Proposal for a Council framework Decision to strengthen the criminal law framework for the enforcement of the law against ship source pollution
Date: 2003-05-02
Institutions: European Commission
Subjects: approximation of laws, judicial cooperation in criminal matters in the EU, penalty, pollution control measures, pollution from ships

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 2.5.2003
COM(2003) 227 final

2003/0088 (CNS)

Proposal for a

COUNCIL FRAMEWORK DECISION

to strengthen the criminal-law framework for the enforcement of the law against
ship-source pollution

(presented by the Commission)

EXPLANATORY MEMORANDUM

1.

GROUNDS FOR THE PROPOSAL

Environmental  crime  is  among  the  European  Union’s  central  concerns.  The  Tampere
European Council on 15 and 16 October 1999 asked that efforts be made  to  adopt common
definitions  of  offences  and  penalties  focusing  on  a  limited  number  of  specially  important
sectors such as environmental crime. On 28 September 2000, the Council (Justice and Home
Affairs) recognised the need to establish a body of law with regard to environmental offences.
The Commission has presented a proposal for a Directive.1 On 27 January 2003, the Council
adopted a Framework Decision on the protection of the environment through criminal law.2

The  recent  shipwreck  of  the  tanker  Prestige  off  the  coast  of  Galicia  in  November  2002
highlighted  the  urgent  need  for  action  on  ship-source  pollution.  The  Copenhagen  European
Council of 12 and 13 December 2002 declared the European Union’s determination to adopt
all the necessary measures to preclude further disasters of this type. The Council particularly
welcomed  the  Commission’s  intention  of  looking  into  the  need  for  specific  new  measures,
including  measures  relating  to  liability  and  the  corresponding  penalties.3  The  JHA  Council
meeting  of  19  December  adopted  a  statement  undertaking  to  consider  all  complementary
measures to protect the environment, in particular pollution of the seas, through the criminal
law.

The  proposal  for  a  Directive  on  ship-source  pollution  and  on  the  introduction  of  sanctions,
including criminal sanctions, for pollution offences,4 constitutes  a first fundamental stage in
this  respect.  This  proposal  transposes  into  Community  law  the  international  rules  on
ship-source  pollution  emissions  and  regulates  the  implementation  of  these  rules.  It  applies,
beyond  the  usual  international  standards,  to  prohibited  behaviour  on  the  high  seas  (seas
outside the jurisdiction of any State). It provides that there must be effective, proportional and
dissuasive  penalties  for  these  offences.  With  regard  to  natural  persons,  these  are  criminal
penalties,  involving  imprisonment  in  the  most  serious  cases.  Regarding  natural  or  legal
persons, the applicable penalties include fines.

To  fight  effectively  against  the  phenomena  of  ship-source  pollution,  the  mechanism  put  in
place  should  be  backed  up  by  measures  of  judicial  cooperation  pursuant  to  Title  VI  of  the
Treaty on European Union.

This  proposal  for  a  Framework  Decision  therefore  aims  to  strengthen  the  criminal-law
measures to approximate the provisions laid down by law or regulation in the Member States
concerning  ship-source  pollution  offences  and  to  facilitate  and  encourage  cooperation
between the Member States to repress these offences.

2.

THE REGIONAL AND INTERNATIONAL CONTEXTS; THE EU FRAMEWORK

This proposal for a Framework Decision falls within a regional and international context by
which it is heavily inspired.

1

2

3

4

Proposal for a Parliament and Council Directive concerning environmental protection by the  criminal
law,  presented  by  the  Commission  on  13.3.2001  (OJ  C  180  E,  26.6.2001,  p.  238),  as  amended  on
30 September 2002 (OJ C 20 E, 28.1.2003, p. 284).
OJ L 29, 5.2.2003, p. 55.
Points 32 to 34.
COM (2003) 92 final, 5.3.2003.

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In addition to MARPOL Convention 73/78, to which the proposal for a Directive 2003/... /EC
directly refers, the most relevant instrument in the context of this Framework Decision is the
United  Nations  Convention  on  the  Law  of  the  Sea  of  10  December  1982  (UNCLOS),  the
Community being a party5 along with all the Member States, for  all of them have  ratified it
except  Denmark.  Part  XII  of  this  Convention  (“Protection  and  safeguarding  of  the  marine
environment”),  which  regulates  the  powers  of  investigation  and  prosecution  of  the  States
party, and establishes heads of jurisdiction, constitutes a source  of direct inspiration for this
proposal.

The  European  Community,  alongside  Germany,  Belgium,  Denmark,  France,  Norway,  the
Netherlands, Sweden and Great Britain, is a party to the “Bonn Agreement” of 13 September
1983  for  cooperation  in  dealing  with  pollution  of  the  North  Sea  by  oil  and  other  harmful
substances,  which  is  noteworthy  in  that  it  stipulates  a  monitoring  and  mutual  assistance
mechanism between the States party, extending to the gathering of evidence. The Baltic Task
Force is another relevant regional reference framework as regards ship-source pollution. The
“Regional  Marine  Pollution  Emergency  Response  Centre  for  the  Mediterranean  Sea”
(REMPEC) also deals with the matters of relevance to this Framework Decision, among other
more general aspects of environmental protection.

This Framework Decision takes account of a number of aspects of instruments that have been
or  soon  will  be  adopted  by  the  Council.  Such  is  the  case  in  particular  of  the  judicial
cooperation  aspects  of  the  recent  Framework  Decision  concerning  environmental  protection
through criminal law.6

3.

LEGAL BASIS

Article 29 of the Treaty on European Union treats the development of common action among
the  Member  States  in  the  fields  of  police  and  judicial  cooperation  in  criminal  matters  as  a
means of achieving the Union’s objective of providing citizens with a high level of safety in
the area of freedom, security and justice.

This  objective  is  to  be  achieved  through  closer  cooperation  between  judicial  and  other
competent  authorities  of  the  Member  States.  Article  31(1)  of  the  Treaty  lists  a  number  of
aspects  to  be  covered  by  common  action  in  the  sphere  of  judicial  cooperation  and  the
approximation of legislation in criminal matters.

This proposal meets these aims.

The variability of levels of penalties in the current situation creates distortions in the potential
financial and other consequences of pollution, depending where it occurs, while this pollution
is likely to affect several Member States of the Union. The harmonisation of levels helps to
discourage forum-shopping. Recognition of powers of investigation of the State of the port or
terminal  where  a  ship  is  lying  off  shore  and  the  possibility  of  setting  up  joint  investigation
teams helps to improve cooperation between judicial authorities. The establishment of heads
of jurisdiction helps to prevent conflicts  of jurisdiction,  in  accordance  with  Article  31(d)  of

5

6

This Convention entered into force with regard to the European Community on 1.5.1998.
This reference is without prejudice to the Commission’s position on the legal basis for this instrument,
which it has always disputed and of which it announced in a statement annexed to the  minutes of the
Council  meeting  which  adopted  the  Framework  Decision  that  the  Commission  reserved  all  the  rights
conferred  on  it  by  the  Treaty.  On  24  March  2003  the  Commission  accordingly  decided  to  bring  an
action against the Council for judicial review of the legality of this Framework Decision (PE/2003/410).

3

                                                
the  Union  Treaty.  And  the  establishment  of  contact  points  for  the  exchange  of  information
facilitates  and  accelerates  cooperation  between  authorities  and  is  a  means  of  securing
compatibility between the rules applicable in the Member States, as required by Article 31(a)
and (c).

Article 34(2)(b) of the Union Treaty mentions the Framework Decision as the instrument to
be  used  for  approximating  the  provisions  laid  down  by  law  or  regulation  in  the  Member
States.  Framework  Decisions  are  binding  on  the  Member  States  as  regards  the  result  to  be
achieved but leave to national authorities the choice of form and methods.

4.

CONTENT OF THE PROPOSAL

Title:  Framework  Decision  to  strengthen  the  criminal-law  framework  for  the
enforcement of the law against ship-source pollution

The title of the Framework Decision immediately highlights the fact that the instrument is to
complement  Directive  2003/...  /CE.  This  is  why  the  terms  “ship-source  pollution”  already
used  in  the  title  of  the  Directive  are  taken  over  exactly.  The  terms  “to  strengthen  the
criminal-law  framework”  state  how  the  proposed  measures  are  to  complement  the  earlier
instrument and are inspired by other Union instruments.

Article 1 – Subject-matter

Article  1  specifies  that  the  purpose  of  this  Framework  Decision  is  to  supplement  Directive
2003/...  /EC  with  detailed  rules  in  criminal  matters.  The  scope  of  this  Framework  Decision
necessarily  coincides  therefore  with  the  scope  of  the  Directive.  It  applies  to  the  illegal
discharge  of  polluting  substances  from  ships  within  the  meaning  of  the  Directive;  this
basically  means  enforcement  of  the  ban  on  illegal  discharges  of  bulk  hydrocarbons  and
harmful  liquid  substances  in  all  waters  within  the  jurisdiction  of  a  Member  State  (inland
waterways, territorial waters, straits used for international navigation subject to the regime of
transit  passage,  exclusive  economic  areas),  and  on  the  high  seas,  from  a  ship  or  seagoing
vessel, irrespective of its flag, of any type whatsoever operating in the marine environment,
including hydrofoil boats, air-cushion vehicles, submersibles and floating craft.

The  reference  to  criminal  matters  precludes  any  further  measures  of  civil  or  administrative
law.

Article 2 – Definitions

This  Article  specifies  that  the  definitions  adopted  in  Directive  2003/...  /EC  apply  for  the
purposes of this Framework Decision. This flows from the fact that the Framework Decision
is designed as a complement to Directive 2003/... /CE. The definitions of illegal discharge of
polluting substance, by reference to MARPOL 73/78 standards, including hydrocarbons  and
harmful liquid substances, and of ships and natural and legal persons for the purposes of this
Decision are in Article 2 of Directive 2003/... /CE.

Article 3 – Detailed rules for applying penalties

Directive  2003/...  /EC  creates  an  offence  of  the  illegal  discharge  of  polluting  substances
intentionally  or  by  serious  negligence,  for  which,  in  accordance  with  Article  6  of  the
Directive, there must be effective, proportional and dissuasive criminal or other penalties. In
the  most  serious  cases,  in  accordance  with  the  same  provision,  these  penalties  can  include
prison sentences for natural persons. Article 6 also provides that these penalties can take the

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form of fines  for both natural  and legal  persons,  which  will probably tend  to  be  the  case in
view of current national practices.

Article 3 of the Framework Decision deals with the detailed rules for imposing the penalties
provided  for  by  the  Directive.  But  it  deals  only  with  the  specific  aspects  of  them.  It  leaves
aside the more horizontal aspects, which will be addressed in other contexts.7

The first paragraph relates to prison sentences, likely to be imposed under Directive 2003/...
/EC in the “most serious” cases. A minimum level of maximum prison sentences is provided
for.  This  level  is  in  conformity  with  the  conclusions  of  the  JHA  Council  of  25  and
26 April 2002,  which  identifies  four  possible  levels  of  penalty.8  The  level  envisaged  in  this
Framework Decision corresponds to the third level identified in the JHA Council conclusions.
Under  this  Framework  Decision,  the  seriousness  of  imprisonable  offences  is  such  (we  are
looking at the “most serious” cases according to the Directive) that it would seem right to set
a  harmonisation  threshold  corresponding  to  the  level  3.  The  minimum  level  of  maximum
prison sentence provided for cannot, therefore, be below a bracket ranging between five and
ten  years’  imprisonment.  But  setting  this  threshold,  of  course,  does  not  mean  that  shorter
prison  sentences  are  precluded  in  national  law.  Member  States  remain  free  to  provide  for  a
level of penalties corresponding to the lower thresholds, i.e. a sentence ranging  from  one to
three years, or a sentence ranging from three to five years for offences which, without being
negligible, are  not however  “the  most serious ones”,  which are  the  only  ones  for  which  the
Directive 2003/... /EC demands a prison sentence.

The appraisal of the seriousness of cases punishable by imprisonment under the Directive is
not  defined  and  is  left  to  each  Member  State,  which  will  interpret  it  in  the  light  of  its
traditions  and  its  own  legal  system.  The  Framework  Decision  does,  however,  identify  four
types of specific circumstances in which a case will be treated as being in the “most serious”
category  for  the  purposes  of  the  Directive.  They  include  the  commission  of  offences  by  a
criminal organisation within the meaning of the Joint Action of 19989 and offences as a result
of which persons suffer death or serious bodily harm or substantial damage is caused to water
quality or to animal or vegetable species or of parts of them.

The  Commission  wishes  to  stress  that  the  four  types  of  circumstances  provided  for  in  this
Article  are  without  prejudice  to  other  circumstance  regarded  as  highly  serious  by  the
legislation of the Member State concerned. The four “most serious” circumstances mentioned
in  this  Framework  Decision  correspond  to  those  which  are  generally  recognised  as  such  in
national  law  and  have  already  been  provided  for  by  other  European  Union  instruments.
Participation in a criminal organisation is an aggravating  circumstance  in the proposal for a
Framework  Decision  on  attacks  against  information  systems.10  Particularly  serious  injury
caused  to  the  victim  is  an  aggravating  circumstance  which  must  be  taken  into  account  in

7

8

9

10

There is currently an initiative of the Greek Presidency for a Council Framework Decision to harmonise
the application of the ne bis in idem principle. Repeat offences should be considered in the forthcoming
Commission  Communication  on  the  alignment  of  criminal  penalties,  probably  to  be  followed  by  a
proposal for a Council Framework Decision on the approximation of criminal penalties.
Level 1: Penalties of a maximum of at least between 1 and 3 years of imprisonment; level 2: Penalties
of a maximum of at least between 2 and 5 years of imprisonment; level 3: Penalties of a maximum of at
least between 5 and 10 years of imprisonment; level 4: Penalties of a maximum of at least 10 years of
imprisonment (cases where very serious penalties are required).
Joint Action of 21 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on
European Union on making it a criminal offence to participate in a criminal organisation in the Member
States of the European Union (OJ L 351, 29.12.1998, p. 1).
Commission proposal (COM (2002) 173 final), published in OJ C 203 E, 27.8.2002, p. 109.

5

                                                
offences  of  trafficking  in  human  beings,  for  example.11  And  substantial  damage  to  water
quality and to animal or vegetable  species is taken into account in  the  Framework Decision
concerning  protection  of  the  environment  through  criminal  law  for  the  definition  of
intentional criminal offence.

Given the nature of a Framework Decision, which is binding on the Member States as regards
the result to  be  achieved  but  leaves  them  free  to  determine  the  form  and  methods,  Member
States  retain  a  certain  margin  for  manoeuvre  in  adapting  their  legislation  to  these  rules  and
determining the seriousness of the penalties imposed within the limits set by the Framework
Decision.

In accordance with Directive 2003/... /EC, prison sentences will not always be the penalty, or
the  only  penalty,  that  fits  the  crime.  For  one  thing,  they  apply  only  to  the  most  serious
offences,  as  has  already  been  stressed.  For  another,  provision  must  also  be  made  for  a
dissuasive harmonisation system with regard to legal persons, and a prison sentence can quite
well be imposed in combination with another penalty.

Article 3(2) deals, therefore, with the harmonisation of the penalties that Member States may
impose  in  addition  to  or  in  place  of  a  prison  sentence  under  Directive  2003/...  /EC,  in
accordance with their respective traditions and legal systems.

Approximation  of  levels  was  sought  without  requiring  a  Member  State  whose  legal  system
does not have minimum sentences to adopt them. A system of minimum ranges for maximum
sanctions has been adopted, the principle being close to the conclusions of the JHA Council
relating to prison sentences.

Rather than adopting ranges of amounts expressed in currency, which could evolve as a result
of  index-linking  and  by  definition  would  not  be  in  accordance  with  the  proportionality
requirement expressed in Article 6 of Directive 2003/... /EC,12 a reference is made to a certain
percentage  of  turnover  or  assets.  This  system  is  inspired  by  different  instruments  of
Community law, in the field of competition law in particular.13 The assets approach must be
included as a  pendant  of  the  turnover  approach.  It  is  intended  also  to  cover  the  situation  of
natural persons, or even of not-for-profit legal persons, for whom the turnover approach is not
possible. The way it is applied is left to the discretion of national legislation.

Two  levels  of  penalty  are  envisaged.  The  first,  from  1%  to  10(cid:1)  of  turnover,  concerns
hypotheses in which a prison sentence will not necessarily be passed under Article 6(4) of the
Directive  where  a  natural  person  is  concerned:  this  means  those  cases  which  are  not
considered by national law to be among the most serious. These hypotheses were not covered
by the approximation under the previous paragraph, since the Directive does not require them
to  be  punishable  by  a  prison  sentence.  The  second,  from  10%  to  20(cid:1)  of  the  turnover,

11

12

13

E.g.  Framework  Decision  of  19  July  2002  on  combating  trafficking  in  human  beings  (OJ  L  203,
1.8.2002, p. 1), Art.3(2)(c).
But the Baltic Marine Environment Protection Commission (HELCOM) has provided in a non-criminal
context  for  a  harmonised  level  of  administrative  penalties  (Recommendation  HELCOM  19/14).  This
recommendation envisages a minimum level of penalty for each offence provided for in the annexes to
the MARPOL 73/78 Convention. Concerning illicit discharges of hydrocarbons or other harmful liquid
substances, covered by Directive 2003/... /EC, this level is 1 500 SDR (“Special Drawing Rights” - the
unit of account defined by the International Monetary Fund), which is equivalent more or less to €1 900
at the time of this proposal for a Framework Decision.
See Article 23 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of
the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

6

                                                
concerns the most serious cases in which a prison sentence is most likely to be passed under
Article  6(4)  of  Directive  2003/...  /CE.  These  are  the  hypotheses  in  which  the  previous
paragraph  provides  for  a  minimum  penalty  of  from  five  to  ten  years  (Article  3(1)  of  the
Framework Decision).

Without prejudice to Article 6(5)(b) of Directive 2003/... /EC, concerning the confiscation of
the proceeds of the offence, there is no reason why Member States should not provide that the
amount of the penalties ordered under this provision should take account of the profit gained
from the offence.

Article 4 – Jurisdiction

Since this Framework Decision is designed to complement Directive 2003/... /EC, jurisdiction
over  offences  covered  by  the  Directive,  which  is  determined  by  Article  4,  is  defined  by
reference to the scope of the Directive, provided for in Article 3.

Consequently,  pursuant  to  this  provision,  each  Member  State  is  to  take  the  measures
necessary to establish jurisdiction with regard to offences committed in:

a) its inland waterways, including its ports;

b) its territorial waters;

c)  straits  used  for  international  navigation  subject  to  the  regime  of  transit  passage,  in
accordance with Part III, section 2, of the United Nations Convention on the Law of the Sea
of 1982, insofar as this Member State exercises jurisdiction in these straits;

d) its exclusive economic area, established in accordance with international law; and

e) the high seas.

Article 8, concerning cooperation between Member States, supplements this by providing for
the coordination of proceedings between Member States and for criteria for settling conflicts
of jurisdiction that may arise under Article 4.

Article 5 – Criminal investigations in the Port state

Article 5 supplements Article 4 of Directive 2003/... /EC concerning measures with regard to
ships in a port of a Member State. Under  this  Article, the  relevant authorities,  generally the
harbour  authorities,  of  the  Port  state,  must  perform  a  number  of  checks.  If  these  raise  the
suspicion  that  an  offence  has  been  committed,  the  relevant  criminal  authorities  must  be
informed.

The  first  paragraph  of  this  Article  specifies  that  these  authorities  are  then  to  conduct  a
criminal investigation.

The  second  paragraph  then  details  the  extent  of  the  powers  of  investigation  of  the  national
State authorities in a port of which a ship suspected of an illegal polluting discharge to which
Article  3(1)  of  Directive  2003/...  /EC  applies  is  located.  The  relevant  provisions  of  the
UNCLOS Convention are taken over in substance. The inspection can extend to any relevant
equipment, including inspections  on board,  the hearing of witnesses  and the  examination of
photographic  and  other  evidence  and  samples  of  substances,  this  enumeration  not  being
exhaustive.

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Article 6 – Joint investigation teams

Article 6 requires Member States to take the measures necessary to set up joint investigation
teams  in  accordance  with  the  Framework  Decision  of  13  June  2002.14  This  provision  is
intended to ensure closer cooperation between the competent authorities in the Member States
in  their  investigations.  The  transnational  character  of  the  offences  covered  by  the  Directive
2003/...  /EC  often  makes  it  difficult  to  coordinate  investigations.  That  is  all  the  more
detrimental  as  the  phenomena  of  ship-source  pollution  demand  rapid  and  almost  immediate
action  by  the  competent  authorities,  in  particular  for  the  effective  collection  of  evidence,
which  can  be  particularly  perishable  when  hydrocarbons  or  other  harmful  liquid  substances
are involved.

The  Framework  Decision  of  13  June  2002  provides  the  necessary  framework  for  the
establishment  of  such  joint  investigation  teams.  The  model  agreement  to  set  up  such  joint
investigation teams, currently under discussion in the Council, is designed to make it easier to
set them up. Europol will naturally have a role to play in such joint investigation teams once
the Protocol permitting it to do so is into force.15

Article 7 – Commencement of proceedings

Article 7 is basically taken over from the UNCLOS Convention, which all the Member States
have signed.

Being  inspired directly  by  this  international  context,  this  Article  establishes  the  principle  of
mandatory proceedings in a Union instrument for the first time, setting it in a tightly defined
context.

Since  the  principle  is  likely  to  conflict  with  the  principle  of  discretionary  proceedings  that
applies  in  certain  Member  States,  it  is  specified  that  proceedings  must  be  commenced  “in
accordance with the national law” of the State concerned and in the presence of “reasonable
evidence”.  In  other  words,  a  Member  State  which  allows  the  prosecution  service  to  decide
whether or not to prosecute would not be bound by the principle. But even a Member State
which does not allow the prosecution service to decide whether or not to prosecute would not
be required to provide for mandatory prosecution in the absence of reasonable evidence.

It  is  specified  that  this  provision  applies  “without  prejudice  to  Article  8”,  concerning
cooperation  between  Member  States,  in  order  to  establish  a  link  with  the  need  to  attain  a
certain degree of coordination with the aim of centralising proceedings.

Article 8 – Cooperation between Member States

Article 8 answers the need for Member States to give each other the fullest possible assistance
and to consult each other when the same offence is within the jurisdiction of several of them.

14

15

Framework Decision concerning the joint investigation teams (OJ L 162, 20.6.2002, p. 1).
Council  Act  of  28  November  2002  drawing  up  a  Protocol  amending  the  Convention  on  the
establishment of a European Police Office (Europol Convention) and the Protocol on the privileges and
immunities of Europol, the members of its organs, the deputy directors and the employees of Europol
(OJ C 312, 16.12.2002, p. 1).

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To  this  end,  paragraph  1,  like  so  many  other  Union  instruments,16  refers  in  broad  terms  to
conventions,  bilateral  or  multilateral  agreements  or  other  applicable  arrangements.  The
UNCLOS Convention will be particularly relevant here; Article 228 provides for machinery
for suspending proceedings and places restrictions on the prosecuting institution.

Paragraph 2 requires Member States to cooperate to decide which of them will prosecute the
alleged offender, when an offence is within the jurisdiction of more than one Member State
and any of these States can validly commence proceedings on the basis of the same facts, the
aim  being  to  centralise  proceedings  in  a  single  Member  State  where  possible.  To  this  end,
Member States can avail themselves of any body or mechanism set up in the European Union
to  facilitate  cooperation  between  their  competent  authorities  and  to  coordinate  their  action.
They can avail themselves in particular of Eurojust, instituted by the Framework Decision of
28 February 2002.17

Paragraph 3 enumerates heads of jurisdiction in descending order of priority, for the purposes
of paragraph 2. It takes the heads of jurisdiction already used in the UNCLOS Convention or
other  Framework  Decisions,  in  particular  the  Decision  relating  to  environmental  protection
through criminal law. The following connecting factors are taken into account in succession:

(a)  the  Member  State  in  whose  maritime  territory  the  offence  was  committed  (i.e.  inland
waterways,  including  ports,  territorial  waters,  the  exclusive  economic  area  and  straits  over
which this State exercises jurisdiction);

(b)  the  Member  State  in  which  there  is  at  least  a  risk  of  pollution  where  the  offence  is
committed on the high seas;

(c) the  Member State  in  whose  maritime  territory  a  ship  is  in  transit,  whatever  the  place  of
commission of the offence, within the limits set by Article 3(1) of Directive 2003/... /EC;

(d) the Member State of which the perpetrator of the offence is a national or a resident;

(e)  the  Member  State  in  whose  territory  the  legal  person  on  whose  behalf  the  offence  was
committed has its registered office;

(f) the Member State of the flag of the ship from which the offence was committed.

The drafting takes account of existing precedents in Union law.18

Article 9 – Notification of information

Article 9 provides for the notification of information between Member States. Two types of
information are envisaged.

The  first  two  paragraphs  of  this  Article  concern  information  to  prevent  pollution  or  its
extension. The need for immediate information is fundamental here and goes without saying.

16

17

18

See for example Article 11 of the Council Framework Decision of 28 May 2001 combating fraud and
counterfeiting of non-cash means of payment (OJ L 149, 2.6.2001, p. 1).
Council Framework Decision of 28  February  2002  setting  up  Eurojust  with  a  view  to  reinforcing  the
fight against serious crime (OJ L 63, 6.3.2002, p. 1).
See  in  particular  Article  9(2)  of  the  Framework  Decision  of  13  June  2002  on  combating  terrorism
(OJ L 164, 22.6.2002, p. 3).

9

                                                
Under the third paragraph, Member States must basically notify first of all the flag state, but
also  any  other  Member  State  concerned,  of  any  measure  taken  under  this  Framework
Decision.  Here  again  it  is  important  for  information  to  circulate  quickly.  The  degree  of
urgency is, however, lower  than in the first  paragraph.  This  is  why  the  expression  “without
delay” is preferred here to the term “immediately”, used in the first paragraphs.

The means by which these notifications must be made are deliberately left unspecified: it will
be for each Member State to decide in the light of the need for immediate and rapid action.

Article 10 – Designation of contact points

The  purpose  of  Article  10  is  to  facilitate  the  exchange  of  information  by  ensuring  that
operational  contact  points  are  designated.  Member  States  can  use  the  existing  cooperation
mechanisms  for  this  purpose.  This  provision  plays  an  important  role  for  the  purposes  of
effective cooperation in criminal matters.

Paragraph 2 requires Member States to notify the General Secretariat of the Council and the
Commission of the contact points that they designate, on the understanding that the General
Secretariat of the Council will notify the other Member States of these contact points.

Article 11 – Territorial scope

This Article specifies that the Framework Decision has the same territorial scope as Directive
2003/...  /CE.  This  again  flows  from  the  fact  that  one  instrument  depends  on  the  other.  The
provisions  of  Article  299  of  the  EC  Treaty,  which  have  no  equivalent  in  the  Union  Treaty,
therefore apply.

Article 12 – Implementation

Article 12 concerns the implementation and monitoring of this Framework Decision. Member
States are to adopt the measures necessary to comply with the Framework Decision no later
than 31 December 2004.

By  the  same  date,  Member  States  are  to  communicate  to  the  General  Secretariat  of  the
Council and to the Commission the texts of the provisions transposing into their national law
the  obligations  imposed  on  them  by  this  Framework  Decision.  On  the  basis  of  that
information and a written report by the Commission, the Council is to check within a year the
extent to which Member States have complied with this Framework Decision.

Article 13 – Entry into force

Article  13  provides  that  the  Framework  Decision  is  to  enter  into  force  on  the  day  of  its
publication in the Official Journal of the European Union.

10

2003/0088 (CNS)

Proposal for a

COUNCIL FRAMEWORK DECISION

to strengthen the criminal-law framework for the enforcement of the law against
ship-source pollution

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  on  European  Union,  and  in  particular  Articles  29,  31  and
34 (2)(b) thereof,

Having regard to the proposal from the Commission,19

Having regard to the opinion of the European Parliament,20

Whereas:

(1)

(2)

(3)

The  Action  Plan  of  the  Council  and  the  Commission  on  how  best  to  implement  the
provisions  of  the Treaty  of  Amsterdam on an  area of  freedom,  security  and  justice21
and  the  conclusions  of  the  Tampere  European  Council  of  15  and  16  October  1999
(point 48)22  call  for  proposals  for  legislation  to  combat  environmental  crime,  in
particular common penalties and comparable procedural guarantees.

In this context, the Commission adopted on 13 March 2001 a proposal for a Directive
on the protection of the environment through criminal law,23 which requires Member
States  to  create  criminal  or  other  offences  and  penalties  in  respect  of  a  number  of
activities committed intentionally or with serious negligence, if they breach the rules
of  Community  law  protecting  the  environment  as  set  out  in  the  Annex  and/or  rules
adopted by Member States in order to comply with such Community law.

The fight against intentional or negligent ship-source pollution is among the European
Union’s  priorities.  The  conclusions  of  the  Copenhagen  European  Council  of  12  and
13 December 2002  (points  32  to  34)  and  the  statement  of  the  JHA  Council  of
19 December 2002  following  the  shipwreck  of  the  tanker  Prestige,  in  particular,
express  the  Union’s  determination  to  adopt  all  the  measures  needed  to  avoid
recurrences of such damage.

19

20

21

22

23

OJ C [... ], [... ], p. [... ].
OJ C [... ], [... ], p. [... ].
OJ C 19, 23.1.1999, p. 1, point 18.
http://ue.eu.int/en/Info/eurocouncil/index.htm.
OJ C 180 E, 26.6.2001, as amended on 30.9.2002 (OJ C 20 E, 28.1.2003, p. 284).

11

                                                
(4)

(5)

(6)

(7)

(8)

(9)

(10)

To  this  end,  as  the  Commission  stated  in  its  Communication  to  Parliament  and  the
Council  on  improving  safety  at  sea  in  response  to  the  Prestige  accident,24  the
legislation of the Member States must be approximated.

The purpose of Parliament and Council Directive 2003/... /EC on ship-source pollution
and  on  the  introduction  of  sanctions,  including  criminal  sanctions,  for  pollution
offences25  is  to  undertake  this  approximation  with  regard  to  the  definition  of  the
relevant offences and commission, participation and incitement, on the one hand, and
the  nature,  possibly  criminal,  of  the  penalties  that  can  be  imposed.  It  also  contains
technical and operational supporting measures.

To  supplement  these  provisions,  there  should  be  an  approximation  of,  among  other
things, the level of penalties corresponding to the seriousness of offences in relation to
the  natural  or  legal  persons  who  commit  them  or  are  liable  for  them,  in  accordance
with the conclusions of the JHA Council of 25 and 26 April 2002.

Provisions must be laid down to facilitate criminal investigations. Member States must
be able, where necessary, to set up joint investigation teams with which Europol could
be associated.

Rules on cooperation must be laid down to ensure that the offences to which Directive
2003/...  /EC  applies  can  be  effectively  prosecuted.  To  this  end,  the  European  Union
must  supplement  the  results  obtained  in  regional  or  international  organisations.  The
United Nations Convention on the Law of the Sea of 1982, signed by all the Member
States  of  the  Union  and  with  the  European  Community  as  a  party,  is  particularly
important in this context.

The  best  possible  cooperation  must  be  organised  between  the  Member  States  to
guarantee  the  swift  transmission  of  information  from  one  Member  State  to  another.
Operational contact points must be designated and identified.

Since  the  objectives  of  the  proposed  action  cannot  be  achieved  adequately  by  the
Member States separately, but can, owing to the cross-border character of the damage
which  may  be  caused  by  the  behaviour  concerned,  be  better  achieved  by  the  Union,
the Union can take measures, in accordance with the subsidiarity principle enshrined
in Article 5 of the Treaty. In accordance with the proportionality principle as declared
by  that  Article,  this  Framework  Decision  does  not  go  beyond  what  is  necessary  to
achieve these goals.

(11)

This  Framework  Decision  fully  respects  the  fundamental  rights  and  the  principles
recognised in particular by the Charter of Fundamental Rights of the European Union,

24

25

Communication of 3 December 2002, COM (2002) 681 final.
OJ C [... ], [... ], p. [... ].

12

                                                
HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1
Subject-matter

The purpose of this Framework Decision is to supplement Directive 2003/... /EC with detailed
rules in criminal matters.

Article 2
Definitions

For the purposes of this Framework Decision, the definitions provided for in Article 2 of the
Directive 2003/... /EC shall apply.

1.

2.

Article 3
Detailed rules for applying penalties

With regard to natural persons, each Member State shall take the measures necessary
to  ensure  that  the  offences  referred  to  in  Article  6(1)  of  Directive  2003/...  /EC  are
punishable by a maximum sentence of at least five to ten years’ imprisonment in the
most  serious  cases  in  accordance  with  Article  6(4)  of  Directive  2003/...  /EC,  in
particular:

a)

b)

c)

d)

where  the  offences  were  committed  in  the  context  of  a  criminal  organisation
within  the  meaning  of  Joint  Action  98/733/JHA  of  21  December  1998  on
making  it  a  criminal  offence  to  participate  in  a  criminal  organisation  in  the
Member States of the European Union;26

where the offences caused the death or serious injury of persons;

where the offences caused substantial damage to water quality;

where the offences caused substantial damage to animal or vegetable species or
to parts of them.

With regard to natural and legal persons, each Member State shall take the measures
necessary to ensure that the offences referred to in Article 6(1) of Directive 2003/...
/EC are punishable, pursuant to Article 6(5)(a), by criminal or non-criminal penalties
of a maximum amount of no less than:

a)

b)

1% to  10(cid:1)  of  the  total  turnover  in  the  previous  financial  year  or  of  the  total
assets held in the previous year, in cases other than the most serious cases;

10% to 20(cid:1) of the total turnover in the previous financial year or of the total
assets held in the previous year, in the most serious cases, in particular those to
which paragraph 1 applies.

26

OJ L 351, 29.12.1998, p. 1.

13

                                                
Article 4
Jurisdiction

Each Member State shall take the measures necessary to establish its jurisdiction with regard
to  the  offences  referred  to  in  Article  6(1)  of  Directive  2003/...  /EC  in  the  cases  to  which
Article 3 of Directive 2003/... /EC applies.

Article 5
Criminal investigations in the Port state

1.

2.

Where,  under  Article  4(3)  of  Directive  2003/...  /EC,  the  competent  authorities  in
criminal matters are informed of a suspected offence within the meaning of  Article
6(1) of that Directive, they shall conduct a criminal investigation.

The investigation shall extend to any useful element, including inspections on board,
the hearing of witnesses and the examination of photographic evidence and samples
of substances, this enumeration not being exhaustive.

Article 6
Joint investigation teams

Member  States  shall,  where  appropriate,  take  the  measures  necessary  to  constitute  joint
investigation teams in accordance with Framework Decision 2002/465/JHA of 13 June 2002
in  order  to  conduct  criminal  investigations  into  offences  to  which  Article  6(1)  of  Directive
2003/... /EC applies.

Article 7
Commencement of proceedings

Without prejudice to Article 8, a State which has established its jurisdiction under Article 4
shall without delay commence proceedings in respect of the suspected offence in accordance
with its national law, provided reasonable evidence is present.

Article 8
Cooperation between Member States

1.

2.

In  accordance  with  the  conventions,  bilateral  or  multilateral  agreements  or  other
applicable arrangements,  Member  States shall  provide each  other  with  the  broadest
possible  assistance  in  proceedings  in  respect  of  offences  to  which  Article  6(1)  of
Directive 2003/... /EC applies.

When an offence is subject to  the  jurisdiction  of  more  than  one  Member  State  and
any one of those States may validly commence proceedings on the basis of the same
facts,  the  relevant  Member  States  shall  cooperate  to  decide  which  of  them  will
prosecute the perpetrators of the offence for the purpose of centralising proceedings
in  a  single  Member  State  if  possible.  To  that  end,  Member  States  may  avail
themselves of any body or mechanism set up within the European Union to facilitate
cooperation  between  their  competent  authorities  and  coordinate  their  action.  They
shall avail themselves in particular of Eurojust.

14

3.

The following connecting factors shall be taken into account in succession:

a)

b)

c)

d)

e)

f)

the Member State in whose territory the offence was committed;

the Member State in whose territory the effects of the offence are felt;

the  Member  State  in  whose  territory  a  ship  from  which  the  offence  was
committed is in transit;

the  Member  State  of  which  the  perpetrator  of  the  offence  is  a  national  or  a
resident;

the  Member  State  in  whose  territory  the  legal  person  on  whose  behalf  the
offence was committed has its registered office;

the  Member  State  of  the  flag  of  the  ship  from  which  the  offence  was
committed.

For  the  purposes  of  paragraph  3,  the  territory  includes  the  area  referred  to  in
Article 3(1)(a) to (d) of Directive 2003/... /EC.

Article 9
Notification of information

Where  a  Member  State  is  informed  of  the  commission  of  an  offence  to  which
Article 6(1) of Directive 2003/... /EC applies or of the risk of the commission of such
an offence which causes or is likely to cause imminent pollution, it shall immediately
inform such other Member States as are likely to be exposed to this damage, and the
Commission.

Where  a  Member  State  is  informed  of  the  commission  of  an  offence  to  which
Article 6(1) of Directive 2003/... /EC applies or of the risk of the commission of such
an offence which is likely  to fall within the jurisdiction of a Member State,  it  shall
immediately inform that other Member State.

Member States shall without delay notify the flag state or any other State concerned
of measures taken pursuant to this Framework Decision, and in particular Articles 4,
5, 6 and 7.

Article 10
Designation of contact points

Each  Member  State  shall  designate  operational  contact  points  for  the  exchange  of
information for the purposes of implementation of this Framework Decision, and in
particular for the collection of evidence.

Each Member State shall inform the Commission which of its departments acts or act
as contact points in accordance with paragraph  1. The Commission shall  notify the
other Member States of these contact points.

4.

1.

2.

3.

1.

2.

15

Article 11
Territorial scope

This Framework Decision shall have the same territorial scope as Directive 2003/... /EC.

Article 12
Implementation

1.

2.

Member States shall adopt the measures necessary to comply with the provisions of
this Framework Decision no later than 31 December 2004.

By the same date, Member States shall communicate to the General Secretariat of the
Council  and  to  the  Commission  the  texts  of  the  provisions  transposing  into  their
national  law the  obligations imposed on  them by this  Framework  Decision.  On  the
basis of that information and a written report by the Commission, the Council shall,
no  later  than  31  December  2005,  check  the  extent  to  which  Member  States  have
taken the measures necessary to comply with this Framework Decision.

Article 13
Entry into force

This Framework  Decision  shall  enter  into  force  on  the  day  of  its  publication  in  the  Official
Journal of the European Union.

Done at Brussels, [... ]

For the Council
The President
[... ]

16