Theme of the day of 22 February 2005
Crackdown on oil pollution by ships in EU waters
Before the second reading, Parliament and Council informally agreed a compromise on new and stricter rules concerning EU sanctions against illegal oil pollution in EU waters. This means the legislation could be concluded after the second reading. According to the new rules, illegal oil pollution will be seen as a criminal offence if committed with intent and in the most serious cases, prison sentences should not be ruled out. The European Commission will also do a feasibility study on the setting-up of a European coastguard service and the European Maritime Safety Agency (EMSA) will assist Member States in tracing illegal discharges by providing satellite monitoring and surveillance. Debate on Tuesday 22 February.
EXPLANATORY STATEMENT
Commission proposal
The immediate motivation for the present proposal for a directive was the disaster involving the oil tanker 'Prestige' which sank in November 2002 off the coast of Spain. At the time, the Commission noted that the greater part of worldwide oil pollution from shipping is not the result of disasters but of deliberate discharges. It therefore makes little sense, in the Commission's view, to do everything possible to prevent disasters if action is not also taken at the same time to combat illegal discharges.
This proposal consists of two measures. Firstly, the directive incorporates into Community law the existing international rules governing discharges, in this case, the global agreements on the discharge of oil and other noxious liquid substances from the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL). MARPOL lays down requirements concerning the storage facilities and filtering equipment on ships and stipulates the maximum authorised quantities of discharge and the areas where discharges are and are not allowed.
Secondly, the proposed directive specifies that contraventions of the discharge rules are criminal offences and provides guidance concerning the nature of the penalties to be imposed.
To complement this proposal for a directive, the Commission has produced a draft framework decision of the Council (COM (2003) 227) which is being considered under the third pillar (Justice and Home Affairs cooperation) and on which Parliament is therefore solely entitled to deliver an opinion. This framework decision deals with the level of penalties, judicial cooperation between Member States and the requirement to investigate in the event of grave suspicions.
Parliament's position at first reading
On 13 January 2004 Parliament completed its first reading, adopting 28 amendments to the Commission proposal.
It disagreed with the Commission for instance on the incorporation of the MARPOL provisions on oil discharges into Community law. In the specific case of discharges resulting from damage to a ship the Commission opted not to transpose the MARPOL provisions into its own rules. Parliament felt this was regrettable as the MARPOL provisions are perfectly clear and reasonable and, furthermore, the Commission approach contributes to a proliferation of divergent global, European and national rules, resulting in legal uncertainty. This is particularly undesirable as shipping is obviously international in nature.
Parliament also felt that the directive should put more emphasis on reasonable protection of crews and that it should also spell out more clearly the possibility of prosecuting others involved in the chain (such as port authorities). Member States must be prevented from starting a witchhunt with the aid of this directive against masters, ships' crews and other accused persons and thereby diverting attention from mistakes possibly made by other agencies. Treating ships' crews as serious criminals before their guilt has been established is bad for the image of a sector which already has considerable difficulty in attracting motivated and well-trained personnel in Europe.
Council's common position
A good year and a half after the Commission proposal was published, on 7 October 2004 the Transport Council adopted its common position. The common position does not include the detailed provisions on criminal penalties contained in the Commission proposal and Parliament's position. As a result, the text differs substantially from the original purpose of the directive, namely to introduce a mandatory system of criminal sanctions at Community level. As far as the transposition of MARPOL is concerned, and more specifically the definition of an infringement and the exceptions, the common position also differs from the original Commission proposal and Parliament's position.
The common position is accompanied by a number of declarations which reflect the divergent views prevailing within the Council:
Spain, France, Italy and Portugal issued a joint declaration saying that in their view the Council should go further than the directive in combating illegal discharges in the exclusive economic zone. In so far as international rules allow, they reserve the right to do so themselves; Greece issued a declaration opposing the agreement reached on the grounds that the provisions in the directive go further than the MARPOL Convention.
Differences between the EP position at first reading and the common position
There are number of significant differences between the EP's position at first reading and the Council's common position. In the following instances your rapporteur takes the view that these differences require the tabling of amendments to the common position.
The term negligence
'Gross negligence' is an internationally accepted legal term, which is not the case for the term 'serious negligence' used by the Council, which is not more clearly defined and consequently open to differences of interpretation by Member States. Maintaining the term used by the Commission avoids legal uncertainty.
Application of MARPOL
Your rapporteur agrees with the Council that the MARPOL regime should be the basis for this directive. Here your rapporteur seeks to emphasise the importance of the uniform application and interpretation of existing international law within the EU. The Council text guarantees that discharges as a result of damage to ships in extra territorial waters cannot be regarded as a contravention on the part of the owner, master or crew provided that they have complied with the MARPOL provisions (in other words taking precautions to keep discharges to a minimum and not acting recklessly). In this, the Council has responded to the concern voice by the EP at first reading that the proposal for a directive would erode reasonable protection for masters and crews whereas other agencies in the chain would escape sanctions. The wording proposed by the Council in Article 5(2) provides for the possibility of prosecuting other agencies in the chain without first having established that the master has been negligent.
In your rapporteur's view, this reference to MARPOL should also apply to territorial waters. This will prevent inequality before the law and legal uncertainty and will afford the same protection for crews in internal waters and territorial waters in line with MARPOL.
Criminal penalties in the proposal for a directive
The Council disagrees with the Commission and Parliament on the issue of whether or not the transport article in the Treaty (Article 80(2)) is an appropriate legal basis for Community agreements on criminal penalties for oil discharges at sea. The Commission and Parliament take the view that this article is appropriate because criminal sanctions are necessary to achieve the objectives of European environmental and transport policy. They have therefore included criminal sanctions in this directive, along with guidelines on the penalties to be imposed.
The Council, on the other hand, believes that criminal law provisions are by definition a matter for the third pillar (justice and home affairs cooperation) and that criminal law provisions can only be included in the relevant Council framework decision.
In a highly critical statement on the common position, the Commission says that the Council text does not go far enough in deterring offenders because of the absence of mandatory criminal sanctions. It draws attention to the fact that the transport article of the Treaty provides sufficient grounds for a system of criminal sanctions and says that it is only able to accept the Council text because it does not want to bring the legislative process to a standstill.
At first reading Parliament specifically supported the inclusion of criminal sanctions in the proposal for a directive. Moreover, at this stage there are absolutely no guarantees that the criminal law aspects will be dealt with adequately in the framework decision. Not least for these reasons, is proposed that the relevant provisions from the original Commission proposal should be maintained in the directive.
Criminal provisions applying throughout the transport chain
Here your rapporteur concurs with the Council that sanctions should apply to any (legal) person who is responsible for maritime pollution and that sanctions should therefore apply throughout the transport chain. However, the text of the common position does not spell this out sufficiently clearly and amendments have therefore been tabled to clarify the fact that any (legal) person in the chain can be held liable.
Reporting and deadline for implementation
At first reading Parliament asked the Commission to assess the desirability of revising the directive in its evaluation report. This addition has not been taken over by the Council.
The deadline for implementation was lengthened from six to 12 months at first reading to give Member States enough time to ensure careful transposition of the directive. There is no need for any further extension of this period as proposed by the Council given that a great deal of time has already been lost since the Commission proposal was published.
Conclusion
Your rapporteur hopes that agreement will be reached speedily on this proposal so that the problem of illegal discharges can be tackled vigorously and in a harmonised way. With a view to facilitating rapid agreement, the amendments tabled relate primarily to matters on which there are substantive differences of opinion between the Council and Parliament. Several amendments from first reading are in fact no longer relevant because of changes in the Council text. Your rapporteur also concurs with the view expressed by the Commission and Council that certain amendments from first reading, although relevant to the subject, lie outside the scope of this particular directive.
MEPs call for crackdown on pollution by ships in EU waters
EP Briefing
