Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on pollution caused by ships and the introduction in particular of criminal sanctions for infringements involving pollution
Date: 2004-10-12
Institutions: European Commission
Subjects: EU environmental policy, criminal liability, marine pollution, penalty, pollution control measures, pollution from ships

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.10.2004 
COM(2004) 676 final 

2003/0037 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on pollution caused by ships and the introduction in 
particular of criminal sanctions for infringements involving pollution 

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2003/0037 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on pollution caused by ships and the introduction in 
particular of criminal sanctions for infringements involving pollution 

1. 

BACKGROUND  

Date of transmission of the proposal to the European Parliament and 
the Council (document COM(2003)92 final - 2003/0037(COD)): 

6 March 2003 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

19 June 2003 

Date of the opinion of the European Parliament, first reading: 

13 January 2004 

Date of adoption of the common position by qualified majority: 

7 October 2004 

2. 

AIM OF THE COMMISSION PROPOSAL 

The aim of the proposal is two-fold:  

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– 

to  incorporate  into  Community  law  the  relevant  provisions  of  international  law 
applicable  to  the  prevention  and  combating  of  pollution  The  proposal  therefore 
transcribes,  firstly,  the  provisions  of  the  United  Nations  Convention  on  the  Law  of 
the  Sea  and,  secondly,  those  of  MARPOL,  the  International  Convention  for  the 
Prevention  of  Pollution,  particularly  the  provisions  defining  illegal  discharges  of 
polluting substances at sea. 

to  ensure  that  the  persons  responsible  for  such  illegal  discharges  -  i.e.  not  only 
captains  and  shipowners,  but  also  charterers  and  classification  societies  -  will 
actually  be  prosecuted  and  will  be  subject,  under  certain  conditions,  to  criminal 
sanctions.  It  must  be  possible  for  them  to  be  held  criminally  liable  where  the 
discharge was deliberate, but also in the event of an accidental discharge caused by 
serious negligence.  

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3. 

COMMENTS ON THE COMMON POSITION 

The common position chiefly makes two changes to the text of the initial proposal. 

-The scope 

The aim of the proposal was to define infringements involving pollution by generally making 
serious  negligence  a  constituent  part  of  the  infringement.  However,  the  proposal  did  not 
provide  any  details  regarding  exceptions  to  the  rule,  but  referred  to  the  international  law 
applicable pursuant to the safeguard clause (Article 7). 

The common position does in this respect provide clarification as these exceptions to the rule 
are spelt out. The changes made concern only the form, not the substance.  

-The question of criminal sanctions 

The Commission accepts the text of the common position. Nevertheless, it made the following 
statement during the adoption of the political agreement at the Transport Council meeting on 
11 June 2004: 

“The  Commission  notes  that  the  Council  did  not  wish  to  make  it  mandatory  to  establish  a 
system of criminal sanctions for illegal discharges of polluting substances at sea.  

The  Commission  takes  the  view  that,  in  this  way,  the  Council’s  compromise  text  does  not 
attain  the  ambitions  of  its  proposal  in  so  far  as  the  desired  effect  of  providing  deterrence 
against preventing and combating pollution at sea is concerned. 

The Commission would point out that, at its meeting in Brussels in March 2002, the European 
Council  called  for  “the  adoption,  before  the  end  of  2003,  on  the  basis  of  the  Commission's 
recent proposal, of a system of sanctions, including criminal sanctions, for pollution offences, 
on the appropriate legal basis”. The Commission believes that Article 80(2) of the EC Treaty 
constitutes such a legal basis. 

The Commission would recall its view, which it has always maintained and as supported by 
the European Parliament, that it is perfectly possible for the legislator to establish a system of 
criminal  sanctions  if  it  believes  this  to  be  necessary  in  order  to  achieve  a  Community 
objective.  Since  it  does  not  wish  to  obstruct  the  legal  process,  the  Commission  therefore 
accepts this solution, which falls short of it initial proposal, but wishes to stress that this does 
not prejudice the position which it is defending before the Court in Case C-176/03." 

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4. 

COMMENTS MADE BY THE COMMISSION DEPARTMENTS 

4.1. 

Amendments accepted by the Commission and incorporated in full or in part in 
the common position 

Amendments  1,  4,  6  (in  part)  and  8  (in  part)  are  useful  clarifications  of  the  text  of  the 
proposal. 

4.2. 

Amendments accepted by the Commission, but not incorporated in the common 
position 

Amendments 2, 5, 9, 12, 18, 20 and 23 were, in the Commission’s view, useful clarifications 
of the text of the proposal. 

Amendments 6 and 22 concerning the creation of a European coastguard had been accepted 
by the Commission in principle. 

4.3. 

Amendments rejected by the Commission and not incorporated in the common 
position 

Amendments 16, 17, 19, 21 and 29 were redundant. 

Amendments 3, 11, 13, 30, 31 and 32 went far beyond the scope of this Directive. 

Amendments 10, 14, 24 and 27 did not correspond to the proposal’s objectives. 

5. 

CONCLUSION 

The  Commission  notes  that  the  Council  did  not  wish  to  make  it  mandatory  to  establish  a 
system  of  criminal  sanctions  for  illegal  discharges  of  polluting  substances  at  sea.  On  this 
point, the Commission expressed in its statement to the Transport Council its regret regarding 
the ambitions achieved by the common position. This apart, the Commission recognises that 
the  common  position  changes  neither  the  aims  nor  the  spirit  of  the  proposal,  and  it  can 
therefore support it. This support is justified more particularly in order to see the co-decision 
procedure continue and to enable this Directive to be adopted as soon as possible. 

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