Opinion of the Economic and Social Committee on the "Proposal for a Council Directive on port reception facilities for ship-generated waste and cargo residues"(1)

(1999/C 138/04)

On 31 July 1998 the Council decided to consult the Economic and Social Committee, under Article 84(2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 9 March 1999. The rapporteur was Mr Chagas.

At its 362nd plenary session (meeting of 24 March 1999), the Economic and Social Committee adopted the following opinion with 91 votes in favour and three abstentions.

1. Introduction

1.1. The Marpol Convention, which was adopted by the International Maritime Organization (IMO) in 1973 and supplemented by Protocols in 1978 and 1997, was the first international convention to establish guidelines for preventing pollution caused by ships. It has been amended on a number of occasions with a view to updating and strengthening its provisions.

1.2. Marpol 73/78 contains a set of rules and provisions for preventing pollution of the marine environment by oil (Annex I); for the control of pollution by noxious liquid substances carried in bulk (Annex II); for preventing pollution by harmful substances carried in packaged form or in containers or tanks (Annex III); for preventing pollution by sewage (Annex IV) and garbage (Annex V); and for the prevention of air pollution by ships (Annex VI)(2).

1.3. Marpol 73/78 was the first instrument to oblige all ships - rather than just oil tankers - to be fitted with segregated oil tanks. It also introduced the concept of "special areas". These areas are considered so vulnerable that oil discharges are completely prohibited. The main special areas are the Mediterranean Sea, the Baltic Sea, the Black Sea, the Red Sea and the Antarctic.

1.4. Marpol 73/78 requires the contracting parties to ensure the provision of adequate port facilities for reception of the various types of substance classified in the five annexes and, in particular, discharges of oil (Annex I), noxious liquid substances (Annex II) and garbage (Annex V).

1.5. The convention seeks to strike a balance between the need to protect the marine environment and the wish not to impose obligations which would make shipping activities unduly costly.

1.6. Marpol 73/78 also seeks to strike an environmental balance between the interests of the flag states and those of the maritime states in which the ships operate, by establishing rights and obligations for all these states and laying down operational requirements for ships. Flag states have traditionally claimed sole jurisdiction over their vessels, while maritime states feel that they should be granted the authority to ensure that the convention is respected by all vessels which operate along their coasts.

1.7. Another feature of the Marpol regime is that the contracting parties are to check on discharges from ships. However, despite all the rules and procedures that have been laid down, detection of offending vessels remains difficult because of the lack of resources and, in some countries, the state's lack of zeal in monitoring its waters. Most checks are made when the vessel is in port, as it is more difficult to check illegal discharges while it is at sea.

1.8. At all events, Marpol 73/78 is considered a useful instrument for combating marine pollution and it covers around 90 % of the world merchant shipping fleet.

1.9. The EU already has a comprehensive waste management system in place, and the present directive will form a part of this system.

2. The Commission proposal

2.1. The proposal seeks to reduce the discharge at sea, and especially the illegal discharge of ship-generated waste and cargo residue from ships using EU ports, by improving the availability and use of port reception facilities for such waste and residues and thereby enhancing the protection of the marine environment.

2.2. The directive is to apply to all ports and harbours of the Member States, including marinas, and to all ships, irrespective of their flag, calling at or operating within a port of a Member State, with the exception of any warship, naval auxiliary or other ship owned or operated by a state for non-commercial purposes. All ports and harbours must draw up and implement an appropriate waste-reception plan.

2.3. The Commission proposes various measures to ensure that port reception facilities are used. These include the mandatory delivery principle and a requirement for ports to establish cost recovery systems that encourage use of the facilities.

2.4. Member States must ensure that the cost of these port facilities and the cost of operating them are recovered through the collection of a fee from ships.

2.4.1. All ships calling at a Member State port must contribute substantially to these costs, irrespective of actual use of the facilities, by paying a fee which will either be incorporated in port dues or levied in the form of a separate waste fee.

2.4.2. Additional fees may be imposed, depending on the quantity and type of ship waste.

2.4.3. The fee must be transparent and non-discriminatory and must be set at an appropriate level. Port users must have access to information regarding the amount and the basis on which it has been calculated.

2.5. In order to ensure cooperation between the ship and the authorities and persons involved, the ship's master must inform the next port of call, prior to arrival there, of the available storage capacity and the volume of waste on board, and of his intention to use the reception facilities.

2.6. The waste must be delivered to a port reception facility before the ship leaves port, unless the master can confirm that the vessel has sufficient storage capacity for the intended voyage.

2.7. Member States may grant exemptions to ships engaged in scheduled traffic, provided there is sufficient evidence that the ship has an arrangement to deliver its waste at another port on its regular route.

2.8. The main way of ensuring that ships comply with the directive will be for Member States' authorities to carry out spot checks. Checks can also be carried out under Directive 95/21/EC on Port State Control(3).

2.9. Details of any infraction must be forwarded by the authorities to other EU ports at which the offending vessel is likely to call.

2.10. The Member States must lay down a system of effective, proportionate and dissuasive penalties for breach of the provisions of the directive. They must also introduce a procedure for compensating ships which are unduly delayed owing to the inadequacy of port-reception facilities.

3. General comments

3.1. Subject to the comments which follow, the Committee endorses the proposed directive as an integral part of the Community's waste management policy.

3.2. Community environment policy seeks to ensure a high level of protection, based on the precautionary principle and the principles that the polluter should pay and that preventive action should be taken(4).

3.3. In its 1993 opinion on the Commission Communication on a common policy on safe seas(5), the Committee noted that the lack of waste-reception facilities undermined the effectiveness of pollution prevention legislation, and that many contracting parties to the Marpol Convention did not comply with their commitments.

3.3.1. The Committee also thought that the operation of such facilities should be kept at a reasonable cost and that the Community should help with the building of the necessary facilities in ports.

3.4. In its resolution of 8 June 1993 on a common policy on safe seas(6), the Council included among its priorities the need "to develop the availability and use of reception facilities within the Community". Under Directive 95/21/EC ships which "pose an unreasonable threat of harm to the marine environment" will not be authorized to put to sea.

3.5. In order to prevent pollution more effectively and avoid distortions of competition, the environmental obligations listed in the proposal must apply to all Community ports and to all ships which use them, irrespective of their flag.

3.6. In order to combat the marine pollution caused by operational discharges from ships, ports must be required to have adequate reception facilities and ships must be required to use them.

3.7. The Commission has decided to make a distinction between ship-generated waste and cargo residues. The proposal only applies to the discharge and delivery of ship-generated waste, while cargo residues will continue to be regulated solely by the Marpol Convention.

3.7.1. The Committee considers that the aim of preventing ship-generated marine pollution would be more effectively achieved by including Marpol Annexes II and IV in the directive, and making no distinction between cargo residues and ship-generated waste. However, the Committee recognizes the practical difficulties that this would entail, and therefore understands the Commission's decision.

3.8. The proposal has exactly the same objective as Marpol 73/78, i.e. to protect the marine environment from operational pollution by ships, regardless of their flag. However, rather than regulating discharges of ships while at sea, which is the aim of Marpol 73/78, the proposal focuses on the control of ships while in Community ports by making it compulsory to deliver waste to port-reception facilities.

3.9. It is generally accepted that the main problems in the current international rules for combating operational pollution from ships relate not so much to insufficient standards as to inadequate implementation and enforcement.

3.10. In order to be effective, the Community regime must in the first place lay down extremely specific rules covering the requirements for ports and port states to provide adequate reception facilities. The absence of such facilities, or unawareness of their existence, may lead ships to discharge waste at sea illicitly.

3.11. Europe's ports use a variety of fee charging systems for the reception and handling of ship-generated waste by port facilities. The proposal is therefore flexible about the choice of system, and the Committee supports this. However, it is important that ports promote a transparent policy on fees, ensuring that fees are fair and proportionate to the services provided.

3.11.1. The Committee points out that it has recently adopted an opinion on the pricing of transport infrastructure(7), and asks the Commission to bear in mind the conclusions of that opinion.

3.12. A basic element of the proposal is the obligation for all ports to draw up waste reception and management plans. Details of the plans must also be made public. In order to make the plans more effective, users of the facilities and the people who work there should be consulted before the plans are drawn up.

3.12.1. Waste reception and management plans must also make provision for adequate vocational training for the workers involved.

3.13. The Committee notes that the Marpol 73/78 obligation not to cause undue delay to ships remains unchanged.

3.14. By its very nature, marine pollution has transnational implications. Preventive action in this field will therefore be more effective if it is taken at EU level, since the contracting parties are not in a position to take appropriate effective measures individually. It should also be stressed that a strict delivery regime such as the one being proposed requires considerable cooperation on information and monitoring procedures between neighbouring states, not only within the EU but also with third countries. The directive can only be competition-neutral if its application is generalized.

3.14.1. The Committee therefore suggests that funding for such projects be envisaged under programmes such as MEDA, Phare or Tacis, or the Lomé Convention.

4. Specific comments

4.1. Article 4 (Port reception facilities)

4.1.1. The obligations imposed on ships are clearly defined, but those for ports are too vague and need clarifying.

4.1.2. Cooperation between neighbouring ports should be encouraged, with a view to rationalizing costs. This is especially important for small ports situated near other better equipped ports.

4.1.3. Provisions are also needed to cater for the technical and economic problems which might make the directive difficult to implement, bearing in mind the number of facilities that will be needed in order to segregate incompatible substances.

4.2. Article 6 (Notification)

The Committee thinks that it would be helpful for both ships and Member States if a single addressee were designated for each port; this party would be responsible for passing on the information to all interested parties.

4.3. Article 7 (Delivery of ship-generated waste)

This article obliges the master of a ship to deliver all ship-generated waste. However, provision should also be made for cases where the port is not equipped to receive the waste.

4.4. Article 8 (Fees for ship-generated waste)

4.4.1. The requirement that all ships must pay a fee, regardless of whether they have used the port reception facilities, will place small ports at a disadvantage as they are unlikely to be able to recover reception and treatment costs from port users because of the low rate of use.

4.4.2. The calculation of the fee to apply will vary from port to port, and amortization of the costs of port facilities for waste treatment will be difficult as many of these facilities are privately owned and are situated outside the port area.

4.4.2.1 The Committee considers that when a Member State concludes that the operation of a particular waste reception and treatment facility is unprofitable and does not meet actual shipping needs, it should have the option of dispensing with it, thereby exempting it from payment of the operating fee.

4.4.3. It is suggested that the fee be made up of two elements, namely a basic standard sum and a further sum proportional to the quantity and type of waste actually discharged by the ship.

4.5. Article 9 (Exemptions)

4.5.1. The Committee welcomes the provisions in Article 9 allowing Member States to make exemptions. Ships which regularly use the same ports and ships which regularly leave their waste in other ports should not be obliged to pay the basic waste reception and handling fee at every port.

4.5.2. A ship which makes regular journeys between Community ports and ports in third countries, and which can prove that it regularly delivers its waste to third country ports where checks are made, should be exempted from payment of the waste fee in Community ports.

4.6. Article 10 (Delivery of cargo residues)

Unlike ship-generated waste, cargo residues are the property of the owner of the cargo. This article should therefore make the cargo owner responsible for the cost of delivering these residues.

4.7. Article 11 (Enforcement)

4.7.1. Enforcement of the provisions of this directive will significantly increase the Port State Control workload, as all ships which either do not provide the notification stipulated in Article 6 or provide inaccurate information will require priority inspection. Effective inspections are vital to the proper implementation of the directive, and the Committee doubts whether the current framework for Port State Control in the EU can guarantee this.

4.7.2. Article 11(3) prohibits the loading or unloading of cargo and embarking of passengers in cases where the procedures described in Article 11(1) and 11(2) have confirmed that an infraction has been committed. However the wording should be revised to make this interpretation clearer.

4.7.2.1 At all events, it should be noted that the proposal only contains penalties for ships which commit infractions. No such penalties are provided for ports. This seems unfair.

4.7.2.2 Moreover, when a ship does not fully comply with the terms of Article 7 or Article 10, a sufficient penalty would be to notify the next port on its route, which would inspect its logs and the quantity of waste on board, verify observance of the other conditions, and impose an administrative fine if appropriate. Keeping the ship in port, as stipulated in Article 11(2), seems rather draconian.

5. Conclusions

5.1. The need to equip ports with waste reception facilities is enshrined in Marpol Convention 73/78. However, this has given rise to difficulties ever since the convention was first implemented, both because of the lack of adequate facilities at ports and because of the failure of ships to comply.

5.2. The Committee considers that implementation of the proposed directive could significantly improve conditions in the EU's ports. The scheme should be extended to other maritime regions of the world, so as to establish uniform conditions in all ports and high marine-pollution control standards.

5.3. The Committee endorses the proposed objectives. It considers that approval of the directive must address the abovementioned considerations regarding the need to clarify the equipping of waste-reception facilities in ports, the calculation of the fees to be applied, and a guarantee of resources to enforce the provisions.

Brussels, 24 March 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

(1) OJ C 271, 31.8.1998, p. 79.

(2) Annexes IV and VI have not yet entered into force.

(3) Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port state control ) (OJ L 157, 7.7.1995, p. 1 + corrigendum in OJ L 291, 14.11.1996, p. 42); ESC opinion in OJ C 393, 31.12.1994, p. 50.

(4) Article 130r(2) of the Treaty.

(5) COM(93) 66 final - ESC opinion in OJ C 34, 2.2.1994, p. 47.

(6) OJ C 271, 7.10.1993, p. 1.

(7) OJ C 271, 12.4.1999.