Explanatory Memorandum to COM(2008)134 - Amendment of Directive 2005/35/EC on ship source pollution and on the introduction of penalties for infringements - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)134 - Amendment of Directive 2005/35/EC on ship source pollution and on the introduction of penalties for infringements. |
|---|---|
| source | COM(2008)134  |
| date | 11-03-2008 |
Out of concern about the over-frequent illegal operational discharges of polluting substances from ships at sea, and in the aftermath of major accidental oil spills, the Commission presented in 2003 a proposal for a Directive, based on Article 80 i of the Treaty establishing the European Community, 'on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences' and a proposal for a Framework Decision, based on Articles 29, 31 and 34(2)(b) of the Treaty on the European Union, 'to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution'. The proposal for a Directive provided that ship-source pollution should be considered a criminal offence, subject to criminal penalties. The proposal for a Framework Decision mainly aimed at approximating the levels of criminal penalties.
With these two measures, the Commission proposed that the provisions on the nature (criminal) and type (custodial or financial) of penalties should appear in the Community instrument and the provisions on the levels of criminal penalties in the intergovernmental instrument. At the time of the negotiations on the proposals, the splitting between the first and third pillars for criminal-law matters was a controversial issue between the European Union institutions. Eventually, the two instruments were adopted in 2005 along the following lines:
Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements contains a precise definition of the infringements along with the rule that they will “be subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties”. The provisions on the nature, type or levels of criminal penalties were included in the parallel Framework Decision 2005/667/JHA.
Following the judgment of 13 September 2005 (case C-176/03) in which the European Court of Justice (ECJ) ruled that under certain conditions the Community legislator could provide for criminal-law-related measures, the Commission decided to bring a case for annulment of Framework Decision 2005/667/JHA, taking the view that the Framework Decision had been adopted on the wrong legal basis (case C-440/05).
On 23 October 2007, the ECJ annulled the Framework Decision, ruling that its articles on the definition of the criminal offence and the nature of the penalties (Articles 2, 3 and 5) could have been adopted on the basis of Article 80 i of the EC Treaty and that the Framework Decision therefore violated Article 47 of the EU Treaty by encroaching upon the powers of the Community.
After the annulment of the Framework Decision by the ECJ on 23 October 2007, the legal vacuum created concerning a harmonised approach regarding possible penalties in the fight against maritime pollution needs to be filled by provisions adopted on the correct legal basis, namely Article 80 i of the EC Treaty.
The objective of introducing a system of penalties is to address the rare cases of pollution, where the behaviour of the operator is considered intolerable and must be punished with criminal penalties. Quality operators will benefit from this system, which will make it possible effectively to hold responsible the small minority which is presently tarnishing the image of the shipping industry.
The proposed measures are necessary to ensure that the Community’s rules on maritime safety will be fully effective for the following reasons:
- When adopting Council Framework Decision 2005/667/JHA, the Member States unanimously agreed that ship-source pollution committed with intent, recklessly or with serious negligence should be considered a criminal offence. Following the annulment of this Framework Decision by the ECJ, the Commission proposes to adapt the directive without changing the substance, by incorporating in the directive the above-mentioned provision of the Framework Decision and thus making implementation more effective (due to the role of the ECJ in ensuring compliance and uniform interpretation of acts decided under the first pillar).
- The system of penalties, as it stands in Directive 2005/35/EC, only partially implements the International Convention for the Prevention of Pollution from Ships (MARPOL). To ensure that penalties are “adequate in severity to discourage” potential polluters, as provided for in Article 4 i of MARPOL, the deterrent effect of the system of penalties must be reinforced, sending a strong signal, with a much greater dissuasive effect, to potential offenders i. Furthermore, criminal investigation and prosecution and judicial cooperation between Member States can be essential and more powerful than administrative action.
- Certain Member States, in particular acting as coastal States, have recently reinforced their system of criminal penalties. Their vigilance on the prevention side and the severity of the penalties imposed by criminal courts, combined with the publicity given to these cases has helped to reduce significantly the number of illegal discharges. In order to avoid safe havens for perpetrators within the European Community, it is of the utmost importance that the same approach be adopted by all Member States, whether acting as flag State, port State and/or coastal State.
Environmental crime is one of the European Union’s central concerns. The Tampere European Council on 15 and 16 October 1999 asked that efforts be made to adopt common definitions of offences and penalties, focusing on a limited number of especially important sectors, such as environmental crime. In the aftermath of the sinking of the tanker Prestige in November 2002, the Copenhagen European Council of 12 and 13 December 2002 declared the European Union’s determination to adopt all the necessary measures to preclude further disasters. The Council particularly welcomed the Commission’s intention of looking into the need for specific new measures, including measures relating to liability and the corresponding penalties. The Council meeting of 19 December 2002 on justice and home affairs adopted a statement undertaking to consider all complementary measures to protect the environment, in particular the seas, against pollution through the criminal law.
The proposal builds on Directive 2005/35/EC and takes over the substantive content of the annulled Framework Decision 2005/667/JHA.
The proposed Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, it has been drafted in accordance with the principles on justice set out in Chapter VI of the Charter and seeks to promote the integration into Community policies of a high level of environmental protection in accordance with the principle of sustainable development, as laid down in Article 37 of the Charter.
Consultation of interested parties
Consultation of interested parties was not deemed necessary in this case, since this proposal incorporates exactly provisions already adopted unanimously by the Council in the annulled Framework Decision. In addition, since the annulment of Framework Decision 2005/667/JHA by the European Court of Justice on 23 October 2005, there has been a legal vacuum concerning a harmonised approach regarding possible penalties in the fight against maritime pollution that needs to be filled as quickly as possible.
There was no need for external expertise.
An impact assessment was not considered necessary, remembering that this proposal only transfers into Community law provisions already adopted unanimously by the Council in the annulled Framework Decision 2005/667/JHA.
Contents
- Legal elements of the proposal
- Budgetary implication
- Grounds for and objectives of the proposal
- General context
- Existing provisions in the area of the proposal
- Consistency with the other policies and objectives of the Union
- Consultation of interested parties and impact assessment
- Collection and use of expertise
- Impact assessment
- Summary of the proposed action
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instruments
- Additional information
- European Economic Area
- Detailed explanation of the proposal
- 1. Criminal offence
- 2. Liability of legal persons
- 3. Penalties
- 4. Implementation period
The proposed directive defines as criminal the infringement already established in Article 4 of Directive 2005/35/EC.
Inciting or aiding and abetting such activities should also be considered a criminal offence.
The criminal offence should be punishable by effective, proportionate and dissuasive penalties, which have to be of a criminal nature for natural persons. Effective, proportionate and dissuasive penalties should also be applied to legal persons if they are considered liable under this Directive.
The provisions of this Directive relate to maritime transport. Consequently, the legal base chosen is Article 80 i of the EC Treaty.
The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.
The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reasons:
Maritime pollution typically leads to damage with cross-border dimensions. Therefore, it is essential that Member States have the same understanding of which maritime pollution infringements constitute criminal offences and that they should be addressed by criminal penalties, at least for criminal offences committed by natural persons. Diverging national approaches in this regard hinder efficient judicial cooperation and allow offenders to escape prosecution.
Due to the frequent transboundary impact of maritime pollution and the fact that perpetrators act across borders, action by Member States alone would not be suited to tackle this problem.
Community action will better achieve the objectives of the proposal for the following reasons:
A minimum standard on the constituent elements of criminal offences and the requirement of criminal penalties for natural persons need to be established at Community level. This will ensure that ship-source pollution offences are dealt with in a similar manner in every Member State and that perpetrators cannot escape from prosecution for their crimes inside the EU.
The proposed Directive sets only a minimum level of harmonisation with regard to the activities that should at least be considered criminal offences and does only generally establishes that criminal penalties should be applied to natural persons. It leaves the Member States the choice of whether criminal penalties should also apply to legal persons.
The proposal therefore complies with the subsidiarity principle.
The proposal complies with the proportionality principle for the following reasons:
The action chosen is a Directive, which leaves Member States a high degree of flexibility in implementation, including for determining the types and levels of penalties. Only a minimum standard is set. Member States are free to maintain or introduce more stringent measures, for example to establish additional criminal offences or to introduce criminal penalties for legal persons too. This is made clear explicitly in Article 1 i of Directive 2005/35/EC.
Implementation of the Directive entails no significant financial and administrative burden as the criminal law and judicial structures required already exist in every Member State.
Proposed instrument: Directive.
Other means would not be adequate for the following reason:
The existing Directive 2005/35/EC must be brought into line with the Court ruling in case C-440/05. A directive can only be amended by an amending directive.
The proposal has no implication for the Community budget.
Correlation table
The Member States are required to communicate to the Commission the text of their national provisions transposing the Directive along with a correlation table between those provisions and this Directive.
The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.
Member States are required to lay down that any ship-source discharge of polluting substances, as defined in Article 2 of Directive 2005/35/EC, into any of the areas referred to in Article 3 i of Directive 2005/35/EC, if committed with intent, recklessly or with serious negligence, is to be considered a criminal offence. The definition of “criminal offence” corresponds to Article 2 of the annulled Framework Decision 2005/667/JHA.
As stated in the annulled Framework Decision, Member States should ensure that legal persons can be held liable for the criminal offences committed for their benefit by certain persons acting on their behalf or when lack of supervision or control enabled those persons to commit an offence.
Penalties imposed against ship-source pollution offences must be effective, proportionate and dissuasive, for both natural and legal persons.
In addition to this requirement, for the criminal offence defined in the new Article 4 Member States are required to provide that the penalties for natural persons be of a criminal nature. For legal persons, it is not specified whether the penalties should be of a criminal or non-criminal nature. Member States that do not recognise the criminal liability of legal persons in their national law are therefore not under any obligation to change their national system.
The period for implementation by the Member States is six months, taking into account that Article 1 largely covers the same content as Articles 2, 3 and 5 of the annulled Framework Decision 2005/667/JHA. The period for implementation of this Framework Decision ended on 12 January 2007, so Member States will already have done a significant part of the work to implement this Directive.