Explanatory Memorandum to COM(2018)33 - Port reception facilities for the delivery of waste from ships - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)33 - Port reception facilities for the delivery of waste from ships. |
|---|---|
| source | COM(2018)33  |
| date | 16-01-2018 |
1. CONTEXT OF THE PROPOSAL
·Reasons for and objectives of the proposal
Discharges of waste from ships pose an increasing threat to the marine environment, with costly environmental and economic consequences. Recently, the problem of marine litter has come to the fore, as a growing number of scientific studies provide evidence of the devastating effects on marine ecosystems and of the impacts on human health. Although most sources of marine litter are land-based, shipping also has an important role to play in discharges of household waste and operational waste at sea. There are also major concerns over the eutrophication effects of discharges of sewage from ships, in particular from large passenger ships, in certain sea areas such as the Baltic Sea, as well as the effects of oily waste discharges on marine life and habitats.
Reasons for the occurrence of illegal discharges at sea can be found both on the ships themselves, in particular bad on-board waste management practices, as well as on shore, due to a lack of adequate facilities in ports to receive waste from ships.
Directive 2000/59/EC 1 regulates the shore side through provisions ensuring the availability of port reception facilities (PRF) and the delivery of waste to those facilities. It implements the relevant international norms, i.e. those contained in MARPOL 2 . However, whereas the Directive focuses on operations in port, MARPOL mostly focuses on operations at sea. In this way, the Directive both aligns with and complements MARPOL, by regulating the legal, practical and financial responsibilities at the shore-sea interface. Although MARPOL provides a comprehensive framework addressing ship-source pollution from different polluting substances, it does not provide for an effective enforcement mechanism. Therefore, incorporating the main concepts and obligations of MARPOL into EU law means that they can be enforced effectively through the EU legal system.
Some 17 years after its entry into force, the Directive is in need of a thorough revision. The current situation is now significantly different to when the original Directive was adopted in 2000. Since then, MARPOL has been strengthened through subsequent amendments, while the scope and definitions of the current Directive are no longer in line with the international framework. As a consequence, Member States are relying increasingly on the MARPOL framework, making implementing and enforcing the Directive problematic. In addition, Member States apply different interpretations of the Directive's main concepts, creating confusion among ships, ports and operators.
The revision aims to achieve a higher level of protection of the marine environment by reducing waste discharges at sea, as well as improved efficiency of maritime operations in port by reducing the administrative burden and by updating the regulatory framework. As the proposal comes under the Regulatory Fitness Programme (REFIT), it aims to be in line with the REFIT principles of simplification and clarification.
For the sake of clarity, the proposal repeals the current Directive, replacing it with a single new Directive. It also includes ancillary changes to Directive 2009/16/EC on Port State Control 3 , as well as Directive 2010/65/EU 4 .
·Consistency with existing policy provisions in the policy area
Reducing pollution in the seas is an important field of EU action in maritime transport. This was reiterated in the Commission Communication on the EU maritime transport policy until 2018 5 , which calls for zero-waste from maritime traffic. This goal can be achieved through compliance with international conventions and standards. MARPOL, the relevant international framework, has undergone a series of amendments, such as including new or stricter discharge norms for ships. These should be properly reflected in the Directive.
The provision of waste reception facilities in ports qualifies as a service that a port provides to its users, as defined in the Port Services Regulation 6 . The proposed Directive takes into account the relevant principles and provisions as included in this regulation, but goes beyond its requirements by providing for cost structures and their transparency. This is to serve the overall aim of the proposed Directive, which is to reduce discharges of waste at sea. In addition, the Port Services Regulation only applies to the TENT ports, whereas the proposed Directive covers all ports, including smaller ones, such as fishing ports and marinas.
Directive 2010/65/EC includes the advance waste notification within the information to be electronically reported through the ‘national single window’ system. To this end, an electronic waste message has been developed. The information reported in this message is subsequently exchanged through the EU’s maritime information and exchange system (SafeSeaNet) and relayed to the reporting module in the Port State Control Database set up under Directive 2009/16/EC to facilitate compliance, monitoring and enforcement.
·Consistency with other Union policies
The Directive in force and the present proposal are fully in line with the principles of EU environmental law, in particular: (i) the precautionary principle; (ii) the ‘the polluter should pay’ principle; and (iii) the principle that preventive action is taken at source where possible. It also contributes to the aims of the Marine Strategy Framework Directive 7 , which seeks to protect the marine environment and calls for good environmental status of all EU marine waters by 2020. The proposed Directive also gives effect to the Waste Framework Directive 8 by envisaging improved waste management practices in ports in line with the polluter pays principle and the EU waste hierarchy. Finally, the proposed Directive is in line with the Sulphur Directive 9 , which contributes to the sustainability of maritime transport by reducing the sulphur content of marine fuel. However, the application of the regime imposed by the Sulphur Directive must not result in a shift from air emissions to discharges of waste at sea, or to other water bodies, such as ports and estuaries, as a by-product of the abatement technologies applied, such as exhaust gas cleaning systems.
The proposed Directive will also be instrumental in achieving the target set in the Commission’s Circular Economy Strategy 10 to reduce by 30 % by 2020 the amount of marine litter found on beaches and lost fishing gear found at sea. The Circular Economy Strategy also recognises that revising the old PRF Directive can make a direct and significant contribution to reducing marine litter generated by ships. In the Commission's Strategy on Plastic 11 , additional measures for reducing lost or abandoned fishing gear are examined, such as extended producer responsibility and deposit-refund schemes for commonly littered fishing gear, as well as increased exchange of information on such schemes.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
·Legal basis
Given that the proposal replaces the current Directive, the legal basis remains Article 100 (2) TFEU (ex. Article 80(2) TEC), which includes the adoption of common rules for sea transport. Although the Directive aims to protect the marine environment from discharges of waste at sea, its overall policy objective is to facilitate sea transport and contribute to the realisation of the internal transport market.
·Subsidiarity (for non-exclusive competence)
Shipping is an international sector, with operations taking place in international waters and in ports across the globe. The sector therefore requires international rules, which for ship-source pollution are provided by MARPOL. However, the main problems in the international regime do not relate to insufficient standards, but rather to the fact that they are not adequately implemented and enforced. Striving for harmonised implementation of internationally agreed rules, where necessary complemented by specific EU requirements, is one of the fundamental pillars of EU maritime policy. This is also reflected in the Directive’s legal basis, namely Article 100(2) TFEU, which includes the adoption of common rules for sea transport. As the Directive transposes the MARPOL Convention into EU law, it shares the same objective as the Convention, i.e. the protection of the marine environment against pollution from ships. The problem of marine pollution typically occurs across EU waters and therefore requires a common EU approach to tackle the issues effectively, as these cannot be solved by action from individual Member States.
To avoid a litany of different policies in ports for the delivery of waste from ships, and to ensure a level playing field for both ports and port users, further harmonisation at EU level is necessary. A simplified and therefore more harmonised implementation of the different obligations at EU level will improve competitiveness and economic efficiency of the shipping sector, while ensuring basic conditions in ports. This should avoid adverse effects such as ‘PRF shopping’, where ships keep their waste on board until they can deliver it to the port where this is economically most advantageous. Further harmonisation of the exemption regimes for ships in scheduled and regular traffic would also tackle inefficiencies at the ship and port sides.
At the same time, Member States maintain a margin of discretion with respect to implementing common rules and principles at local/port level. With the new Directive, they will continue to decide on the design and operation of the cost recovery systems, the level of the fees and the development of waste reception and handling plans for ports in their territory. Member State authorities are best placed to determine the level of detail and coverage of the waste reception and handling plans, taking into account the size and geographic location of the ports and the needs of the ships visiting them.
·Proportionality
The proposal has a two-fold objective: (i) improving the protection of the marine environment against discharges of waste from ships, while (ii) ensuring the efficiency of maritime transport operations in ports. The impact assessment has shown that waste continues to be discharged at sea, with devastating effects on marine ecosystems, especially from garbage disposal. At the same time, the current regime creates an unnecessary administrative burden on ports and port users, mostly caused by inconsistencies between the obligations under the Directive and the international framework (i.e. the MARPOL Convention). The impact assessment has demonstrated the proportionality of the preferred option for addressing the problems, in line with the comments received from the Regulatory Scrutiny Board on the impact assessment report.
The proposal aims to address these problems by seeking further alignment with MARPOL, in particular as regards its scope, definitions and forms. The proposed Directive also aims for more consistency with other EU acts, by incorporating the inspections fully within the Port State Control framework, and aligning with Directive 2002/59/EC as regards the monitoring and reporting obligations. The new approach relies significantly on a system of electronic reporting and exchange of information, based on existing electronic systems, and on the principle that the information should only be reported once. This should facilitate monitoring and enforcement, while minimising the associated administrative burden.
The specific problem of marine litter warrants additional measures, which should result in a further reduction of garbage discharges from ships. This should be achieved through a combination of incentive and enforcement measures. Given that the fishing and recreational sectors also contribute significantly to the problem of marine litter, these have been more systematically integrated in the system, in particular as regards the incentives for delivery of waste on shore. However, as notification and inspection obligations would put a disproportionate burden on smaller vessels and ports, a differentiated approach based on length and gross tonnage is applied. This approach will consist in the following:
–The reporting of information contained in the advance waste notification and waste receipt will only be required from vessels of 45 metres and above, in line with Directive 2002/59/EC.
–The 20 % inspection target for fishing vessels and recreational craft will only apply to vessels over 100 gross tonnage, consistent with the IMO requirements for a garbage management plan to be kept on board.
–Merchant vessels will be inspected as part of Port State Control, following a risk-based approach, which should render the system more efficient and effective.
Although the Directive aims at further harmonising the main concepts of the PRF regime to ensure a common EU approach on the basis of the relevant international norms, it leaves a margin of discretion for Member States to decide on the operational measures applicable at port level, based on local considerations and the port’s administrative set-up and ownership structure. The adequacy of waste reception facilities is determined based on the size, geographic location and type of traffic visiting the port, which in turn determine the level of detail and scope of the port’s waste reception and handling plan. These plans can also be developed in a geographic context, thus serving the interests of ports within regional proximity, as well as those of regional traffic.
Although Member States will have to ensure that the cost recovery systems incorporate the principles laid down in the Directive, in particular for indirect fee and levels of transparency, they will still be free to design the systems of charges and decide on the exact level of the fees, taking into account the type of traffic to the ports. This discretion will be more limited for garbage — the most important component of marine litter — for which the costs shall be recovered fully through the indirect fee. Given the particularly negative effects on the marine environment from plastics and other components of garbage from ships, a maximum financial incentive is needed to ensure that garbage is delivered at every port call, instead of being discharged at sea.
·Choice of the instrument
In the interests of clear and consistent legal drafting, the most appropriate legal solution was found to be the proposal for a single new Directive. The alternative option of proposing a set of amendments to the current Directive was discarded because it would have required a large number of changes. The choice of a new regulation was also discarded as this would not give enough flexibility to Member States to decide on the best implementation policies for their ports, which differ widely in terms of size, location, ownership and administrative set-up.
3. RESULTS OF EX POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
·Ex post evaluations/fitness checks of existing legislation
The ex post evaluation has shown that the Directive has been relevant to achieving the objective of reducing waste discharges at sea and has had clear EU added value. However, while waste volumes delivered on shore have increased, trends are uneven between the different waste categories. Moreover, a significant amount of waste continues to be discharged at sea. This is mainly due to differences in how the current Directive’s main obligations, such as provision of adequate port reception facilities, the design and operation of cost recovery systems and the enforcement of the mandatory delivery obligation, are interpreted and implemented.
The concept of adequacy of port reception facilities was not defined clearly in the old Directive, causing confusion among port users and operators. By extension, lack of consultation of port users, as well as inconsistencies with EU ‘land-based’ legislation, has resulted in situations where adequate facilities are not always available in ports. For example, stakeholders during the consultation complained about the lack of separate collection in ports of waste that had been previously segregated on board in line with international standards. In addition, there has been confusion over the scope of the mandatory delivery obligation in the light of the MARPOL discharge norms, including the definition of sufficient storage capacity on board as the main exception for a ship to leave without having delivered its waste.
The legal and administrative framework for PRF inspections has also been unclear, as well as the basis for and regularity of these inspections. Finally, exemptions for ships in scheduled traffic have been applied on varying grounds and under different conditions, creating unnecessary administrative burden. These issues have rendered the regime less effective in delivering on its main objective: i.e. reducing discharges of waste at sea.
Contents
- Further issues highlighted by the ex post evaluation:
- The impact assessment examined different policy options for revising the Directive, based on the following guiding principles:
- The preferred policy option is expected to:
- The main areas where the Directive and MARPOL will continue to differ concern the following:
- Title, scope and definitions:
- Adequacy of port reception facilities:
- Incentives for delivery:
- Enforcement of the mandatory delivery requirement:
- Exemption regime for ships in scheduled and regular traffic:
- Fishing vessels and recreational craft:
·The Directive is not fully consistent with relevant EU policies such as the EU waste legislation and its key principles, which have not been fully implemented in ports.
·Significant changes in the international legal framework (MARPOL) have not been incorporated into the Directive.
·The lack of systematic recording of waste delivered in ports and insufficient exchange of information between Member States have hampered the efficient monitoring and enforcement of the Directive and resulted in significant data gaps on waste streams in EU ports.
·Stakeholder consultations
Regular consultations have been held with a wide range of stakeholder groups in the context of the PRF Subgroup set up under the European Sustainable Shipping Forum to assist in the revision process. The Subgroup, which unites the main stakeholder groups, i.e. Member State national authorities, ports, ship owners, port reception facility operators and environmental NGOs, brings together a high level of expertise on port reception facilities for managing waste from ships. Over the course of several meetings, the Subgroup examined and discussed the proposed measures and options for the revision, and its suggestions were properly reviewed and taken into consideration in the drafting of the proposal. A summary of the outcome of the Subgroup’s discussions is included in the annexes to the staff working document 12 .
Generally, stakeholders are in favour of a revision, which seeks further alignment with MARPOL, in particular as regards the scope of the mandatory delivery requirement, and provides specific measures addressing the problem of marine litter. The Subgroup has stressed on multiple occasions the need for a proper implementation of the EU waste principles in the context of the PRF regime, as well as for further harmonisation of the exemption regime and the cost recovery systems, without imposing a ‘one system fits all’ approach for EU ports. In addition, the Subgroup discussed ways to improve monitoring and enforcement was discussed and how electronic reporting and data exchange could facilitate the process.
In the context of the impact assessment process, an open public consultation was organised, which triggered responses from a wide variety of stakeholders. This was followed up by a targeted consultation directed at all port stakeholders. These consultations revealed that the lack of incentives and enforcement are among the most important drivers of the overall problems of waste discharged at sea. In addition, it was pointed out in both consultation rounds that inconsistency in definitions and forms and different exemption regimes lay at the basis of the unnecessary administrative burden.
·Collection and use of expertise
This proposal builds on the information collected and analysed during the evaluation and the impact assessment process, for which external studies were conducted. In addition, technical assistance and specific data were received from the European Maritime Safety Agency (EMSA).
The 2015 ex post evaluation study assessed data received from 40 large commercial ports, on the basis of which a time series on waste deliveries was drawn up for the period 2004-2013. Part of the data originated from earlier studies that EMSA had conducted on the implementation of the Directive, and was supplemented by a stakeholder survey.
The support study conducted in 2016 to assist with the impact assessment for the revision of the Directive sought to supplement the data on waste volumes delivered at the ports identified in previous studies (Ramboll 2012 and Panteia 2015) for the period 2013-2015. Updated waste delivery data for this period were received from 29 out of the 40 ports assessed earlier. In addition, the impact assessment support study applied a model to calculate the waste gap, known as the MARWAS model, which measures: (i) the difference between waste that is expected to be delivered to the ports for which delivery data has been received, on the basis of the traffic to these ports during the specified time frame; and (ii) what was delivered in absolute volumes in these ports during this period. Ship movement data were obtained from EMSA for the 29 ports under review and fed into the model. The support study also developed an environmental vulnerability assessment of the different regional sea areas in relation to the different categories of waste from ships. The methodology is explained in detail in the relevant annex to the staff working document accompanying this proposal 13 .
Continuous support throughout the process has been provided by the PRF Subgroup mentioned above.
·Impact assessment
The impact assessment examined different policy options for revising the Directive, based on the following guiding principles:
(1)The scope of the revision, the extent of the legislative changes and the development of soft law guidance;
(2)The scope of the mandatory delivery requirement for waste. The choice for aligning with the MARPOL discharge norms or aiming for a zero-waste discharge regime through full delivery to ports. This also has an impact on other aspects such as the application of cost recovery systems and enforcement;
(3)The potential for addressing the specific problem of marine litter from ships (mostly garbage from ships);
(4)The potential for reducing the administrative burden and simplifying the regime in line with the REFIT objectives of the proposal.
These principles are reflected in the policy objectives described below.
OPTION 1: Baseline scenario. Under this option no legislative change to the Directive is planned. Instead, soft law guidance would be developed, as well as further expansion of the electronic reporting and monitoring system set up under article 12(3) of the current Directive, which is based on the electronic reporting into SafeSeaNet and THETIS (Port State Control Database).
OPTION 2: Minimum revision. This option envisages targeted initiatives and concise legal adjustments in relation to the MARPOL Convention as well as relevant Union legislation, building on the baseline scenario. In particular, it would bring the scope into line with the MARPOL Convention, by including waste covered under Annex VI to the Convention and update references to Union environmental legislation.
OPTION 3: MARPOL alignment. This option seeks further approximation to MARPOL, in particular in determining the scope of mandatory delivery in line with the MARPOL discharge norms, which would address the illegal discharges of waste at sea. This option also includes incorporating PRF inspections into Port State Control, and includes the full range of measures to improve the adequacy of facilities and economic incentives for ships to deliver to them.
OPTION 4: EU PRF regime beyond MARPOL. This option aims to strengthen the current regime under the Directive, going beyond the MARPOL Convention. Mandatory delivery would apply to all waste from ships, including the waste that may be discharged at sea under MARPOL. This option also includes the full range of measures for improving adequacy of the facilities and providing the right incentives for delivery.
OPTIONS 3B and 4B: Marine litter option variants under options 3 and 4 above. These variant options specifically address the problem of marine litter from ships (mostly garbage discharges). Both incentive and enforcement measures are included, as well as a proposal to bring fishing vessels and recreational craft fully within the scope of the Directive, albeit with a differentiated enforcement approach based on gross tonnage.
The impact assessment concluded that the preferred option is policy option 3B, as it reconciles the objectives of reducing waste discharges at sea, in particular garbage discharges (marine litter), with the intended reduction of the administrative burden through further alignment with the MARPOL Convention.
·generate positive environmental impacts, as it should result in a substantial reduction of illegal discharges at sea of oily waste, sewage, garbage and scrubber waste;
·make an important contribution to the circular economy through special measures focused on reducing marine litter, including waste originating from the fishing and recreational sector, and improving waste management practices in port;
·result in a reduction of the enforcement costs and a substantial reduction of administrative costs;
·generate additional employment, especially for waste handlers and in the tourism sector in coastal areas;
·lead to increased environmental awareness around the problem of marine litter, both at shore and on board.
The preferred option is expected to generate additional compliance and operational costs, in particular from investments in waste collection in ports, the alignment of the cost recovery systems and the development of new capacity for the reception and treatment of new waste streams. However, these costs are expected to be limited. The anticipated level of these costs is described in impact assessment included in the staff working document accompanying the proposal 14 . However, an exact quantification of the overall compliance costs could not be provided due to a lack of data.
The impact assessment was submitted to the Regulatory Scrutiny Board for approval in May 2017. The Board issued a positive opinion with reservations 15 . In its opinion, the Board expressed concerns over the added value of the Directive compared to the MARPOL Convention, and requested more explanation of the relationship between the two regimes and how the proposed options are in line with or go beyond the Convention. In this context the Board also posed some questions regarding the proportionality of the preferred option, in particular as it includes more specific requirements for smaller vessels, and there is still some uncertainty as regards the exact compliance and investment costs related to this option. These comments were addressed in the following ways:
–Additional explanation was included on how the Directive aims to transpose the relevant obligations from the MARPOL Convention through a port-based approach, and not only seeks to provide for enforcement of these requirements through the EU legal regime, but also offers added value as regards their implementation in the Member States, in particular through additional elements such as the waste reception and handling plans, cost recovery systems in ports and the regime on exemptions for ships in scheduled traffic. A table offering a comparison between the two instruments was included, as well as an overview of the most relevant amendments to the MARPOL Convention in the last 15 years.
–A table was included comparing the different policy options to the MARPOL Convention. It was also explained that the preferred option based on alignment with MARPOL does not equal full alignment, as this would mean retracting fundamental obligations, which have proven very relevant and useful, as was shown in the ex-post (REFIT) evaluation of the Directive. Additional explanations were included to demonstrate the proportionality of each one of the options, and more information was provided on how the preferred options proposes to redefine the position of the smaller vessels, i.e. fishing vessels and recreational craft, taking a differentiated approach to enforcement based on gross tonnage and length overall.
–Finally, additional efforts were made to obtain quantitative data from the ports in relation to some of the key obligations included in the preferred option. However, as it concerns commercially sensitive data, limited feedback was received, and the description of the compliance and investment costs remains mostly qualitative.
·Territorial impact assessment
The proposed revision has an important regional dimension given the different sea basins in the EU and the local specificities of ports. For this reason, a territorial impact assessment was undertaken. The assessment pointed to the specific challenges that ports located in small islands and remote places may face when implementing the PRF regime, but also concluded that the new Directive may provide benefits to these regions, in particular in tourism development, employment and governance. However, in spite of the regional differences, the territorial impact assessment revealed a strong call for harmonisation of the key aspects of the Directive. The results of the territorial impact assessment have been summarised in the synopsis report attached to the staff working document accompanying the proposal.
·Regulatory fitness and simplification
Given that the proposal is a REFIT initiative, it aims to simplify the regulatory framework and reduce administrative burden.
By better aligning the definitions with MARPOL, the standard forms developed by the IMO for waste notification and waste receipt can also be fully incorporated into the Directive. By doing so, parallel forms and systems can be avoided as much as possible. In addition, it is proposed to include the PRF inspections in the Port State Control regime and employ the information and monitoring system, which was developed on basis of the current Directive (Article 12(3) and which is based on electronic reporting in SafeSeaNet and THETIS, to facilitate monitoring and enforcement. These measures are expected to generate a EUR 7.1 million reduction in administrative costs as they should result in more effective inspections. The proposed revisions are also expected to increase business opportunities for waste operators in ports, as well as operators in the recreational and tourism sector, most of which qualify as SMEs, as more waste should be landed in ports, resulting in a cleaner marine environment, with positive effects for local and regional tourism.
The proposal for a new Directive leaves a considerable margin of discretion to Member States to: (i) organise the reception facilities in their ports, as reflected in the waste reception and handling plans; and (ii) design the appropriate fee systems, taking into account the size and geographic location of the ports, as well as the type of traffic to those ports.
The proposed revision envisages the further development and operation of the information, monitoring and enforcement system that was already set up under the present Directive to facilitate monitoring and enforcement of the Directive. The system will be based on the Union Maritime Information and Exchange System provided for under Directive 2002/59/EC and the Inspection Database set up under Directive 2009/16/EC. Data will be reported electronically using the ‘national single window’ system, in line with Directive 2010/65/EU, and exchanged between Member States for monitoring and enforcement purposes. The proposal will also further standardise electronic reporting formats for waste receipt, waste notification and the exemptions for ships in scheduled traffic.
·Fundamental rights
The proposal has no consequences for the protection of fundamental rights.
4. BUDGETARY IMPLICATIONS
The proposal has no consequences for the Union budget.
5. OTHER ELEMENTS
·Implementation plans and monitoring, evaluation and reporting arrangements
The proposal is accompanied by an implementation plan that lists the actions needed to implement the measures and identifies the main technical, legal and time-related implementation challenges.
Adequate monitoring and reporting arrangements have been identified. EMSA plays an important role in this process, as the Agency is in charge of the development and operation of electronic data systems for maritime transport.
The Directive in force already calls for the establishment of a common information and monitoring system that would: (i) identify ships not delivering their waste; and (ii) ascertain whether the goals of the Directive had been met. In recent years, this system has been developed on the basis of existing databases: in particular SafeSeaNet has provided the electronic reporting and exchange of the information from the advance waste notification, and a separate EU module has been developed within the Inspection Database (THETIS) for the reporting of results from PRF inspections. In addition, steps have been taken to ensure that the information stored in SafeSeaNet is systematically transmitted to THETIS-EU so that the mandatory delivery obligation can be monitored and enforced. With the proposed Directive, the systems will be further improved and should also include the basic information on the availability of reception facilities in EU ports. This information will also be transmitted to GISIS, the IMO’s global integrated ship information system, and to ensure that Member States, by reporting under the Directive, meet their international reporting obligations at the same time.
In addition, EMSA will help monitor the implementation of the proposed Directive. Given that the full cycle of envisaged EMSA implementation visits is scheduled to last 5 years 16 , the evaluation cycle of the Directive is set at seven-year intervals.
Finally, it is also envisaged that an expert group will be set up, consisting of representatives from the Member States and from other relevant sectors. The group will exchange information and experience on the implementation of the Directive and provide the necessary guidance to the Commission.
·Explanatory documents (for directives)
Explanatory documents are not required as the proposal aims to simplify and clarify the existing regime.
6. Detailed explanation of the specific provisions of the proposal
The proposed Directive will align the EU regime as far as possible with MARPOL, in particular as regards scope, definitions and forms. Full alignment, however, is not possible, as the focus of the Directive is on operations in ports, while MARPOL is focused on operations at sea. Although the Directive builds on the obligations which Member States have assumed under MARPOL, it goes further by addressing in detail the legal, operational and financial responsibilities of all the operators. In addition, the proposed Directive, like its predecessor, has a wider scope by covering all sea-going vessels and all EU ports visited by these vessels.
·the adoption of waste reception and handling plans;
·the development and operation of the cost recovery systems;
·the mandatory reporting of information from the advance waste notification and the waste receipt;
·the inspection regime;
·the regime of exemptions for ships in scheduled traffic.
Many of these differences in the EU regime serve to better implement and enforce the regime envisaged by MARPOL.
The most important changes introduced by the new Directive are outlined below.
The title will be changed to expressly refer to the delivery of waste from ships, as this would better reflect the main objective of the Directive.
Article 2 will replace the definition of ‘ship-generated waste’ with the more generic definition of ‘waste from ships’, defined in relation to the relevant Annexes to MARPOL. This will also include the category of ‘cargo residues’, as well as waste falling under MARPOL Annex VI, i.e. the residues from exhaust gas cleaning systems, which comprise of sludge and bleed-off water from these systems. By deleting the distinction between ship-generated waste and cargo residues, and ensuring full compliance with the MARPOL definitions, further alignment with the standard IMO forms and certificates is made possible. Passively fished waste, i.e. waste collected in nets during fishing operations, has been included in the definition of waste from ships to ensure appropriate arrangements are made for the delivery of this type of waste from the fishing sector to port reception facilities, given its relevance in the context of marine litter. Clear and updated references have been added to the relevant pieces of EU legislation.
The notion of ‘adequate port reception facilities’ has been more clearly described in line with IMO guidance. The requirement for separate collection of waste stemming from the Waste Framework Directive has been expressly included in Article 4 to be applied in ports. This is especially relevant in cases where the waste was previously segregated on board in line with international norms and standards.
As regards the waste reception and handling plans, which are instrumental for achieving adequacy of port reception facilities, stronger emphasis has been placed in Article 5 and Annex 1 on the consultation requirements. Clarifications have also been provided for the notion of what constitutes an ‘appropriate plan’, the ‘significant changes’ to such a plan and the ‘regional context’ in which it can be developed.
To ensure that the right incentives are provided for the delivery of the different types of waste to port reception facilities, Article 8 lays down the main principles to be incorporated and employed in every fee system set up under the Directive. This includes the relationship between the fee charged and the costs of PRF, the calculation of the ‘significant contribution’ to be covered by the indirect fee, and the main transparency requirements. A new Annex 4 is included in the Directive, which provides an overview of the different types of costs of the PRF system, distinguishing between direct and indirect costs.
Although Article 8 does not prescribe one particular system to be applied in all EU ports, the proposed cost recovery system is stricter as regards the principles to be applied when establishing the indirect fee for garbage, including passively fished waste. As garbage discharges contribute significantly to the wider problem of marine litter, a ‘no special fee’ system is proposed, in which payment of the indirect fee should give ships the right to deliver all their garbage on board, without having to pay any additional direct fees (based on volumes). As fishing vessels and recreational craft will also be included in the indirect fee system, this should also address the disposal of end-of-life fishing nets and passively fished waste.
Article 8 also strengthens the ‘green ship’ concept, as already developed and applied by individual ports in line with international standards and certification schemes. Under this concept, a reduced waste fee should be applied for ships that can demonstrate sustainable waste management on board, the criteria for which will have to be further set out by the Commission in a delegated act.
The advance waste notification form referred to in Article 6 has been fully aligned with IMO Circular MEPC/834 and is provided in a new Annex 2 to the Directive. The scope of the delivery obligation for all waste has been set in accordance with MARPOL, so that the PRF Directive mirrors the MARPOL discharge regime: where MARPOL prohibits the waste from being discharged at sea, the PRF Directive requires the delivery of this waste to port reception facilities on shore, including the cargo residues. With this approach, no specific provision for the delivery of cargo residues is necessary, as was the case under the old Directive. In addition, Article 7 requires the issuing of a waste receipt to the ship upon delivery of the waste, containing the information that should be electronically reported by the ship into the information, monitoring and enforcement system, i.e. SafeSeaNet, before departure.
Article 7 limits the application of the exception based on sufficient storage capacity to situations where the next port of call is located in the EU and where there is no uncertainty over the availability of adequate port reception facilities. This assessment should be done on basis of the information made available in the information, monitoring and enforcement system that is embedded in SafeSeaNet, on adequate port reception facilities in EU ports. Furthermore, this proposal envisages the adoption of specific methods to calculate sufficient on-board storage capacity by the Commission through an implementing act.
On the inspection regime, Article 10 specifies that the PRF inspections must be fully integrated into the Port State Control regime set up under Directive 2009/16/EC and follow a risk-based approach, when the ship falls within the scope of that directive. To ensure that every Port State Control inspection also verifies compliance with the PRF requirements, certain changes need to be made to Directive 2009/16/EC, as set out in Article 21. At the same time, a separate inspection regime is provided for fishing vessels, recreational craft and domestic vessels over 100 gross tonnage, as these vessels are not covered by the Port State Control Directive. Results from the inspections undertaken on these vessels will have to be recorded in the information, monitoring and enforcement system, in a specific EU module within THETIS.
Article 9 of the proposal provides for further harmonisation of the exemption criteria, in particular what constitutes a ‘ship in scheduled traffic’ with ‘frequent and regular port calls’, as well as what constitutes ‘sufficient evidence of an arrangement’ for delivery and payment of the fee. A standard exemption certificate is introduced, which should be included in the information, monitoring and enforcement system through electronic reporting into SafeSeaNet, so that Member States can subsequently exchange the information contained in the certificate.
The position of fishing vessels and small recreational craft has been redefined in the Directive, given their relative importance in contributing to the problem of marine litter at sea. Whereas under the current Directive both fishing vessels and small recreational craft are exempted from some of the key obligations, these exemptions have been redefined, so that the larger vessels are included based on length and gross tonnage to ensure proportionality of the regime
As regards the cost recovery systems, fishing vessels and recreational craft will be subject to the indirect fee. Similar to other vessels, fishing vessels and recreational craft will thus be required to pay a fee to the port/harbour irrespective of whether they deliver any waste or not. However, this should also give these ships the right to deliver all their garbage without having to pay any additional fees, including any derelict fishing gear and passively fished waste. As regards the other waste types, the general obligations of applying a minimum 30% indirect fee will also apply to the delivery of waste by the fishing and recreational sector.
Reporting of the information from the waste notification and waste receipt will only be required for fishing vessels and recreational craft of 45 metres and above. Requiring vessels below this threshold to report electronically before arrival and departure would be disproportionate, as these vessels are generally not equipped for electronic reporting nor are the ports receiving them able to process electronic notifications at each and every port call. This was also shown in the impact assessment accompanying the proposal 17 .
On enforcement, the Directive lays down that inspections must be carried out for at least 20 % of all fishing vessels and recreational craft over 100 gross tonnage calling in the ports of a relevant Member State annually. This threshold coincides with the MARPOL requirement for carrying a garbage record plan on board for ships over 100 gross tonnage.