Opinion of the European Economic and Social Committee on the "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" (COM(2003) 92 final — 2003/0037 (COD))
Date: 2003-06-19
Institutions: European Economic and Social Committee
Subjects: EU environmental policy, criminal law, criminal liability, environmental protection, maritime surveillance, penalty, pollution control measures, pollution from ships

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2.4.
tutions to the fact

However, the EESC draws the attention of the insti-
that providing slot protection to the

airlines should not create unfair competition preventing new
companies to access to the market.

Brussels, 18 June 2003.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘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’

(COM(2003) 92 final — 2003/0037 (COD))

(2003/C 220/15)

On 19 March 2003 the Council decided to consult the European Economic and Social Committee under
Article 80(2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 5 June 2003. The rapporteur was
Mr Chagas and the co-rapporteur Dr Bredima-Savopoulou.

At its 400th plenary session of 18 and 19 June 2003 (meeting of 19 June) the European Economic and
Social Committee adopted the following opinion by 96 votes to 6 with 5 abstentions.

1.

Introduction

i.e.

As already announced in the Communication on
1.1.
improving safety at sea in response to the Prestige incident (1),
the Commission proposes to further ‘tighten the net’ relating
to ship-source pollution. The main part of world-wide ship-
source pollution by oil is the result of deliberate discharges.
intentional discharges from ships are still
Operational,
widely practised in the waters off the coasts of EU Member
States. As a consequence of recurring major incidents and
continued deliberate discharges, the Commission proposes a
Directive establishing that discharges in violation of Com-
munity 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.

( 1) COM(2002) 681 final.

1.2.
The Commission considers that the introduction of
adequate sanctions for marine-pollution offences is particularly
important as the international civil
liability regimes that
govern ship-source pollution incidents involve significant
shortcomings with respect
in
particular the ability of the polluter to nearly always limit
liability. Hence, the deterrent effect of criminal sanctions is
proposed.

to their dissuasive effects,

1.3.
The Transport Council (6 December 2002) welcomed
the intention of the Commission to present such a proposal
and the Justice and Home Affairs Council (19 December 2002)
agreed that ‘complementary measures should be considered to
strengthen the protection of the seas through criminal law’.

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1.4.
The Commission shares the views of Member States
about the urgency of this proposal without prejudice to a
more general regime applicable for the protection of the
environment through criminal law.

The European Summit (20-21 March 2003) called for
1.5.
adoption before the end of 2003, based on the Commission’s
recent proposal, of a system of sanctions, including criminal
sanctions for pollution offences on the appropriate legal basis.

2. The Commission proposal

2.1.

The proposed Directive consists of two parts:

a)

b)

It introduces discharge rules for ship-source pollution
into Community law and regulates the enforcement of
these rules. The polluting substances include oil, hazard-
ous and noxious liquid substances. It includes violations
that have taken place by vessels in EU ports, in territorial
waters, in the exclusive economic zone and on the high
seas.

It establishes that violations of the discharge rules shall
be criminal offences and provides guidance on the nature
of the penalties to be awarded. Sanctions may be imposed
on any natural or legal person (i.e. the shipowner, the
cargo owner,
the classification society or any other
person involved).

discharges which contravene the MARPOL Convention are
unacceptable and should be penalised when illicitly conducted.
If the evidence shows that illicit operational discharges are
taking place with impunity, there is no objection to measures
to implement more effectively in Member States the enforce-
ment provisions of MARPOL.

3.2.
The Convention makes clear that operational dis-
charges complying with MARPOL restrictions are permissible.
If such discharges are to be eliminated completely, this is
unlikely to be possible unless, at least, governments take the
necessary measures to ensure that reception facilities become
sufficiently widespread to make such discharges unnecessary.
The Directive does not address the issue of
inadequate
reception facilities and their use.

Under Directive 2000/59/EC on Port-Reception
3.2.1.
ship-generated waste and cargo residues (1)
Facilities for
(Article 13), Member States are to lay down a system of
penalties for the breach of national provisions adopted pursu-
ant to the Directive and take all the measures necessary to
ensure that those penalties are applied. The penalties thus
provided are to be effective, proportionate and dissuasive.
However, the requirements of the Directive have still not been
fully implemented in some Member States. This situation may
encourage ships to discharge at sea. The EESC notes that the
Commission has initiated infringement proceedings against
those Member States for non-compliance with the above
Directive.

2.2.
Sanctions including criminal sanctions may include the
following: fines, confiscation, ban on engaging in commercial
activities, placing under judicial supervision, judicial winding
up, ban on access to public assistance or subsidies and
deprivation of liberty.

3.2.2.
In light of the above, the Commission is invited to
produce an inventory regarding the compliance of EU Member
States with Directive 2000/59/EC and Member States should
be urged to proceed rapidly since the deadline for compliance
expired on 28 December 2002.

3. General comments

3.1.
Legislation to deter maritime pollution is welcomed.
Escapes or discharge of oil or other pollutants from ships
result in practice from a variety of causes, ranging from
operational discharges which deliberately flout international
law to accidental spills and relatively low levels of fault. The
proposed Directive consists of measures to strengthen the
enforcement in EU Member States of the rules laid down under
international law, i.e. the MARPOL Convention.

In addressing the causes of pollution from ships, a
3.1.1.
distinction has long been recognised in international
law
between operational discharges and accidental escapes. The
Commission’s Explanatory Memorandum contains statements
conveying the impression that operational discharges are an
‘unacceptable practice’. There can be no disagreement that

3.2.3.
Since in several illegal discharges the polluters are
not identified, there is a need to identify ships that pollute by
way of satellites and through the installation of Automatic
Identification Systems.

3.3.
The proposed Directive consistent with MARPOL does
not call for sanctions in regard to discharges resulting from
damage to the ship or its equipment. The sanctions under this
Directive apply only to illegal discharges and are only to be
imposed if the pollution results from intentional or grossly
negligent conduct by the parties involved. However,
is
acknowledged that there is a different interpretation of ‘gross
negligence’ in Member States.

it

(1) OJ L 332, 28.12.2000, p. 81.

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3.4.
All EU Member States have ratified MARPOL, and they
are already required to ensure that such violations are penalised
by criminal sanctions (Regulations 9,10 of Annex I, Regu-
lation 5 of Annex II and Articles 4 and 6). However, the
Directive provides for uniformity of application to Member
States and extension to other parties involved beyond that of
the master who may often be the unwilling or innocent party
to such incidents.

3.4.1.
The Directive purports to strengthen the implemen-
tation and enforcement of MARPOL in Member States without
having identified the respects in which current national laws
in the EU are said to be deficient in this respect. The EESC in
its opinion on the Erika II package (1) invited the Commission
to produce an inventory of relevant national legislation in EU
Member States (in compliance with the MARPOL Convention
sanctions). Hence, it reiterates that it is of the utmost urgency
to have a comparative study of national legislations in order
to get a clear picture of the existing sanctions in the EU.

The proposal

to exercise criminal

3.5.
jurisdiction in
relation to accidental spills outside the coastal waters of a
Member State is not expressly articulated in the Commission’s
Memorandum. UNCLOS implies some considerable limitations
as far as accidental pollution is concerned. However, by several
States participating in a network of
information sharing
and enforcement cooperation, significant action is possible,
strengthening the provisions of the MARPOL Convention.

3.6.
The legal base of the proposed Directive is Article 80(2)
of the Treaty establishing the European Community. The EESC
notes that the European Summit has requested ‘an appropriate
legal basis’ for the draft Directive. It appears that the situation
is not clear whether the present Directive should have been
presented under the first or the third pillar. It notes that
the Community competence for sanctions in environmental
matters is currently examined by the European Court of Justice.
The EESC recalls its past opinion where it was stated that the
Community has such competence. However, since the issue is
sub judice, the EESC refrains from suggesting a legal basis in
for a Council
this respect. The EESC notes the Proposal
Framework Decision (2) to strengthen the criminal law frame-
work for the enforcement of the law against ship-source
pollution. The EESC invites the Commission to streamline the

terminology used regarding the present proposal, the above
Framework Decision as well as the proposal for a Directive on
the protection of the environment through criminal law (3)
regarding inconsistencies.

3.7.
It is an important principle of human rights law that
measures affecting the fundamental rights and freedoms of the
individual must observe the requirement of proportionality.
That is to say, they must not exceed the measures reasonably
required to achieve the legitimate objective of the legislation
in question (in this case the prevention of pollution). The EESC
urges the Council, the Parliament and the Commission to
ensure that actions against alleged polluters are accompanied
with all legal guarantees for the respect of human rights, due
process, the presumption of innocence of the accused and the
right of appeal.

3.7.1.
The EESC acknowledges the vulnerability of seafarers
and draws attention to Article 292 of UNCLOS (4) (‘prompt
release of vessels and crews’) and requests that the Council and
the Commission make proposals for the protection of masters
and other crew members.

3.7.2.
The risk of disproportionate action against masters
and seafarers is increased by the fact that they are often the
only persons connected with the ship who are physically
Investigations may
present
subsequently reveal that any responsibility on their part was
relatively minor.

in the jurisdiction concerned.

Oil pollution incidents have not infrequently resulted
3.7.3.
from groundings near ports in circumstances where negligence
on the part of pilots or port authorities has been either the
primary cause or a significant contributory factor. In such
cases, there is a risk for seafarers to be prosecuted with
disproportionate zeal. In a climate of this kind, striking a just
balance between the rights of the accused and the perceived
expectations of the public is a difficult task.

3.7.4.
Another potential practical concern relating to the
criminalisation of seafarers is the fact that there is a world-
wide shortage of competent trained seafarers and that national
and international shipowners’ associations, seafarers’ unions,
maritime administrations and the European Commission have,
for several years, been considering ways of attracting new
recruits to a seafaring career. Widespread media reports of the
imprisonment of seafarers following pollution incidents will
act as a deterrent to the recruitment of talented young persons,
and in the long term will be counter-productive to the objective
of enhanced maritime safety.

( 1) OJ C 221, 7.8.2001, p. 54.
( 2) COM(2003) 227 final of 2.5.2003.

(3) 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 30.9.2002 (OJ C 20 E, 28.1.2003, p. 284)

(4) United Nations Convention on the Law of the Sea.

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3.7.5.
There are three principal safeguards required to
ensure that criminal laws for marine pollution do not dispro-
portionately affect human rights:

4.2. Article 2 § 4

a)

b)

c)

it should be recognised that the imposition of
First,
criminal
liability on any person is a serious matter,
and should not be undertaken in a manner which is
disproportionate to the conduct being criticised or the
objective of preventing pollution.

If criminal liability is imposed, the penalty should not be
disproportionate to the culpability of the offender and

Pending trial of the criminal action there should be
respect for the right of the accused to a presumption of
innocence, and for his rights to liberty and freedom of
movement.

3.8. Where there is ‘gross negligence’ the burden of proof
must be sufficient and if used without any such safeguards, the
test of liability would involve a high level of subjectivity,
discretion and uncertainty. In the climate which follows a
this nature has the
serious pollution incident, a test of
possibility to expose the defendant to an obvious risk of a
criminal conviction which is intended to reflect public outrage
at the consequences of the incident but which is out of
proportion to their own culpability.

3.9.
It is also desirable that the Directive should make it
clear that criminal liability can be imposed only in respect of
the personal fault of the defendant, whoever they are. Vicarious
criminal liability for acts or omissions should not be imposed
to other parties than the ones actually committing them (e.g.
in cases of navigation error) unless it can be shown that their
acts or omissions contributed to fault by the defendant.

Assuming that criminal

3.10.
the
penalty should not be out of proportion to the wrongdoing. A
thoughtlessly retributive regime commands little respect and
contributes little if anything to the prevention of pollution.

liability is imposed,

4. Specific comments

4.1.

Preamble

The definition of
‘ship’ seems to exclude pleasure craft.
According to recent statistics more oil enters the sea from
pleasure crafts than from all
the other maritime sources
altogether (1) except where there is a serious maritime casualty.
To the extent that pleasure craft are not covered by MARPOL,
the EESC invites the Commission to deal with sanctions for
pollution from pleasure craft in another legal instrument in
the near future.

4.3. Article 2 § 6 and Article 6

The Directive excludes from the definition of ‘legal person
states’‘or any other public bodies acting in the exercise of their
prerogative of public power as well as public international
organisations’. Moreover, regarding the range of persons
prospectively liable to prosecution, Article 6 provides sanc-
tions for ‘persons’ which are only private commercial interests
involved in shipping (the shipowner, the cargo owner, the
classification society). However, there has been plenty of
experience — in Europe and elsewhere — of pollution damage
being primarily caused or substantially contributed to by
pilots, port administrations and other public authorities. The
EESC believes that sanctions should be expressly provided in
such cases against them as well.

4.4. Article 6 § 1

The EESC recalls its opinion (2) on the draft Regulation on the
establishment of a fund for the compensation of oil-pollution
damage in European waters (Erika II) whereby it stated that the
term ‘grossly negligent acts or omissions’ may not be suf-
ficiently precise for inclusion in a Community legal instrument
and may jeopardise already well established and workable legal
regimes such as the MARPOL regime. In some legal systems
there are difficulties with the term ‘gross negligence’, and its
translation into the languages of different Member States may
well have a different meaning. In the context of accidental oil
spills the term ‘gross negligence’ may be an unsatisfactory test
of criminal liability. Furthermore, the MARPOL Convention

The preamble states that ‘measures of a penal nature are not
related to the civil liability of the parties concerned’. For the
sake of legal clarity, the EESC proposes to ensure expressly in
the operative part of the Directive that punishment is not
confused with compensation. Otherwise, there is a risk of legal
wrangles that would upset the international civil liability and
compensation regime.

(1) GESAMP (Group of Experts of Scientific Assessment for Marine
Pollution) figures: e.g. 68 % from leisure craft, 18 % from shipping
general and 14 % from accidents/tankers cargo tank washings/
coastal refineries/war-related accidents/natural seeps (2003).

(2) OJ C 221, 7.8.2001, p. 54.

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makes it clear that the discharge into the sea does not
constitute a breach of international law when it results from
damage to the ship or its equipment. The EESC invites the
Commission to reconsider both issues namely:

— the term ‘gross negligence’ with a view to arriving at a
more appropriate term having no lesser effect than that
intended by the Directive and ensuring uniformity of
interpretation and application across Member States, and

— the appropriateness of including accidental pollution in

the scope of the Directive.

4.4.1. A r t i c l e 6 § 5

The list of proposed sanctions is far reaching and should be
reviewed bearing in mind the proportionality principle.

4.4.2. A r t i c l e 6 § 6

Regarding the provision that ‘fines are not insurable’, the
EESC believes that there is no scope of application for this
paragraph and, hence, it should be deleted. More particularly, a
distinction should be made between intentional and accidental
pollution.
In cases of intentional pollution, fines are not
insurable due to the conditions of the insurance contracts. In
cases of accidental pollution, fines should be insurable.

5. Conclusions

The EESC notes the objective of the proposed Directive

5.1.
on the protection of the environment through criminal law.

5.2. Mindful of the need to fight environmental crime, the
EESC supports the main objective of the proposal to ensure
that any party who has been found to have caused or
contributed to pollution intentionally or by gross negligence
shall be subject to the sanctions in question.

Brussels, 19 June 2003.

The EESC invites the Commission to reconsider the

5.3.
following issues:

— the term ‘gross negligence’ with a view to arriving at a
more appropriate term having no lesser effect than that
intended by the Directive and ensuring uniformity of
interpretation and application across Member States, and

— the appropriateness of including accidental pollution in

the scope of the Directive.

The EESC strongly urges that sanctions should not be
5.4.
disproportionate. It also proposes to ensure expressly, in the
operative part of the Directive, that punishment is not confused
with compensation.

5.5.
Regarding the provision that ‘fines are not insurable’,
the EESC believes that there is no scope of application for this
paragraph and, hence, it should be deleted. More particularly, a
distinction should be made between intentional and accidental
In cases of intentional pollution, fines are not
pollution.
insurable due to the conditions of the insurance contracts. In
cases of accidental pollution, fines should be insurable.

There is a risk of disproportionate action against
5.6.
masters and seafarers as they are often the only persons
connected with the ship who are physically present in the
jurisdiction concerned. Therefore, the EESC requests that the
Commission make proposals for the treatment and protection
of masters and seafarers involved in such incidents having due
regard to Article 292 of the UNCLOS Convention (‘prompt
release of vessels and crews’).

In order
it

to evaluate the scope of

the proposed
5.7.
Directive,
is of the utmost urgency for the European
Commission to provide: an inventory of the EU Member
States’ legislation of sanctions for marine pollution (in com-
pliance with the MARPOL Convention) and precise infor-
mation regarding compliance by EU Member States with
Directive 2000/59 on port reception facilities for ship-gener-
ated waste and cargo residues.

The President

of the European Economic and Social Committee

Roger BRIESCH