Directive 2024/3101 - Amendment of Directive 2005/35/EC as regards ship-source pollution and on the introduction of administrative penalties for infringements

Contents

  1. Legislative text
  2. (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).

1.

Legislative text

EN

L series

Official Journal of the European Union

2024/3101                                  16.12.2024

DIRECTIVE (EU) 2024/3101 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 27 November 2024 amending Directive 2005/35/EC as regards ship-source pollution and on the introduction of administrative penalties for infringements

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

  • (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.
  • (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.

2.

(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 (SOx) 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 SOx 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).
  • (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 (NOx) and sulphur oxide (SOx), 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).
  • (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,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 2005/35/EC

Directive 2005/35/EC is amended as follows:

  • (1) 
    the title is replaced by the following:

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

  • (2) 
    Article 1 is replaced by the following:

    ‘Article 1

    Purpose

  • 1. 
    The purpose of this Directive is to incorporate into Union law international standards on pollution from ships and to ensure that any company or other legal or natural person liable for illegal discharges of polluting substances is subject to effective, proportionate and dissuasive administrative penalties in order to improve maritime safety and to enhance protection of the marine environment from pollution from ships.
  • 2. 
    This Directive does not prevent Member States from taking more stringent measures in conformity with Union and international law, by providing for administrative or criminal penalties in accordance with their national law.’;
  • (3) 
    Article 2 is replaced by the following:

    ‘Article 2

    Definitions

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

  • (1) 
    “Marpol 73/78” means the International Convention for the Prevention of Pollution from Ships, 1973, including its 1978 and 1997 Protocols, in its up-to-date version;
  • (2) 
    “polluting substances” means substances subject to regulation by Annex I (oil), Annex II (noxious liquid substances in bulk), Annex III (harmful substances carried by sea in packaged form), Annex IV (sewage from ships) and Annex V (garbage from ships) to Marpol 73/78 and Exhaust Gas Cleaning System residue;
  • (3) 
    “Exhaust as Cleaning System residue” means any material removed from the washwater or the bleed-off water by a treatment system, discharge water that does not meet the discharge criterion, or other residue material removed from the exhaust gas cleaning systems (EGCS) as a result of the operation of a compliance method for emissions reductions defined in Regulation 4 of Annex VI to Marpol 73/78, used as an alternative, in terms of emissions reductions, to the standards set out in Regulation 14 of Annex VI to Marpol 73/78, taking into account the guidelines developed by the International Maritime Organization (IMO);
  • (4) 
    “discharge” means any release howsoever caused from a ship, as referred to in Article 2 of Marpol 73/78;
  • (5) 
    “ship” means a seagoing vessel, irrespective of its flag, of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles and floating craft;
  • (6) 
    “legal person” means any legal entity in possession of such status under applicable national law, other than States themselves, public bodies in the exercise of State authority, or public international organisations;
  • (7) 
    “company” means the shipowner or any other organisation or person, such as the manager or the bareboat charterer, which has assumed the responsibility for the operation of the ship from the shipowner.’;
  • (4) 
    Article 4 is replaced by the following:

    ‘Article 4

    Infringements and exceptions

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

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

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

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

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

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

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

  • 2. 
    Each Member State shall take all necessary measures to ensure that any company, or other legal or natural person having committed an infringement within the meaning of paragraph 1 is held liable.’;
  • (5) 
    Articles 5, 5a and 5b are deleted;
  • (6) 
    Article 6 is replaced by the following:

    ‘Article 6

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

  • 1. 
    If irregularities or information give rise to a suspicion that a ship which is voluntarily within a port or at an off-shore terminal of a Member State has been engaged in or is engaging in a discharge of polluting substances into any of the areas referred to in Article 3(1), that Member State shall ensure that an appropriate inspection or other appropriate action, taking into account the relevant guidelines adopted by the IMO, is undertaken in accordance with its national law.
  • 2. 
    In so far as the inspection referred to in paragraph 1 of this Article reveals facts that could indicate an infringement within the meaning of Article 4, the Member State concerned shall apply the provisions of this Directive. The competent authorities of that Member State and of the flag State shall be informed.
  • 3. 
    An indicative list of irregularities or information to be taken into account in the application of paragraph 1 of this Article is provided in Annex I to this Directive.’;
  • (7) 
    Article 8 is replaced by the following:

    ‘Article 8

    Administrative penalties

  • 1. 
    Without prejudice to the obligations of Member States under Directive (EU)2024/1203 of the European Parliament and of the Council (*), Member States shall lay down a system of administrative penalties within the meaning of their national legal system for the breach of national provisions implementing Article 4 of this Directive and shall ensure that they are applied. The administrative penalties provided for shall be effective, proportionate and dissuasive.
  • 2. 
    Member States shall ensure that administrative penalties introduced in transposition of this Directive include fines which are imposed on the company held liable for the infringement.
  • 3. 
    Where the legal system of the Member State does not provide for administrative penalties, this Article may be applied in such a manner that the penalties, including the fines referred to in paragraph 2, are initiated by the competent authority and imposed by competent national courts, while ensuring that those legal remedies are effective and have an equivalent effect to the administrative fines imposed by competent authorities. In any event, the penalties imposed in accordance with this paragraph shall be effective, proportionate and dissuasive and applied in accordance with the provisions of this Directive. The Member States concerned shall notify to the Commission by 6 July 2027 the provisions of their laws which they adopt pursuant to this paragraph and, without delay, any subsequent amendment to, or amendment affecting, those laws.

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

  • (8) 
    Articles 8a, 8b and 8c are deleted;
  • (9) 
    the following Article is inserted:

    ‘Article 8d

    Effective application of penalties

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

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

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

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

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

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

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

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

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

  • 2. 
    Member States shall not set or apply administrative penalties for infringements under this Directive at a level that is too low to ensure the effectiveness, proportionality and dissuasive nature of those penalties.’;
  • (10) 
    Article 10 is replaced by the following:

    ‘Article 10

    Exchange of information and experience

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

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

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

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

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

  • 2. 
    Member States shall ensure that information on major ship-source pollution incidents is disseminated to the fishing and coastal communities concerned in a timely manner.
  • 3. 
    The Commission shall provide for the organisation of exchange of experiences between Member States’ national authorities and experts, including those from the private sector, civil society and trade unions, on the application of this Directive across the Union, with a view to establishing common practices and guidelines on the enforcement of this Directive.
  • 4. 
    The Commission shall provide for the organisation of exchange of experiences and best practices between Member States’ national competent authorities on how to ensure an effective determination and application of penalties. On the basis of that exchange of information, the Commission may propose guidelines, including on types of polluting substances and sensitive areas of concern.

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

  • (11) 
    the following Articles are inserted:

    ‘Article 10a

    Reporting

  • 1. 
    The Commission shall establish an electronic reporting tool, for the purposes of collection and exchange of information between Member States and the Commission on the implementation of the enforcement system provided for by this Directive.
  • 2. 
    Member States shall ensure that the following information relating to the actions undertaken by their competent authorities is reported through the electronic reporting tool referred to in paragraph 1:

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

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

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

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

  • 3. 
    In order to ensure the uniform application of this Article, the Commission may, by means of implementing acts, lay down detailed rules on the procedure for reporting the information referred to in paragraph 2, including specifying the type of information to be reported. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13.
  • 4. 
    Member States shall notify the Commission of the authorities that have access to the electronic reporting tool referred to in paragraph 1.

    Article 10b

    Training

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

Article 10c

Publication of information

  • 1. 
    Based on information reported by Member States in accordance with Article 10a, the Commission shall make publicly available a regularly updated Union-wide overview on the implementation and enforcement of this Directive, upon the conclusion of the administrative and legal proceedings, when applicable. To the extent that information relating to penalties includes personal data or commercially sensitive information, such information shall be anonymised. That overview shall include the information listed in Annex II to this Directive.
  • 2. 
    Without prejudice to Directive 2003/4/EC of the European Parliament and of the Council (*), the Commission shall take appropriate measures to protect the confidentiality of information obtained in the implementation of this Directive.

    Article 10d

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

  • 1. 
    The Commission shall develop, make accessible and maintain a confidential online external reporting channel for receiving reports, within the meaning of Directive (EU) 2019/1937 of the European Parliament and of the Council (**), on potential infringements of this Directive and shall relay such reports to the Member States concerned.
  • 2. 
    Member States shall ensure that national competent authorities receiving reports of violations of this Directive, submitted through the channel referred to in paragraph 1, investigate, act upon where appropriate, provide feedback in a timely manner, and follow-up on those reports in accordance with Directive (EU) 2019/1937.
  • 3. 
    The Commission may, pursuant to Article 25(1), points (c) and (h), of Regulation (EU) 2018/1725 of the European Parliament and of the Council (***) and in line with Article 25(2) thereof, restrict the application of Articles 4, 14 to 22, 35 and 36 of that Regulation for the data subjects who are the object of or mentioned in the report submitted through the channel referred to in paragraph 1 of this Article and who are not the data subjects submitting that report. That restriction may apply only for the duration necessary for the investigation of the report referred to in paragraph 2 of this Article by the competent Member State authorities.

(*) Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41, 14.2.2003, p. 26).

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

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

  • (12) 
    Articles 11 and 12 are deleted;
  • (13) 
    the following Article is inserted:

    ‘Article 12a

    Evaluation and review

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

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

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

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

(d) the latest data and scientific findings.

  • 2. 
    As part of the review, the Commission shall assess the possibility of modifying the scope of this Directive, if appropriate, in view of new or updated international standards for the prevention of pollution from ships subject to present and future provisions in Marpol 73/78, such as marine plastic litter, container loss and loss of plastic pellets.’;
  • (14) 
    Article 13 is replaced by the following:

    ‘Article 13

    Committee procedure

  • 1. 
    The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS), established by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council (*). That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council (**).
  • 2. 
    Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 and Article 5 of Regulation (EC) No 2099/2002 shall apply.

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

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

  • (15) 
    Articles 14 and 15 are deleted;
  • (16) 
    Article 16 is replaced by the following:

    ‘Article 16

    Transposition

  • 1. 
    Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 April 2007 and forthwith inform the Commission thereof.
  • 2. 
    Member States without direct access to the sea or without seaports shall not be obliged to transpose and implement Article 6 and Article 7(2) of this Directive.’;
  • (17) 
    the sole Annex is replaced by the text set out in the Annex to this Directive.

Article 2

Transposition

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

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

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

Article 3

Application of Directive 2009/123/EC

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

Article 4

Entry into force

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

 

This Directive is addressed to the Member States.

Article 5

Addressees

  

Done at Strasbourg, 27 November 2024.

    

For the European Parliament

The President

  • R. 
    METSOLA
  

For the Council The President

BOKA J.

ANNEX

ANNEX I

Non-exhaustive list of irregularities or information referred to in Article 6

  • 1. 
    Any irregularities with respect to the oil and other relevant record books or with respect to other deficiencies related to potential discharges, discovered during inspections carried out under Directive 2009/16/EC of the European Parliament and of the Council (*) by the Member State concerned, by another Member State or by a State signatory to the Paris Memorandum of Understanding on Port State Control at the previous ports of call of the ship;
  • 2. 
    Any irregularities with respect to the delivery of ship-generated waste, or the notification thereof, as required under Directive (EU) 2019/883 of the European Parliament and of the Council (**) which took place either in the Member State concerned or in the Member State of the previous ports of call of the ship;
  • 3. 
    Any irregularities 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 of the European Parliament and of the Council (***), which refers to the 2009 Guidelines for EGCS set out in Resolution MEPC.184(59) as replaced by the 2021 Guidelines for EGCS set out in resolution MEPC.340(77).
  • 4. 
    Any information obtained from another Member State 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 (****), including any proof of or presumptive evidence on deliberate discharges of oil or other infringements of Marpol 73/78 communicated by coastal stations of a Member State to the coastal stations in the Member State concerned in accordance with Article 16 of that Directive or incidents or accidents reported by the master of the ship to the coastal station of the Member State concerned in accordance with Article 17 of that Directive.
  • 5. 
    Any other information from persons involved in the operation of the ship, including pilots, which suggests irregularities relating to a potential violation of the obligations under this Directive.

ANNEX II

Information to be included in the Union-wide overview published by the Commission, referred to in Article 10c

  • 1. 
    For each pollution incident verified and confirmed by a Member State, information in the Union-wide overview published by the Commission in accordance with Article 10c shall include:

(a) date of the incident;

(b) identification of the ship involved in the incident;

(c) position (latitude and longitude) of the pollution incident;

(d) extent of the pollution incident (area and length), if applicable;

(e) type of pollutant;

(f) Member State(s) involved;

(g) description of the verification activities of the pollution incident;

(h) date and time of the verification activities and the assets used for verification activities;

(i)  details of the administrative penalty imposed.

  • 2. 
    For each Member State, aggregated information contained in the Union-wide overview published by the Commission in accordance with Article 10c shall include:

(a) number of CleanSeaNet possible pollution incidents detected;

(b) number of CleanSeaNet possible pollution incidents verified on-site by the Member State;

(c) number of CleanSeaNet possible pollution incidents verified by other means by the Member State;

(d) number of confirmed pollution incidents after verification (detailed per area: territorial waters, EEZ, high seas);

(e) number of identified offenders;

(f) number of cases where a penalty was imposed.

  • 3. 
    A summary, solely for reference purposes, of relevant parts of Marpol 73/78, which shall be updated whenever there are changes to Marpol 73/78 relevant to this Directive. 1 2 3 4

16/16

ELI: http://data.europa.eu/eli/dir/2024/3101/oj

1

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).

2

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).

3

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).

4

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)’.

This summary has been adopted from EUR-Lex.