Explanatory Memorandum to COM(2003)92 - Ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2003)92 - Ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences. |
|---|---|
| source | COM(2003)92  |
| date | 05-03-2003 |
Recent accidents, most notably the sinkings of the Prestige in November 2002 and of the Erika in December 1999, have highlighted the need for tightening the net relating to ship-source pollution. Despite the wide range of measures to improve safety that have been adopted at EU-level in the last decade, ships of dubious quality loaded with polluting cargoes continue to sail in European waters and continue to cause massive pollution through accidents, without the responsible parties being adequately penalised for it.
High-profile accidents is not the only problem, however. The main part of world-wide ship-source pollution by oil is the result of deliberate discharges. The unacceptable practice of operational, that is, intentional discharges from ships, including tank-cleaning operations and waste oil disposal is still widely practiced in the coastal waters of Member States and beyond. While it is true that various measures adopted at international and EU-level, in combination with a number of initiatives led by the shipping industry to cut ship-source pollution, have reduced these practices, the problem is still widespread. In the year 2001, aerial surveillance detected 390 oil slicks in the Baltic Sea i and 596 in the North Sea i. A Commission study for the Mediterranean Sea reports 1638 illicit discharges in 1999. i Only a small portion of the ships illegally discharging is actually detected and only a handful is eventually prosecuted.
In line with the Commission's proposal for a Directive on the protection of the environment through criminal law, i the proposed Directive establishes that discharges in violation of Community laws shall constitute a criminal offence and that sanctions, including criminal sanctions, are to be imposed if the persons concerned have been found to have caused or participated in the act by intent or grossly negligent behaviour. For natural persons this may include, in the most serious cases, the deprivation of liberty. The introduction of adequate sanctions for pollution offences is particularly important in relation to pollution by shipping, as the international civil liability regimes that govern ship-source pollution incidents involve significant shortcomings with respect to their dissuasive effects.
In light of recent pollution incidents, the urgency of arriving at a particular measure related to ship-source pollution has been forcefully stressed at the highest political level within the EU. At the European Council Summit in Copenhagen on 13 December 2002, the Heads of State/Government of all EU Member States expressed their grave concerns with respect to the Prestige accident and specifically referred to the need for further specific measures relating to liability and the corresponding sanctions. For its part, the Transport and Telecommunications Council on 6 December 2002 welcomed 'the intention of the Commission to present a proposal to ensure that any person who has caused or contributed to a pollution incident through grossly negligent behaviour should be subject to appropriate sanctions.' i In addition, the Justice and Home Affairs Council on 19 December 2002 agreed that complementary measures should be considered 'to strengthen the protection of the environment, in particular the seas, through criminal law'. i
The Commission fully shares the views of Member States about the urgency of this proposal and considers that in light of the above, a specific measure relating to sanctions for ship-source pollution offences is justified, without prejudice to a more general regime applicable for the protection of the environment through criminal law. i Consequently, the Commission, as already announced in its Communication on improving safety at sea in response to the Prestige accident (COM(2002) 681 final), proposes to fill some of the most important remaining regulatory gaps in this area, relating to both deliberate and accidental discharges. i
Contents
- 2. BACKGROUND AND JUSTIFICATION
- 2.1. The need for Community-wide rules relating to ship-source pollution
- 2.2. The justification for sanctions, including criminal sanctions, against offenders
- 3. CONTENT OF THE PROPOSAL
- 4. SPECIFIC CONSIDERATIONS
- 4.1. Purpose
- 4.2. Definitions
- 4.3. Geographical scope
- 4.4. Enforcement within ports
- 4.5. Enforcement with respect to ships in transit
- 4.6. Criminal sanctions
- 4.7. Safeguards
- 4.8. Accompanying measures
- 4.9. Reporting
- 4.10. Committee and amendments
It is generally recognised that deliberate discharges of waste and cargo residues from ships at sea are unacceptably common. The main part of these discharges are illegal, that is, in contravention of the international rules on ships' discharges as laid down in the Marpol 73/78 Convention (the International Convention for the Prevention of Pollution from Ships, 1973 and the Protocol of 1978 related thereto, as subsequently amended), which is very widely ratified worldwide. Nevertheless, only a fraction of the offenders are brought to justice.
There are a number of reasons for this. First, the occurrence of illegal discharges is promoted by lack of adequate waste reception facilities in ports. Second, the enforcement of the Marpol 73/78 rules is not consistent in the world, or even within the EU. Third, discharges are not always detected in time. Fourth, even if the discharge is detected and traced to a particular ship, the offence is rarely brought to justice and if it is, there is frequently lack of sufficient evidence for convicting the offender. Finally, even where an offender is convicted, many States implement rather light penalties for this kind of offences, sometimes only imposed on the master of the ships, rather than the shipowning company, whose instructions the master may follow.
The Marpol 73/78 Convention, which is globally accepted, lays down detailed standards and strict conditions for discharge of waste and residues at sea, with more stringent requirements for sea areas which have been designated as special areas (including, in the case of oil pollution, the Baltic Sea, the Mediterranean and the North Sea area). Given the strictness and general acceptance of these standards, the problem with the frequent occurrence of illegal discharges may be summarised as being related to lack of implementation and enforcement of the applicable rules, rather than insufficient standards as such. At international level, there are presently few mechanisms to enforce the Marpol 73/78 Convention. If masters, shipowners or States choose to ignore its provisions, the international community as such has few enforcement measures, but relies on national or regional enforcement measures for this purpose.
The discrepancy between existing rules and prevalent practice in this area was acknowledged by the Commission already in its communication A Common Policy on Safe Seas of 24 February 1993 which stated that compliance with the requirements of Marpol 73/78, to which all Member States are Contracting Parties, could be improved and that further initiatives were required to improve implementation of international rules and standards. Since then, a number of such initiatives have been taken at Community level. First, this type of offences are controlled through port State control under Directive 95/21/EC, where oil and other record books are among the documents to be checked at each inspection. Inconsistencies or doubts may lead to further inspections or to the detention of the ship. Second, in order to combat marine pollution caused by operational (deliberate) discharges from ships, the Community adopted Directive 2000/59/EC which establishes, on the one hand, requirements for ports to provide adequate reception facilities for ships' waste and, on the other hand, requirements for ships to use these facilities. The purpose of this directive is to eliminate the incentives for ships to discharge polluting substances into the sea, by providing detailed rules for delivering waste and cargo residues in ports. In addition, the directive involves specific waste inspections which, like port State control inspections, are spot checks. Third, the traffic monitoring directive (2002/59/EC) will further improve the availability of information by coastal State on ships in their waters and the cargoes they carry. This directive also lays down procedures for detecting illegal discharges at sea and for the follow-up measures to be taken by Member States at sea when such discharges have occurred.
While all these instruments represent important steps to eliminate illegal discharges, they do not go all the way in addressing the problem at Community level. Within the regulatory framework an element is missing. The actual offence, that is the violation of applicable pollution standards, is not fully covered by EC law. The implementation of Marpol 73/78 by Member States shows variations, both in practice and in law. i The keenness of Member States to inspect and prosecute potential offenders varies largely. In addition, the imposition of penalties for offenders varies between Member States, both as regards the persons to be penalised and as regards the size and nature of penalties awarded.
Therefore, a specific Directive on ship-source discharges would have the dual benefit of completing and clarifying the Community's regulation in this area and of achieving a harmonisation of the enforcement of the rules. Providing the legal framework specifying the offence and sanctions relating to ship-source discharges will also greatly facilitate the setting up of further co-operative measures relating to the implementation of such rules. For example, it is accepted that there is a need for Member States to co-operate more closely in a number of related fields, including the monitoring of oil spills, the identification of polluters and the gathering of evidence which would be effective in court proceedings. Such a legal instrument would finally provide the legal platform for the European Maritime Safety Agency (EMSA) to engage in this matter. EMSA is well-equipped to follow up matters relating to surveillance and proof of illegal discharges, and there is wide political support for mandating it with this type of activities, but the legal basis under Community law is currently lacking.
In conclusion, there are a number of legal, practical and political justifications for a new Community measure, in which rules relating to ship-source pollution are brought within the scope of Community law and their enforcement is regulated in detail.
Ensuring the safety of maritime transport and protecting the Community waters from ship-source pollution is undisputedly an objective of the Community. This objective is to be pursued by the Community policy according to Title V of the Treaty, in particular Article 80.2 thereof. The Community has the power to regulate behaviour in order to achieve a Community objective and it has the competence to legislate that the regulated behaviour (or the non-compliance with the regulated behaviour) be sanctioned at national level.
There is no explicit substantive Community competence in relation to criminal matters per se. However, to the extent that this is necessary for the achievement of Community objectives, the Community can oblige Member States to provide for criminal sanctions. Moreover, even where Community law does not provide expressly for sanctions (or criminal sanctions), Member States can be obliged to take appropriate steps to enforce Community law. Where criminal law is the only means to guarantee that Community law is enforced effectively, Member States can be obliged to provide for criminal sanctions. The relevant questions when determining whether a proposed measure falls within the competence of the Community therefore relate to the nature and the object of the intended action. As far as the measure in question is designed to improve maritime safety or protect the marine environment the Community is competent to deal with it.
In line with its policy on offences against environmental crime, the Commission considers that only criminal sanctions will be sufficiently effective for ensuring the intended effects of the ship-source pollution rules. A measure of a penal nature will serve as a Community-wide application of a deterrent sanction for those involved in the transport of polluting goods by sea. Sufficiently dissuasive effects will only be achieved by establishing that illegal discharges is a criminal offence, which demonstrates a social disapproval of a qualitatively different nature compared to compensation mechanisms under civil law or administrative measures. It therefore sends a strong signal, with a greater dissuasive effect, to potential offenders.
Aside from such considerations, however, there is another important feature of existing maritime law which particularly calls for criminal measures as far as pollution by shipping is concerned. This has to do with the international civil liability regimes that govern ship-source pollution incidents, which involve significant shortcomings with respect to their dissuasive effects.
As far as compensation of oil pollution is concerned, pollution by tankers is presently regulated at international level by the regime set up by the International Convention on Civil Liability for Oil Pollution (CLC) and the International Convention setting up the Oil Pollution Compensation Fund (Fund Convention), as amended by their Protocols of 1992, to which all coastal Member States are parties. The two conventions establish a two-tier liability system, which builds upon a strict - but in practically all cases limited - liability for the registered shipowner and a Fund, financed collectively by oil receivers, which provides supplementary compensation to victims of oil pollution damage who cannot obtain full compensation for the damage from the shipowner.
Thus, the focus of the international regime on oil pollution (and pollution by other hazardous and noxious substances, which is regulated by a convention which is yet to come into force) is mainly on the compensation of victims. The liability of the actual polluter is a considerably less prominent feature in these regimes, as the personal liability of the polluter is diluted by an almost unbreakable right of the shipowner to limit the liability and by collective compensation by cargo receivers through the Funds, irrespective of their actual role in the accident in question. The maritime pollution liability and compensation regime as they stand therefore provide few dissuasive elements to discourage those involved in the transport of dangerous or polluting goods by sea from engaging in negligent practices and is therefore of limited value for helping to prevent accidents from happening in the first place. However, because of international legal constraints, this international liability regime cannot be modified by means of EU-legislation. In the so-called Erika II Communication (COM(2000) 802 final), the Commission highlighted the need for two amendments in particular which would have such effects:
- The liability of the shipowner should be unlimited if it is proved that the pollution damage resulted from gross negligence on his part; and
- The prohibition of compensation claims for pollution damage against the charterer, manager and operator of the ship shall be removed from the relevant conventions.
The Commission has added that if efforts to achieve the appropriate improvements to the international liability and compensation rules fail, it will make a proposal for adopting Community legislation introducing a Europe-wide maritime pollution liability and compensation regime. Such an EU regime would necessitate the denunciation of the existing oil spill liability and compensation conventions. The Commission continues to pursue its efforts to amend the international regime along the line described above, but the outcome of these efforts is not yet certain.
For such reasons, the Commission considers that a measure of a penal nature needs to be introduced at EU-level to complement the existing regime for the civil liability and compensation for pollution damage. In this way, the mechanism of direct responsibility of those involved in the accident can be introduced and a regime providing for adequate punitive - and preventive - effects can be established without the aforementioned legal constraints and without any repercussions on the rapid and full compensation of victims. The so-called COPE Fund proposal, which formed part of the second Erika package (COM(2000) 802 final) already contained an article on financial penalties (article 10), but since that regulation as a whole has not been discussed in detail by the Council, that particular issue has not advanced.
In light of these considerations, the Commission, as announced in its Communication of 3 December 2002 on improving safety at sea in response to the Prestige accident (COM(2002) 681 final) and welcomed by the Council, proposes that ship-source pollution offences, when committed intentionally or by means of grossly negligent behaviour, shall be subject to sanctions, including criminal sanctions. The proposed Directive covers pollution from any ship, whether or not a tanker and covers not only oil pollution, but illegal discharges by noxious liquid substances as well. As explained, a measure of this nature is necessary to ensure a sufficiently clear link between the cause of the pollution and the accountability of the persons responsible for it. Considering the international legal constraints and the need to ensure efficient and full compensation of victims, a measure of a penal nature is the most effective mechanism to achieve that aim. Article 6 of the proposed Directive is therefore a necessary element in ensuring an effective maritime safety and environment protection policy of the Community.
The proposed measure does not oblige Member States to change their fundamental system of criminal law, comprising, for instance, the doctrine of criminal responsibility or the general definitions of guilt. Measures approximating such principles and general definitions are not related specifically to the Community objectives in question. Nor does the scope extend as far as providing for (minimum) requirement of criminal sanctions, or address general principles of criminal law, administration of justice, and/or criminal jurisdiction and criminal procedure.
This proposal consists of two distinct, but equally important measures. Firstly, it incorporates the applicable international discharge rules for ship-source pollution into Community law and regulates the enforcement of these rules in detail. This part of the proposal includes certain important new features, notably the inclusion of violations that have taken place in the high seas (sea areas beyond the jurisdiction of any State). Secondly, the proposed Directive establishes that violations of the discharge rules shall be criminal offences and provides guidance on the nature of the penalties to be awarded.
Both these measures fill important legal voids, as ship-source discharges are not currently sufficiently regulated by Community law, and as existing maritime law does not provide sufficient dissuation from engaging in dangerous practices by those involved in the carriage of polluting substances by sea. Both measures go beyond the problem of oil pollution, as they address pollution offences more generally, including pollution by chemical substances.
The first article makes clear that the underlying objective of the Directive is to improve maritime safety and the protection of the marine environment and that the measures proposed are necessary means to this effect.
The definitions serve to specify the extent of the measures proposed. The determination of whether discharges are illegal or not will be made on the basis of the Marpol 73/78 standards, while the definition of polluting substances incorporates oil and noxious liquid substances, as specified therein. The Marpol 73/78 standards are widely applicable worldwide and therefore well-known by the parties involved. As to the stringency of the standards, there is, in the assessment of the Commission, no immediate reason go beyond those standards. Marpol 73/78 covers any form of oil, for instance, and it generally refers to a maximum effluent of a mixture containing no more 15 parts per million). In layman's terms, the rules could be simplified by concluding that any discharge of oil which is actually visible in the water will most likely constitute a breach of the Marpol 73/78 standards. Using the Marpol 73/78 standards as the reference will also provide the legal basis to apply the rules beyond the territorial waters of the Member States, in accordance with the rules of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to which the Community is a Contracting Party. Since the Directive is intended to cover any illegal discharge, the definition includes pollution resulting from damage to the ship or its equipment, which is largely exempted from the Marpol 73/78 regime. It is worth noting, however, that according to article 6 of the proposal, sanctions for illegal discharges shall only be imposed if the pollution results from the intentional or grossly negligent conduct of the parties involved. The definition of ships is wide, covering all kinds of seagoing ships, as any kind of ship may engage in illegal discharges of polluting substances. For similar reasons, the definition of persons subject to sanctions covers a very wide range of potential offenders, including both natural and legal persons.
The Directive covers ship-source marine pollution in all coastal waters of the Community, but goes beyond it by addressing the high seas as well. The exclusive economic zone is covered to the extent that such a zone has been established, in accordance with international law, by a Member State.
Article 4 is based on the regime of port State enforcement as provided for in UNCLOS Part XII. The prohibition of discharges in sea areas beyond the jurisdiction of any State (the high seas) is a major step in emphasising the unacceptability of illegal discharges and the universality of the offence in question. Few States currently implement the possibility to enforce rules relating to discharge offences in the high seas, which is provided for in article 218.1 of UNCLOS. However, this aspect is of crucial relevance to many Member States, in particular to those Member States which have not established exclusive economic zones, which is notably the case in the Mediterranean Sea. When coupled with appropriate common surveillance and identification efforts, this rule will greatly enhance the possibilities of identifying offenders, even when the discharge has taken place outside the national boundaries of the States concerned. This, in the view of the Commission, is essential as pollution does not recognise national boundaries either and any limitation of the possibilities for States to take action which is based upon the sea area where the discharge took place is bound to be artificial. Some further specification of the grounds for undertaking an examination of a ship is dealt with by reference to existing Community law instruments, thus making full use of the information and data-sharing system which has been established within the Community for the monitoring of ships and ship-related discharges. The article does not address the nature of the judicial follow-up to alleged discharges, this issue being left for each Member States' national laws.
UNCLOS implies some considerable limitations as to the methods of enforcing ship-source pollution laws for ships in transit in the coastal zones. However, by several States participating in a network of information-sharing and enforcement co-operation, a signifant share of the Community transit traffic can be covered through the mechanism outlined in article 5.
Article 6 establishes that violations of the rules of this Directive shall be considered as criminal offences, in line with the Commission's proposal for a directive on the protection of the environment through criminal law. i Sanctions are to be imposed if any of the persons concerned have been found to have caused, participated in or instigated the act by intent or grossly negligent behaviour.
Article 6 further specifies that the sanctions against the offences shall be adequate as to their dissuasive nature, which is of evident importance if the discharge prohibitions are to be effective. Given the diverging practices between Member States when it comes to the imposition and nature of sanctions against pollution offences, the proposed article serves an important function in harmonising the Community approach to discharge violations, inter alia as to the persons subject to such sanctions, including, importantly, the shipowning company. In the view of the Commission, little is achieved by imposing light penalties on pollution offenders. Violations related to the deliberate spill of polluting substances, by for example by-passing an oily water separator or through the falsification of the record books should, in the view of the Commission, in themselves give rise to very substantial fines. Similarly, grossly negligent conduct leading up to major oil spills and significant damage needs to be very severely penalised in order to have the intended dissuasive effects. The sanctions will presumably frequently be in the form of monetary penalties, or fines, but as regards natural persons they may include, in the most serious cases, the deprivation of liberty. With regard to the effectiveness of the measure, it is essential that legal persons can be held liable and that sanctions against legal persons are taken throughout the Community. However, for some Member States the provision of criminal sanctions against legal persons may be difficult without changing fundamental principles of their national legal systems. Therefore, Member States would be able to foresee sanctions other than of criminal nature, as long as they are effective, proportionate and dissuasive. For instance they could include non-criminal fines, confiscation of proceeds, exclusion from entitlement to public benefit or aid and the placing under judicial supervision or judicial winding up orders. A reference to international law serves to take into account various restriction that may exist in this area, including Article 230 of UNCLOS. It is also clarified that the sanctions do not need to be related to the civil liabilities of the persons involved and that they shall not be insurable. The latter point is far from self-evident in current maritime insurance practices, where the insurance cover provided to ships through the policies of the mutual Protection and Indemnity Clubs (which provide cover for some 90% of the world's tonnage), may include monetary penalties, including sanctions of penal nature related to pollution offences.
Article 7 contains a number of safeguards which are established to ensure that measures taken in accordance with the Directive are not discriminatory or otherwise contrary to international law, including Section 7 of Part XII of the 1982 United Nations Convention on the Law of the Sea.
In order to be fully effective, the rules relating to the prohibition of pollution and their enforcement need to be accompanied by measures of a practical nature. This relates to the sharing of information between Member States and the establishment of common procedures for monitoring and identification of ships discharging polluting substances, many of which are already under way at EU or sub-regional level. i In addition, technologies allowing on-board equipment to record discharges as they occur and alert the relevant persons on board or ashore should be fully exploited, as such devices may significantly assist in determining in an objective way if and to what extent discharges have taken place.
In order to ensure a harmonised application of the Directive and to evaluate its effectiveness, it is vital that the Commission is informed about the extent to which it has been applied in practice and the nature of penalties awarded. For this purpose Member States shall provide a report to the Commission every three year, as laid down in article 9.
Articles 10 and 11 refer to the new Committee on Safe Seas and the Prevention of Pollution from Ships (COSS), created by Regulation 2099/2002 of 5 November 2002. The involvement of this Committee will facilitate, inter alia, the updating of the Directive in light of the continuous amendments of the Marpol 73/78 Convention at international level.