Amended 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 (presented by the Commission pursuant to Article 250 (2) of the Treaty)
Date: 2002-06-12
Institutions: European Commission
Subjects: Europe, hydrocarbon, indemnification, maritime area, pollution control measures, pollution from ships

24.9.2002

EN

Official Journal of the European Communities

C 227 E/487

Amended proposal for a Regulation of the European Parliament and of the Council on the estab-
lishment of a fund for the compensation of oil pollution damage in European waters and related
measures (1)

(2002/C 227 E/24)

COM(2002) 313 final — 2000/0326(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 12 June 2002)

(1) OJ C 120 E, 24.4.2001, p. 79.

INITIAL PROPOSAL

AMENDED PROPOSAL

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Unchanged

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,

Having regard to the opinion of the Economic and Social
Committee,

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

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

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.

(1) There is a need to ensure that

the fullest and most
adequate compensation is available to persons or organi-
sations who, directly or indirectly, 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.

Unchanged

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

(3) The maximum compensation afforded by the inter-
national regime is deemed insufficient to fully cover the
costs of foreseeable incidents in Europe.

C 227 E/488

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Official Journal of the European Communities

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INITIAL PROPOSAL

AMENDED PROPOSAL

(4) A first step to improve the protection of victims in case
of an oil spill
in Europe is 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
valid claims
compensation
available under the Fund Convention.

establishment

amount of

exceed the

through

regime

the

of

(4) A first step to improve the protection of victims in case
of an oil spill
in Europe is to considerably raise the
maximum amount of compensation available for such
spills. This
could be done by complementing the
existing international regime through the creation of an
international supplementary fund. Until such an inter-
national
in all EU Member
States concerned and provides adequate protection for
accidents occurring in EU waters, a European Fund shall
be established to compensate claimants who have been
unable to obtain full compensation under
the inter-
national compensation regime, because the totality of
compensation
valid claims
available under the Fund Convention.

fund is fully operational

exceed the

amount of

(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.

(5) A European 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.

(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.

Unchanged

(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.

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

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

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

the most

(9) The COPE Fund shall have the possibility to reclaim its
involved in the oil pollution
this is permissible under
that

from parties
to the extent

expenses
incidents,
international law.

Unchanged

(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
conferred on the
exercise of
Commission (1), they should be adopted by use of the
management procedure provided for under Article 4 of
that Decision.

implementing powers

(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
conferred on the
exercise of
Commission (1), they should be adopted by use of the
management procedure provided for under Article 4 of
that Decision. In due course the Commission will examine
the possibilities of delegating the daily management of the
COPE Fund to the European Maritime Safety Agency as
established by Regulation (EC) No . . .

implementing powers

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

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

24.9.2002

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Official Journal of the European Communities

C 227 E/489

INITIAL PROPOSAL

AMENDED PROPOSAL

(11) Since the adequate compensation of victims of oil spills
does not necessarily provide sufficient disincentives for
trade to act
individual operators in the seaborne oil
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.

Unchanged

(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
minimises
this
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

(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 sea transport 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 sea transport and
the compensation of damage caused to the environment
as such should be reviewed and widened in light of
comparable
established under
Community law; in addition, progress must be achieved
with regard to a liability and compensation regime for
damage in connection with the transport of hazardous
and noxious substances.

compensation regimes

(13a) This Regulation should be amended in light of changes
to the underlying international oil pollution compen-
sation regime in order to avoid inconsistencies between
the two regimes,

HAVE ADOPTED THIS REGULATION:

Unchanged

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
pollution incident by his wrongful
intentional or grossly
negligent acts or omissions.

C 227 E/490

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Official Journal of the European Communities

24.9.2002

INITIAL PROPOSAL

AMENDED PROPOSAL

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,
established in accordance with international law, or, if
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;

2. to preventive measures, wherever

taken,

to prevent or

minimise such damage.

Article 3

Definitions

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

1.

2.

3.

‘Liability Convention’
International
Convention on Civil Liability for Oil Pollution Damage,
1992.

shall mean

the

‘Fund Convention’ 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.

‘Oil’ 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.

‘Contributing Oil’ shall mean crude oil and fuel oil as
defined in points (a) and (b) below:

(a) ‘Crude Oil’ 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
‘topped
crudes’) or to which certain distillate fractions have
been added (sometimes referred to as ‘spiked’ or ‘recon-
stituted’ crudes).

referred to as

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Official Journal of the European Communities

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INITIAL PROPOSAL

AMENDED PROPOSAL

(b) ‘Fuel Oil’ 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 ‘American Society for Testing and
Materials' Specification for Number Four Fuel Oil (Desig-
nation D 396-69)’, or heavier.

5.

‘Ton’, in relation to oil, shall mean a metric ton.

6.

7.

in bulk which is capable of

‘Terminal installation’ 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

‘Incident’ 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.

‘Person’ 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.

9.

‘IOPC Fund’ shall mean the fund established by the Fund
Convention.

Article 4

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

A fund for Compensation for Oil Pollution in European Waters
is hereby established with the
(hereinafter ‘the COPE Fund’)
following aims:

(a) to provide compensation for pollution damage to the
the protection afforded by the Liability

extent
Convention and the Fund Convention is inadequate; and

that

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

C 227 E/492

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Official Journal of the European Communities

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INITIAL PROPOSAL

Article 5

Compensation

AMENDED PROPOSAL

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.

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

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
in
involved in that
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.

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
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.

6a. Without prejudice to Article 6, the COPE Fund shall
provide for the possibility of making advance payments to
claimants within a period of six months after the claim has
been approved in accordance with paragraph 2.

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INITIAL PROPOSAL

AMENDED PROPOSAL

Article 6

Unchanged

Contributions by oil receivers

1.
Any person who receives contributing oil in total annual
quantities exceeding 150 000 tons 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.

Contributions

shall only be

falling under the scope of

collected following an
2.
incident
this Regulation which
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 ton 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.

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.

shall

State

communicate

Each Member

5.
the
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.

7.
The contributions shall be made to the COPE Fund 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.

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.

Unchanged

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INITIAL PROPOSAL

AMENDED PROPOSAL

9.
Any potential surplus of contributions which have been
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
for the COPE Fund,
that Member State shall be liable to
compensate the COPE Fund for such loss.

The financial

11.
the COPE Fund with
responsibilty of
respect to any incident shall be limited to the contributions
collected and received for that incident in accordance with this
article.

Article 7

Subrogation

Unchanged

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.

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INITIAL PROPOSAL

Article 9

Committee

AMENDED PROPOSAL

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

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

The Commission shall submit an annual report on its

2a.
activities to the Council and the European Parliament.

Article 9a

Cooperation with the IOPC Fund

The COPE Fund shall,
in close cooperation with the IOPC
Fund, establish clear administrative rules for the cooperation
between the two funds. These rules shall be based upon the
principles of transparency, efficiency and cost-effectiveness.

Article 10

Penalties

Unchanged

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.

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INITIAL PROPOSAL

AMENDED PROPOSAL

Article 10a

Evaluation

The Commission shall submit a report no later than three
1.
years after the entry into force of
this Regulation on the
progress at an international level to improve the international
the report
liability and compensation regime.
shall assess the progress made in:

In particular,

(a) increasing the liability of the shipowner under the Liability

Convention;

(b) removing the prohibition of compensation claims

for
pollution damage against
the charterer, manager and
operator of the ship from Article 3(4)(c) of the Liability
Convention;

(c) increasing the compensation available under

the IOPC

Fund;

(d) widening the compensation for environmental damage in
the light of comparable compensation regimes established
under Community law;

(e) bringing into effect effective regimes for the liability and
compensation of pollution damage which is not covered by
the
caused by
hazardous and noxious substances other than oil and by
oil used for the operation or propulsion of ships,
irres-
pective of the type or size of the ship.

existing regime, notably on damage

Should the Commission conclude that

2.
the progress
it shall submit to
referred to in paragraph 1 is insufficient,
the European Parliament and to the Council a proposal for
Community legislation establishing a Europe-wide maritime
pollution liability and compensation regime.

Article 11

Entry into force

Unchanged

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

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