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 (Text with EEA relevance)
Date: 2009-10-21

num: Article 1
title: Amendments to Directive 2005/35/EC
paragraphs: Directive 2005/35/EC is hereby amended as follows:
1.
the title is replaced by the following:
2.
Article 1(1) is replaced by the following:
‘1. The purpose of this Directive is to incorporate international standards for ship-source pollution into Community law and to ensure that persons responsible for discharges of polluting substances are subject to adequate penalties, including criminal penalties, in order to improve maritime safety and to enhance protection of the marine environment from pollution by ships.’;
3.
the following point is added to Article 2:
‘5.
“Legal person” shall mean any legal entity in possession of such status under applicable national law, other than States themselves or public bodies in the exercise of State authority or public international organisations.’;
4.
Articles 4 and 5 are replaced by the following:
num: ‘Article 4
title: Infringements
paragraphs: 1. Member States shall ensure that ship-source discharges of polluting substances, including minor cases of such discharges, into any of the areas referred to in Article 3(1) are regarded as infringements if committed with intent, recklessly or with serious negligence.
2. Each Member State shall take the necessary measures to ensure that any natural or legal person having committed an infringement within the meaning of paragraph 1 can be held liable therefor.
num: Article 5
title: Exceptions
paragraphs: 1. A discharge of polluting substances into any of the areas referred to in Article 3(1) shall not be regarded as an infringement, if it satisfies the conditions set out in Annex I, Regulations 15, 34, 4,1 or 4,3 or in Annex II, Regulations 13, 3.1.1 or 3.1.3 of Marpol 73/78.
2. A discharge of polluting substances into the areas referred to in Article 3(1)(c), (d) and (e) shall not be regarded as an infringement for the owner, the master or the crew, if it satisfies the conditions set out in Annex I, Regulation 4,2 or in Annex II, Regulation 3.1.2 of Marpol 73/78.’;
5.
after Article 5 the following Articles are inserted:
num: ‘Article 5a
title: Criminal offences
paragraphs: 1. Member States shall ensure that infringements within the meaning of Articles 4 and 5 are regarded as criminal offences.
2. Paragraph 1 shall not apply to minor cases, where the act committed does not cause deterioration in the quality of water.
3. Repeated minor cases that do not individually but in conjunction result in deterioration in the quality of water shall be regarded as a criminal offence, if committed with intent, recklessly or with serious negligence.
num: Article 5b
title: Inciting, aiding and abetting
paragraphs: Member States shall ensure that any act of inciting, or aiding and abetting an offence committed with intent and referred to in Article 5a(1) and (3), is punishable as a criminal offence.’;
6.
Article 8 is replaced by the following:
num: ‘Article 8
title: Penalties
paragraphs: Each Member State shall take the necessary measures to ensure that infringements within the meaning of Articles 4 and 5 are punishable by effective, proportionate and dissuasive penalties.’;
7.
after Article 8 the following Articles are inserted:
num: ‘Article 8a
title: Penalties against natural persons
paragraphs: Each Member State shall take the necessary measures to ensure that the offences referred to in Article 5a(1), and (3) and Article 5b are punishable by effective, proportionate and dissuasive criminal penalties.
num: Article 8b
title: Liability of legal persons
paragraphs: 1. Each Member State shall take the necessary measures to ensure that legal persons can be held liable for the criminal offences referred to in Article 5a(1) and (3) and Article 5b, committed for their benefit by any natural person acting either individually or as part of an organ of the legal person, and who has a leading position within the structure of the legal person, based on:
(a)
a power of representation of the legal person;
(b)
authority to take decisions on behalf of the legal person; or
(c)
authority to exercise control within the legal person.
2. Each Member State shall also ensure that a legal person can be held liable where lack of supervision or control by a natural person referred to in paragraph 1 has made the commission of a criminal offence referred to in Article 5a(1) and (3) and Article 5b possible for the benefit of that legal person by a natural person under its authority.
3. The liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons involved as perpetrators, inciters or accessories in the criminal offences referred to in Article 5a(1) and (3) and Article 5b.
num: Article 8c
title: Penalties against legal persons
paragraphs: Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 8b is punishable by effective, proportionate and dissuasive penalties.’.
num: Article 2
title: Transposition
paragraphs: Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 16 November 2010. They shall forthwith communicate to the Commission the text of those measures.
When they are adopted by Member States, those measures 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.
num: Article 3
title: Entry into force
paragraphs: This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.