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'
Date: 1999-03-24
Institutions: European Economic and Social Committee
Subjects: harbour installation, international convention, international standard, maritime transport, pollution from ships, waste management

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The 1998 NEA Opinion and the hearing organized by the
Commission in Brussels on 29 June 1998 did not provide an
adequate basis as a number of key questions were not properly
resolved; these include: is absolute priority to be given to the
subsidiarity principle; is local public transport to be included
in the internal market (Article 3(c) of the EC Treaty); is local
public transport to be covered by the EC Treaty articles

governing transport policy (Articles 74 et seq.); what account
has to be taken of Articles 90 (public undertakings) and 92
(state aid) of the EC Treaty.

It

4.2.
is suggested that a qualitative and quantitative
monitoring system be set up for the political implementation
of the work programme.

Brussels, 24 March 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

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

The Marpol Convention, which was adopted by the
1.1.
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 con-
tainers 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

(1) OJ C 271, 31.8.1998, p. 79.
(2) Annexes IV and VI have not yet entered into force.

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 sub-
stances (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 tradition-
ally 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.

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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 manage-
ment 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.

The directive is to apply to all ports and harbours of
2.2.
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.

The Commission proposes various measures to ensure
2.3.
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.
quantity and type of ship waste.

Additional fees may be imposed, depending on the

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 (1).

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

The Member States must lay down a system of
2.10.
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 (2).

(1) 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.

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

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3.3.
In its 1993 opinion on the Commission Communi-
cation on a common policy on safe seas (1), 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.

3.9.
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.

3.3.1.
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.

3.10.
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.

3.4.
In its resolution of 8 June 1993 on a common policy
on safe seas (2), 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.

3.11.
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.

3.5.
In order to prevent pollution more effectively and
avoid distortions of competition, the environmental obli-
gations 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.

3.11.1.
The Committee points out that it has recently
adopted an opinion on the pricing of transport infrastruc-
ture (3), 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 obli-
gation 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.

(1) COM(93) 66 final — ESC opinion in OJ C 34, 2.2.1994, p. 47.
(2) OJ C 271, 7.10.1993, p. 1.

(3) OJ C 271, 12.4.1999.

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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.

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. Specific comments

4.1. Article 4 (Port reception facilities)

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.

4.1.1.
but those for ports are too vague and need clarifying.

The obligations imposed on ships are clearly defined,

4.5. Article 9 (Exemptions)

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

The Committee welcomes the provisions in Article 9
4.5.1.
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.

4.1.3.
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.

4.5.2.
A ship which makes regular journeys between Com-
munity 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.

4.2. 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)

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.

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.

4.7. Article 11 (Enforcement)

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

The requirement

4.4.1.
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.

The calculation of the fee to apply will vary from
4.4.2.
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.

4.7.1.
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 con-
firmed that an infraction has been committed. However the
wording should be revised to make this interpretation clearer.

4.4.2.1
State concludes that

The Committee considers that when a Member
the operation of a particular waste

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

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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.

5.2.
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. 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.

5.3.
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 calcu-
lation 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