Proposal for a Regulation of the European Parliament and of the Council on the establishment of a fund for the compensation of oil pollution damage in European waters and related measures
Date: 2000-12-07
Institutions: European Commission
Subjects: data collection, indemnification, maritime safety, maritime transport, oil pollution

24.4.2001

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Official Journal of the European Communities

C 120 E/79

Proposal for a Regulation of the European Parliament and of the Council on the establishment of a
fund for the compensation of oil pollution damage in European waters and related measures

(2001/C 120 E/05)

(Text with EEA relevance)

COM(2000) 802 final (cid:151) 2000/0326(COD)

(Submitted by the Commission on 8 December 2000)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

valid claims
available under the Fund Convention.

exceed the

amount of

compensation

Having regard to the Treaty establishing the European
Community, and in particular Articles 80(2) and 175(1) thereof,

Having regard to the proposal from the Commission,

(5) A European oil pollution compensation fund needs to be
based on the same rules, principles and procedures as
those of the IOPC Fund in order to avoid uncertainty
for victims seeking compensation and in order to avoid
ineffectiveness or duplication of work carried out within
the IOPC Fund.

Having regard to the opinion of
Committee,

the Economic and Social

Having regard to the opinion of the Committee of the Regions,

(6) In view of the principle that the polluter should pay, the
costs of oil spills should be borne by the industry involved
in the carriage of oil by sea.

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

(7) Harmonised Community measures to provide additional
compensation for European oil spills will share the costs
of such oil spills between all coastal Member States.

Whereas:

(1) There is a need to ensure that adequate compensation is
available to persons who suffer damage caused by
pollution resulting from the escape or discharge of oil
from tankers in European waters.

(2) The international regime for liability and compensation of
oil pollution damage from ships, as established by the
International Convention on Civil Liability for Oil
Pollution Damage, 1992 and the International Convention
on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1971 as
amended by the 1992 Protocol
thereto, provide some
important guarantees in this respect.

(3) The maximum compensation afforded by the international
regime is deemed insufficient to fully cover the costs of
foreseeable oil tanker incidents in Europe.

spill

in Europe is

(4) A first step to improve the protection of victims in case of
an oil
to considerably raise the
maximum amount of compensation available for such
spills. This can be done by complementing the inter-
national
a
European Fund which compensates claimants who have
been unable to obtain full compensation under the inter-
national compensation regime, because the totality of

establishment

through

regime

the

of

(8) A Community-wide compensation Fund (COPE Fund)
which builds upon the existing international regime is
the most efficient way to attain these objectives.

(9) The COPE Fund shall have the possibility to reclaim its
expenses
involved in the oil pollution
incidents, to the extent that this is permissible under inter-
national law.

from parties

(10) Since the measures necessary for the implementation of
this Regulation are management measures within the
meaning of Article 2 of Council Decision 1999/468/EC
of 28 June 1999 laying down the procedures for the
exercise of
conferred on the
Commission (1), they should be adopted by use of the
management procedure provided for under Article 4 of
that Decision.

implementing powers

(11) Since the adequate compensation of victims of oil spills
does not necessarily provide sufficient disincentives for
individual operators in the seaborne oil
trade to act
diligently, a separate provision is needed providing for
financial penalties to be imposed on any person who
has contributed to an incident by his wrongful intentional
or grossly negligent acts or omissions.

(1) OJ L 184, 17.7.1999, p. 23.

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Official Journal of the European Communities

24.4.2001

(12) A Regulation of the European Parliament and the Council
is, in view of the subsidiarity principle, the most appro-
priate legal instrument as it is binding in its entirety and
directly applicable in all Member States and therefore
this
minimises
instrument in Member States.

the risk of divergent application of

(13) A revision of

the existing international oil pollution
liability and compensation regime should be undertaken
in parallel to the measures contained in this Regulation in
order to achieve a closer link between the responsibilities
and actions of the players involved in the transport of oil
by sea and their exposure to liability. More particularly,
the liability of the shipowner should be unlimited if it is
proved that
the pollution damage resulted from gross
negligence on his part, the liability regime should not
explicitly protect
a number of other key players
involved in the transport of oil at sea and the compen-
sation of damage caused to the environment as such
should be reviewed and widened in light of comparable
compensation regimes established under Community law,

HAVE ADOPTED THIS REGULATION:

Article 1

Objective

The purpose of this regulation is to ensure adequate compen-
sation of pollution damage in EU waters resulting from the
transport of oil by sea, by complementing the existing inter-
national liability and compensation regime at Community level,
and to introduce a financial penalty to be imposed on any
person who has been found to have contributed to an oil
intentional or grossly
pollution incident by his wrongful
negligent acts or omissions.

Article 2

Scope

This Regulation shall apply:

1. to pollution damage caused:

(a) in the territory,

including the territorial

sea, of a

Member State, and

(b) in the exclusive economic zone of a Member State,
law, or, if
established in accordance with international
a Member State has not established such a zone, in an
area beyond and adjacent to the territorial sea of that
State determined by that State in accordance with inter-
national law and extending not more than 200 nautical
miles from the baselines from which the breadth of its
territorial sea is measured;

Article 3

Definitions

For the purpose of this Regulation, the following definitions
shall apply:

1.

2.

3.

(cid:145)Liability Convention(cid:146)
International
Convention on Civil Liability for Oil Pollution Damage,
1992.

shall mean

the

(cid:145)Fund Convention(cid:146) shall mean the International Convention
on the Establishment of an International Fund for Compen-
sation for Oil Pollution Damage, 1971 as amended by the
1992 Protocol thereto.

(cid:145)Oil(cid:146) shall mean any persistent hydrocarbon mineral oil such
as crude oil, fuel oil, heavy diesel oil and lubricating oil,
whether carried on board a ship as cargo or in the bunkers
of such a ship.

4.

(cid:145)Contributing oil(cid:146) shall mean crude oil and fuel oil as defined
in points (a) and (b) below:

(a) (cid:145)Crude Oil(cid:146) shall mean any liquid hydrocarbon mixture
occurring naturally in the earth whether or not treated
to render it suitable for transportation. It also includes
crude oils from which certain distillate fractions have
been removed (sometimes
(cid:145)topped
crudes(cid:146)) or to which certain distillate fractions have
been added (sometimes referred to as (cid:145)spiked(cid:146) or (cid:145)recon-
stituted(cid:146) crudes).

referred to as

(b) (cid:145)Fuel oil(cid:146) shall mean heavy distillates or residues from
crude oil or blends of such materials intended for use as
a fuel for the production of heat or power of a quality
equivalent
to the (cid:145)American Society for Testing and
Materials(cid:146) Specification for Number Four Fuel Oil (Desig-
nation D 396-69), or heavier.

5.

(cid:145)Tonne(cid:146), in relation to oil, shall mean a metric tonne.

6.

7.

in bulk which is capable of

(cid:145)Terminal installation(cid:146) shall mean any site for the storage of
oil
from
waterborne transportation,
including any facility situated
off-shore and linked to such site.

receiving oil

(cid:145)Incident(cid:146) shall mean any occurrence, or series of occur-
rences having the same origin, which causes pollution
damage or creates a grave and imminent threat of causing
such damage. Where an incident consists of a series of
occurrences, it shall be treated as having occurred on the
date of the first such occurrence.

8.

(cid:145)Person(cid:146) shall mean any individual or partnership or any
corporate or not,
public or private body, whether
including a State or any of its constituent subdivisions.

2. to preventive measures, wherever

taken,

to prevent or

minimize such damage.

9.

(cid:145)IOPC Fund(cid:146) shall mean the fund established by the Fund
Convention.

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Official Journal of the European Communities

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Article 4

Establishment of a Fund for Compensation for Oil
Pollution in European waters

A fund for Compensation for Oil Pollution in European waters
(hereinafter (cid:145)the COPE Fund(cid:146))
is hereby established with the
following aims:

that the proportion between any established claim and the
amount of compensation actually recovered by the claimant
under this regulation shall be the same for all claimants.

Article 6

Contributions by oil receivers

(a) to provide compensation for pollution damage to the extent
that the protection afforded by the Liability Convention and
the Fund Convention is inadequate; and

(b) to give effect to the related tasks set out in this Regulation.

Any person who receives contributing oil in total annual
1.
quantities exceeding 150 000 tonnes carried by sea to ports or
terminal installations in the territory of a Member State and is
liable to contribute to the IOPC Fund shall be liable to
contribute to the COPE Fund.

Article 5

Compensation

1.
The COPE Fund shall pay compensation to any person
who is entitled to compensation for pollution damage under
the Fund Convention but who has been unable to obtain full
and adequate compensation under that Convention, because
the totality of valid claims exceed the amount of compensation
available under the Fund Convention.

2.
The assessment as to whether a person is entitled to
compensation under the Fund Convention shall be determined
under the terms of the Fund Convention and carried out in
accordance with the procedures foreseen therein.

falling under

Contributions

shall only be

collected following an
2.
incident
this regulation which
the scope of
exceeds or threatens to exceed the maximum compensation
limits of the IOPC Fund. The total amount of contributions
to be levied for each such incident shall be decided by the
Commission in accordance with Article 9, paragraph 2. On
the basis of that decision, the Commission shall calculate for
each person referred to in paragraph 1 the amount of his
contribution, on the basis of a fixed sum for each tonne of
contributing oil received by such persons.

3.
The sums referred to in paragraph 2 shall be arrived at by
dividing the relevant total amount of contributions required by
the total amount of contributing oil received in all Member
States in the relevant year.

3.
No compensation shall be paid by the COPE Fund until
the relevant assessment referred to in paragraph 2 is approved
by the Commission, acting in accordance with Article 9
paragraph 2.

4. Member States shall ensure that any person who receives
contributing oil within its territory in such quantities that he is
liable to contribute to the COPE Fund appears on a list to be
established and kept up to date by the Commission in
accordance with the subsequent provisions of this article.

Notwithstanding paragraphs 1 and 2, the Commission
4.
may decide not
to pay compensation to the shipowner,
manager or operator of the ship involved in the incident or
to their representatives. Similarly, the Commission may decide
not to compensate any person in a contractual relationship
with the carrier in respect of the carriage during which the
incident occurred or any other person directly or indirectly
involved in that
in
accordance with Article 9 paragraph 2, shall establish which
claimants, if any, fall under these categories and shall decide
accordingly.

carriage. The Commission,

acting

5.
The aggregate amount of compensation payable by the
COPE Fund shall in respect of any one incident be limited, so
that the total sum of that amount and the amount of compen-
sation actually paid under the Liability Convention and the
Fund Convention for pollution damage within the scope of
application of
this regulation shall not exceed EUR 1 000
million.

shall

State

communicate

Each Member

the
5.
Commission the name and address of any person who in
respect of that State is liable to contribute to the COPE Fund
pursuant
to this article, as well as data on the relevant
quantities of contributing oil received by any such person
during the preceding calendar year.

to

6.
For the purposes of ascertaining who are, at any given
time, the persons liable to contribute to the COPE Fund and of
establishing, where applicable, the quantities of oil to be taken
for any such person when determining the
into account
amount of his contribution,
the list shall be prima facie
evidence of the facts stated therein.

7.
The contributions shall be made to the Commission and
the collection shall be fully completed no later than one year
after the decision to levy the contributions has been made by
the Commission.

6. Where the amount of established claims exceeds the
aggregate amount of compensation payable under paragraph
5, the amount available shall be distributed in such a manner

8.
The contributions referred to in this article shall be used
solely for the purpose of compensating pollution damage as
referred to in Article 5.

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Any potential surplus of contributions which have been
9.
levied for a particular incident and have not been used for the
compensation for damage in relation to that incident or any
immediately related purpose, shall be returned to the person
who made the contribution, no later than 6 months after the
completion of the compensation proceedings of that incident.

10. Where a Member State does not fulfil
its obligations
relating to the COPE Fund and this results in a financial loss
that Member State shall be liable to
for the COPE Fund,
compensate the COPE Fund for such loss.

Article 9

Committee

1.
The Commission shall be assisted by a COPE Fund
Committee composed of representatives of the Member States
and chaired by the representative of the Commission.

reference

2. Where
the
management procedure laid down in Article 4 of Decision
1999/468/EC shall apply, in compliance with Articles 7 and
8 thereof.

to this paragraph,

is made

Article 7

Subrogation

The period provided for in Article 4 paragraph 3 shall be one
month.

The COPE Fund shall, in respect of any amount of compen-
sation paid by it in accordance with Article 5, acquire by
subrogation the rights that the person so compensated may
enjoy under the Liability Convention or the Fund Convention.

Article 8

Representation and management of the COPE Fund

1.
The Commission shall be the representative of the COPE
Fund. In this respect, it shall perform the tasks presented by
this Regulation or otherwise necessary for the proper operation
and functioning of the COPE Fund.

2.
The following decisions relating to the operation of the
COPE Fund shall be made by the Commission, acting in
accordance with the procedure in Article 9 paragraph 2:

(a) fixing the contributions to be levied in accordance with

Article 6;

(b) approving the settlement of claims in accordance with
Article 5.3 and taking decisions
the
distribution among claimants of the available amount of
compensation in accordance with Article 5.6;

in respect of

(c) taking decisions in respect of payment to claimants referred

to in Article 5.4; and

(d) determining the terms and conditions according to which
provisional payments in respect of claims shall be made
with a view to ensuring that victims are compensated as
promptly as possible.

Article 10

Penalties

1. Member States shall
lay down a system for financial
penalties to be imposed on any person who has been found
by a court of law to have contributed by his wrongful inten-
tional or grossly negligent acts or omissions to an incident
causing or
threatening to cause oil pollution in an area
referred to in Article 2, paragraph 1.

2.
The penalties awarded in accordance with paragraph 1
shall not affect the civil liabilities of the parties concerned as
referred to in this Regulation or elsewhere and shall be
unrelated to the damage caused by the incident. They shall
be set at a level high enough to dissuade the person from
committing or persisting in an infringement.

3.

Penalties referred to in paragraph 1 shall not be insurable.

There shall be a right for the defendant to appeal against

4.
penalties referred to in paragraph 1.

Article 11

Entry into force

This Regulation shall enter into force on the twentieth day following
that of
the European
Communities. It shall be applicable on [12 months after its entry
into force date].

its publication in the Official

Journal of

This Regulation shall be binding in its entirety and directly
applicable in all Member States.