Review of Ship Pollution Rules 

This proposal would amend the 2005 Directive on Ship Source Pollution (2005/35/EC) by making it a criminal offence to cause ship-source pollution intentionally, recklessly or through serious negligence, and calls on Member States to implement necessary measures.

Background

Concern over illegal discharges of polluting substances by ships at sea led to the adoption of the 2005 Ship Source Pollution Directive (2005/35/EC) and a Framework Decision from the same year (2005/667/JHA) on criminal sanctions for ship-source pollution. The Directive introduced sanctions for pollution offences, while the Framework Decision aimed at setting the level of these criminal penalties.

In 2007 however, the European Court of Justice (ECJ) annulled the Framework Decision on the basis that the Commission had exceeded its powers, and therefore violated Article 47 of the EU Treaty. This proposed Directive on ship source pollution and on the introduction of penalties for infringements would amend Directive 2005/35/EC and take over the legal content of the annulled Framework Decision 2005/667/JHA.

Aims of the Proposal

The new proposal has four aims:

·         fully implement the International Convention for the Prevention of Pollution from Ships (MARPOL) by introducing a deterrence system of serious criminal penalties;

·         address the rare cases of pollution where the behaviour of the operator is considered so serious that it must be punished with criminal penalties;

·         ensure effective implementation of EU rules on ship-source pollution through uniform interpretation and application of EU law; and

·         ensure that the EU’s rules on maritime safety will be fully effective by preventing safe havens for perpetrators through a harmonised system of rules.

Polluting Substances

The proposal applies to any ship-source discharge of polluting substances, as defined in Directive 2005/35/EC, which refers to the MARPOL 73/78 standards. These standards, applicable worldwide, are used as a guide and cover:

·         any form of oil;

·         noxious liquid substances carried in bulk;

·         harmful substances carried in packaged form;

·         sewage;

·         garbage;

·         air pollution.

Geographical Scope of Pollution Offences

The proposal covers discharge of prohibited substances into any areas referred to under Article 3(1) of Directive 2005/35/EC. They are: 

·         internal waters, including ports of a Member State;

·         the territorial sea of a Member State;

·         straits used for international navigation subject to the regime of transit passage;

·         the exclusive economic zone or equivalent zone of a Member State; and

·         the high seas.

Legal Responsibility for Ship-Source Pollution

If the discharge of a prohibited polluting substance is committed with intent, recklessly or with serious negligence, it must be considered a criminal offence. The criminal offence should be punishable by effective, proportionate and dissuasive penalties.

Legal Responsibility of Natural Persons (individuals)

The proposed Directive replaces the term ‘infringement’, established in Directive 2005/35/EC, with the term ‘criminal offence’ for individuals. If they have been found to have committed an offence, they must be penalised under criminal law. Inciting or aiding and abetting such activities should also be considered a criminal offence.

Legal Responsibility of Legal Persons (organisations, corporations and other legal entities)

The Commission recognises that some Member States do not recognise criminal liability for legal persons. The proposal does not require any changes in national legal systems for this Directive. Member States can impose non-criminal penalties when a legal person is held liable, but must ensure such penalties are effective, proportionate and dissuasive.

Member States must, however, ensure that legal persons can be held liable for criminal offences, if these offences are committed for their benefit by individuals who have leading positions in the legal person. To determine whether someone has a leading position within a legal person there are three criteria:

·         having authority over the legal person;

·         being able to represent the legal person; or

·         being able to make decisions on behalf of the legal person.

The liability of legal persons cannot exclude criminal proceedings against individuals who are involved as perpetrators, instigators or accessories in the criminal offences referred to in the proposal. Each Member State must also take necessary measures to ensure that inciting or aiding and abetting a criminal offence covered by the proposal is punishable by criminal law. Member States also have to ensure that these criminal offences are punished by effective, proportionate and dissuasive criminal penalties.

Implementation of the Proposal

Member States have six months to implement this Directive, which also applies to EEA countries. Member States must send the Commission the text of the transposed Directive, and are free to introduce even more stringent measures.