Common Position (EC) No 3/2005 of 7 October 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council on ship-source pollution and on the introduction of sanctions for infringements
Date: 2004-10-07
Institutions: Council of the European Union
Subjects: administrative sanction, environmental protection, marine pollution, maritime safety, maritime transport, penalty, polluter pays principle, pollution from ships

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COMMON POSITION (EC) No 3/2005

adopted by the Council on 7 October 2004

with a view to the adoption of Directive 2005/…./EC of the European Parliament and of the
Council of... on ship-source pollution and on the introduction of sanctions for infringements

(Text with EEA relevance)

(2005/C 25E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

(5)

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

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

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

WHEREAS:

(1)

(2)

(3)

(4)

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.

standards

in all Member States

The material
for
discharges of polluting substances from ships are based
upon the Marpol 73/78 Convention; however these rules
are being ignored on a daily basis by a very large
number of ships sailing in Community waters, without
corrective action being taken.

The implementation of Marpol 73/78 shows discrepan-
cies among Member States and there is thus a need to
harmonise its implementation at Community level;
in
particular the practices of Member States relating to the
imposition of
for discharges of polluting
sanctions
substances from ships differ significantly.

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 each 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.

(6)

(7)

(8)

(9)

To that end it is essential to approximate existing legal
provisions, in particular, on the one hand, the precise
definition of the infringement in question and the cases
of exemption, which are the subject of this Directive
and, on the other hand, minimum rules for penalties,
liability and jurisdiction, which are the subject of
to
Council Framework Decision 2005/../JHA of….
strengthen the criminal law framework for the enforce-
ment of the law against ship-source pollution.

The purpose of this Directive is, among other things, to
provide a definition of discharges and consequently to
render more effective the implementation of Framework
Decision 2005/.../JHA in order to prevent such infringe-
ments.

Neither the international regime for the civil liability and
compensation of oil pollution nor that relating to pollu-
tion by other hazardous or noxious substances provides
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 applying to any person who
causes or contributes to marine pollution; sanctions
should be applicable not only to the shipowner or the
master of the ship, but also the owner of the cargo, the
classification society or any other person involved.

Ship-source discharges of polluting substances should be
regarded as infringements if committed with intent, reck-
lessly or by serious negligence.

Sanctions for discharges of polluting substances from
ships 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 pollu-
tion incidents.

(1) OJ C 220, 16.9.2003, p. 72.
(2) Opinion of the European Parliament of 13 January 2004 (OJ C 92E,

21.4.2004, p. 77).

(10)

There is a need for further effective cooperation among
Member States to ensure that discharges of polluting
substances from ships are detected in time and that the
offenders are identified.

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(11) Where there is clear, objective evidence of a discharge
causing major damage or a threat of major damage,
Member States should submit the matter to their compe-
tent authorities with a view to instituting proceedings
consistent with Article 220 of the 1982 United Nations
Convention on the Law of the Sea.

(12)

This 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, which may include criminal
or administrative 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 by the Community only by
means of harmonised rules. The Directive confines itself
to the minimum required in order to achieve this objec-
tive and does not go beyond what is necessary for that
purpose. It does not prevent Member States from taking
more stringent measures against ship-source pollution in
conformity with international law.

(13)

This Directive fully respects the Charter of fundamental
rights of the European Union,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Purpose

1.
The purpose of this Directive is to ensure that persons
responsible for ship-source pollution are subject to appropriate
sanctions, in order to improve maritime safety and to enhance
protection of the marine environment from pollution by ships.

This Directive does not prevent Member States from
2.
taking more stringent measures against ship-source pollution in
conformity with international law.

2.

‘Polluting substances’ shall mean substances covered by
Annexes I (oil) and II (noxious liquid substances in bulk) to
Marpol 73/78.

3.

‘Discharge’ shall mean any release howsoever caused from a
ship, as referred to in Article 2 of Marpol 73/78.

4.

‘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.

Article 3

Scope

This Directive shall apply,

1.
tional law, to discharges of polluting substances in:

in accordance with interna-

(a) the internal waters,

including ports, of a Member State,

insofar as the Marpol regime is applicable;

(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 or equivalent zone of a
Member State, established in accordance with international
law; and

(e) the high seas.

This Directive shall apply to discharges of polluting
2.
substances from any ship,
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.

irrespective of

Article 2

Definitions

Article 4

Infringements

For the purpose of this Directive:

1.

‘Marpol 73/78’ shall mean the International Convention for
the Prevention of Pollution from Ships of 1973 and its
1978 Protocol, as amended from time to time.

Member States shall ensure that ship-source discharges of
polluting substances into any of the areas referred to in Article
3(1) are regarded as infringements if committed with intent,
recklessly or by serious negligence.

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Article 5

Exceptions

1.
A discharge of polluting substances into any of the areas
referred to in Article 3(1) shall not be regarded as an infringe-
ment if it satisfies the conditions set out in Annex I, Regula-
tions 11(a) or 11(c) or in Annex II, Regulations 6(a) or 6(c) of
Marpol 73/78.

2.
A discharge of polluting substances into the areas referred
to in Article 3(1)(c), (d) and (e) shall not be regarded as an
infringement
for the owner, the master or the crew when
acting under the master's responsibility if it satisfies the condi-
tions set out in Annex I, Regulation 11(b) or in Annex II, Regu-
lation 6(b) of Marpol 73/78.

3.
A discharge of polluting substances into any of the areas
referred to in Article 3(1) shall not be regarded as an infringe-
ment if it satisfies the conditions set out in Annex I, Regula-
tions 9 or 10 or in Annex II, Regulation 5 of Marpol 73/78.

Article 6

Enforcement measures with respect to ships within a port
of a Member State

1.
If irregularities or information give rise to a suspicion
that a ship which is voluntarily within a port or at an off-shore
terminal of a Member State has been engaged in or is engaging
in a discharge of polluting substances into any of the areas
referred to in Article 3(1), that Member State shall ensure that
taking into account the relevant
an appropriate inspection,
guidelines adopted by the International Maritime Organisation
(IMO) is undertaken in accordance with its national law.

inspection referred to in Article 6(1) and in deciding on the
appropriate administrative measures in respect of any such
discharge;

(b) 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.

2. Where there is clear objective evidence that a ship navi-
gating in the areas referred to in Article 3(1)(b) or (d) has, in
the area referred to in Article 3(1)(d), committed an infringe-
ment resulting in a discharge causing major damage or a threat
of major damage to the coastline or related interests of the
Member State concerned, or to any resources of the areas
referred to in Article 3(1)(b) or (d), that State shall, subject to
Part XII, Section 7 of the 1982 United Nations Convention on
the Law of the Sea, provided that the evidence so warrants,
submit the matter to its competent authorities with a view to
in
instituting proceedings,
accordance with its national law.

including detention of

the ship,

In any case, the authorities of the flag State shall be

3.
informed.

Article 8

Sanctions

1. Member States shall
ensure that
subject
which may include criminal or administrative sanctions.

take the necessary measures to
the infringements referred to in Article 4 are
to effective, proportionate and dissuasive sanctions,

Insofar as the inspection referred to in paragraph 1
2.
reveals facts that could indicate an infringement within the
meaning of Article 4,
that
Member State and of the flag State shall be informed.

the competent authorities of

2.
Each Member State shall take the measures necessary to
ensure that the sanctions referred to in paragraph 1 apply to
any person who is found responsible for an infringement as
referred to in Article 4.

Article 7

Enforcement measures by coastal States with respect to
ships in transit

If the suspected discharge of polluting substances takes
1.
place in the areas referred to in Article 3(1)(b), (c), (d) or (e) 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:

(a) If the next port of call of the ship is another Member State,
the Member States concerned shall cooperate closely in the

Article 9

Compliance with international law

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.

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Article 10

Accompanying measures

or other relevant activities concerning the response to marine
pollution.

For the purposes of this Directive, Member States and the
Commission shall cooperate, where appropriate, in close colla-
boration 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 No 2850/2000/EC (1) in order to:

(a) develop the necessary information systems required for the

effective implementation of this Directive;

(b) establish common practices and guidelines on the basis of

those existing at international level for, in particular:

— the monitoring and early identification of ships dischar-
ging 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 enforcement of this Directive.

Article 11

Reporting

Every three years, Member States shall transmit a report to the
Commission on the application of this Directive by the compe-
tent authorities. On the basis of these reports, the Commission
shall submit a Community report to the European Parliament
and the Council.

Article 12

Committee

The Commission shall be assisted by the Committee on
1.
Safe Seas and the Prevention of Pollution from Ships (COSS),
created by Article 3 of Regulation (EC) No 2099/2002 of the
European Parliament and of the Council of 5 November 2002
establishing a Committee on Safe Seas and the Prevention of
Pollution from Ships (COSS). (2)

2.
The Commission shall regularly inform the Committee set
up by Decision No 2850/2000/EC of any proposed measures

Article 13

Amendment procedure

Amendments to Marpol 73/78 as referred to in Article 2, point
1 may be excluded from the scope of this Directive, pursuant
to Article 5 of Regulation (EC) No 2099/2002.

Article 14

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Direc-
tive not later than.............. (3) and forthwith inform the Commis-
sion thereof.

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

Article 15

Entry into force

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

Article 16

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament

The President

For the Council

The President

(1) 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 pollu-
tion (OJ L 332, 28.12.2000, p. 1). Decision amended by Decision
No 787/2004/EC (OJ L 138, 30.4.2004, p. 12).

(2) OJ L 324, 29.11.2002, p. 1. Regulation as amended by Commission

Regulation (EC) No 415/2004 (OJ L 68, 6.3.2004, p. 10).

(3) 18 months following the date of its entry into force.

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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

ANNEX

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

(i) the tanker is not within a special area;

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

(iii) the tanker is proceeding en route;

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

(vi) the tanker has in operation an oil discharge monitoring and control system and a slop 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:

(i) the ship is not within a special area;

(ii) the ship is proceeding en route;

(iii) the oil content of the effluent without dilution does not exceed 15 parts per million; and

(iv) the ship has in operation [monitoring, control and filtering equipment] as required by regulation 16 of this

Annex.

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.

[…]

3. The provisions of paragraph 1 of this regulation shall not apply to the discharge of 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.

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

5. 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.

[…]

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

1. For the purpose of this Annex, the special areas are the Mediterranean Sea area, the Baltic Sea area, the Black Sea
area, the Red Sea area, the ‘Gulfs area’, the Gulf of Aden area, the Antarctic area and the northwest 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 dilu-
tion 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) the bilge water does not originate from cargo pump-room bilges;

(ii) the bilge water is not mixed with oil cargo residues;

(iii) the ship is proceeding en route;

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

(v) the ship has in operation oil filtering equipment complying with regulation 16(5) of 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 circum-
venting the conditions of discharge specified in this regulation.

(b) The oil residues which cannot be discharged into the sea in compliance with paragraphs 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:

(a) the discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving

life at sea; or

(b) the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment:

(i) 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 minimising the discharge; and

(ii) 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

(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 minimise 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.

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PART II: NOXIOUS LIQUID SUBSTANCES (MARPOL 73/78 ANNEX II)

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

Regulation 3: Categorisation and listing of noxious liquid substances

1. For the purpose of the regulations of this Annex, noxious liquid substances shall be divided into four categories as

follows:

(a) Category A: noxious liquid substances which if discharged into the sea from tank cleaning or deballasting opera-
tions 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.

(b) Category B: noxious liquid substances which if discharged into the sea from tank cleaning or deballasting opera-
tions 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 opera-
tions 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 opera-
tions would present a recognisable 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 categorisation of substances, including a list of categorised substances are given in regula-
tions 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 resi-
dues 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:

(a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots

in the case of ships which are not self-propelled;

(b) the discharge is made below the waterline, taking into account the location of the seawater intakes; and

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

(a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots

in the case of ships which are not self-propelled;

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(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;

(d) the discharge is made below the waterline, taking into account the location of the seawater intakes; and

(e) the discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of

water of not less than 25 m.

3. The discharge into the sea of substances in Category C as defined in regulation 3(1)(c) 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:

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

(d) the discharge is made below the waterline, taking into account the location of the seawater intakes; and

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

(a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots

in the case of ships which are not self-propelled;

(b) such mixtures are of a concentration not greater than one part of the substance in ten parts of water; and

(c) the discharge is made at a distance of not less than 12 nautical miles from the nearest 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 paragraphs 1, 2, 3 or 4 of this regulation.

6. The discharge into the sea of substances which have not been categorised, 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.

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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 resi-
dues shall be discharged to a reception facility which the States bordering the special area shall provide in accord-
ance 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:

(a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4

knots in the case of ships which are not self-propelled;

(b) the discharge is made below the waterline, taking into account the location of the seawater intakes; and

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

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

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

(d) the discharge is made below the waterline, taking into account the location of the seawater intakes; and

(e) the discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of

water of not less than 25 m.

9. The discharge into the sea of substances in Category C as defined in regulation 3(1)(c) 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:

(a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-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 para-
graph which shall in no case exceed the greater of 1 m3 or 1/3 000 of the tank capacity in m3;

(d) the discharge is made below the waterline, taking into account the location of the seawater intakes; and

(e) the discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of

water of not less than 25 m.

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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 categorised, 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 paragraphs 2 or 3 of this regu-
lation, respectively.

Regulation 6: Exceptions

Regulation 5 of this Annex shall not apply to:

(a) the discharge into the sea of noxious liquid substances or mixtures containing such substances necessary for the

purpose of securing the safety of a ship or saving life at sea; or

(b) the discharge into the sea of noxious liquid substances or mixtures containing such substances resulting from

damage to a ship or its equipment:

(i) 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 minimising the discharge; and

(ii) 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

(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
minimise 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.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

In the framework of the codecision procedure (Article 251/TEC), the Council reached, on 11 June 2004,
a political agreement on the draft Directive of the European Parliament and of the Council on ship-
source pollution and on the introduction of sanctions for infringements (1). Following legal/linguistic
revision, the Council adopted its common position on 7 October 2004.

In taking its position, the Council took account of the opinion of the European Parliament in its first
reading on 13 January 2004 (2) and of the opinion of the Economic and Social Committee (3) (4).

The Directive aims at transposing into Community law the international rules on ship-source pollution
of the Marpol Convention, by providing that violations of the discharge rules are infringements, and
establishing harmonised rules for their enforcement. It also aims at extending the rules, on the one
hand, to cover discharges of oil resulting from damages when committed intentionally, recklessly or by
serious negligence and, on the other hand, to ensure the widest possible enforcement under the United
Nations Convention on the Law of the Sea (Unclos).

II. ANALYSIS OF THE COMMON POSITION

In the aftermath of the accident of the oil tanker Prestige, the Council emphasised not only the impor-
tance of the maritime safety policy but the necessity to ensure that any person who has caused or
contributed to a pollution incident through grossly negligent behaviour should be subject to appro-
priate sanctions. The approach adopted by the Council to this Commission proposal, submitted in
March 2003 and backed by a European Council conclusion that same month highlighting the choice
of the appropriate legal basis, is founded on the principle of making full use of the Community's rights
under Unclos, whilst complying with Member States' obligations under the International Convention
for the Prevention of Pollution from Ships (Marpol).

The Council considers that the transposition of the Marpol regime regarding ship-source pollution into
Community law will ensure a stricter and more harmonised application and enforcement in the
Member States. It shares the view that it is necessary to establish that all discharges of polluting
substances are considered infringements if they are committed with intent, recklessly or by serious
negligence.

Following the principle of respecting the Marpol provisions, exceptions are provided in the case when
a discharge is made in order to save lives or the ship itself. The exception under the Marpol Convention
concerning the owner and the master in cases of discharges resulting from accidents applies in interna-
tional sea areas and the exclusive economic or equivalent zone of Member States. In these cases, as a
logical consequence of the Marpol provisions, the crew is protected when acting under the master's
responsibility. In Member States' internal waters and territorial sea, on the other hand, the Council
deems it appropriate to exercise the Community's rights under Article 211(4) of Unclos, in order to
enhance the protection of the coastline, and to lift the exception provided for discharges resulting from
accidents.

The Council considers that sanctions against infringements of ship-source pollution have to be effec-
tive, proportionate and dissuasive and may include criminal or administrative sanctions. It also agrees
that these sanctions have to apply to any person found responsible for marine pollution, i.e. shall cover
the whole chain of responsibility. Whilst the infringements are defined in the Directive, the Council is
of the view that the minimum binding rules for criminal penalties, liability and jurisdiction should be
established in the parallel Framework Decision proposed by the Commission and examined by the
Council in its ‘Justice and Home Affairs’ formation.

(1) The Commission presented its proposal on 7 March 2003 (OJ C 76, 25.3.2004, p. 5) under the title ‘Proposal for a
Directive of the European Parliament and of the Council on ship-source pollution and on the introduction of sanc-
tions, including criminal sanctions, for pollution offences’.

(2) Doc. 5181/04 CODEC 24 MAR 2 ENV 8 DROIPEN 1 (not yet published in the Official Journal).
(3) OJ C 220, 16. 9.2003, p. 72.
(4) The Committee of the Regions decided not to deliver an opinion.

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The Council welcomes the streamlining of strict enforcement measures against ships calling at any port
of a Member State in line with the relevant international guidelines. It endorses the enhanced informa-
tion sharing on suspected discharges between Member States and third countries, either as port or as
flag States, in order to facilitate the enforcement of the appropriate measures.

Finally, the Council is of the view that all possibilities under the Unclos Convention to protect the
coastline and the resources of this area shall be used, including enforcement measures by coastal States
with respect to ships in transit navigating in the territorial sea or exclusive economic or equivalent
zone in accordance with Article 220(6) of Unclos, when there is clear objective evidence of a discharge
causing major damage or threat of major damage to the coastline or any resources of the territorial sea
or the exclusive economic or equivalent zone. In this case, the Member State concerned shall submit
the matter to its competent authorities with a view to instituting proceedings, including detention of
the ship, in accordance with its national law.

III. AMENDMENTS

Considering the fact that the Council follows a considerably different approach to this draft Directive
compared to the originally proposed text, as pointed out above, it was not possible to reflect the major
part of the amendments proposed by the European Parliament in first reading in the common position.

— The concept of setting up a European coastguard (amendments 6 and 22) was not part of the
original Commission proposal. Whilst the Council considers it important to address means enhan-
cing the protection of the European coastline, it does not want to prejudge any Commission initia-
tive to that effect, possibly leading to a separate legislative act, which the Council will consider with
interest.

— Although the Council shares the EP's concerns with regard to the implementation of Community
legislation on maritime safety (amendments 3, 19, 20 and 31), it feels that the enforcement of
existing legislative acts, like Directive 2000/59/EC on port reception facilities, falls into the compe-
tence of the Member States and its monitoring is one of the tasks of the Commission under the
Treaty.

— As the objective of this Directive is to clearly define discharges of polluting substances from ships
as infringements under Community law, the Council is of the opinion that other technical provi-
sions like onboard monitoring equipment or oil registers (amendments 30 and 32) go beyond the
scope of this proposal.

— According to the basic principle of the Council's approach laid out above, the Marpol provisions
for discharges, including the exception concerning the owner and the master in cases of discharges
resulting from accidents (amendment 10), apply in international sea areas and the exclusive
economic or equivalent zone of Member States. In these cases, the crew is also explicitly excluded
when acting under the master's responsibility. In the internal waters and territorial sea of the
Member States, on the contrary, this exception is not granted in accordance with the possibilities
under Article 211(4) of Unclos.

— Concerning the scope of the Directive, the Council considers it appropriate to treat all ships, regard-
less of their flag, in a certain sea area on an equal footing with a view to avoiding a disadvanta-
geous position for ships sailing under the flag of a Member State (amendment 11 and 13).

— While the common position does not include any detailed provision on the nature of penalties (see
deletion of paragraphs 4 to 6 of Article 8/amendments 17 and 18) given that the minimum rules
towards a harmonisation of criminal penalties are subject of the parallel Framework Decision,
Article 7 paragraph 2 refers to enforcement measures by coastal States in accordance with Unclos
220(6), including the detention of the ship, in the specific cases referred to in this Article.

The common position includes some other smaller modifications and clarifications to the Commission
proposal. On a few points, amendments proposed by the European Parliament were partially or totally
integrated with a view to ensuring a consistent legislative text.