July 14, 2005
EC approves tougher criminal sanctions for pollution
The European Council this week approved new measures aimed at preventing ship-source pollution. It adopted:
The directive was adopted by a majority decision of the Council. The Greek and Maltese delegations voted against the directive and the Cypriot delegation abstained.
Adoption followed negotiations with the European Parliament on a compromise text.
This directive is one of the measures envisaged in the aftermath of the Prestige accident (November 2002). Its purpose is to incorporate international standards for ship-source pollution into Community law and to ensure that persons responsible for discharges are subject to adequate sanctions, in order to improve maritime safety and to enhance protection of the marine environment from pollution by ships. Member states are not prevented from taking more stringent measures against ship-source pollution in conformity with international law.
The main principle of the directive is that all discharges of polluting substances are considered infringements if they are committed with intent, recklessly or by serious negligence. Accordingly, this legislative act establishes measures aimed at ensuring a link between the responsibility of each of the parties involved in the transport of polluting goods by sea and their exposure to sanctions. Therefore, member states are required to take the necessary measures to ensure that infringements are subject to effective, dissuasive and proportionate sanctions, which may include criminal or administrative sanctions.
Exceptions provided for are in line with the MARPOL Convention--for example when a discharge is made in order to save lives or the ship itself.
Concerning the particular case of a discharge following an accident, taking place in international sea areas and the exclusive economic or equivalent zone of member states, the relevant exception in the MARPOL Convention applies to the owner of the ship and the master and furthermore, as a logical consequence of the MARPOL provisions, the crew when acting under the master's responsibility.
If the discharge takes place in the internal waters or territorial sea of a member state, it is, exercising the rights provided for in the UNCLOS Convention, considered an infringement for all persons, if committed with intent, recklessly or be serious negligence.
The text adopted allows, under the UNCLOS Convention, a coastal state to take enforcement measures with respect to ships in transit in case of a discharge in the exclusive economic zone. The agreed text provides for member states to exercise their rights under UNCLOS Article 220(6), i.e. if there is clear objective evidence of a discharge causing major damage. In this case, the member state concerned shall submit the matter to its competent authorities with a view to instituting proceedings, including detention of the ship, in accordance with its national law.
Framework decision on the strengthening of the criminal law framework
The aim of the framework decision is to strengthen criminal-law measures, to approximate the provisions laid down by law or regulation in the member states concerning ship-source pollution offenses and to facilitate cooperation between the member states in repressing these offenses.
The framework decision provides for effective, proportionate and dissuasive criminal penalties which include, at least for serious cases, imprisonment. It sets liability of legal persons and provides for penalties against legal persons, in particular criminal or noncriminal fines or penalties other than fines (for instance exclusion from entitlement to public benefits or aid, temporary or permanent disqualification from engaging in commercial activities, etc.).
The framework decision provides for a delimitation of jurisdiction of each member state, sets a system of notification of information on the committing of an offence or of the risk of such an offense being committed and provides for designation of contact points. The member states must adopt the measures necessary to comply with the provisions of the framework decision by 18 months after its adoption.
The Commission will monitor after five years the practical application of the measures taken by the member states and will present a report to the Council.