Legal provisions of COM(2023)273 - Amendment of Directive 2005/35/EC on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences

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dossier COM(2023)273 - Amendment of Directive 2005/35/EC on ship-source pollution and on the introduction of penalties, including criminal ...
document COM(2023)273 EN
date November 27, 2024


Article 1

Amendments to Directive 2005/35/EC

Directive 2005/35/EC is amended as follows:


(1) the title is replaced by the following:

‘Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on the enforcement of international standards on pollution from ships and on the introduction of administrative penalties for pollution offences’;


(2) Article 1 is replaced by the following:

‘Article 1

Purpose


1. The purpose of this Directive is to incorporate into Union law international standards on pollution from ships and to ensure that any company or other legal or natural person liable for illegal discharges of polluting substances is subject to effective, proportionate and dissuasive administrative penalties in order to improve maritime safety and to enhance protection of the marine environment from pollution from ships.


2. This Directive does not prevent Member States from taking more stringent measures in conformity with Union and international law, by providing for administrative or criminal penalties in accordance with their national law.’;


(3) Article 2 is replaced by the following:

‘Article 2

Definitions

For the purposes of this Directive, the following definitions shall apply:


(1) “Marpol 73/78” means the International Convention for the Prevention of Pollution from Ships, 1973, including its 1978 and 1997 Protocols, in its up-to-date version;


(2) “polluting substances” means substances subject to regulation by Annex I (oil), Annex II (noxious liquid substances in bulk), Annex III (harmful substances carried by sea in packaged form), Annex IV (sewage from ships) and Annex V (garbage from ships) to Marpol 73/78 and Exhaust Gas Cleaning System residue;


(3) “Exhaust as Cleaning System residue” means any material removed from the washwater or the bleed-off water by a treatment system, discharge water that does not meet the discharge criterion, or other residue material removed from the exhaust gas cleaning systems (EGCS) as a result of the operation of a compliance method for emissions reductions defined in Regulation 4 of Annex VI to Marpol 73/78, used as an alternative, in terms of emissions reductions, to the standards set out in Regulation 14 of Annex VI to Marpol 73/78, taking into account the guidelines developed by the International Maritime Organization (IMO);


(4) “discharge” means any release howsoever caused from a ship, as referred to in Article 2 of Marpol 73/78;


(5) “ship” means a seagoing vessel, irrespective of its flag, of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles and floating craft;


(6) “legal person” means any legal entity in possession of such status under applicable national law, other than States themselves, public bodies in the exercise of State authority, or public international organisations;


(7) “company” means the shipowner or any other organisation or person, such as the manager or the bareboat charterer, which has assumed the responsibility for the operation of the ship from the shipowner.’;


(4) Article 4 is replaced by the following:

‘Article 4

Infringements and exceptions


1. Member States shall ensure that discharges of polluting substances into any of the areas set out in Article 3(1) are regarded as infringements, unless:


(a) for polluting substances subject to regulation by Annex I to Marpol 73/78, those discharges satisfy the conditions set out in Annex I Regulations 15, 34, 4.1, 4.2 or 4.3 to Marpol 73/78 and section 1.1.1 of part II-A of the International Code for Ships Operating in Polar Waters (“Polar Code”);


(b) for polluting substances subject to regulation by Annex II to Marpol 73/78, those discharges satisfy the conditions set out in Annex II Regulations 13, 3.1.1, 3.1.2 or 3.1.3 to Marpol 73/78 and section 2.1 of part II-A of the Polar Code;


(c) for polluting substances subject to regulation by Annex III to Marpol 73/78, those discharges satisfy the conditions set out in Annex III Regulation 8.1 to Marpol 73/78;


(d) for polluting substances subject to regulation by Annex IV to Marpol 73/78, those discharges satisfy the conditions set out in Annex IV Regulations 3, 11.1 and 11.3 to Marpol 73/78 and section 4.2 of part II-A of the Polar Code;


(e) for polluting substances subject to regulation by Annex V to Marpol 73/78, those discharges satisfy the conditions set out in Annex V Regulations 4.1, 4.2, 5, 6.1, 6.2 and 7 to Marpol 73/78 and section 5.2 of part II-A of the Polar Code; and


(f) for Exhaust Gas Cleaning System residue, those discharges satisfy the conditions set out in Annex VI Regulations 4, 14.1, 14.4, 14.6, 3.1.1 and 3.1.2 to Marpol 73/78, taking into account the Guidelines developed by the IMO, including Resolution MEPC.340(77) in its up-to-date version.


2. Each Member State shall take all necessary measures to ensure that any company, or other legal or natural person having committed an infringement within the meaning of paragraph 1 is held liable.’;


(5) Articles 5, 5a and 5b are deleted;


(6) Article 6 is replaced by the following:

‘Article 6

Enforcement measures with respect to ships within a port of a Member State


1. If irregularities or information give rise to a suspicion that a ship which is voluntarily within a port or at an off-shore terminal of a Member State has been engaged in or is engaging in a discharge of polluting substances into any of the areas referred to in Article 3(1), that Member State shall ensure that an appropriate inspection or other appropriate action, taking into account the relevant guidelines adopted by the IMO, is undertaken in accordance with its national law.


2. In so far as the inspection referred to in paragraph 1 of this Article reveals facts that could indicate an infringement within the meaning of Article 4, the Member State concerned shall apply the provisions of this Directive. The competent authorities of that Member State and of the flag State shall be informed.


3. An indicative list of irregularities or information to be taken into account in the application of paragraph 1 of this Article is provided in Annex I to this Directive.’;


(7) Article 8 is replaced by the following:

‘Article 8

Administrative penalties


1. Without prejudice to the obligations of Member States under Directive (EU)2024/1203 of the European Parliament and of the Council (*), Member States shall lay down a system of administrative penalties within the meaning of their national legal system for the breach of national provisions implementing Article 4 of this Directive and shall ensure that they are applied. The administrative penalties provided for shall be effective, proportionate and dissuasive.


2. Member States shall ensure that administrative penalties introduced in transposition of this Directive include fines which are imposed on the company held liable for the infringement.


3. Where the legal system of the Member State does not provide for administrative penalties, this Article may be applied in such a manner that the penalties, including the fines referred to in paragraph 2, are initiated by the competent authority and imposed by competent national courts, while ensuring that those legal remedies are effective and have an equivalent effect to the administrative fines imposed by competent authorities. In any event, the penalties imposed in accordance with this paragraph shall be effective, proportionate and dissuasive and applied in accordance with the provisions of this Directive. The Member States concerned shall notify to the Commission by 6 July 2027 the provisions of their laws which they adopt pursuant to this paragraph and, without delay, any subsequent amendment to, or amendment affecting, those laws.

(*) Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC (OJ L, 2024/ 1203, 30.4.2024, ELI: http://data.europa.eu/eli/dir/2024/1203/oj).’;


(8) Articles 8a, 8b and 8c are deleted;


(9) the following Article is inserted:

‘Article 8d

Effective application of penalties


1. In order to ensure that penalties are effective, proportionate and dissuasive, Member States shall ensure that, when determining and applying the type and level of administrative penalty for a company or other legal or natural person found by competent authorities to be liable, in accordance with Article 8, for an infringement within the meaning of Article 4, the competent authorities take into account all relevant circumstances of the infringement, in particular:


(a) the nature, gravity and the duration of the discharge;


(b) the degree of culpability or fault of the responsible person, within the meaning of the legal system of the Member State concerned;


(c) the damage caused by the discharge to the environment or human health, including, where relevant, its impact on fishing, tourism and coastal communities;


(d) the financial capacity of the company or other legal or natural person liable;


(e) the economic benefits generated or expected to be generated for the company or other legal or natural person liable from the infringement, where applicable;


(f) measures taken by the company or other legal or natural person liable in order to prevent the discharge or mitigate its impact;


(g) the level of cooperation of the company or other legal or natural person liable for the infringement with the competent authority, including any action aiming to circumvent or obstruct an appropriate inspection or other investigation by a competent authority; and


(h) any previous ship-source pollution infringement by the company or other legal or natural person liable.


2. Member States shall not set or apply administrative penalties for infringements under this Directive at a level that is too low to ensure the effectiveness, proportionality and dissuasive nature of those penalties.’;


(10) Article 10 is replaced by the following:

‘Article 10

Exchange of information and experience


1. For the purposes of this Directive, the Member States and the Commission, with the assistance of the European Maritime Safety Agency (EMSA), shall cooperate in the exchange of information, building on the Union Maritime Information and Exchange System set out in Article 22a(3) of and Annex III to Directive 2002/59/EC of the European Parliament and of the Council (*) (SafeSeaNet), in order to:


(a) enhance the information required for the effective implementation of this Directive, in particular as provided by the European satellite-based pollution detection service set up by this Directive (CleanSeaNet) and by other relevant reporting mechanisms, with a view to developing reliable methods of tracing polluting substances in the sea;


(b) develop and implement an appropriate control and monitoring system, integrating the information provided in accordance with paragraph (a) with the information made available by the Commission to the Member States in SafeSeaNet, THETIS-EU and other Union information databases and tools in order to facilitate the early identification and monitoring of ships discharging polluting substances, with a view to optimising enforcement actions undertaken by national authorities;


(c) make optimum use of the information provided in accordance with points (a) and (b) of this paragraph, as well as the information reported by Member States pursuant to Article 10a, with a view to facilitating the access to and the exchange of such information between competent authorities and with authorities of other Member States and the Commission; and


(d) by 6 July 2030, ensure that competent authorities digitally analyse all high-confidence alerts and indicate whether or not they verify those high-confidence alerts sent by CleanSeaNet every year, striving to verify at least 25 % of those high-confidence alerts, where “verify” means any follow-up actions by competent authorities of an alert sent by CleanSeaNet to determine whether the alert in question corresponds to an illegal discharge. If a Member State does not verify an alert, it should indicate the reasons for not doing so.


2. Member States shall ensure that information on major ship-source pollution incidents is disseminated to the fishing and coastal communities concerned in a timely manner.


3. The Commission shall provide for the organisation of exchange of experiences between Member States’ national authorities and experts, including those from the private sector, civil society and trade unions, on the application of this Directive across the Union, with a view to establishing common practices and guidelines on the enforcement of this Directive.


4. The Commission shall provide for the organisation of exchange of experiences and best practices between Member States’ national competent authorities on how to ensure an effective determination and application of penalties. On the basis of that exchange of information, the Commission may propose guidelines, including on types of polluting substances and sensitive areas of concern.

(*) Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC (OJ L 208, 5.8.2002, p. 10).’;


(11) the following Articles are inserted:

‘Article 10a

Reporting


1. The Commission shall establish an electronic reporting tool, for the purposes of collection and exchange of information between Member States and the Commission on the implementation of the enforcement system provided for by this Directive.


2. Member States shall ensure that the following information relating to the actions undertaken by their competent authorities is reported through the electronic reporting tool referred to in paragraph 1:


(a) information relating to the follow-up by competent authorities of an alert sent by CleanSeaNet or the reasons for not following up such an alert, as soon as possible after the follow-up activities are completed or the decision not to follow-up is taken;


(b) information relating to the inspections or other appropriate actions undertaken in accordance with Article 6, as soon as possible after the inspections or other appropriate actions are completed;


(c) information relating to the actions undertaken in accordance with Article 7, as soon as possible after such actions are completed; and


(d) information relating to penalties imposed in accordance with this Directive, once the administrative and, where applicable, legal proceedings are concluded, without undue delay and in any case by 30 June each year for penalties imposed during the previous calendar year. To the extent that information relating to penalties includes personal data, such information shall be anonymised.


3. In order to ensure the uniform application of this Article, the Commission may, by means of implementing acts, lay down detailed rules on the procedure for reporting the information referred to in paragraph 2, including specifying the type of information to be reported. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13.


4. Member States shall notify the Commission of the authorities that have access to the electronic reporting tool referred to in paragraph 1.

Article 10b

Training

The Commission shall, with the assistance of EMSA and in cooperation with Member States, facilitate the development of Member States’ capabilities by providing, as appropriate, training to the authorities responsible for the detection and verification of infringements under the scope of this Directive and the enforcement of penalties or any other measures arising from such infringements.

Article 10c

Publication of information


1. Based on information reported by Member States in accordance with Article 10a, the Commission shall make publicly available a regularly updated Union-wide overview on the implementation and enforcement of this Directive, upon the conclusion of the administrative and legal proceedings, when applicable. To the extent that information relating to penalties includes personal data or commercially sensitive information, such information shall be anonymised. That overview shall include the information listed in Annex II to this Directive.


2. Without prejudice to Directive 2003/4/EC of the European Parliament and of the Council (*), the Commission shall take appropriate measures to protect the confidentiality of information obtained in the implementation of this Directive.

Article 10d

Protection of persons who report potential infringements and protection of their personal data


1. The Commission shall develop, make accessible and maintain a confidential online external reporting channel for receiving reports, within the meaning of Directive (EU) 2019/1937 of the European Parliament and of the Council (**), on potential infringements of this Directive and shall relay such reports to the Member States concerned.


2. Member States shall ensure that national competent authorities receiving reports of violations of this Directive, submitted through the channel referred to in paragraph 1, investigate, act upon where appropriate, provide feedback in a timely manner, and follow-up on those reports in accordance with Directive (EU) 2019/1937.


3. The Commission may, pursuant to Article 25(1), points (c) and (h), of Regulation (EU) 2018/1725 of the European Parliament and of the Council (***) and in line with Article 25(2) thereof, restrict the application of Articles 4, 14 to 22, 35 and 36 of that Regulation for the data subjects who are the object of or mentioned in the report submitted through the channel referred to in paragraph 1 of this Article and who are not the data subjects submitting that report. That restriction may apply only for the duration necessary for the investigation of the report referred to in paragraph 2 of this Article by the competent Member State authorities.

(*) Directive 2003/4/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 (OJ L 41, 14.2.2003, p. 26).

(**) Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).

(***) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).';


(12) Articles 11 and 12 are deleted;


(13) the following Article is inserted:

‘Article 12a

Evaluation and review


1. By 6 July 2032, the Commission shall carry out an evaluation of this Directive. That evaluation shall be based on at least the following:


(a) the experience gathered from the implementation of this Directive;


(b) the information reported by Member States pursuant to Article 10a and the Union-wide overview provided in accordance with Article 10c;


(c) the interaction of this Directive with other relevant international and Union law on marine environment protection and maritime safety; and


(d) the latest data and scientific findings.


2. As part of the review, the Commission shall assess the possibility of modifying the scope of this Directive, if appropriate, in view of new or updated international standards for the prevention of pollution from ships subject to present and future provisions in Marpol 73/78, such as marine plastic litter, container loss and loss of plastic pellets.’;


(14) Article 13 is replaced by the following:

‘Article 13

Committee procedure


1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS), established by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council (*). That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council (**).


2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 and Article 5 of Regulation (EC) No 2099/2002 shall apply.

(*) Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) and amending the Regulations on maritime safety and the prevention of pollution from ships (OJ L 324, 29.11.2002, p. 1).

(**) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).’;


(15) Articles 14 and 15 are deleted;


(16) Article 16 is replaced by the following:

‘Article 16

Transposition


1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 April 2007 and forthwith inform the Commission thereof.


2. Member States without direct access to the sea or without seaports shall not be obliged to transpose and implement Article 6 and Article 7(2) of this Directive.’;


(17) the sole Annex is replaced by the text set out in the Annex to this Directive.

Article 2

Transposition


1. Member States shall adopt and publish, by 6 July 2027, the laws, regulations and administrative provisions necessary to comply with this Directive.

When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.


2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive and any subsequent amendment(s) affecting them.

Article 3

Application of Directive 2009/123/EC

As regards infringements to be regarded as criminal offences pursuant to Directive 2005/35/EC as amended by Directive 2009/123/EC and the corresponding penalties, Member States not bound by Directive (EU) 2024/1203 shall remain bound by Directive 2005/35/EC, as amended by Directive 2009/123/EC.

Article 4

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Directive is addressed to the Member States.Article 5

Addressees