Opinion of the Commission pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding 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 amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2005-05-18
Institutions: European Commission
Subjects: EU environmental policy, criminal law, criminal liability, environmental protection, law of the sea, maritime surveillance, penalty, pollution control measures, pollution from ships

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.5.2005 
COM(2005) 216 final 

2003/0037 (COD) 

OPINION OF THE COMMISSION 
pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the 
European Parliament's amendments to the Council's common position regarding 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 

AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the 
EC Treaty 

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2003/0037 (COD) 

OPINION OF THE COMMISSION 
pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the 
European Parliament's amendments to the Council's common position regarding 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 

amending the Proposal of the Commission pursuant to Article 250 (2) of the EC Treaty 

1. 

INTRODUCTION 

Article  251(2),  third  subparagraph,  point  (c)  of  the  EC  Treaty  requires  the  Commission  to 
deliver an opinion on amendments proposed by the European Parliament at second reading. 
The Commission sets out its opinion below on the amendments proposed by Parliament. 

2. 

BACKGROUND 

Date  of  transmission  of  the  proposal  to  the  European  Parliament  and 
the Council 

(Document COM(2003) 92 final - 2003/0037 (COD)) 

5 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

Date of adoption of the resolution at second reading by the European 
Parliament containing 16 amendments to the common position 

23 February 2005

3. 

PURPOSE OF THE PROPOSAL 

The proposal has a two-fold objective: 

– 

– 

to  incorporate  into  Community  law  the  relevant  provisions  of  international  law 
applicable  to  the  prevention  and  combating  of  pollution.  Thus,  the  proposal 
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  those  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 

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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.  

4. 

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  ADOPTED  BY  THE 
PARLIAMENT 

Parliament adopted 16 amendments to the Council’s common position at second reading. 

The Commission can accept those 16 amendments in their entirety, as negotiated during the 
trialogue meetings in which it fully participated. However, the Commission would make the 
following comments on amendments 27, 29, 33 and 37 as well as on amendment 2. 

- 

Amendments Nos 27 and 33 on the “institutional” question 

These amendments reflect the compromise reached between the European Parliament and the 
Council on the question of criminal sanctions. The Commission intends to seek the inclusion 
in  the  minutes  of  the  meeting  of  the  Council  which  adopts  the  directive  of  the  following 
statement, the contents of which were made public during the debates in the plenary session 
of 22 February 2005: 

“The Commission  notes that the European  Parliament and the Council,  when adopting  this 
Directive,  did  not  wish  to  include  a  mandatory  system  of  criminal  sanctions  for  illegal 
discharges of polluting substances at sea. 

It  takes  the  view  that,  as  a  result,  the  text  fails  to  match  the  ambitions  of  its  proposal  as 
regards the desired effect of providing deterrence  with  a  view  to  preventing  and  combating 
pollution at sea. 

The Commission would point out that, at its meeting in Brussels in March 2003, the European 
Council had 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 has always maintained that it is perfectly permissible for the legislature to 
establish  a  system  of  criminal  sanctions  in  a  first  pillar  instrument  if  it  believes  this  to  be 
necessary in order to achieve a Community objective. 

The Commission can none the less support the solution adopted by the legislature, but would 
stress that this does not prejudice the position which it is defending before the Court in Case 
C-176/03, and reserves its institutional rights.”  

- 

Amendments Nos 29 and 37 concerning the coastguard 

The Commission confirms its agreement to this approach. 

- 

Amendment No 2 on the review of the international system of compensation  

The Commission would also clarify that Amendment No 2 on the review of the international 
system  of  compensation  voted  in  the  Committee  on  Transport  was  not  taken  up  in  the 

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compromise package. The aim of that amendment was to amend recital 7. At the invitation of 
the European Parliament and of the Council, the Commission made the following statement 
regarding recital 7: 

“The Commission reaffirms its determination to continue to help the Member States in their 
efforts  to  coordinate  their  positions  in  the  context  of  the  work  of  the  IOPCF  intersessional 
working group on the review of the international system of compensation for damage caused 
by oil pollution. 

The Commission will continue to urge the Member States to ratify international conventions 
on liability and compensation in the maritime sector (such as the International Convention on 
Liability and Compensation for Damage in connection with the Carriage of Hazardous and 
Noxious  Substances  by  Sea,  1996  (HNS  Convention),  the  International  Convention  on  Civil 
Liability for Bunker Oil Pollution Damage, 2001 (“Bunker Oil” Convention), the Protocol of 
2003  to  the  International  Convention  on  the  Establishment  of  an  International  Fund  for 
Compensation  for  Oil  Pollution  Damage,  1992,  and  the  1996  Protocol  to  the  Limitation  of 
Liability for Maritime Claims Convention, 1976 (LLMC Convention)). 

The Commission confirms its intention, already made public in its work programme for 2005, 
to  submit,  in  its  next  package  of  legislation  on  maritime  safety,  a  proposal  relating  to 
shipowners’  liability  seeking  to  require  of  shipowners  entering  a  Member  State’s  port  that 
they  be  covered  by  insurance  against  civil  liability,  in  cases  not  already  covered  by  the 
relevant international conventions.” 

5. 

CONCLUSION 

The  Commission  notes  that  the  European  Parliament  and  the  Council  have  not  wished  to 
make it mandatory, under this Directive, to establish a system of criminal sanctions for illegal 
discharges  of  polluting  substances  at  sea.  On  this  point,  the  Commission  expresses  in  its 
statement its regret regarding the ambition levels attained by the future Directive. This apart, 
the Commission recognises that the result achieved changes neither the aims nor the spirit of 
its proposal, and it can therefore support it. 

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