Proposal for a Directive of the European Parliament and of the Council on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences
Date: 2003-03-05
Institutions: European Commission
Subjects: EU environmental policy, criminal law, criminal liability, environmental protection, law of the sea, maritime surveillance, penalty, pollution control measures, pollution from ships

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 5.3.2003
COM(2003) 92 final

2003/0037 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on ship-source pollution and on the introduction of sanctions, including criminal
sanctions, for pollution offences

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. 

INTRODUCTION

Recent  accidents,  most  notably  the  sinkings  of  the  Prestige  in  November  2002  and  of  the
Erika  in  December  1999,  have  highlighted  the  need  for  tightening  the  net  relating  to  ship-
source  pollution.  Despite  the  wide  range  of  measures  to  improve  safety  that  have  been
adopted at EU-level in the last decade, ships of dubious quality loaded with polluting cargoes
continue  to  sail  in  European  waters  and  continue  to  cause  massive  pollution  through
accidents, without the responsible parties being adequately penalised for it.

High-profile accidents is not the only problem, however. The main part of world-wide ship-
source  pollution  by  oil  is  the  result  of  deliberate  discharges.  The  unacceptable  practice  of
‘operational’,  that  is,  intentional  discharges  from  ships,  including  tank-cleaning  operations
and  waste  oil  disposal  is  still  widely  practiced  in  the  coastal  waters  of  Member  States  and
beyond.  While  it  is  true  that  various  measures  adopted  at  international  and  EU-level,  in
combination  with  a  number  of  initiatives  led  by  the  shipping  industry  to  cut  ship-source
pollution,  have  reduced  these  practices,  the  problem  is  still  widespread.  In  the  year  2001,
aerial  surveillance  detected  390  oil  slicks  in  the  Baltic  Sea1  and  596  in  the  North  Sea2.  A
Commission study for the Mediterranean Sea reports 1638 illicit discharges in 1999.3 Only a
small  portion  of  the  ships  illegally  discharging  is  actually  detected  and  only  a  handful  is
eventually prosecuted.

In line with the Commission’s proposal for a Directive on the protection of the environment
through  criminal  law,4  the  proposed  Directive  establishes  that  discharges  in  violation  of
Community  laws  shall  constitute  a  criminal  offence  and  that  sanctions,  including  criminal
sanctions,  are  to  be  imposed  if  the  persons  concerned  have  been  found  to  have  caused  or
participated in the act by intent or grossly negligent behaviour. For natural persons this may
include,  in  the  most  serious  cases,  the  deprivation  of  liberty.  The  introduction  of  adequate
sanctions for pollution offences is particularly important in relation to pollution by shipping,
as the international civil liability regimes that govern ship-source pollution incidents involve
significant shortcomings with respect to their dissuasive effects.

In light of recent pollution incidents, the urgency of arriving at a particular measure related to
ship-source pollution has been forcefully stressed at the highest political level within the EU.
At  the  European  Council  Summit  in  Copenhagen  on  13  December  2002,  the  Heads  of
State/Government of all EU Member States expressed their grave concerns with respect to the
Prestige accident and specifically referred to the need for further specific measures relating to
liability and the corresponding sanctions. For its part, the Transport and Telecommunications
Council  on  6  December  2002  welcomed  “the  intention  of  the  Commission  to  present  a
proposal  to  ensure  that  any  person  who  has  caused  or  contributed  to  a  pollution  incident
through grossly negligent behaviour should be subject to appropriate sanctions.”5 In addition,
the  Justice  and  Home  Affairs  Council  on  19  December  2002  agreed  that  complementary

1

2

3

4

5

http://www.helcom.fi/sea/maps2001.pdf.  Since  1988  a  total  of  7216  confirmed  ship-source  pollution
discharges have been detected in the Baltic Sea by means of aerial surveillance.
http://www.bonnagreement.org/
http://europa.eu.int/comm/environment/civil/marin/reports_publications/jrc_illicit_study.pdf
COM(2001) 139 final of 13 March 2001, as modified by COM(2002) 544 final of 30 September 2002.
Paragraph  14  of  the  Council’s  conclusions  on  Ship  Safety  and  Pollution  Prevention  of  6  December
2002.

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measures should be considered “to strengthen the protection of the environment, in particular
the seas, through criminal law”.6

The Commission fully shares the views of Member States about the urgency of this proposal
and  considers  that  in  light  of  the  above,  a  specific  measure  relating  to  sanctions  for  ship-
source pollution offences is justified, without prejudice to a more  general  regime applicable
for the protection of the environment through criminal law.7 Consequently, the Commission,
as  already  announced  in  its  Communication  on  improving  safety  at  sea  in  response  to  the
Prestige  accident  (COM(2002)  681  final),  proposes  to  fill  some  of  the  most  important
remaining regulatory gaps in this area, relating to both deliberate and accidental discharges.8

2. 

BACKGROUND AND JUSTIFICATION

2.1. 

The need for Community-wide rules relating to ship-source pollution

It is generally recognised that deliberate discharges of waste and cargo residues from ships at
sea  are  unacceptably  common.  The  main  part  of  these  discharges  are  illegal,  that  is,  in
contravention of the international rules on ships’ discharges as laid down in the Marpol 73/78
Convention  (the  International  Convention  for  the  Prevention  of  Pollution  from  Ships,  1973
and  the  Protocol  of  1978  related  thereto,  as  subsequently  amended),  which  is  very  widely
ratified worldwide. Nevertheless, only a fraction of the offenders are brought to justice.

There are a number of reasons for this. First, the occurrence of illegal discharges is promoted
by  lack  of  adequate  waste  reception  facilities  in  ports.  Second,  the  enforcement  of  the
Marpol 73/78 rules is not consistent in the world, or even within the EU. Third, discharges are
not always detected in time. Fourth, even if the discharge is detected and traced to a particular
ship, the offence is rarely brought to justice and if it is, there is frequently lack of sufficient
evidence  for  convicting  the  offender.  Finally,  even  where  an  offender  is  convicted,  many
States implement rather light penalties for this kind of offences, sometimes only imposed on
the master of  the  ships, rather than the  shipowning company,  whose  instructions  the  master
may follow.

The Marpol 73/78 Convention, which is globally accepted, lays down detailed standards and
strict conditions for discharge of waste and residues at sea, with more stringent requirements
for  sea  areas  which  have  been  designated  as  ‘special  areas’  (including,  in  the  case  of  oil
pollution, the Baltic Sea, the Mediterranean and the North Sea area). Given the strictness and
general  acceptance  of  these  standards,  the  problem  with  the  frequent  occurrence  of  illegal
discharges may be summarised as being related to lack of implementation and enforcement of
the applicable rules, rather than insufficient standards as such. At international level, there are
presently few mechanisms to enforce the Marpol 73/78 Convention. If masters, shipowners or
States  choose  to  ignore  its  provisions,  the  international  community  as  such  has  few
enforcement  measures,  but  relies  on  national  or  regional  enforcement  measures  for  this
purpose.

6

7

8

Statement by the Justice and Home Affairs Council of 19 December 2002.
As proposed by the Commission in March 2001. See footnote 4 above.
See  also  the  Commission’s  Communication  “Towards  a  strategy  to  protect  and  conserve  the  marine
environment”, COM(2002) 539 of 2 October 2002 where the regulation of illegal ship-source pollution
is listed as one of the key short-term objectives.

3

                                                
The discrepancy between existing rules and prevalent practice in this area was acknowledged
by  the  Commission  already  in  its  communication  ‘A  Common  Policy  on  Safe  Seas’  of
24 February  1993  which  stated  that  compliance  with  the  requirements  of  Marpol  73/78,  to
which  all  Member  States  are  Contracting  Parties,  could  be  improved  and  that  further
initiatives  were  required  to  improve  implementation  of  international  rules  and  standards.
Since then, a number of such initiatives have been taken at Community level. First, this type
of offences are controlled through port State control under Directive 95/21/EC, where oil and
other record books are among the documents to be checked at each inspection. Inconsistencies
or doubts may lead to further inspections or to the detention of the ship. Second, in order to
combat  marine  pollution  caused  by  operational  (deliberate)  discharges  from  ships,  the
Community adopted Directive 2000/59/EC which establishes, on the one hand, requirements
for  ports  to  provide  adequate  reception  facilities  for  ships’  waste  and,  on  the  other  hand,
requirements for ships to use these facilities. The purpose of this directive is to eliminate the
incentives for ships to discharge polluting substances into the sea, by providing detailed rules
for  delivering  waste  and  cargo  residues  in  ports.  In  addition,  the  directive  involves  specific
waste inspections which, like port State control inspections, are spot checks. Third, the traffic
monitoring  directive  (2002/59/EC)  will  further  improve  the  availability  of  information  by
coastal State on ships in their waters and the cargoes they carry. This directive also lays down
procedures for detecting illegal discharges at sea and for the follow-up measures to be taken
by Member States at sea when such discharges have occurred.

While all these instruments represent important steps to eliminate illegal discharges, they do
not  go  all  the  way  in  addressing  the  problem  at  Community  level.  Within  the  regulatory
framework  an  element  is  missing.  The  actual  offence,  that  is  the  violation  of  applicable
pollution standards, is not fully covered by EC law. The implementation of Marpol 73/78 by
Member States shows variations, both in practice and in law.9 The keenness of Member States
to  inspect  and  prosecute  potential  offenders  varies  largely.  In  addition,  the  imposition  of
penalties  for  offenders  varies  between  Member  States,  both  as  regards  the  persons  to  be
penalised and as regards the size and nature of penalties awarded.

Therefore,  a  specific  Directive  on  ship-source  discharges  would  have  the  dual  benefit  of
completing  and  clarifying  the  Community’s  regulation  in  this  area  and  of  achieving  a
harmonisation of the enforcement of the rules. Providing the legal framework specifying the
offence and sanctions relating to ship-source discharges will also greatly facilitate the setting
up of further co-operative measures relating to the implementation of such rules. For example,
it is accepted that there is a need for Member States to co-operate more closely in a number of
related  fields,  including  the  monitoring  of  oil  spills,  the  identification  of  polluters  and  the
gathering of evidence which would be effective in court proceedings. Such a legal instrument
would finally provide the legal platform for the European Maritime Safety Agency (EMSA)
to engage in this matter. EMSA is well-equipped to follow up matters relating to surveillance
and proof of illegal discharges, and there is wide political support for mandating it with this
type of activities, but the legal basis under Community law is currently lacking.

In  conclusion,  there  are  a  number  of  legal,  practical  and  political  justifications  for  a  new
Community measure, in which rules relating to ship-source pollution are brought within the
scope of Community law and their enforcement is regulated in detail.

9

See, for example, IMO Document MEPC 48/12

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2.2. 

The justification for sanctions, including criminal sanctions, against offenders

Ensuring  the  safety  of  maritime  transport  and  protecting  the  Community  waters  from  ship-
source  pollution  is  undisputedly  an  objective  of  the  Community.  This  objective  is  to  be
pursued  by  the  Community  policy  according  to  Title  V  of  the  Treaty,  in  particular
Article 80.2 thereof. The Community has the power to regulate behaviour in order to achieve
a Community objective and it has the competence to legislate that the regulated behaviour (or
the non-compliance with the regulated behaviour) be sanctioned at national level.

There is no explicit substantive Community competence in relation to criminal matters per se.
However, to  the extent  that this  is necessary  for  the achievement  of  Community  objectives,
the Community can oblige Member States to provide for criminal sanctions. Moreover, even
where  Community  law  does  not  provide  expressly  for  sanctions  (or  criminal  sanctions),
Member  States  can  be  obliged  to  take  appropriate  steps  to  enforce  Community  law.  Where
criminal  law  is  the  only  means  to  guarantee  that  Community  law  is  enforced  effectively,
Member States can be obliged to provide for criminal sanctions. The relevant questions when
determining  whether  a  proposed  measure  falls  within  the  competence  of  the  Community
therefore relate to the nature and the object of the intended action. As far as the measure in
question  is  designed  to  improve  maritime  safety  or  protect  the  marine  environment  the
Community is competent to deal with it.

In  line  with  its  policy  on  offences  against  environmental  crime,  the  Commission  considers
that only criminal sanctions will be sufficiently effective for ensuring the intended effects of
the ship-source pollution rules. A measure of a penal nature will serve as a Community-wide
application of  a  deterrent  sanction  for  those  involved  in  the  transport  of  polluting  goods  by
sea.  Sufficiently  dissuasive  effects  will  only  be  achieved  by  establishing  that  illegal
discharges  is  a  criminal  offence,  which  demonstrates  a  social  disapproval  of  a  qualitatively
different  nature  compared  to  compensation  mechanisms  under  civil  law  or  administrative
measures.  It  therefore  sends  a  strong  signal,  with  a  greater  dissuasive  effect,  to  potential
offenders.

Aside  from  such  considerations,  however,  there  is  another  important  feature  of  existing
maritime law which particularly calls for criminal measures as far as pollution by shipping is
concerned. This has to do with the international civil liability regimes that govern ship-source
pollution  incidents,  which  involve  significant  shortcomings  with  respect  to  their  dissuasive
effects.

As  far  as  compensation  of  oil  pollution  is  concerned,  pollution  by  tankers  is  presently
regulated at international level by the regime set up by the International Convention on Civil
Liability for Oil Pollution (CLC) and the International Convention setting up the Oil Pollution
Compensation Fund (Fund Convention), as amended by their Protocols of 1992, to which all
coastal Member States are parties. The two conventions establish a two-tier liability system,
which  builds  upon  a  strict  –  but  in  practically  all  cases  limited  –  liability  for  the  registered
shipowner and a Fund, financed collectively by oil receivers, which provides supplementary
compensation to victims of oil pollution damage who cannot obtain full compensation for the
damage from the shipowner.

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Thus, the focus of the international regime on oil pollution (and pollution by other hazardous
and noxious substances, which is regulated by a convention which is yet to come into force) is
mainly on the compensation of victims. The liability of the actual polluter is a  considerably
less prominent feature in these regimes, as the personal liability of the polluter is diluted by an
almost  unbreakable  right  of  the  shipowner  to  limit  the  liability  and  by  collective
compensation  by  cargo  receivers  through  the  Funds,  irrespective  of  their  actual  role  in  the
accident in question. The maritime pollution liability and compensation regime as they stand
therefore  provide  few  dissuasive  elements  to  discourage  those  involved  in  the  transport  of
dangerous or polluting goods by sea from engaging in negligent practices and is therefore of
limited  value  for  helping  to  prevent  accidents  from  happening  in  the  first  place.  However,
because  of  international  legal  constraints,  this  international  liability  regime  cannot  be
the  so-called  Erika II  Communication
In 
modified  by  means  of  EU-legislation. 
(COM(2000) 802  final),  the  Commission  highlighted  the  need  for  two  amendments  in
particular which would have such effects:

– 

– 

The  liability  of  the  shipowner  should  be  unlimited  if  it  is  proved  that  the
pollution damage resulted from gross negligence on his part; and

The  prohibition  of  compensation  claims  for  pollution  damage  against  the
charterer, manager and operator of the ship shall be removed from the relevant
conventions.

legislation 

The  Commission  has  added  that  if  efforts  to  achieve  the  appropriate  improvements  to  the
international  liability  and  compensation  rules  fail,  it  will  make  a  proposal  for  adopting
Community 
liability  and
compensation regime. Such an EU regime would necessitate the denunciation of the existing
oil  spill  liability  and  compensation  conventions.  The  Commission  continues  to  pursue  its
efforts to amend the international regime along the line described above, but the outcome of
these efforts is not yet certain.

introducing  a  Europe-wide  maritime  pollution 

For  such  reasons,  the  Commission  considers  that  a  measure  of  a  penal  nature  needs  to  be
introduced  at  EU-level  to  complement  the  existing  regime  for  the  civil  liability  and
compensation  for  pollution  damage.  In  this  way,  the  mechanism  of  direct  responsibility  of
those involved in the accident can be introduced and a regime providing for adequate punitive
– and preventive – effects can be established without the aforementioned legal constraints and
without any repercussions on the rapid and full compensation of victims. The so-called COPE
Fund  proposal,  which  formed  part  of  the  second  Erika  package  (COM(2000) 802  final)
already  contained an  article  on  financial penalties (article 10),  but  since  that  regulation  as a
whole has not been discussed in detail by the Council, that particular issue has not advanced.

In  light  of  these  considerations,  the  Commission,  as  announced  in  its  Communication  of
3 December  2002  on  improving  safety  at  sea  in  response  to  the  Prestige  accident
(COM(2002)  681  final)  and  welcomed  by  the  Council,  proposes  that  ship-source  pollution
offences, when committed intentionally or by means of grossly negligent behaviour, shall be
subject  to  sanctions,  including  criminal  sanctions.  The  proposed  Directive  covers  pollution
from any ship, whether or not a tanker and covers not only oil pollution, but illegal discharges
by noxious liquid substances as well. As explained, a measure of this nature is necessary to
ensure a sufficiently clear link between the cause of the pollution and the accountability of the
persons  responsible  for  it.  Considering  the  international  legal  constraints  and  the  need  to
ensure  efficient  and  full  compensation  of  victims,  a  measure  of  a  penal  nature  is  the  most
effective  mechanism  to  achieve  that  aim.  Article  6  of  the  proposed  Directive  is  therefore  a

6

necessary element in ensuring an effective maritime safety and environment protection policy
of the Community.

The proposed measure does not oblige Member States to change their fundamental system of
criminal law,  comprising,  for instance,  the doctrine of criminal responsibility  or  the  general
definitions  of  guilt.  Measures  approximating  such  principles  and  general  definitions  are  not
related specifically to the Community objectives in question. Nor does the scope extend as far
as providing for (minimum) requirement of criminal sanctions, or address  general principles
of criminal law, administration of justice, and/or criminal jurisdiction and criminal procedure.

3. 

CONTENT OF THE PROPOSAL

This proposal consists of two distinct, but equally important measures. Firstly, it incorporates
the applicable international discharge rules for ship-source pollution into Community law and
regulates the  enforcement of these  rules  in  detail.  This  part  of  the  proposal  includes  certain
important new features, notably the inclusion of violations that have taken place in the high
seas  (sea  areas  beyond  the  jurisdiction  of  any  State).  Secondly,  the  proposed  Directive
establishes  that  violations  of  the  discharge  rules  shall  be  criminal  offences  and  provides
guidance on the nature of the penalties to be awarded.

Both  these  measures  fill  important  legal  voids,  as  ship-source  discharges  are  not  currently
sufficiently  regulated  by  Community  law,  and  as  existing  maritime  law  does  not  provide
sufficient dissuation from engaging in dangerous practices by those involved in the  carriage
of polluting substances by sea. Both measures go beyond the problem of oil pollution, as they
address pollution offences more generally, including pollution by chemical substances.

4. 

SPECIFIC CONSIDERATIONS

4.1. 

Purpose

The  first  article  makes  clear  that  the  underlying  objective  of  the  Directive  is  to  improve
maritime safety and the protection of the marine environment and that the measures proposed
are necessary means to this effect.

4.2. 

Definitions

The  definitions  serve  to  specify  the  extent  of  the  measures  proposed.  The  determination  of
whether discharges are illegal or not will be made on the basis of the Marpol 73/78 standards,
while the definition of polluting substances incorporates oil and noxious liquid substances, as
specified therein. The Marpol 73/78 standards are widely applicable worldwide and therefore
well-known  by  the  parties  involved.  As  to  the  stringency  of  the  standards,  there  is,  in  the
assessment  of  the  Commission,  no  immediate  reason  go  beyond  those  standards.  Marpol
73/78 covers any form of oil, for instance, and it generally refers to a maximum effluent of a
mixture  containing  no  more  15  parts  per  million).  In  layman’s  terms,  the  rules  could  be
simplified by concluding that any discharge of oil which is actually visible in the water will
most  likely  constitute  a  breach  of  the  Marpol  73/78  standards.  Using  the  Marpol  73/78
standards  as  the  reference  will  also  provide  the  legal  basis  to  apply  the  rules  beyond  the
territorial  waters  of  the  Member  States,  in  accordance  with  the  rules  of  the  1982  United
Nations  Convention  on  the  Law  of  the  Sea  (UNCLOS),  to  which  the  Community  is  a
Contracting Party. Since the Directive is intended to cover any illegal discharge, the definition

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includes  pollution  resulting  from  damage  to  the  ship  or  its  equipment,  which  is  largely
exempted  from  the  Marpol  73/78  regime.  It  is  worth  noting,  however,  that  according  to
article 6 of the proposal, sanctions for illegal discharges shall only be imposed if the pollution
results  from  the  intentional  or  grossly  negligent  conduct  of  the  parties  involved.  The
definition  of  ships  is  wide,  covering  all  kinds  of  seagoing  ships,  as  any  kind  of  ship  may
engage  in  illegal  discharges  of  polluting  substances.  For  similar  reasons,  the  definition  of
persons subject to sanctions covers a very wide  range  of potential offenders, including  both
natural and legal persons.

4.3. 

Geographical scope

The Directive covers ship-source marine pollution in all coastal waters of the Community, but
goes beyond it by addressing the high seas as well. The exclusive economic zone is covered
to the extent that such a zone has been established, in accordance with international law, by a
Member State.

4.4. 

Enforcement within ports

Article  4  is  based  on  the  regime  of  port  State  enforcement  as  provided  for  in  UNCLOS
Part XII. The prohibition of discharges in sea areas beyond the jurisdiction of any State (the
high  seas)  is  a  major  step  in  emphasising  the  unacceptability  of  illegal  discharges  and  the
universality  of  the  offence  in  question.  Few  States  currently  implement  the  possibility  to
enforce  rules  relating  to  discharge  offences  in  the  high  seas,  which  is  provided  for  in
article 218.1  of  UNCLOS.  However,  this  aspect  is  of  crucial  relevance  to  many  Member
States, in particular to those Member  States which have not established  exclusive economic
zones,  which  is  notably  the  case  in  the  Mediterranean  Sea.  When  coupled  with  appropriate
common surveillance and identification efforts, this rule will greatly enhance the possibilities
of  identifying  offenders,  even  when  the  discharge  has  taken  place  outside  the  national
boundaries  of  the  States  concerned.  This,  in  the  view  of  the  Commission,  is  essential  as
pollution does not recognise national boundaries either and any limitation of the possibilities
for States to take action which is based upon the sea area where the discharge took place is
bound  to  be  artificial.  Some  further  specification  of  the  grounds  for  undertaking  an
examination of a ship is dealt with by reference to existing Community law instruments, thus
making full use of the information and data-sharing system which has been established within
the Community for the monitoring of ships and ship-related discharges. The article does not
address the nature of the judicial follow-up to alleged discharges, this issue being left for each
Member States’ national laws.

4.5. 

Enforcement with respect to ships in transit

UNCLOS implies  some considerable  limitations  as  to  the  methods  of  enforcing  ship-source
pollution  laws  for  ships  in  transit  in  the  coastal  zones.  However,  by  several  States
participating  in  a  network  of  information-sharing  and  enforcement  co-operation,  a  signifant
share  of  the  Community  transit  traffic  can  be  covered  through  the  mechanism  outlined  in
article 5.

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4.6. 

Criminal sanctions

Article  6  establishes  that  violations  of  the  rules  of  this  Directive  shall  be  considered  as
criminal offences, in line with the Commission’s proposal for a directive on the protection of
the  environment  through  criminal  law.10  Sanctions  are  to  be  imposed  if  any  of  the  persons
concerned have been  found to have  caused, participated in  or instigated  the  act by  intent or
grossly negligent behaviour.

Article 6 further specifies that the sanctions against the offences shall be adequate as to their
dissuasive  nature,  which  is  of  evident  importance  if  the  discharge  prohibitions  are  to  be
effective.  Given  the  diverging  practices  between  Member  States  when  it  comes  to  the
imposition and nature of sanctions against pollution offences, the proposed  article serves  an
important function in harmonising the Community approach to discharge violations, inter alia
as to the persons subject to such sanctions, including, importantly, the shipowning company.
In  the  view  of  the  Commission,  little  is  achieved  by  imposing  light  penalties  on  pollution
offenders. Violations related to the deliberate spill of polluting substances, by for example by-
passing an oily water separator or through the falsification of the record books should, in the
view of the Commission, in themselves give rise to very substantial fines. Similarly, grossly
negligent  conduct  leading  up  to  major  oil  spills  and  significant  damage  needs  to  be  very
severely  penalised  in  order  to  have  the  intended  dissuasive  effects.  The  sanctions  will
presumably frequently be in the form  of  monetary  penalties, or  fines,  but as  regards natural
persons they may include, in the most serious cases, the deprivation of liberty. With regard to
the effectiveness of the measure, it is essential that legal persons can be held liable and that
sanctions  against  legal  persons  are  taken  throughout  the  Community.  However,  for  some
Member  States  the  provision  of  criminal  sanctions  against  legal  persons  may  be  difficult
without changing fundamental principles of their national legal systems. Therefore, Member
States  would  be  able  to  foresee  sanctions  other  than  of  criminal  nature,  as  long  as  they  are
effective,  proportionate  and  dissuasive.  For  instance  they  could  include  non-criminal  fines,
confiscation of proceeds, exclusion from entitlement to public benefit or aid and the placing
under  judicial  supervision  or  judicial  winding  up  orders.  A  reference  to  international  law
serves to take into account various restriction that may exist in this area, including Article 230
of  UNCLOS.  It  is  also  clarified  that  the  sanctions  do  not  need  to  be  related  to  the  civil
liabilities of the persons involved and that they shall not be insurable. The latter point is far
from self-evident in current maritime insurance practices, where the insurance cover provided
to  ships  through  the  policies  of  the  mutual  Protection  and  Indemnity  Clubs  (which  provide
cover  for  some  90%  of  the  world’s  tonnage),  may  include  monetary  penalties,  including
sanctions of penal nature related to pollution offences.

4.7. 

Safeguards

Article 7 contains a number of safeguards which are established to ensure that measures taken
in accordance with the Directive are not discriminatory or otherwise contrary to international
law, including Section 7 of Part XII of the 1982 United Nations Convention on the Law of the
Sea.

10

See footnote 4 above.

9

                                                
4.8. 

Accompanying measures

In  order  to  be  fully  effective,  the  rules  relating  to  the  prohibition  of  pollution  and  their
enforcement  need  to  be  accompanied  by  measures  of  a  practical  nature.  This  relates  to  the
sharing of information between Member States and the establishment of common procedures
for  monitoring  and  identification  of  ships  discharging  polluting  substances,  many  of  which
are  already  under  way  at  EU  or  sub-regional  level.11  In  addition,  technologies  allowing  on-
board equipment to record discharges as they occur and alert the relevant persons on board or
ashore should be fully exploited, as such devices may significantly assist in determining in an
objective way if and to what extent discharges have taken place.

4.9. 

Reporting

In order to ensure a harmonised application of the Directive and to evaluate its effectiveness,
it is vital that  the  Commission  is  informed  about  the  extent  to  which  it  has  been  applied  in
practice and the nature of penalties awarded. For this purpose Member States shall provide a
report to the Commission every three year, as laid down in article 9.

4.10.  Committee and amendments

Articles 10 and 11 refer to the new Committee on Safe Seas and the Prevention of Pollution
from Ships (COSS), created by Regulation 2099/2002 of 5 November 2002. The involvement
of  this  Committee  will  facilitate,  inter  alia,  the  updating  of  the  Directive  in  light  of  the
continuous amendments of the Marpol 73/78 Convention at international level.

11

Reference  is  in  particular  made  to  the  establishment  of  a  trans-European  data  exchange  network  for
vessel traffic monitoring (SafeSeaNet) and the on-going efforts to harmonise the policy for prosecuting
and  convicting  offenders  of  ship-source  discharge  violations  which  are  undertaken  within  the
framework of the environmental protection of the Baltic Sea (HELCOM) and the North Sea (the Bonn
Agreement). Furthermore, research financed by the Commission seems to indicate that ‘tagging’ oil by
its DNA may be a very useful method of linking spilled oil at sea with a particular ship. See e.g. IMO
Documents BLG 7/INF.5 and BLG 6/11.

10

                                                
2003/0037 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on ship-source pollution and on the introduction of sanctions, including criminal
sanctions, for pollution offences

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission12,

Having regard to the opinion of the European Economic and Social Committee13,

Having regard to the opinion of the Committee of the Regions14,

Acting in accordance with the procedure laid down in Article 251 of the Treaty15,

Whereas:

(1) 

(2) 

(3) 

The  Community’s  maritime  safety  policy  is  aimed  at  a  high  level  of  safety  and
environmental protection and is based on the understanding that all parties involved in
the  transport  of  goods  by  sea  have  a  responsibility  for  ensuring  that  ships  used  in
Community waters comply with applicable rules and standards;

The material  standards  for ship-source  pollution  discharges in all  Member  States  are
based upon the Marpol 73/78 Convention; but these rules are being ignored on a daily
basis by ships sailing in Community waters, without corrective action being taken;

The implementation of Marpol 73/78 shows discrepancies among Member States and
there is thus a need to harmonise its implementation at Community level; in particular
the  practice  of  Member  States  relating  to  the  imposition  of  sanctions  for  illegal
discharges by ships shows significant differences;

(4)  Measures  of  a  dissuasive  nature  form  an  integral  part  of  the  Community’s  maritime
safety policy, as they ensure a link between the responsibility of the parties involved in
the  transport  of  polluting  goods  by  sea  and  their  exposure  to  sanctions;  in  order  to
achieve effective protection of the environment, there is therefore a need for effective,
dissuasive and proportionate sanctions;

12

13

14

15

OJ C …, …, p. …
OJ C …, …, p. …
OJ C …, …, p. …
OJ C …, …, p. …

11

                                                
(5) 

Neither the international regime for the civil liability and compensation of oil pollution
nor  that  relating  to  pollution  by  other  hazardous  or  noxious  substances  provide
sufficient  dissuasive  effects  to  discourage  the  parties  involved  in  the  transport  of
hazardous  cargoes  by  sea  from  engaging  in  substandard  practices;  the  required
dissuasive  effects  can  only  be  achieved  through  the  introduction  of  sanctions  of  a
penal nature, which apply to any person who causes or contributes to marine pollution
deliberately or through gross negligence;

(6) 

Legal persons should also be subject to sanctions throughout the Community, because
breaches may be committed in the interest of legal persons or on their behalf;

(7)  Measures of a penal nature are not related to the civil liability of the parties concerned
and are thus not subject to any  rules  relating  to  the  limitation  or  channelling  of  civil
liabilities,  nor  do  they  limit  the  efficient  compensation  of  victims  of  pollution
incidents;

(8) 

(9) 

There  is  a  need  for  further  co-operation  among  Member  States  to  ensure  that  illegal
discharges are detected in time and that the offenders are identified;

The Directive is in accordance with the principles of subsidiarity and proportionality
as set out in Article 5 of the Treaty. The incorporation of the international ship-source
pollution standards into Community law and the establishment of sanctions, including
criminal sanctions for violations of them is a necessary measure to achieve a high level
of safety and environmental protection in maritime transport.  This can be  effectively
achieved  only  by  the  Community  by  means  of  harmonised  rules.  The  Directive
confines itself to the minimum required in order to achieve this objective and does not
go beyond what is necessary for that purpose;

(10)  The Directive fully respects the Charter of fundamental rights.

HAVE ADOPTED THIS DIRECTIVE:

Article 1
Purpose

The  purpose  of  this  Directive  is  to  incorporate  the  international  standards  for  ship-source
pollution into Community law and to ensure that persons responsible for illegal discharges are
subject  to  adequate  sanctions,  including  criminal  sanctions.  The  underlying  objective  of  the
Directive is to improve maritime safety and to protect the marine environment from pollution
by ships.

12

For the purpose of this Directive:

Article 2
Definitions

1.

2.

3.

4.

5.

6.

“Marpol  73/78”  shall  mean  the  International  Convention  for  the  prevention  of
pollution from ships, 1973 and its 1978 Protocol, as amended16;

“Polluting  substances”  shall  mean  substances  covered  by  annexes  I  (oil)  and  II
(noxious liquid substances in bulk) of Marpol 73/78;

“Illegal  discharges”  shall  mean  discharges  in  violation  of  Marpol  73/78  and  shall
include  discharges  resulting  from  damage  to  the  ship  or  its  equipment,  which  are
exempted  under  Marpol  73/78  Annex  I,  Regulation  11(b)  and  Annex  II,
Regulation 6(b).

“Ship” shall mean a seagoing vessel, irrespective of its flag, of any type whatsoever
operating  in  the  marine  environment  and  shall  include  hydrofoil  boats,  air-cushion
vehicles, submersibles and floating craft;

“Person” shall mean natural or legal person.

“Legal person”  shall  mean any  legal  entity  having  such  status  under  the  applicable
national  law,  except  for  States  or  any  other  public  bodies  acting  in  the  exercise  of
their prerogative of public power, as well as public international organisations.

Article 3
Scope

1.

This Directive shall apply to discharges of polluting substances in:

(a)

the internal waters, including ports, of a Member State;

(b)

the territorial sea of a Member State;

(c)

straits used for international navigation subject to the regime of transit passage,
as laid down in Part III, section 2, of the 1982 United Nations Convention on
the  Law  of  the  Sea,  to  the  extent  a  Member  State  exercises  jurisdiction  over
such straits;

(d)

the  exclusive  economic  zone  of  a  Member  State,  established  in  accordance
with international law; and

(e)

the high seas.

This  Directive  shall  apply  to  illegal  discharges  of  any  ship,  irrespective  of  its  flag,
with the exception of any warship, naval auxiliary or other  ship owned  or  operated
by a State and used, for the time being, only on government non-commercial service.

For  reference  purposes,  a  summary  of  the  relevant  Marpol  73/78  discharge  rules  relating  to  the
discharge of oil and noxious liquid substances is provided in Annex I (Part I and Part II).

13

2.

16

                                                
Article 4
Enforcement Measures with respect to ships within a port of a Member State

1.

2.

3.

If irregularities or information give rise to suspicion that a ship which is within a port
or at an off-shore terminal of a Member State has engaged in an illegal discharge of
polluting  substances  in  any  of  the  sea  areas  referred  to  in  Article  3.1,  the  Member
State shall ensure that an appropriate examination is undertaken in accordance with
its national law.

A  non-exhaustive  list  of  irregularities  or  information  within  the  meaning  of
paragraph 1 is provided in Annex II.

As  far  as  the  examination  referred  to  in  paragraph  1  reveals  facts  that  could
constitute  evidence  on  such  an  illegal  discharge,  the  competent  authorities  in
criminal matters shall be informed.

Article 5
Enforcement with respect to ships in transit

If the suspected illegal discharge takes place in a sea area referred to in points (b), (c), (d) or
(e) of article 3.1 and the ship which is suspected of the discharge does not call at a port of the
Member State holding the information relating to the suspected discharge, the following shall
apply:

-

-

1.

2.

3.

If  the  next  port  of  call  of  the  ship  is  another  Member  State,  the  Member  States
concerned  shall  co-operate  closely  in  the  examination  referred  to  in  article  4
paragraph 1 and in deciding on the appropriate administrative measures in respect of
any such discharge;

If  the  next  port  of  call  of  the  ship  is  a  port  of  a  State  outside  the  Community,  the
Member State shall take the necessary measures to ensure that the next port of call of
the ship is informed about the suspected discharge and shall request the State of the
next port of call to take the appropriate measures in respect of any such discharge.

Article 6
Criminal offence and sanctions

Member  States  shall  ensure  that  the  illegal  discharge  of  polluting  substances,  the
participation in and instigation of such discharge are regarded as criminal offences,
when committed intentionally or by gross negligence.

Any  person  (i.e.  not  only  the  shipowner  but  also  the  owner  of  the  cargo,  the
classification society or any other person involved), who has been found by a court
of law responsible within the meaning of paragraph 1, shall be subject to sanctions,
including, where appropriate, criminal sanctions.

The  sanctions  referred  to  in  paragraph  2  shall  be  effective,  proportionate  and
dissuasive.

14

4.

5.

As  concerns  natural  persons,  criminal  penalties  shall  be  provided,  including  in  the
most  serious  cases,  the  deprivation  of  liberty,  having  regard  to  applicable
international law.

As regards natural and legal persons, the Member States shall provide for, inter alia,
the following sanctions:

(a)

fines;

(b)

confiscation of the proceeds gained by the offences referred to in paragraph 1.

In appropriate cases, Member States shall also provide for the following sanctions:

(c)

a permanent or temporary ban on engaging in commercial activities;

(d)

placing under judicial supervision;

(e)

judicial winding-up;

(f)

a ban on access to public assistance or subsidies.

6.

Fines referred to in this article shall not be insurable.

Article 7
Safeguards

Member States shall apply the provisions of this Directive without any discrimination in form
or in fact among foreign ships and in accordance with applicable international law, including
Section 7 of Part XII of the 1982 United Nations Convention on the Law of the Sea, and they
shall promptly notify the flag State of the vessel and any other State concerned of measures
taken in accordance with this Directive.

Article 8
Accompanying measures

Member  States  and  the  Commission  shall  co-operate,  in  close  collaboration  with  the
European  Maritime  Safety  Agency  and,  where  appropriate,  in  the  framework  of  the  action
programme  to  respond  to  accidental  or  deliberate  marine  pollution  as  set  up  by
Decision N° 2850/2000/EC17 in order to:

(a)

develop the necessary information systems required for the effective implementation
of this Directive;

(b)

establish common practices and guidelines for, in particular:

17

Decision  No  2850/2000/EC  of  the  European  Parliament  and  of  the  Council  of  20  December  2000
setting  up  a  Community  framework  for  cooperation  in  the  field  of  accidental  or  deliberate  marine
pollution OJ L 332 , 28.12.2000, p. 1.

15

                                                
-

-

-

the  monitoring  and  early  identification  of  ships  discharging  polluting
substances  in  violation  of  this  Directive,  including,  where  appropriate,  on-
board monitoring equipment;

reliable methods of tracing polluting substances in the sea to a particular ship;
and

the effective legal enforcement of this Directive.

Article 9
Reporting

Every three years, Member States shall transmit a report to the Commission on the application
by  their  courts  and  other  relevant  authorities  of  this  Directive.  Based  on  these  reports,  the
Commission shall submit a Community report to the European Parliament and the Council.

Article 10
Committee

1.

2.

3.

1.

2.

The Commission shall be assisted by the Committee on Safe Seas and the Prevention
of  Pollution  from  Ships  (COSS),  created  by  article  3  of  Regulation  (EC)
No 2099/2002 of 5 November 2002 of the European Parliament and of the Council
establishing  a Committee  on  Safe  Seas  and  the  Prevention  of  Pollution  from  Ships
(COSS).18

Where  reference  is  made  to  this  paragraph,  articles  5  and  7  of  Decision
1999/468/EC19 shall apply, having regard to the provisions of article 8 thereof. The
period laid down in article 5.6 of Decision 1999/468/EC shall be set at three months.

The Commission shall regularly inform the Committee set up by Decision 2850/2000
of  any  proposed  measures  or  other  relevant  activities  concerning  the  response  to
marine pollution.

Article 11
Amendment procedure

The annexes of this Directive and the references to Marpol 73/78 may be amended in
accordance with the procedure laid down in article 10.2.

The  amendments  to  the  Marpol  73/78  referred  to  in  paragraph  1  may  be  excluded
from  the  scope  of  this  Directive,  pursuant  to  article  5  of  Regulation  (EC)
No 2099/2002.

18

19

OJ L 324, 29.11.2002, p.1.
OJ L 184, 17.7.1999, p. 23.

16

                                                
Article 12
Implementation

1.

2.

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative
provisions  necessary  to  comply  with  this  Directive  not  later  than  six  months
following  the  date  of  its  entry  into  force  and  forthwith  inform  the  Commission
thereof.

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official
publication. Member States shall determine how such reference is to be made.

Article 13
Entry into force

This Directive shall enter into force on the day following that of its publication in the Official
Journal of the European Union.

Article 14
Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament
The President

For the Council
The President

17

ANNEX I

Summary, for reference purposes, of the Marpol 73/78 discharge regulations relating to
discharges of oil and noxious liquid substances, as referred to in article 2.2

Part I: Oil (Marpol 73/78, Annex I)

For the purposes of Marpol 73/78 Annex I, ‘oil’ means petroleum in any form including crude
oil,  fuel  oil,  sludge,  oil  refuse  and  refined  products  (other  than  petrochemicals  which  are
subject to the provisions of Marpol 73/78 Annex II) and ‘oily mixture’ means a mixture with
any oil content.

Excerpts of the relevant provisions of Marpol 73/78 Annex I:

Regulation 9: Control of discharge of oil

(1)
Subject to the provisions of regulations 10 and 11 of this Annex and paragraph (2) of
this  regulation,  any  discharge  into  the  sea  of  oil  or  oily  mixtures  from  ships  to  which  this
Annex applies shall be prohibited except when all the following conditions are satisfied:

(a)

(i)

(ii)

for an oil tanker, except as provided for in subparagraph (b) of this paragraph:

the tanker is not within a special area;

the tanker is more than 50 nautical miles from the nearest land;

(iii)

the tanker is proceeding en route;

the instantaneous rate of discharge of oil content does not exceed 30 litres per nautical

(iv)
mile;

(v)
the  total  quantity  of  oil  discharged  into  the  sea  does  not  exceed  for  existing  tankers
1/15,000 of the total quantity of the particular cargo of which the residue formed a part, and
for  new  tankers  1/30,000  of  the  total  quantity  of  the  particular  cargo  of  which  the  residue
formed a part; and

the tanker has in operation an oil discharge monitoring and control system and a slop

(vi)
tank arrangement as required by regulation 15 of this Annex.

(b)
from  a  ship  of  400  tons  gross  tonnage  and  above  other  than  an  oil  tanker  and  from
machinery space bilges excluding cargo pump-room bilges of an oil tanker unless mixed with
oil cargo residue:

the ship is not within a special area;

the ship is proceeding en route;

the oil content  of the  effluent without  dilution does  not  exceed  15  parts  per  million;

(i)

(ii)

(iii)
and

the ship has in operation [monitoring, control and filtering equipment] as required by

(iv)
regulation 16 of this Annex.

18

(2)
In the case of a ship of less than 400 tons gross tonnage other than an oil tanker whilst
outside the special area, the [flag State] Administration shall ensure that it is equipped as far
as practicable and reasonable with installations to ensure the storage of oil residues on board
and their discharge to reception facilities or into the sea in compliance with the requirements
of paragraph (1)(b) of this regulation.

- - -

The provisions of paragraph (1) of this regulation shall not apply to the discharge of
(4)
clean or segregated ballast  or unprocessed  oily  mixtures  which  without  dilution  have  an  oil
content not exceeding 15 parts per million and which do not originate from cargo pump-room
bilges and are not mixed with oil cargo residues.

(5)
No discharge into the sea shall contain chemicals or other substances in quantities or
concentrations  which  are  hazardous  to  the  marine  environment  or  chemicals  or  other
substances introduced for the purpose of circumventing the conditions of discharge specified
in this regulation.

(6)
The  oil  residues  which  cannot  be  discharged  into  the  sea  in  compliance  with
paragraphs  (1),  (2)  and  (4)  of  this  regulation  shall  be  retained  on  board  or  discharged  to
reception facilities.

- - -

Regulation 10: Methods for the prevention of oil pollution from ships while operating in
special areas

For the purpose  of this  Annex, the special  areas  are  the  Mediterranean  Sea  area,  the
(1)
Baltic Sea area, the Black Sea area, the Red Sea area, the ``Gulfs area'', the Gulf of Aden area,
the Antarctic area and the North- West European waters, [as further defined and specified]

(2)

Subject to the provisions of regulation 11 of this Annex:

(a)
Any discharge into the sea of oil or oily mixture from any oil tanker and any ship of
400  tons  gross  tonnage  and  above  other  than  an  oil  tanker  shall  be  prohibited  while  in  a
special area. […]

(b)
[…] Any discharge into the sea of oil or oily mixture from a ship of less than 400 tons
gross  tonnage,  other  than  an  oil  tanker,  shall  be  prohibited  while  in  a  special  area,  except
when the oil content of the effluent without dilution does not exceed 15 parts per million.

(3)(a) The provisions of paragraph (2) of this regulation shall not apply to the discharge of
clean or segregated ballast.

(b)
The  provisions  of  subparagraph  (2)(a)  of  this  regulation  shall  not  apply  to  the
discharge of processed bilge water from machinery spaces, provided that all of the following
conditions are satisfied:

(i)

(ii)

the bilge water does not originate from cargo pump-room bilges;

the bilge water is not mixed with oil cargo residues;

(iii)

the ship is proceeding en route;

19

(iv)

the oil content of the effluent without dilution does not exceed 15 parts per million;

the  ship  has  in  operation  oil  filtering  equipment  complying  with  regulation  16(5)  of

(v)
this Annex; and

(vi)
the  filtering  system  is  equipped  with  a  stopping  device  which  will  ensure  that  the
discharge is automatically stopped  when the oil content of the effluent  exceeds 15 parts  per
million.

(4)(a) No discharge into the sea shall contain chemicals or other substances in quantities or
concentrations  which  are  hazardous  to  the  marine  environment  or  chemicals  or  other
substances introduced for the purpose of circumventing the conditions of discharge specified
in this regulation.

The oil residues which cannot be discharged into the sea in compliance with paragraph

(b)
(2) or (3) of this regulation shall be retained on board or discharged to reception facilities.

(5)
Nothing in this regulation shall prohibit a ship on a voyage only part of which is in a
special area from discharging outside the special area in accordance with regulation 9 of this
Annex.

- - -

Regulation 11: Exceptions

Regulations 9 and 10 of this Annex shall not apply to:

the discharge into the sea of oil or oily mixture necessary for the purpose of securing

(a)
the safety of a ship or saving life at sea; or

(b)

[not applicable]20

(c)
the  discharge  into  the  sea  of  substances  containing  oil,  approved  by  the  [flag  State]
Administration, when being used for the purpose of combating specific pollution incidents in
order  to  minimize  the  damage  from  pollution.  Any  such  discharge  shall  be  subject  to  the
approval of any Government in whose jurisdiction it is contemplated the discharge will occur.

20

As  provided  in  article  2.3,  the  exception  provided  for  in  paragraph  11(b)  of  Marpol  73/78,  Annex  I,
does not apply in the context of the present Directive. The said paragraph reads:
“(b)

the  discharge  into  the  sea  of  oil  or  oily  mixture  resulting  from  damage  to  a  ship  or  its
equipment:
provided that all reasonable precautions have been taken after the occurrence of the damage or
discovery of the discharge for the purpose of preventing or minimizing the discharge; and
except if the owner or the  master acted either  with intent to cause damage, or recklessly and
with knowledge that damage would probably result; or”

(i)

(ii)

20

                                                
Part II: Noxious liquid substances (Marpol 73/78 Annex II)

Excerpts of the relevant provisions of Marpol 73/78 Annex II:

Regulation 3: Categorization and listing of noxious liquid substances

For  the  purpose  of  the  regulations  of  this  Annex,  noxious  liquid  substances  shall  be

(1)
divided into four categories as follows:

(a)
Category  A:  Noxious  liquid  substances  which  if  discharged  into  the  sea  from  tank
cleaning or deballasting operations would present a major hazard to either marine resources or
human  health  or  cause  serious  harm  to  amenities  or  other  legitimate  uses  of  the  sea  and
therefore justify the application of stringent anti-pollution measures.

Category  B:  Noxious  liquid  substances  which  if  discharged  into  the  sea  from  tank
(b)
cleaning  or  deballasting  operations  would  present  a  hazard  to  either  marine  resources  or
human  health  or  cause  harm  to  amenities  or  other  legitimate  uses  of  the  sea  and  therefore
justify the application of special anti-pollution measures.

(c)
Category  C:  Noxious  liquid  substances  which  if  discharged  into  the  sea  from  tank
cleaning or deballasting operations would present a minor hazard to either marine resources
or  human  health  or  cause  minor  harm  to  amenities  or  other  legitimate  uses  of  the  sea  and
therefore require special operational conditions.

(d)
Category  D:  Noxious  liquid  substances  which  if  discharged  into  the  sea  from  tank
cleaning  or  deballasting  operations  would  present  a  recognizable  hazard  to  either  marine
resources or human health or cause minimal harm to amenities or other legitimate uses of the
sea and therefore require some attention in operational conditions.

- - -

[Further  guidelines  on  the  categorization  of  substances,  including  a  list  of  categorized
substances  are  given  in  regulations  3(2)-(4)  and  4  and  the  appendices  of  Marpol  73/78
Annex II]

Regulation 5: Discharge of noxious liquid substances

Category A, B and C substances outside special areas and Category D substances in all
areas

Subject to the provisions of […] regulation 6 of this Annex,

(1)
The discharge into the sea of substances in Category A as defined in regulation 3(1)(a)
of this Annex or of  those  provisionally  assessed as such or  ballast  water,  tank  washings,  or
other residues or mixtures containing such substances shall be prohibited. If tanks containing
such substances or mixtures are to be washed, the resulting residues shall be discharged to a
reception facility until the concentration of the substance in the effluent to such facility is at or
below 0.1% by weight and until the tank is empty, with the exception of phosphorus, yellow
or  white,  for  which  the  residual  concentration  shall  be  0.01%  by  weight.  Any  water
subsequently  added  to  the  tank  may  be  discharged  into  the  sea  when  all  the  following
conditions are satisfied:

21

the  ship  is  proceeding  en  route  at  a  speed  of  at  least  7  knots  in  the  case  of  self-

(a)
propelled ships or at least 4 knots in the case of ships which are not self-propelled;

the  discharge  is  made  below  the  waterline,  taking  into  account  the  location  of  the

(b)
seawater intakes; and

the discharge is made at a distance of not less than 12 nautical miles from the nearest

(c)
land in a depth of water of not less than 25 m.

(2)
The discharge into the sea of substances in Category B as defined in regulation 3(1)(b)
of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or
other residues or mixtures containing such substances shall be prohibited except when all the
following conditions are satisfied:

the  ship  is  proceeding  en  route  at  a  speed  of  at  least  7  knots  in  the  case  of  self-

(a)
propelled ships or at least 4 knots in the case of ships which are not self-propelled;

(b)
the  procedures  and  arrangements  for  discharge  are  approved  by  the  [flag  State]
Administration. Such procedures and arrangements shall be based upon standards developed
by the [IMO] and shall ensure that the concentration and rate of discharge of the effluent is
such that  the  concentration  of  the  substance  in  the  wake  astern  of  the  ship  does  not  exceed
1 part per million;

the maximum  quantity  of  cargo  discharged  from  each  tank  and  its  associated  piping
(c)
system  does not  exceed the maximum  quantity approved  in  accordance with  the procedures
referred to in subparagraph (b) of this paragraph, which shall in no case exceed the greater of
1 m³ or 1/3,000 of the tank capacity in m³;

the  discharge  is  made  below  the  waterline,  taking  into  account  the  location  of  the

(d)
seawater intakes; and

the discharge is made at a distance of not less than 12 nautical miles from the nearest

(e)
land and in a depth of water of not less than 25 m.

The discharge into the sea of substances in Category C as defined in regulation 3(1)(c)
(3)
of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or
other residues or mixtures containing such substances shall be prohibited except when all the
following conditions are satisfied:

the  ship  is  proceeding  en  route  at  a  speed  of  at  least  7  knots  in  the  case  of  self-

(a)
propelled ships or at least 4 knots in the case of ships which are not self-propelled;

the  procedures  and  arrangements  for  discharge  are  approved  by  the  [flag  State]
(b)
Administration. Such procedures and arrangements shall be based upon standards developed
by the [IMO] and shall ensure that the concentration and rate of discharge of the effluent is
such that  the  concentration  of  the  substance  in  the  wake  astern  of  the  ship  does  not  exceed
10 parts per million;

(c)
the maximum  quantity  of  cargo  discharged  from  each  tank  and  its  associated  piping
system  does not  exceed the maximum  quantity approved  in  accordance with  the procedures
referred to in subparagraph (b) of this paragraph, which shall in no case exceed the greater of
3 m³ or 1/1,000 of the tank capacity in m³;

22

the  discharge  is  made  below  the  waterline,  taking  into  account  the  location  of  the

(d)
seawater intakes; and

the discharge is made at a distance of not less than 12 nautical miles from the nearest

(e)
land and in a depth of water of not less than 25 m.

(4)
The discharge into the sea of substances in Category D as defined in regulation 3(1)(d)
of this Annex, or of those provisionally assessed as such, or ballast water, tank washings, or
other residues or mixtures containing such substances shall be prohibited except when all the
following conditions are satisfied:

the  ship  is  proceeding  en  route  at  a  speed  of  at  least  7  knots  in  the  case  of  self-

(a)
propelled ships or at least 4 knots in the case of ships which are not self-propelled;

such mixtures are of a concentration not greater than one part of the substance in ten

(b)
parts of water; and

the discharge is made at a distance of not less than 12 nautical miles from the nearest

(c)
land.

(5)
Ventilation  procedures  approved  by  the  [flag  State]  Administration  may  be  used  to
remove cargo residues from a tank. Such procedures shall be based upon standards developed
by the [IMO]. Any water subsequently introduced into the tank shall be regarded as clean and
shall not be subject to paragraph (1), (2), (3) or (4) of this regulation.

(6)
The  discharge  into  the  sea  of  substances  which  have  not  been  categorized,
provisionally  assessed,  or  evaluated  as  referred  to  in  regulation  4(1)  of  this  Annex,  or  of
ballast water, tank washings, or other residues or mixtures containing such substances shall be
prohibited.

Category  A,  B  and  C  substances  within  special  areas  [as  defined  in  Marpol  73/78
Annex II, Regulation 1, including the Baltic Sea]

Subject to the provisions of paragraph (14) of this regulation and regulation 6 of this Annex,

(7)
The discharge into the sea of substances in Category A as defined in regulation 3(1)(a)
of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or
other residues or mixtures containing such substances shall be prohibited. If tanks containing
such substances or mixtures are to be washed, the resulting residues shall be discharged to a
reception facility which the States bordering the special area shall provide in accordance with
regulation  7  of  this  Annex,  until  the  concentration  of  the  substance  in  the  effluent  to  such
facility  is  at  or  below  0.05%  by  weight  and  until  the  tank  is  empty,  with  the  exception  of
phosphorus, yellow or white, for which the residual concentration shall be 0.005% by weight.
Any  water  subsequently  added  to  the  tank  may  be  discharged  into  the  sea  when  all  the
following conditions are satisfied:

the  ship  is  proceeding  en  route  at  a  speed  of  at  least  7  knots  in  the  case  of  self-

(a)
propelled ships or at least 4 knots in the case of ships which are not self-propelled;

the  discharge  is  made  below  the  waterline,  taking  into  account  the  location  of  the

(b)
seawater intakes; and

23

the discharge is made at a distance of not less than 12 nautical miles from the nearest

(c)
land and in a depth of water of not less than 25 m.

(8)
The  discharge  into  the  sea  of  substances  in  Category  B  as  defined  in  regulation
(3)(1)(b)  of  this  Annex  or  of  those  provisionally  assessed  as  such,  or  ballast  water,  tank
washings, or other residues or mixtures containing such substances shall be prohibited except
when all the following conditions are satisfied:

the tank has been prewashed in accordance with the procedure approved by the [flag
(a)
State] Administration and based on standards developed by the [IMO] and the resulting tank
washings have been discharged to a reception facility;

the  ship  is  proceeding  en  route  at  a  speed  of  at  least  7  knots  in  the  case  of  self-

(b)
propelled ships or at least 4 knots in the case of ships which are not self-propelled;

(c)
the procedures and arrangements for discharge and washings are approved by the [flag
State]  Administration.  Such  procedures  and  arrangements  shall  be  based  upon  standards
developed by the [IMO] and shall ensure that the concentration and  rate of discharge of the
effluent is such that the concentration of the substance in the wake astern of the ship does not
exceed 1 part per million;

the  discharge  is  made  below  the  waterline,  taking  into  account  the  location  of  the

(d)
seawater intakes; and

the discharge is made at a distance of not less than 12 nautical miles from the nearest

(e)
land and in a depth of water of not less than 25 m.

The discharge into the sea of substances in Category C as defined in regulation 3(1)(c)
(9)
of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or
other residues or mixtures containing such substances shall be prohibited except when all the
following conditions are satisfied:

the  ship  is  proceeding  en  route  at  a  speed  of  at  least  7  knots  in  the  case  of  self-

(a)
propelled ships or at least 4 knots in the case of ships which are not self-propelled;

(b)
the  procedures  and  arrangements  for  discharge  are  approved  by  the  [flag  State]
Administration. Such procedures and arrangements shall be based upon standards developed
by the [IMO] and shall ensure that the concentration and rate of discharge of the effluent is
such that  the  concentration  of  the  substance  in  the  wake  astern  of  the  ship  does  not  exceed
1 part per million;

(c)
the maximum  quantity  of  cargo  discharged  from  each  tank  and  its  associated  piping
system  does not  exceed the maximum  quantity approved  in  accordance with  the procedures
referred to in subparagraph (b) of this paragraph which shall in no case exceed the greater of
1 m³ or 1/3,000 of the tank capacity in m³;

the  discharge  is  made  below  the  waterline,  taking  into  account  the  location  of  the

(d)
seawater intakes; and

the discharge is made at a distance of not less than 12 nautical miles from the nearest

(e)
land and in a depth of water of not less than 25 m.

24

(10) Ventilation  procedures  approved  by  the  [flag  State]  Administration  may  be  used  to
remove cargo residues from a tank. Such procedures shall be based upon standards developed
by the [IMO]. Any water subsequently introduced into the tank shall be regarded as clean and
shall not be subject to paragraph (7), (8) or (9) of this regulation.

(11)
The  discharge  into  the  sea  of  substances  which  have  not  been  categorized,
provisionally  assessed  or  evaluated  as  referred  to  in  regulation  4(1)  of  this  Annex,  or  of
ballast water, tank washings, or other residues or mixtures containing such substances shall be
prohibited.

(12) Nothing  in  this  regulation  shall  prohibit  a  ship  from  retaining  on  board  the  residues
from a Category B or C cargo and discharging such residues into the sea outside a special area
in accordance with paragraph (2) or (3) of this regulation, respectively.

- - -

Regulation 6: Exceptions

Regulation 5 of this Annex shall not apply to:

the  discharge  into  the  sea  of  noxious  liquid  substances  or  mixtures  containing  such

(a)
substances necessary for the purpose of securing the safety of a ship or saving life at sea; or

(b)

[not applicable]21

(c)
the  discharge  into  the  sea  of  noxious  liquid  substances  or  mixtures  containing  such
substances, approved by the [flag State] Administration, when being used for the purpose of
combating specific pollution incidents in order to minimize the damage from pollution. Any
such discharge shall be subject to the approval of any Government in whose jurisdiction it is
contemplated the discharge will occur.

21

As provided in article 2.3, the exception provided for in paragraph 6(b) of Marpol 73/78, Annex II, does
not apply in the context of the present Directive. The said paragraph reads:
“(b)

the discharge into the sea of noxious liquid substances or mixtures containing such substances
resulting from damage to a ship or its equipment:
provided that all reasonable precautions have been taken after the occurrence of the damage or
discovery of the discharge for the purpose of preventing or minimizing the discharge; and
except if the owner or the  master acted either  with intent to cause damage, or recklessly and
with knowledge that damage would probably result; or”.

(i)

(ii)

25

                                                
ANNEX II
Non-exhaustive list of irregularities or information, as referred to in article 4.1

(1)

(2)

(3)

(4)

Any  irregularities  with  respect  to  the  oil  and  other  relevant  record  books,  or
otherwise  related  to  potential  pollution  offences,  discovered  in  port  State  control
inspections carried out under Directive 95/21/EC;

Any  irregularities  with  respect  to  the  delivery  of  ship-generated  waste  or  cargo
residues, or the notification thereof, as required under Directive 2000/59/EC;

Any information obtained from another Member State relating to potential pollution
offences  of  the  ship,  obtained  through  the  procedures  foreseen  in  Directive
2002/59/EC or otherwise; or

Any  other  information  by  persons  involved  in  the  operation  of  the  ship,  including
pilots,  which  suggests  irregularities  relating  to  the  respect  of  the  obligations  under
this Directive.

26

FINANCIAL STATEMENT

The  financial  impact  of  this  instrument  is  limited  to  shipowners  and  other  players  in  the
maritime world that act in violation,  intentionally  or by  means of  gross  negligence, of  rules
which  are  applicable  since  many  years.  As  no  financial  impact  at  Community  level  is
foreseen, a more detailed financial statement is therefore deemed redundant.

27