hydrocarbon
spills
regulation and

from  MS’  to
made public
via EUOAG;
(ii)  Do  MS’  report
•
Commission
Publish  annual  fatal
Formally
authorised
data
injury rate
as  %  of  focal
technical
pertinent
MS’,
since
reports;
to
major
2016
(iii)  Is  guidance  made
accident
available
by  Observed  experience

risk
Commission
raising  issues
annually
# MS’ that publish risk
to  MS’  and
of concerns;
to
the
trend reports
primary  duty  Major accident reports
Commissi
holders?

issued
by
on?
MS’;
#  MS’  that  contribute

to  IRF  and  Whether  Commission  Workshops
and
175

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

NSOAF10
reporting
interviews
reporting
system
with

systems
duplicates
stakeholders;

existing
and

systems
in  Factual  data  publicly

MS’?

available;

Subjective
evidence

derives from:

Data submissions from
(iii)  #  annual  reports

under
the
stakeholders;

implementing
Suggested  experiences
regulation
raising  issues

published  by
of concerns;
(iii)  Are  reports
Commission
Major  accident  reports
published
since 2017
issued
by
by
the
operator/
Commissi
owner; and
on  in  a
common
Public
consultations
format
and
produced
unsolicited
under
an
written
implement
submission
ing act?

Relevance
Do  aims  5  and  (i)-(iii)  directly  address  Relevance
may
be  Indications
of  Reliable
evidence  Is  it  seen  that  the
lowering  of  major  accident
deduced from,
relevance may
taxonomy  of
176

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
risks
through
improved
inter alia:
be
deduced,
derives from:
the  reporting
transparency  of  industry,  the  
inter
alia,
system
environmental
MS’
reports
to
MS’ and Commission?
from:
reflects
performance data for
Commission
EU cf global trends;

international
Industry
initiatives
under
the
 Major  accident  risk
best  practices
adopted by operators
implementing
control
(process
and  contractors  for
for
offshore
regulation and
safety)  performance
continuous
petroleum
via EUOAG;
data for EU cf global
improvements
in
incident
trends
reporting
of  Formally
authorised
reporting?
 Operational  density
performance
technical
criteria  (production  

Availability of KPI’s
reports;
volumes;  #  offshore
and  other  statistical
Is  the  system  mature
workers;
#
wells
publications  bearing  Observed  experience
enough
to
drilled;
#
on  risk  trends  to
raising  issues
make
installations;  etc)  as
major  accident  risk,
of concerns;
trends; and
objecvtive
occupational  health
 Incident  reporting  as
Major  accident  reports
considerations
&
safety
and
%  of  requirement
issued
by
environmental
on
the
under  Implementing
MS’;
protection

question
of
Regulation

Workshops
and
relevance
to
major
Is  there  clarity  of
interviews
accident
primary
with
prevention?
dutyholders
stakeholders;
compliance

Subjective
evidence
with
the
derives from:
Are
there
other
system?
Data submissions from
international

systems
that
stakeholders;
focus
Is  there  availability  of  Subjective  technical
especially  on
formal
reports;
major
guidance?
Suggested  experiences
accident
177

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

raising  issues
prevention,
of
concerns;
including
to

and
the
environment
Suggested  experiences
that
may
giving
serve
as
a
affirmation
benchmark?
feedback;

Major  accident  reports
issued
by  Is  the  quality  and
operator/owne
completeness
r; and
of
reporting
different
Public
consultations
between
the
and
mature
unsolicited
regimes
written
(North
Sea,
submissions
Italy)  and  the
less mature?
Coherence
What  correlation  exists  between  the  Does
duplication  Is
coherence  Article  23  provides  What
may
be
aims  and  EU  legislation  when
occur between
maintained  in
measures  for
primarily
addressing
transparency
of
the  Directive
practice
industry
concluded
reporting  of  incidents  and
and
other
between
the
reports,
and
from
accidents
in
the
offshore
specific
EU
Directive’s
the  making  of
implementatio
petroleum sector?
legal
measures  for
a
regulation
n
and
measures
transparency
by
the
adoption
of

relating  both
of
industry
Commission
the
to  the  sector
performance
for  a  common
transparency
and relating to
ansd  and  the
reporting
arrangements
risk  reduction
related
format.
regarding
178

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
and
Council
Article  24  describes
duplication
preparation  of
Directives  on
duties  of  MS’
with
other
reports?
industry
to
publish
reporting
sector  major
incidents  and
systems?

accident
for

Is  there  conflict  of
prevention
Commission
legislative
performance
to
providea  Has
any
such
intent  occurs
135?  And  in
format  for  an
duplication
between
the
respect
of
EU
annual
led  to  conflict
Directive  and
environmental
report.
of
other  specific
liability
and
transparency
Article  25  describes
EU
legal
remedy136?
arrangements
duties  of  MS’
measures
that  need  to
And
for
major
to
report
relating  both
be avoided?
accident  sites
annually
to
to  the  sector
(onshore),  the
the
and relating to
Seveso
III
Commission
risk  reduction
Directive137?
and  for  the
and
Commission
preparation  of
to
make
reports?

annual
EU-

level reports.
How numerous are the
Reliable
evidence

135 89/391/EEC (Framework Directive) and 92/91/EEC esp Annex C referring specifically to offshore petroleum operations (Safety in mineral extraction through drilling Directive)
136 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (Waste Framework Directive) and in Directive
2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (Environmental
Liability Directive)
137 Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, repealing Directive 96/82/EC
for controlling non nuclear major chemical accident and explosion hazards.

179

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
duplicative
derives from:
and
MS’
reports
to
conflicting
Commission
elements
under
the
implementing
regulation and
via EUOAG;
Workshops
and
interviews
with
stakeholders;
an

Subjective
evidence
derives from:
Data submissions from
stakeholders;
and
Public
consultations
and
unsolicited
written
submissions

Effectiveness
Do  the  aims  5  and  (i)-(iii)  as  Contextual
data  For  context  of  the  Reliable
evidence  Can it be seen that the
implemented  by  MS’  and
indicating
current
derives from:
system
responded to by industry attain
baseline
performance
MS’
reports
to
provides
full  transparency  in  the  EU
levels
of
of the sector:
effective
Commission
180

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
thereby
contributing
to
a
industry
• Major  accident  risk
under
the
overview
of
redeuction  in  offshore  major
performance:
trends  as  formulated
implementing
major
accident rik?
by
advanced
•
regulation and
acvcident  risk
# incidents occurring
regulatory
regimes
via EUOAG;
trends  across
Are  adverse  effects  of  major  accidents
(using
10-point
(annualised reports)
the EU?
to  the  environment  on  coastal
taxonomy
of  • Well control incident  Formally  authorised
communities  and  the  marine
Implementing
Act;
report
trend-
technical

e.g.
collisions,
habitats  and  economic  users
summaries
reports;
breaches  of  500m
Is  the  effectiveness  of
likely to be mitigated?
• BOP
reliability
zone;
hydrocarbon
reports
from
JIP  Observed  experience
the

releases; etc)
failure
trend-
raising  issues
transparency
• Environmental
summaries
of concerns;
system
performance data for
broadly
EU cf global trends
Major  accident  reports
welcomed  by
• Major  accident  risk  As
indicators
of
issued
by
primary  duty
control
(process
effectiveness
MS’;
holders?
safety)  performance
of
the  Workshops
and
data for EU cf global
Directive:

trends
interviews
• Occupationalv safety  • Transparent
with
Are  there  discussions
performance data for
collection of incident
stakeholders;
at
EUOAG
EU cf global trends
data
(per
concerning
Implementing
Subjective
evidence
EU-level
regulation
derives from:
performance
• Completeness
of  Data submissions from
data?
incident
reports
stakeholders;
collected
and

reported  publicly/to  Subjective
technical
COM  (as  %  of
Is
there
sufficient
reports;
required
reporting
elapsed  time
system)
Suggested  experiences
for  objective
• Reports  of  major
raising  issues
conclusions
accident
of
concerns;
regarding
investigations  made
and
further
EU
181

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
public
Suggested  experiences
interventions
• Reports
of
giving
on
hydrocarbon
spills
affirmation
effectiveness?
made public
feedback;

Major  accident  reports

issued
by
operator/owne
r; and
Public
consultations
and
unsolicited
written
submissions
Efficiency
What  are  the  costs  associated  with  the  Indicators of cost are:
Context of the level of  Reliable
evidence  Is  the  availability  of
introduction
of
formal  •
industry
derives from:
the  EU-level
Cost  of  making  the
reporting systems up to the EU
performance
report
implementing
MS’
reports
to
level;  and  in  relation  to  the
regulation by MS’
are seen in:
sufficiently
Commission
estimated
annualised  • and  as  above  by  •
known  to  the
Availability of KPI’s
under
the
reductions  in  cost  of  a  major
industry
public
and
and  other  statistical
implementing
accident occurring?
• running costs to MS’
publications  bearing
social
regulation and
of  operating  the  new
partners?

on  risk  trends  to
via EUOAG;
system
major  accident  risk,
• as above for industry

occupational  health  Formally
authorised

&
safety
and
technical
Are  there  calls  for
• Indicators  of  benefit
environmental
reports;
further
are deduced from the
protection
guidance
by
Observed  experience
relative  level  of  EU  • Environmental
duty holders?
MS’ performance:
raising  issues

performance data for
•
of concerns;
(And
are
these
Completeness
of
EU cf global trends
incident
reports  • Major  accident  risk
182

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
collected
and
control
(process  Workshops
and
justified?)
reported  publicly/to
safety)  performance
interviews

COM  (as  %  of
data for EU cf global
with
required
reporting
trends
stakeholders.
Can  it  be  established
system)

that  the  costs
• #Incidents  occurring  Occupational  safety
of  introducing
(using
10-point
Subjective
evidence
the
taxonomy
of
performance
derives from:
transparency
Implementing
Act;
data for EU cf
e.g.
collisions,
global trends
Data submissions from
system
to
breaches  of  500m
stakeholders;
MS’  and  to

zone;
hydrocarbon
primary  duty
Suggested  experiences
releases; etc)
Negative  costs  are  to
holders  were
raising  issues

be
inferred
unjustifiably
of concerns;
excessive?

from feedback
from  industry  Suggested  experiences  (And running costs?)
and  MS’  on
giving
duplication
affirmation

with
other
feedback; and
Is  it  possible  to  derive
statutory
Public
consultations
a  cost  versus
reporting
and
benefit
term
systems
unsolicited
for
this

written
requirement
submissions
of
the

Directive?

183

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

EU-value
Is  it  likely  that  the  intervention  has  Quantitative data since  Contextual
data  Reliable
evidence  Based
upon
the
adde
increased  the  adoption  of
2016/17  may
establishing
derives from:
experience  of
d
transparency  of  performance
only  establish
baseline
implementing
Compliance  with  the
across the EU where otherwise
a  baseline  for
levels
of
the  Directive,
Implementing
would not have been the case?
further
industry
what  are  the
Regulation
scrutiny
of
performance :
positions of:
2014;
EU-added
• Environmental
 MS’ regulators
value:
MS’
reports
to
performance data for
 Operators
and
Commission

#
incidents
EU cf global trends
license holders
under
the
occurring
(using  • Major  accident  risk
 Owners
on
non
implementing
10-point
control
(process
production
taxonomy
of
safety)  performance
regulation and
installations
Implementing
data for EU cf global
via EUOAG;
 NGO’s
Act;
e.g.
trends;
 Trades Union
Workshops
and
collisions,
• Occupational  safety
whether  the  Directive
interviews
breaches  of  500m
performance data for
has
per
se
with
zone; hydrocarbon
EU cf global trends
added
value
releases; etc)
stakeholders;
in
providing
Practical  indicators  of
Subjective
evidence
enhanced
change
are
derives from:
understanding
revealed in:
of  sector  risk
Data submissions from

Reports  made  to
compared  to
stakeholders;
COM
under
the  status  quo
Implementing
Suggested  experiences
ante
EU
regulation
raising  issues
intervention?

Completeness  of
of concerns;

incident
reports
collected
and
Suggested  experiences  Is  there  now  a  more
reported
giving
levelled-
publicly/to  COM
affirmation
upwards
184

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
(as  %  of  required
feedback; and
approach
to
reporting system)
risk  reporting

Public
consultations

Intensity
of
comparing
inspections  of  CA
and
EU  MS’  with
as
annualised
unsolicited
IRF
and
inputs
written
NSOAF

submissions
states10

OBJECTIVE 2
That the insufficient arrangements for responding to a major accident in EU waters be improved
The sub-objective being to implement fully joined-up emergency preparedness and response in all EU offshore regions
(6) Cross-border intervention equipment to be available; and response assets to be more compatible
Attainment
Is  national  and  (i)
Have
MS’  (i) The context for the  (i)  The  qualitative  Article  29  provides  Is  it  apparent  that  the
industry-
prepared
risks  of  major
contextual
measures  for
aims
of
owned
for
accidents
indicators  of
MS’  planning
integrating
intervent
effective
occurring
in
the
and
emergency
ion
emergency
EU
waters
requirement
preparedness
response
equipme
response
are:
for emergency
for
major
assets
and
nt
to
major  •
preparedness
accident
expertise  and
Major  accident  risk
available
offshore
at
the
MS
response.
coordinating
trends  as  formulated
across
accidents?
by
advanced
level are:
arrangements
(Article  30  describes
MS’
across

regulatory
regimes  • Well control incident
measuresnece
borders?
(annualised reports)
report
trend-
boundaries
Have
MS’
ssary
for
• Well control incident
are attained?
And,  pertinent  to
summaries
triggering  an
emergency
report
trend-
such
• BOP
reliability
immediate

reponse
summaries
reports
from
JIP
availabili
response
by
agencies
• BOP
reliability
failure
trend-
For example:
ty,
are
operators  and
made
reports
from
JIP
summaries
185

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
response
arrangeme
failure
trend-
• Aging  infrastructure,
owners)
Do
national
assets
nts
to
summaries
including  MODU’s.
contingency
Article  31  ascribes
being
ensure

Age  profile  of  fixed
plans
responsibilitie
systemati
cross-
and
mobile

integrate  the
installations
s to  MS’  with
cally
border
internal
• Operational  density
active
becomin
availabilit
Indicators  from  which
emergency
criteria  (production
petroleum
g    more
y
and
the  readiness
response
volumes;  #  offshore
operations  for
compatib
compatibil
of  emergency
workers;
#
wells
plans
of
transboundary
le
ity
of
preparedness
drilled;
#
operators  and
interventions.
between
interventio
and  response
installations;  etc)  as
owners?
MS’?
n assets?
arrangements
trends
Article  32  ascribes
may
be  •

Trending
emergency

deduced are:
deployments
of
response
Are efforts in hand for
Have
operators,  •
major  capital  mobile
#
of
emergency
functions
to
making  more
owners,
assets 2008 - present
response focal points
neighbouring
transferable
MS’
• Oil price trends as an
as  %  of  #  of  coastal
MS’  who  do
and
indicator
of
the
conducted
MS;
sector’s  trajectory;
not
have
interoperable
relevant
• #  of  cross-EU  well
offshore
the
ER
and
exercises?
capping
equipment  • Efforts  ongoing  for
petroleum
equipment
available;
operations.
and  expertise

•
harmonisation  of  ER
Precursor
major
equipment  in  and
between MS’?
accident
events

between MS
reported
aas
per

Reliable
evidence

implementing
derives from:
Is
there
sufficient
regulation

• #
national
2016
consultant’s
elapsed  time

emergency  response
for  objective
report
to
exercises  conducted
conclusions

Commission

at MS-level;
regarding  the
•
on  degree  of

#  cross-border  MS’
extent
of
transposition
emergency

attainment

intervention
of
the
and
whether
186

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

exercises conducted

Directive  by
the
system

MS’;
requires

further
(ii)
Quantitative
MS’
reports
to

(ii)  The  qualitative
maturity?
indicators  of
Commission
contextual

transboundary
under
the
indicators  of
preparedness

implementing
the
Is  sufficient  interest
are
derived
regulation and
requirement
paid
by

from:
via EUOAG;
for emergency
inactive

• #  reports  shared
preparedness
Observed  experience
neighbouring
between

at
the
MS
raising  issues
MS’
to
neighbouring  MS’,
level are:
of concerns;
interaction

(including
inactive
with
active
MS’
• Aging  infrastructure,  Workshops
and

•
neighbours?
#
emergency
including  MODU’s.
interviews

response
exercises
Age  profile  of  fixed
with

conducted
across
and
mobile
stakeholders;

MS’ boundaries
installations

• #  non-active  MS’  • Operational  density  Subjective
evidence

that  have  established
criteria  (production
derives from:

emergency  response
volumes;  #  offshore  Data submissions from
focal points
workers;
#
wells

drilled;
#
stakeholders;

installations;  etc)  as  Suggested  experiences
trends
raising  issues

• Trending
of concerns;
deployments
of
(ii)
Do
major  capital  mobile  Suggested  experiences
operationa
assets 2008 - present
giving
lly  active

affirmation
MS’
feedback; and
prepare for

and deploy
Public
consultations
187

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
preventive
and
and
unsolicited
recovery
written
measures
submissions
where  any

risk
of
transbound
ary  effects
are likely?

Do  MS’  facilitate
emergency
response
collaborati
ons
with
neighbours
?

Have
inactive
coastal
MS’
appointed
focal
points
in
order
to
collaborate
effectively
with
operationa
188

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
lly  active
neighbours
?
Relevance
Do  aims  6  and  (i)-(ii)  directly  Relevance
may
be  Contextual indicators
Reliable
evidence  Is  the  system  mature
encourage  a  significant  uplift
deduced  from
derives from:
enough
to
of  relevance  of  the
in
major
accident
data  inter  alia
make
measures
to  2016
consultant’s
preparedeness  and  response  to
as follows:
objective
raising
report
to
a major accident in EU waters?
considerations
BOP reliability reports
standards
in
Commission
of
relevance
from
JIP
line  with  risk
on  degree  of
of
new
failure  trend-
of
major
transposition
emergency
summaries:
accident:
of
the
response
•
Directive  by
#
of
emergency  • Aging  infrastructure,
MS’;
arrangements

response focal points
including  MODU’s.
to
major
as  %  of  all  coastal
Age  profile  of  fixed  MS’
reports
to
accident
MS’
and
mobile
Commission
prevention?
• #
emergency
installations
under
the
response exercises
• Exploration
wells

implementing

drilled
•
regulation and  What is the experience
Frontier
areas
Indicators
of
licensed
via EUOAG;
of
connectivity
• Trending
implementing
Formally
authorised
between
deployments
of
the  Directive
technical
primary  duty
major  capital  mobile
in the inactive
reports;
holders
and
assets
coastal MS’?
MS’  licensing  • Efforts  ongoing  for  Observed  experience
authorities
harmonisation  of  ER
raising  issues
and CA’s:
equipment  in  and
of concerns;

between MS
• # wells drilled
• Unitary
CA  Workshops
and  Does
the
• Completeness
of
established  for  both
interviews
implementatio
incident
reports
safety
and
with
n
of
the
189

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
collected
and
environment
stakeholders;
Directive
reported  publicly/to  • CA  Participation  in
and
measures  for
COM  (as  %  of
licensing
emergency
required
reporting  • Availability of cross-
Factual  data  publicly
response
system
EU well capping and
available;
distinguish
• RoMH’s
accepted
transferable
ER

effectively
for  installations  as  a
equipment
and  Subjective  evidence
between
%
of
production
expertise
derives from:
installations
in
mobile
and
operation
Data submissions from
fixed
• RoMH’s
accepted
installations?
stakeholders;
for  installations  as  a
%  of  MODU’s  in
Suggested  experiences
operation
raising  issues

of concerns or
affirmative

feedback; and

Public
consultations

and
unsolicited
written
submissions
Coherence
What  correlation  exists  between  the  Indicators
of  Are  the  measures  for  Article  29  provides  Has  the  experience  of
aims  and  EU  legislation  when
correlation
emergency
measures  for
implementing
addressing
improvement
in
between
response
at
MS’  planning
the  Directive
major  accident  preparedeness
primary  duty
the  MS  level
and
introduced
and  response  to  a  major
holders
and
coherent  with
preparedness
correlations
accident in EU waters?
MS’
other  relevant
for
major
between
emergency
sector
risk-
accident
national
response
based
response.
contingency
agencies  and
systems,
programmes
190

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
CA’s:
particularly
(Article  30  describes
for emergency
•
the
related
measuresnece
response
by
#  Exploration  wells
Council
ssary
for
MS’
and
drilled
• Completeness
of
Directives  for
triggering  an
arrangements
incident
reports
safety
in
immediate
of
operators
collected
and
hazardous
response
by
and
owners
reported  publicly/to
industries
-
operators  and
for
internal
COM  (as  %  of
89/391/EEC
owners)
emergency
required
reporting
and
response
system
Article  31  ascribes
92/91/EECan
plans?
• RoMH’s
accepted
responsibilitie
d
the
for  installations  as  a
s to  MS’  with
Directive?
%
of
production
active
Have the provisions of
installations
in  And  maintained  with
petroleum
implementatio
operation
the  Seveso  III
operations  for
RoMH’s  accepted  for
n  by  MS’
Directive10  in
transboundary
installations
introduced
relation
to
interventions.
as  a  %  of
unforeseen
preparedness
MODU’s  in
Article  32  ascribes
conflicts
or
of  the  MS
operation
emergency
duplications
where
the
response
in  emergency
incident
functions
to
response
escalates
neighbouring
arrangements
beyond
the
MS’  who  do
?
site?
not
have

Is
there
a
broad
offshore
coherencewit
petroleum
h
the
operations.
Community
Civil
Protection
Mechanism
191

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
established  by
Council
Decision
2001I792IEC
establishing  a
Community
mechanism  to
facilitate
reinforced
cooperation in
emergency
response?
Effectiveness
Do  the  aims  6  and  (i)-(ii)  as  Indicators  of  effective  Qualitative
and  Reliable
evidence  Has  the  experience  of
implemented  by  MS’  and
connection
contextual
derives from:
implementing
responded
to
by
industry
between
indicators  of  2016
consultant’s
the  Directive
encourage  a  significant  uplift
emergency
effectiveness
created
a
report
to
in
major
accident
response
of
the
holistic
Commission
preparedeness  and  response  to
arrangements
emergency
framework  of
on  degree  of
a  major  accident  in  EU  waters
by
MS’
response
emergency
transposition
thereby
contributing
to
a
emergency
provisions
response
of
the
redeuction  in  offshore  major
responders
are:
plans namely:
Directive  by
accident rik?
and CA’s, and  Major  accident  risk
MS’;
arrangements
and
risk
Are  adverse  effects  of  major  accidents
trends
as
provisions  by
assessments
MS’
reports
to
to  the  environment  on  coastal
formulated  by
operators  and
by  operators
Commission
communities  and  the  marine
advanced
owners
for
and
owners
under
the
habitats  and  economic  users
regulatory
preventing
are:
implementing
likely to be mitigated?
regimes
major
regulation and
#  Exploration  wells
(annualised
accidents;

via EUOAG;
drilled
reports)
arrangements
for4
Formally
authorised
192

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)

• %  availability  of  Well  control  incident
technical
containment
internal  emergency
report  trend-
reports;
of  escalation
response
plans
summaries
beyond
the
prepared  by  owners
Observed  experience
installation by
of  non  production  BOP reliability reports
raising  issues
operators  and
installations
from
JIP
of concerns;
•
owners;
%
availability
of
failure  trend-
Major  accident  reports
internal  emergency
summaries
itegration  of  internal
issued
by
response
plans
MS’;
plans
with
prepared
by  Diversification
of

national
operators
of
license
Workshops
and
contingency
production
holders;
interviews
arrangements
installations
population
•
with
RoMH’s
accepted
;
trends
stakeholders
for  installations  as  a
towards
sharing  of  response
%
of
production

smaller,  niche
assets;
installations
in
companies
Subjective
evidence
operation
ongoing
derives from:
• RoMH’s
accepted  • Trending
harmonisatio
for  installations  as  a
deployments
of  Suggested  experiences
n
and
%  of  MODU’s  in
major  capital  mobile
raising  issues
interoperabili
operation
assets
(IADC
/
of concerns;
ty  of  response
IMCA
/
ECSA)
assets; and
Europe  &  global,  Suggested  experiences
2008 – present
giving
proactive  liaison  and
Efforts  ongoing  for
affirmation
sharing
of
harmonisation
feedback;
information
of
ER  Major accident reports
with  adjacent
equipment  in
MS’  and  3rd
issued
by
and  between
operator/owne
countries?
MS
r; and

Establishment
of  Public  consultations  Is  the  system  mature
193

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
emergency
and
enough
to
response focal
unsolicited
make
points  in  each
written
objective
MS
submissions
considerations
•
of
relevance


of
new
emergency
response
arrangements
to
major
accident
prevention?
Efficiency
What  are  the  costs  associated  with  the  Quantitative  indicators  Qualitative
and  Reliable
evidence  Can  it  be  evaluated
introduction
of
new
depend  upon
contextual
derives from:
from
the
arrangements  for  emergency
extracting
indicators  of  2016
consultant’s
experience  –
response; and in relation to the
costs
of
efficiency
–
so  far  –  of
report
to
estimated
annualised
setting
up
cost
implementing
Commission
reductions  in  cost  of  a  major
revised
effectiveness -
the  Directive,
on  degree  of
accident occurring?
emergency
of
the
that
the
transposition
response
emergency
benefits
of
the
arrangements
response
achieved
in
Directive  by
and associated
provisions
MS’;
emergency

running  costs
are:
response
at
from
the
Observed  experience
MS/EU-level
Aging  infrastructure,
overall  costs
raising  issues
outweigh  the
including
of  set  up  and
of concerns;
MODU’s.
costs of set-up
operation  by
and
Age profile of  Major  accident  reports
MS’
operation?
fixed
and
issued
by

mobile
MS’;

194

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
Compliance  costs  for
installations
Workshops
and  Have
the
revised
offshore
interviews
arrangements
Operational
density
operators/
with
created
a
criteria
MODU
stakeholders;
more
(production
owners
(€
and
levellised,
volumes;
#
opex;
€
joined-up
offshore
Factual  data  publicly
capex;
€
system  across
workers;
#
available;
administrative
the  EU  ergo
wells  drilled;

burdens costs
more  efficient
#
Subjective
evidence
than
Compliance  costs  for
installations;
derives from:
heretofore?
offshore
etc) as trends
operators/
Data submissions from
Trending  deployments
MODU
stakeholders;
of
major
Is
there
sufficient
owners
(€
capital  mobile  Suggested  experiences
elapsed  time
opex;
€
assets  (IADC
raising  issues
for  objective
capex;
€
/
IMCA
/
of concerns;
conclusions
administrative
ECSA)
regarding
burdens costs
Suggested  experiences
Europe
&
giving
further
EU
Averaged
cost
of
global,  2008  -
interventions?
affirmation
producing
a
present
feedback;and

RoMH
(for  Oil price trends
MODU)
Public
consultations
Availability  of  cross-
and
Averaged
cost
of
EU
well
unsolicited
producing
a
capping
and
written
RoMH
for
transferable
submissions
(FPI
mid
ER equipment
water oil)

and expertise
Averaged
cost
of
producing
a
195

Extent
1ry questions
2ry questions
KPI (quantitative)
KPI (qualitative)
Provenance
Conclusions
(aims)
(aims)
RoMH

(shallow
water gas)


EU-value
Is  it  likely  that  the  intervention  has  Quantitative data since  Feedback  of  principal
Based
upon
the
adde
increased
efficacy
of
2016/17  may
stakeholders:
experience  of
d
emergency
response
establish
a  
implementing
affirming  the  value
arrangements  across  the  EU
baseline
for
the  Directive,
of
the
new
where  otherwise  would  not
further
arrangements
in
what  are  the
have been the case?
scrutiny
of
securing
the
positions of:
EU-added
objectives
of
 MS’ regulators
value:
reducing
major
 Operators
and
accident risk; and

#
incidents
license holders

identifying  areas
occurring
under
 Owners
on
non
of
other
the  implementing
production
interventions
to
regulation;
e.g.
installations
further  imrove  the
collisions,
 NGO’s
relationship
of
breaches  of  500m
 Trades Union
regulators <