EU Directive On Ship-Source Pollution In Force

October 2005

Directive 2005/35, which imposes criminal sanctions for ship-source pollution, was published in the Official Journal on 30 September 2005 and entered into force the following day. Member states have until 1 March 2007 to implement its provisions. 

The preamble states that the high-profile sinking of the Prestige in November 2002 and the Erika in December 1999 highlighted the need for stricter legislation on ship-source pollution, but that accidents are not the only cause. Most incidents arise from deliberate discharges, such as those resulting from tank cleaning operations and waste oil disposal.

The Directive itself adopts the definition of illegal operational and accidental discharges in MARPOL but applies a lower liability threshold for infringements in territorial waters. 

Under MARPOL, sanctions may apply, but only "if the owner or the master acted either with intent to cause damage or recklessly and with knowledge that damage would probably result". 

Under the Directive, any ship-source discharge of polluting substances will be regarded as an infringement when committed "with intent, recklessly or with serious negligence". In addition, where the pollution occurs in territorial waters, sanctions can apply to anyone in the shipping chain found responsible, not just the master or owner (as under MARPOL), but also the operator, the charterer, the classification society "or any other person involved". 

Where the discharge occurs in straits used for international navigation, in exclusive economic zones and on the high seas, however, MARPOL 73/78 will still apply. 

The Directive will be enforceable against all ships calling at EU ports, irrespective of their flag. Under the scheme, Port State authorities will cooperate to make it possible for proceedings to be initiated at the next port of call. Member states will have to report to the Commission on the application of the Directive every 3 years so that the Commission can assess the need for any revisions to its scope. 

Sanctions 

The accompanying Framework Decision 2005/667 requires member states to ensure that infringements - and aiding abetting or inciting such infringements - are punishable by "effective, proportionate and dissuasive" criminal sanctions. These are set out on a sliding scale. 

For offences committed intentionally, the penalties are: 

• A maximum of between 5 and 10 years' imprisonment where the offence caused "significant and widespread damage to water quality, to animal or vegetable species or to parts of them and the death or serious injury of persons". 
• A maximum of between 2 and 5 years where the offence caused significant and widespread damage to water quality or to animal or vegetable species, or it was committed within the framework of a criminal organization. 

For offences committed with serious negligence: 

• A maximum of between 2 and 5 years where the offence caused significant and widespread damage to water quality, to animal or vegetable species or parts of them and the death or serious injury of persons. 
• A maximum of between 1 and 3 years if the offence caused significant and widespread damage to water quality or to animal or vegetable species. 

In minor cases, where the offence does not cause a deterioration in the quality of the water, member states may provide for different penalties. 

Legal entities, such as companies, can be held liable for offences committed for their benefit by persons who have a leading position within the organisation. This includes where a lack of supervision or control has made the offence possible. 

Fines, whether criminal or civil, can be imposed on companies of between 150,000 to 300,000 Euros, but rising to between 750,000 and 1.5 million Euros for the most serious cases. In addition, there is a range of other penalties that can apply instead of or in addition to a fine - such as disqualification from engaging in commercial activities, judicial supervision or winding-up. 

The criminal sanctions, however, will not apply to crew members in respect of infringements that occur in straits used for international navigation, in exclusive economic zones and on the high seas. In addition, the Framework Decision limits member states' ability to claim jurisdiction over foreign vessels committing offences in international waters to cases where: 

• The offence occurs outside a member state's territory but causes or is likely to cause pollution within its territory and the vessel is voluntarily within a port or at an offshore terminal of the member state, or 
• The offence occurs on the high seas, but the vessel is voluntarily within a port or at an offshore terminal of the member state. 

The Framework Decision entered into force on 13 July, in advance of the Directive, and gives member states until 12 January 2007 to implement its terms. This process will be monitored by the Commission, which by January 2009 will assess the extent to which member states have complied and by January 2012 will present a report to the European Council.

 

With thanks to Emily Bourne of DLA Piper Rudnick Gray Cary UK LLP for preparing this article.

See also: EU Directive on Ship-Source Pollution - Open to Challenge?