Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution
Date: 2005-07-12
Institutions: Council of the European Union
Subjects: environmental liability, jurisdiction, marine pollution, oil pollution, penalty, pollution from ships

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Official Journal of the European Union

30.9.2005

(Acts adopted under Title VI of the Treaty on European Union)

COUNCIL FRAMEWORK DECISION 2005/667/JHA

of 12 July 2005

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 par-
ticular Articles 31(1)(e) and 34(2)(b) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1)

(2)

(3)

(4)

The Action Plan of the Council and the Commission on
how best to implement the provisions of the Treaty of
security and
Amsterdam on an area of
justice (2) and the conclusions of the Tampere European
Council of 15 and 16 October 1999, and in particular
point 48 thereof, call for proposals for legislation to
combat environmental crime,
in particular common
penalties and comparable procedural guarantees.

freedom,

The fight against intentional or seriously negligent ship-
source pollution constitutes one of the Union's priorities.
Points 32 to 34 of the conclusions of the Copenhagen
European Council of 12 and 13 December 2002 and the
statement of the JHA Council of 19 December 2002
following the shipwreck of the tanker Prestige, in par-
ticular, express the Union's determination to adopt all
the measures needed to avoid recurrence of
such
damage.

To this end, as the Commission stated in its Communi-
cation to the European Parliament and the Council on
improving safety at sea in response to the Prestige acci-
dent, the legislation of the Member States should be
approximated.

The purpose of Directive 2005/35/EC of the European
Parliament and of the Council of 7 September 2005 on
ship-source pollution and on the introduction of penal-
ties for infringements (3) and this framework Decision,
which supplements Directive 2005/35/EC with detailed
rules in criminal matters, is to carry out this approxima-
tion.

(1) Opinion of the European Parliament of 13 January 2004 (OJ C 92,

16.4.2004, p. 19).

(2) OJ C 19, 23.1.1999, p. 1.
(3) See page 11 of this Official Journal.

(5)

(6)

(7)

(8)

(9)

(10)

(11)

This framework Decision, based on Article 34 of the
Treaty on the European Union, is the correct instrument
for imposing on the Member States the obligation to
provide for criminal penalties.

Due to the specific nature of the conduct, common
penalties with regard to legal persons should be intro-
duced.

The 1982 United Nations Convention on the Law of the
Sea, signed by all the Member States and with the Euro-
pean Community as a party, is particularly important in
the context of cooperation.

The best possible cooperation should be organised
between Member States to guarantee the swift transmis-
sion of information from one Member State to another.
Contact points should be designated and identified.

Since the objectives of this framework Decision cannot
be achieved adequately by the Member States and can
therefore, by reason of the cross-border character of the
damage which may be
caused by the behaviour
concerned, be better achieved at Union level, the Union
may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty estab-
lishing the European Community. In accordance with
the principle of proportionality, as set out
in that
Article, this framework Decision does not go beyond
what is necessary in order to achieve those objectives.

This framework Decision respects the fundamental rights
and observes the principles recognised by Article 6 of
the Treaty of the European Union and reflected in the
Charter of Fundamental Rights of the European Union.

This framework Decision does not contain an explicit
obligation for Member States bordering straits used for
international navigation subject to the regime for transit
passage, as laid down in Part III, section 2 of the 1982
United Nations Convention on the Law of the Sea, to
establish jurisdiction with regard to offences committed
in such straits. The jurisdiction with regard to offences
should be established in accordance with international
law and in particular Article 34 of the 1982 United
Nations Convention on the Law of the Sea.

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(12)

The practical application of the measures taken by the
Member States in implementing this framework Deci-
sion, should be monitored by the Commission which
should in five years from the date of implementation of
this
to the
Council. This report may include appropriate proposals,

framework Decision, present a report

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this framework Decision, the definitions
provided for in Article 2 of Directive 2005/35/EC shall apply.

Article 2

Criminal offences

1.
Subject to Article 4(2) of this framework Decision, each
Member State shall take the measures necessary to ensure that
an infringement within the meaning of Articles 4 and 5 of
Directive 2005/35/EC shall be regarded as a criminal offence.

2.
Paragraph 1 shall not apply to crew members in respect
of infringements that occur in straits used for international
navigation, exclusive economic zones and on the high seas
where the conditions set out in Annex I, Regulation 11(b) or in
Annex II, Regulation 6(b), of the Marpol 73/78 Convention are
satisfied.

Article 3

Aiding, abetting and inciting

Each Member State shall, in accordance with national law, take
the measures necessary to ensure that aiding, abetting or
inciting an offence referred to in Article 2 is punishable.

Article 4

Penalties

1.
Each Member State shall take the measures necessary to
ensure that the offences referred to in Articles 2 and 3 are
punishable by effective, proportionate and dissuasive criminal
penalties which shall include, at least for serious cases, criminal
penalties of a maximum of at least between one and three years
of imprisonment.

In minor cases, where the act committed does not cause a
2.
deterioration of the quality of the water, a Member State may
provide for penalties of a different type from those laid down
in paragraph 1.

3.
The criminal penalties provided for in paragraph 1 may
be accompanied by other penalties or measures, in particular
fines, or the disqualification for a natural person from engaging
in an activity requiring official authorisation or approval, or
founding, managing or directing a company or a foundation,
where the facts having led to his/her conviction show an
obvious risk that the same kind of criminal activity may be
pursued again.

4.
Each Member State shall take the measures necessary to
ensure that the intentionally committed offence referred to in
Article 2 is punishable by a maximum of at least between five
and ten years of imprisonment where the offence caused signif-
icant and widespread damage to water quality, to animal or
vegetable species or to parts of them and the death or serious
injury of persons.

5.
Each Member State shall take the measures necessary to
ensure that the intentionally committed offence referred to in
Article 2 is punishable by a maximum of at least between two
and five years of imprisonment where:

(a) the offence caused significant and widespread damage to
water quality, to animal or vegetable species or to parts of
them; or

(b) the offence was committed within the framework of a crim-
inal organisation within the meaning of Council
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 (1), irrespective
of the level of the penalty referred to in that Joint Action.

Each Member State shall take the measures necessary to
6.
the offence referred to in Article 2, when
ensure that
is punishable by a
committed with serious negligence,
maximum of at least between two and five years of imprison-
ment where the offence caused significant and widespread
damage to water quality, to animal or vegetable species or to
parts of them and the death or serious injury of persons.

Each Member State shall take the measures necessary to
7.
the offence referred to in Article 2, when
ensure that
committed with serious negligence,
is punishable by a
maximum of at least between one and three years of imprison-
ment where the offence caused significant and widespread
damage to water quality, to animal or vegetable species or to
parts of them.

this Article shall apply
8.
Regarding custodial penalties,
without prejudice to international
law and in particular
Article 230 of the 1982 United Nations Convention on the
Law of the Sea.

Article 5

Liability of legal persons

1.
Each Member State shall take the measures necessary to
ensure that legal persons can be held liable for the offences
referred to in Articles 2 and 3, committed for their benefit by
any persons acting either individually or as part of an organ of
the legal person, who have a leading position within the legal
person, based on:

(a) a power of representation of the legal person, or

(b) an authority to take decisions on behalf of the legal person,

or

(c) an authority to exercise control within the legal person.

(1) OJ L 351, 29.12.1998, p. 1.

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Apart

from the cases provided for

2.
in paragraph 1,
Member States shall take the measures necessary to ensure that
a legal person can be held liable where lack of supervision or
control by a person referred to in paragraph 1 has made
possible the commission of the offence referred to in Article 2
for the benefit of
the legal person by a person under its
authority.

3.
The liability of a legal person under paragraphs 1 and 2
shall not exclude criminal proceedings against natural persons
who are involved as perpetrators, instigators or accessories in
the offences referred to in Articles 2 and 3.

Article 6

Penalties against legal persons

1.
Each Member State shall take the measures necessary to
ensure that a legal person held liable pursuant to Article 5(1) is
punishable by effective, proportionate and dissuasive penalties.
The penalties:

(a) Shall include criminal or non-criminal fines, which, at least
for cases where the legal person is held liable for offences
referred to in Article 2, are:

(i) of a maximum of at least between EUR 150 000 and

EUR 300 000;

(ii) of a maximum of at least between EUR 750 000 and
EUR 1 500 000 in the most serious cases, including at
least the intentionally committed offences covered by
Article 4(4) and (5).

(b) may, for all cases, include penalties other than fines, such

as:

(i) exclusion from entitlement to public benefits or aid;

(ii) temporary or permanent disqualification from enga-

ging in commercial activities;

(iii) placing under judicial supervision;

(iv) a judicial winding-up order;

(v) the obligation to adopt specific measures in order to
eliminate the consequences of the offence which led to
the liability of the legal person.

For the purpose of the implementation of paragraph 1(a),
2.
and without prejudice to the first sentence of paragraph 1,
Member States in which the euro has not been adopted shall
apply the exchange rate between the euro and their currency as
published in the Official Journal of the European Union on 12 July
2005.

the legal person,

3.
A Member State may implement paragraph 1(a) by
applying a system, whereby the fine is proportionate to the
turnover of
to the financial advantage
achieved or envisaged by the commission of the offence, or to
any other value indicating the financial situation of the legal
person, provided that such system allows for maximum fines,
which are at
the
maximum fines established in paragraph 1(a).

to the minimum for

least equivalent

tariat of the Council and the Commission that it intends to do
so.

5.
Each Member State shall take the measures necessary to
ensure that a legal person held liable pursuant to Article 5(2) is
punishable by effective, proportionate and dissuasive penalties
or measures.

Article 7

Jurisdiction

1.
Each Member State shall take the measures necessary to
establish its jurisdiction, so far as permitted by international
law, with regard to the offences referred to in Articles 2 and 3
where the offence has been committed:

(a) fully or in part in its territory;

(b) in its exclusive economic zone or in an equivalent zone

established in accordance with international law;

(c) on board of a ship flying its flag;

(d) by one of its nationals if the offence is punishable under
criminal law where it was committed or if the place where
it was committed does not fall under any territorial jurisdic-
tion;

(e) for the benefit of a legal person with a registered office in

its territory;

(f) outside of its territory but has caused or is likely to cause
pollution in its territory or its economic zone, and the ship
is voluntarily within a port or at an offshore terminal of
the Member State;

(g) on the high seas, and the ship is voluntarily within a port

or at an offshore terminal of the Member State.

2.
Any Member State may decide that it will not apply, or
that it will apply only in specific cases or circumstances, the
jurisdiction rules set out in:

(a) paragraph 1(d);

(b) paragraph 1(e).

3. Member States shall inform the General Secretariat of the
Council accordingly where they decide to apply paragraph 2,
where appropriate with an indication of the specific cases or
circumstances in which the decision applies.

4. When an offence is subject to the jurisdiction of more
than one Member State, the relevant Member States shall strive
to coordinate
in particular
concerning the conditions for prosecution and the detailed
arrangements for mutual assistance.

appropriately,

actions

their

The following connecting factors shall be taken into

5.
account :

(a) the Member State in whose territory, exclusive economic

zone or equivalent zone the offence was committed;

4.
A Member State that implements the framework Decision
in accordance with paragraph 3 shall notify the General Secre-

(b) the Member State in whose territory, exclusive economic
zone or equivalent zone the effects of the offence are felt;

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(c) the Member State in whose territory, exclusive economic
zone or equivalent zone a ship from which the offence was
committed is in transit;

(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.

For the application of this Article, the territory includes
6.
the area referred to in Article 3(1)(a) and (b) of Directive
2005/35/EC.

Article 8

Notification of information

1. Where a Member State is informed of the commission of
an offence to which Article 2 applies or of the risk of the
commission of such an offence which causes or is likely to
cause imminent pollution,
immediately inform such
it shall
other Member States as are likely to be exposed to this damage,
and the Commission.

2. Where a Member State is informed of the commission of
an offence to which Article 2 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.

3. 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 Article 7.

Article 10

Territorial scope

This framework Decision shall have the same territorial scope
as Directive 2005/35/EC.

Article 11

Implementation

1. Member States shall adopt
the measures necessary to
comply with the provisions of this framework Decision by
12 January 2007.

2.
By 12 January 2007, Member States shall transmit 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
information and a written report by the
the basis of that
Commission, the Council shall, by 12 January 2009 at the
latest, assess the extent to which Member States have complied
with this framework Decision.

By 12 January 2012, the Commission shall, on the basis
3.
of information supplied by the Member States on the practical
application of
the provisions implementing this framework
Decision, submit a report to the Council and make any propo-
sals it deems appropriate which may include proposals to the
effect that Member States shall, concerning offences committed
in their territorial sea or in their exclusive economic zone or
equivalent zone, consider a ship flying the flag of another
Member State not to be a foreign ship within the meaning of
Article 230 of the 1982 United Nations Convention on the
Law of the Sea.

Article 12

Entry into force

Article 9

Designation of contact points

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

Each Member State shall designate existing contact points,
1.
or, if necessary, create new contact points, in particular for the
exchange of information as referred to in Article 8.

2.
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.

Done at Brussels, 12 July 2005.

For the Council

The President

G. BROWN