EC on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences - Main contents

Please note

This page contains a limited version of this dossier in the EU Monitor.

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
date	November 27, 2024

(1) The Union’s maritime policy is aimed at a high level of safety and environmental protection. This can be achieved through compliance with international conventions, codes and resolutions while maintaining freedom of navigation as provided for by the United Nations Convention on the Law of the Sea.

(2) The International Convention on the Prevention of Pollution from Ships (‘Marpol 73/78’) of the International Maritime Organization (IMO) provides for general prohibitions on discharges from ships at sea, but also regulates the conditions under which certain substances can be discharged into the marine environment. Marpol 73/78 contains exceptions for the discharge of polluting substances, subject to its Annexes, that are not to be regarded as an infringement where specified conditions are fulfilled. Those Annexes do not exempt cases where those liable for the damage acted either with intent to cause damage or recklessly and with knowledge that damage would probably result.

(3) Since the adoption of Directive 2005/35/EC of the European Parliament and of the Council (³), Marpol 73/78 and its Annexes have been the subject of important amendments, which have put in place stricter norms and prohibitions for discharges of substances from ships into the sea. Those changes as well as the lessons learned from the implementation of Directive 2005/35/EC should be taken into account.

(4) While an overarching objective of this Directive is to transpose important amendments to Marpol 73/78 into Union law, an up-to-date and complete text of Marpol 73/78 and its related annexes is not publicly available. This makes it burdensome for the sector, citizens and administrations to gain proper access to the text of Marpol 73/78 and other similar IMO conventions.

(5) Member States should work within the IMO to make the full and up-to date texts of IMO conventions, including Marpol 73/78 and its annexes, accessible to the public free of charge.

f) OJ C, C/2023/872, 8.12.2023, ELI: data.europa.eu/eli/C/2023/872/oj.

(²) Position of the European Parliament of 10 April 2024 (not yet published in the Official Journal) and decision of the Council of 18 November 2024.
(³) Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences (OJ L 255, 30.9.2005, p. 11).

(6) Directive (EU) 2019/883 of the European Parliament and of the Council (⁴) ensures that waste from ships is delivered to Union ports, where it is collected by adequate port reception facilities. The enforcement of Directive (EU) 2019/883 is, together with Directive 2005/35/EC, a key instrument in preventing ship-source pollution. In order to ensure an effective, integrated and coherent enforcement system as regards the provisions of Directive (EU) 2019/883 on waste delivery to port reception facilities, Directive 2005/35/EC should be amended in order to extend its scope to Annexes IV to VI to Marpol 73/78, with a view to discouraging ships from illegally discharging polluting substances into the sea instead of delivering them to port reception facilities in accordance with Directive (EU) 2019/883.

(7) Directive (EU) 2019/883 does not include within its scope Annex III to Marpol 73/78 because packaged goods are not categorised as waste; therefore they are usually not delivered to port reception facilities. However, it cannot be ruled out that harmful substances carried in packaged form could be illegally jettisoned into the sea. Therefore, the scope of Directive 2005/35/EC should be extended to cover Annex III to Marpol 73/78. Accordingly, jettisoning of harmful substances should be prohibited under Directive 2005/35/EC, unless it is found by competent authorities that such jettisoning was necessary for securing the safety of the ship or saving life at sea. In that regard, discharges referred to in this Directive do not include dumping under the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, and its 1996 Protocol.

(8) Marpol 73/78 includes emissions from ships in the definition of discharges in Article 2 thereof. Annex VI to Marpol 73/78 addresses the prevention of air pollution from ships. Annex VI and the corresponding IMO guidelines on Exhaust Gas Cleaning Systems (EGCS) (Resolution MEpC.340 (77)) allow for the use of EGCS by ships as an alternative compliance method to reduce sulphur oxide (SO_x) emissions. Annex VI to Marpol 73/78 regulates the residue from EGCS by prohibiting its discharge at sea and requiring its delivery to adequate port reception facilities. Directive (EU) 2016/802 of the European Parliament and of the Council (⁵) transposes international SO_x standards into Union law, while Directive (EU) 2019/883 ensures that EGCS residue is delivered to port reception facilities. Since EGCS residue causes pollution of the marine environment, the penalties provided under Directive 2005/35/EC should apply in the case of illegal discharges.

(9) The ‘discharge water’, as defined in both Circular MEPC.1/Circ.899 and Resolution MEPC.340(77), can be discharged directly overboard if it is compliant with discharge water quality criteria set out in the IMO guidelines on EGCS. However, discharge water from EGCS might affect the ecosystem although it complies with Marpol 73/78. In that case, the Member State may impose restrictions or limitations which can be based on the evaluation carried out using the methodology for risk and impact assessments contained in the guidelines developed by the IMO and recommended by the Maritime Environment Protection Committee (MEPC). In that case, the ‘discharge water’ causes pollution to the marine environment, and the administrative penalties provided for under Directive 2005/35/EC should apply in the case of illegal discharges with due consideration to MEPC.1/Circ.883/Rev.1.

(10) Directive (EU) 2024/1203 of the European Parliament and of the Council (⁶) ensures common definitions of environmental criminal offences and the availability of effective, proportionate and dissuasive criminal penalties for serious environmental offences. Directive 2005/35/EC was amended by Directive 2009/123/EC of the European Parliament and of the Council (⁷), which introduced criminal penalties for certain infringements of Directive 2005/35/EC which now fall within the scope of Directive (EU) 2024/1203. Accordingly, the provisions of Directive 2005/35/EC which were added or replaced by Directive 2009/123/EC should be deleted.

(11) Administrative penalties introduced in transposition of Directive 2005/35/EC should be without prejudice to Directive (EU) 2024/1203. Member States should define the scope of administrative and criminal law enforcement with regard to ship-source pollution offences in accordance with their national law. This Directive does not prevent

(⁴) Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019 on port reception facilities for the delivery of waste from ships, amending Directive 2010/65/EU and repealing Directive 2000/59/EC (OJ L 151, 7.6.2019, p. 116).

(⁵) Directive (EU) 2016/802 of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels (OJ L 132, 21.5.2016, p. 58).

(⁶) 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: data.europa. eu/eli/dir/2024/1203/oj).

(⁷) Directive 2009/123/Ec of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (OJ L 280, 27.10.2009, p. 52).

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. In the application of national law transposing Directive 2005/35/EC, Member States should ensure that the imposition of criminal penalties and of administrative penalties respects the principles of the Charter of Fundamental Rights of the European Union, including the principle of ne bis in idem, taking due account of the ‘polluter pays principle’, as and when applicable.

(12) The penalties provided for by Directive 2005/35/EC should be strengthened by ensuring consistent application of administrative penalties throughout the Union. To strengthen the deterrent effect of penalties imposed for ship-source pollution offences, such administrative penalties should take at least the form of fines imposed on the company of the ship held liable. In this context, the company of a ship 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, in alignment with the International Management Code for the Safe Operation of Ships and for Pollution Prevention (‘ISM Code’) (⁸), implemented in Union law by virtue of Regulation (EC) No 336/2006 of the European Parliament and of the Council (⁹). Directive 2005/35/EC should recognise that the management of the ship could be delegated by the registered owner to a different entity, which should then be held liable in the first place for not implementing its obligations under the ISM Code to ensure the avoidance of damage to the environment or the assignment of shipboard operations to qualified personnel. Without prejudice to the applicable Union legislation, decisions on the penalty to be applied should be made within the scope of the national administrative and criminal law enforcement systems. For criminal penalties, the obligations of the Member States are set out in Directive (EU) 2024/1203. Accordingly, this Directive only concerns administrative penalties and does not concern criminal proceedings against natural or legal persons in accordance with national law.

(13) Recognising that compliance for some Member States with the requirement for administrative penalties is not possible due to national constitutional law, Member States may apply the provisions on administrative penalties of this Directive in such a manner that the penalties are initiated by the competent authority and imposed by competent national courts, while ensuring compliance with the requirement for effective, proportionate and dissuasive penalties. Where there are references in this Directive to administrative penalties, those Member States will apply penalties within the meaning of their national legal system.

(14) Irregularities and information could arise from a port State control inspection carried out under Directive 2009/16/EC of the European Parliament and of the Council (¹⁰) when it is mandatory or when it is scheduled. Irregularities could also be detected with respect to the delivery of ship-generated waste, or the notification thereof, as required under Directive (EU) 2019/883 or with respect to non-compliance with the criteria for the use of EGCS operated as emissions abatement methods set out in Annex II to Directive (EU) 2016/802, as well as information relating to a potential illegal discharge of the ship obtained through the procedures foreseen in Directive 2002/59/EC of the European Parliament and of the Council (¹¹), including any proof or presumptive evidence on discharges of oil or other infringements of Marpol 73/78 communicated to the Member State or incidents or accidents reported by the master of the ship, and any other information from persons involved in the operation of the ship, including pilots.

(15) Irregularities or information giving rise to a suspicion that an illegal discharge has taken place might be discovered during a port State control inspection. In that case, a new inspection might not be necessary or sufficiently effective. Rather, the Member State could take other appropriate action, such as detaining the ship, instituting proceedings or taking remedial measures.

(⁸) International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organization by Assembly Resolution A.741(18) of 4 November 1993, as amended.

(⁹) Regulation (EC) No 336/2006 of the European Parliament and of the Council of 15 February 2006 on the implementation of the International Safety Management Code within the Community and repealing Council Regulation (EC) No 3051/95 (OJ L 64, 4.3.2006, p. 1).

(¹⁰) Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (OJ L 131, 28.5.2009, p. 57).

(¹¹) 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).

(16) National administrative and judicial authorities should take into account all relevant circumstances, including ship-source pollution recidivism, when determining the level of penalties to be imposed on the polluter. Taking into account the diverse nature of polluting substances covered by Directive 2005/35/EC and the importance of consistent application of penalties across the Union in light of the cross-border nature of the regulated behaviour, further approximation and effectiveness of penalty levels should be fostered through exchanges on criteria for the determination and the application of penalties for discharges of different polluting substances. In order to ensure the effective application of penalties and to achieve the objectives of this Directive, it is crucial to facilitate the exchange of experiences and best practices between Member States’ national competent authorities. Furthermore, based on the insights gained from such exchanges, the Commission could propose more specific guidelines, including on specific types of polluting substances and sensitive areas of concern.

(17) When a Member State suspects that a ship which is voluntarily within its port or at an off-shore terminal committed an illegal discharge, an appropriate inspection should take place to establish the circumstances. In order to assist Member States with their obligations under Directive 2005/35/EC to inspect such ships, Annex I to Directive 2005/35/EC provides an indicative list of irregularities or information that should be taken into account by competent authorities on a case-by-case basis when determining whether a ship should be considered suspect.

(18) The accompanying measures for cooperation and the reporting obligations of Member States have not been sufficient to allow a complete analysis on whether polluters face effective, proportionate and dissuasive penalties and for adequate data to be made available to the Commission to monitor the implementation of Directive 2005/35/EC. In order to ensure the effective and consistent enforcement of Directive 2005/35/EC, exchange of information, experience and best practices should be facilitated through enhanced cooperation, while at the same time ensuring that adequate data are made available to the Commission in order to allow the proper monitoring of the implementation of Directive 2005/35/EC.

(19) In order to enhance the information required for the effective implementation of this Directive, Member States have at their disposal relevant reporting mechanisms, such as reporting in the framework of regional sea conventions and other regional cooperation arrangements, such as the Bonn Agreement, the North Sea Network of Investigators and Prosecutors, and the Network of Prosecutors on Environmental Crime in the Baltic Sea Region.

(20) The existing satellite-based service ‘CleanSeaNet’, which notifies Member States’ authorities on potential illegal discharges, should be further enhanced to include information on the additional polluting substances under the scope of Directive 2005/35/EC. Information relating to potential or actual discharges reported by Member States in accordance with Directive 2005/35/EC and to other Union maritime safety databases, such as the Union Maritime Information and Exchange System established by Directive 2002/59/EC (‘SafeSeaNet’) and the Inspection Database established by Directive 2009/16/EC (‘THETIS’) should be integrated and disseminated in a user-friendly electronic format to the national authorities involved in the enforcement chain in order to facilitate their timely response to such potential illegal discharges. Such information, when relating to an actual or potential discharge of EGCS residue from a ship, should further be automatically disseminated, such as through the dedicated module of THETIS set up under Commission Implementing Decision (EU) 2015/253 (¹²) (‘THETIS-EU’), in order to assist Member States with enforcement actions undertaken in accordance with Directive (EU) 2016/802.

(21) In order to ensure the effective monitoring of this Directive’s implementation by all Member States, a digital analysis of all high-confidence alerts should be ensured by each Member State within 66 months from the date of entry into force of this amending Directive. Within that timeframe, all Member States should also 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. In that context, verification 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.

(¹²) Commission Implementing Decision (EU) 2015/253 of 16 February 2015 laying down the rules concerning the sampling and

reporting under Council Directive 1999/32/EC as regards the sulphur content of marine fuels (OJ L 41, 17.2.2015, p. 55).

(22) ‘High-confidence alerts’ should be understood as referring to ‘Class A’ CleanSeaNet alert detections when relating to potential discharges of polluting substances under Annex I and II to Marpol 73/78. With regard to polluting substances under other Annexes to Marpol 73/78, which are currently not monitored by CleanSeaNet, a confidence level approach cannot currently be established. The Commission, with the assistance of the European Maritime Safety Agency (‘EMSA’), will develop semi-automated checks of satellite images for polluting substances under other Annexes to Marpol 73/78 to establish the possibility of determining their confidence level. Verification activities could include many actions by several competent authorities, such as on-site verification, comparing the satellite detection with the nationally available auxiliary data and port State control inspections.

(23) Access to this information from competent authorities should be granted to the authorities of other Member States having an interest in it under their roles as port States of the next port of call, coastal States affected by the potential discharge or flag States of the ship, in order to facilitate effective and timely cross-border cooperation, minimise the administrative burden of enforcement activities and ultimately effectively penalise offenders for infringements of Directive 2005/35/EC. The use of new technologies such as drones and decision-support techniques, such as artificial intelligence, should also be fostered.

(24) As part of the evaluation and review of this Directive, the Commission should assess the verification rates of Member States and should envisage to propose, if appropriate, verification rates higher than foreseen in this Directive, based on technological developments and the particular circumstances and capabilities of Member States.

(25) It should be acknowledged that the circumstances of coastal Member States vary significantly in terms of their geographical location, the size of the waters over which they exercise jurisdiction and the density of maritime traffic as well as their resources and cost-efficient access to available technology and means to detect, verify and collect evidence in respect of illegal discharges.

(26) The Sub-group on Waste from Ships, which was set up under the European Sustainable Shipping Forum and which brought together a wide range of experts in the field of ship-source pollution and the management of waste from ships, was adjourned in December 2017 in view of the start of interinstitutional negotiations on Directive (EU) 2019/883. Since that temporary Sub-group provided valuable guidance and expertise to the Commission, a similar expert group should be created with a mandate of exchanging experience on the application of this Directive in order to assist Member States in building their capacity to detect and verify pollution incidents and ensure the effective enforcement of Directive 2005/35/EC.

(27) EMSA should provide the necessary support to the Commission to ensure the implementation of this Directive.

(28) Member States should report to the Commission the information needed to ensure a proper monitoring of the implementation of Directive 2005/35/EC. In order to limit the administrative burden and assist the Commission in analysing the data provided by Member States, such information should be reported by Member States through a dedicated electronic reporting tool, developed by the Commission. To the extent that such information relates to penalties imposed on or involving natural persons, such information should be anonymised. In order to ensure that information reported in accordance with Directive 2005/35/EC is comparable in type among Member States and collected on the basis of a harmonised electronic format and procedure for reporting, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (¹³).

(29) In order to assist Member States with the development of their capabilities regarding effective enforcement of Directive 2005/35/EC by the national administrative and judicial authorities, the Commission, with the assistance of EMSA, should provide Member States with guidance and training relating to, inter alia, best methods and practices for detection, verification and evidence collection, as well as guidance on relevant regulatory developments of Marpol 73/78 and on technological developments available, including new digital tools, in order to facilitate effective, cost-efficient and targeted enforcement activities.

(¹³) 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).

(30) In order to increase public awareness of ship-source pollution discharges and to improve environmental protection, information provided by the Member States on the application of Directive 2005/35/EC should be made publicly available through a Union-wide overview and include the information listed in Annex II to Directive 2005/35/EC. Directive 2003/4/EC of the European Parliament and of the Council (¹⁴) aims to guarantee the right of access to environmental information in the Member States in line with the Convention on access to information, public participation in decision-making and access to justice in environmental matters (¹⁵) (also known as the Aarhus Convention), to which the Union is a party. The Commission should protect the confidentiality of information received by Member States, without prejudice to Directive 2003/4/EC.

(31) Directive (EU) 2019/1937 of the European Parliament and of the Council (¹⁶) lays down minimum standards on reporting of breaches of Union law, including breaches of Directive 2005/35/EC, and for the protection of persons reporting such breaches. Member States should ensure, in particular, that crew under the scope of Directive (EU) 2019/1937 reporting actual or potential illegal discharges are granted protection, support and assistance, as appropriate, as provided for in that Directive.In addition to the existing reporting channels provided at national level as regulated under Directive (EU) 2019/1937, the Commission should make available a centralised online external reporting channel for reporting actual or potential illegal discharges and relay such reports to the Member States concerned, which should subsequently handle those reports in accordance with Directive (EU) 2019/1937, including with regard to acknowledgement of receipt, adequate feedback and follow-up. Union law on the protection of personal data, in particular Regulations (EU) 2016/679 (¹⁷) and (EU) 2018/1725 (¹⁸) of the European Parliament and of the Council apply when personal data are processed in the context of this Directive. The Commission should ensure the protection of the confidentiality of the identity of reporting persons, including, where necessary, by restricting the exercise of certain data protection rights of persons concerned, such as of individuals included in the report as participating in the potential illegal discharge, in line with Article 25(1), points (c) and (h), and Article 25(2) of Regulation (EU) 2018/1725, to the extent and as long as necessary to prevent and address attempts to hinder reporting or to impede, frustrate or slow down follow-up, in particular investigations, or attempts to find out the identity of the reporting persons. Such restrictions should respect the essence of the fundamental rights and freedoms and be necessary and proportionate measures in a democratic society to safeguard important objectives of general public interest of the Union or of a Member State, including the protection of the data subject or the rights and freedoms of others.

(32) Discussions are ongoing at the IMO regarding new environmental issues in relation to international shipping that result in marine pollution. Those discussions may result in new provisions under Marpol 73/78, bringing under the scope of that Convention other types of pollutants, such as marine plastic litter and loss of plastic pellets. A future review should assess the possibility of modifying the scope of Directive 2005/35/EC, if appropriate, with a view to ensuring a coherent, efficient and effective enforcement regime, as well as the imposition of dissuasive penalties. That review should also assess ways for improving satellite surveillance of lost containers, potentially including harmful substances. The Commission should also consider the interaction of this Directive with other relevant Union legislation on marine pollution, such as Directives 2008/56/EC (¹⁹), (EU) 2016/802 and (EU) 2024/2881 (²⁰) of the European Parliament and of the Council, including on reporting of excessive underwater noise and on air pollution, such as black carbon, particulate matter (PM), nitric oxide (NO_x) and sulphur oxide (SO_x), resulting in harm to biodiversity and living resources in marine ecosystems, as well as in hazards to human health and the impairment of the quality for use of sea water and the sustainable use of marine goods and services, hence hindering other marine activities, such as fishing, tourism and recreation in coastal areas.

(¹⁴) 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).

(¹⁵) OJ L 124, 17.5.2005, p. 4.

(¹⁶) 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).

(¹⁷) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

(¹⁸) 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).

(¹⁹) Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) (OJ L 164, 25.6.2008, p. 19).

(²⁰) Directive (EU) 2024/2881 of the European Parliament and of the Council of 23 October 2024 on ambient air quality and cleaner air for Europe (OJ L, 2024/2881, 20.11.2024, ELI: data.europa.eu/eli/dir/2024/2881/oj).

(33) Member States without direct access to the sea or without seaports cannot apply certain provisions of this Directive due to those geographical reasons. In order to avoid imposing a disproportionate administrative burden on those Member States, they should not be obliged to transpose and implement some of the provisions of this Directive.

(34) Since the objectives of this Directive cannot be sufficiently achieved by the Member States by reason of the cross-border damage which may be caused by illegal discharges covered by this Directive and the availability of effective, proportionate and dissuasive penalties across the Union for such discharges but can rather, by reason of the scale and effects of the proposed action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(35) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including the protection of personal data, the right to an effective remedy and to a fair trial, the presumption of innocence and right of defence, the principles of legality and proportionality of criminal offences and penalties, and the right not to be tried or punished twice in criminal proceedings for the same offence. This Directive seeks to ensure full respect for those rights and principles and should be implemented accordingly.

(36) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on 25 July 2023.

(37) Directive 2005/35/EC should be amended accordingly.