Proposal for a Directive of the European Parliament and of the Council amending Directive 2005/35/EC on ship source pollution and on the introduction of penalties for infringements
Date: 2008-03-11
Institutions: European Commission
Subjects: environmental liability, environmental offence, law of the sea, maritime safety, penalty, pollution control measures, pollution from ships

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 11.3.2008 
COM(2008) 134 final 

2008/0055 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

amending Directive 2005/35/EC on ship-source pollution and on the introduction of 
penalties for infringements 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

Out of concern about the over-frequent illegal operational discharges of polluting substances 
from  ships  at  sea,  and  in  the  aftermath  of  major  accidental  oil  spills,  the  Commission 
presented in 2003 a proposal for a Directive, based on Article 80(2) of the Treaty establishing 
the  European  Community,  "on  ship-source  pollution  and  on  the  introduction  of  sanctions, 
including  criminal  sanctions,  for  pollution  offences"  and  a  proposal  for  a  Framework 
Decision,  based  on  Articles  29,  31  and  34(2)(b)  of  the  Treaty  on  the  European  Union,  "to 
strengthen  the  criminal-law  framework  for  the  enforcement  of  the  law  against  ship-source 
pollution".  The  proposal  for  a  Directive  provided  that  ship-source  pollution  should  be 
considered  a  criminal  offence,  subject  to  criminal  penalties.  The  proposal  for  a  Framework 
Decision mainly aimed at approximating the levels of criminal penalties. 

With  these  two  measures,  the  Commission  proposed  that  the  provisions  on  the  nature 
(criminal)  and  type  (custodial  or  financial)  of  penalties  should  appear  in  the  Community 
instrument  and  the  provisions  on  the  levels  of  criminal  penalties  in  the  intergovernmental 
instrument. At the time of the negotiations on the proposals, the splitting between the first and 
third pillars for criminal-law matters was a controversial issue between the European Union 
institutions. Eventually, the two instruments were adopted in 2005 along the following lines: 

Directive  2005/35/EC  on  ship-source  pollution  and  on  the  introduction  of  penalties  for 
infringements contains a precise definition of the infringements along with the rule that they 
will  “be  subject  to  effective,  proportionate  and  dissuasive  penalties,  which  may  include 
criminal or administrative penalties”. The provisions on the nature, type or levels of criminal 
penalties were included in the parallel Framework Decision 2005/667/JHA. 

Following the judgment of 13 September 2005 (case C-176/03) in which the European Court 
of Justice (ECJ) ruled that under certain conditions  the Community legislator could provide 
for criminal-law-related measures, the Commission decided to bring a case for annulment of 
Framework Decision 2005/667/JHA, taking the view that the Framework Decision had been 
adopted on the wrong legal basis (case C-440/05). 

On 23 October 2007, the ECJ annulled the Framework Decision, ruling that its articles on the 
definition of the criminal offence and the nature of the penalties (Articles 2, 3 and 5) could 
have  been  adopted  on  the  basis  of  Article  80(2)  of  the  EC  Treaty  and  that  the  Framework 
Decision therefore violated Article 47 of the EU Treaty by encroaching upon the powers of 
the Community.  

After  the  annulment  of  the  Framework  Decision  by  the  ECJ  on  23  October  2007,  the  legal 
vacuum  created  concerning  a  harmonised  approach  regarding  possible  penalties  in  the  fight 
against maritime pollution needs to be filled by provisions adopted on the correct legal basis, 
namely Article 80(2) of the EC Treaty. 

The  objective  of  introducing  a  system  of  penalties  is  to  address  the  rare  cases  of  pollution, 
where  the  behaviour  of  the  operator  is  considered  intolerable  and  must  be  punished  with 
criminal  penalties.  Quality  operators  will  benefit  from  this  system,  which  will  make  it 

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possible  effectively  to  hold  responsible  the  small  minority  which  is  presently  tarnishing  the 
image of the shipping industry. 

The  proposed  measures  are  necessary  to  ensure  that  the  Community’s  rules  on  maritime 
safety will be fully effective for the following reasons: 

–  When  adopting  Council  Framework  Decision  2005/667/JHA,  the  Member  States 
unanimously  agreed  that  ship-source  pollution  committed  with  intent,  recklessly  or  with 
serious  negligence  should  be  considered  a  criminal  offence.  Following  the  annulment  of 
this  Framework  Decision  by  the  ECJ,  the  Commission  proposes  to  adapt  the  directive 
without  changing  the  substance,  by  incorporating  in  the  directive  the  above-mentioned 
provision of the Framework Decision and thus making implementation more effective (due 
to  the  role  of  the  ECJ  in  ensuring  compliance  and  uniform  interpretation  of  acts  decided 
under the first pillar). 

–  The  system  of  penalties,  as  it  stands  in  Directive  2005/35/EC,  only  partially  implements 
the  International  Convention  for  the  Prevention  of  Pollution  from  Ships  (MARPOL).  To 
ensure  that  penalties  are  “adequate  in  severity  to  discourage”  potential  polluters,  as 
provided  for  in  Article  4(4)  of  MARPOL,  the  deterrent  effect  of  the  system  of  penalties 
must  be  reinforced,  sending  a  strong  signal,  with  a  much  greater  dissuasive  effect,  to 
potential  offenders1.  Furthermore,  criminal  investigation  and  prosecution  and  judicial 
cooperation  between  Member  States  can  be  essential  and  more  powerful 
than 
administrative action. 

–  Certain Member States, in particular acting as coastal States, have recently reinforced their 
system of criminal penalties. Their vigilance on the prevention side and the severity of the 
penalties imposed by criminal courts, combined with the publicity given to these cases has 
helped  to  reduce  significantly  the  number  of  illegal  discharges.  In  order  to  avoid  safe 
havens for perpetrators within the European Community, it is of the utmost importance that 
the  same  approach  be  adopted  by  all  Member  States,  whether  acting  as  flag  State,  port 
State and/or coastal State. 

General context 

Environmental  crime  is  one  of  the  European  Union’s  central  concerns.  The  Tampere 
European Council on 15 and 16 October 1999 asked that efforts be made to adopt common 
definitions  of  offences  and  penalties,  focusing  on  a  limited  number  of  especially  important 
sectors, such as environmental crime. In the aftermath of the sinking of the tanker Prestige in 
November  2002,  the  Copenhagen  European  Council  of  12  and  13  December  2002  declared 
the European Union’s determination to adopt all the necessary  measures to  preclude further 
disasters. The Council particularly welcomed the Commission’s intention of looking into the 
need for specific new measures, including measures relating to liability and the corresponding 
penalties. The Council meeting of 19 December 2002 on justice and home affairs adopted a 
statement undertaking to consider all complementary measures to protect the environment, in 
particular the seas, against pollution through the criminal law. 

1 

See also item 2.2 of the explanatory memorandum to the original Commission proposal of March 2003: 
COM(2003) 92 final. 

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Existing provisions in the area of the proposal 

The  proposal  builds  on  Directive  2005/35/EC  and  takes  over  the  substantive  content  of  the 
annulled Framework Decision 2005/667/JHA. 

Consistency with the other policies and objectives of the Union 

The  proposed  Directive  respects  the  fundamental  rights  and  observes  the  principles 
recognised by the Charter of Fundamental Rights of the European Union. In particular, it has 
been drafted in accordance with the principles on justice set out in Chapter VI of the Charter 
and  seeks  to  promote  the  integration  into  Community  policies  of  a  high  level  of 
environmental protection in accordance with the principle of sustainable development, as laid 
down in Article 37 of the Charter. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

Consultation of interested parties 

Consultation of interested parties was not deemed necessary in this case, since this proposal 
incorporates exactly provisions already adopted unanimously by the Council in the annulled 
Framework Decision. In addition, since the annulment of Framework Decision 2005/667/JHA 
by  the  European  Court  of  Justice  on  23  October  2005,  there  has  been  a  legal  vacuum 
concerning a harmonised approach regarding possible penalties in the fight against maritime 
pollution that needs to be filled as quickly as possible.  

Collection and use of expertise 

There was no need for external expertise. 

Impact assessment 

An  impact  assessment  was  not  considered  necessary,  remembering  that  this  proposal  only 
transfers into Community law provisions already adopted unanimously by the Council in the 
annulled Framework Decision 2005/667/JHA. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

The proposed directive defines as criminal the infringement already established in Article 4 of 
Directive 2005/35/EC.  

Inciting or aiding and abetting such activities should also be considered a criminal offence. 

The  criminal  offence  should  be  punishable  by  effective,  proportionate  and  dissuasive 
penalties, which have to be of a criminal nature for natural persons. Effective, proportionate 
and dissuasive penalties should also be applied to legal persons if they are considered liable 
under this Directive. 

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Legal basis 

The  provisions  of  this  Directive  relate  to  maritime  transport.  Consequently,  the  legal  base 
chosen is Article 80(2) of the EC Treaty. 

Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the Community. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reasons: 

Maritime  pollution  typically  leads  to  damage  with  cross-border  dimensions.  Therefore,  it  is 
essential  that  Member  States  have  the  same  understanding  of  which  maritime  pollution 
infringements  constitute  criminal  offences  and  that  they  should  be  addressed  by  criminal 
penalties,  at  least  for  criminal  offences  committed  by  natural  persons.  Diverging  national 
approaches in this regard hinder efficient judicial cooperation and allow offenders to escape 
prosecution.  

Due to the frequent transboundary impact of maritime pollution and the fact that perpetrators 
act across borders, action by Member States alone would not be suited to tackle this problem. 

Community action will better achieve the objectives of the proposal for the following reasons: 

A minimum standard on the constituent elements of criminal offences and the requirement of 
criminal  penalties  for  natural  persons  need  to  be  established  at  Community  level.  This  will 
ensure that ship-source pollution offences are dealt with in a similar manner in every Member 
State and that perpetrators cannot escape from prosecution for their crimes inside the EU. 

The  proposed  Directive  sets  only  a  minimum  level  of  harmonisation  with  regard  to  the 
activities  that  should  at  least  be  considered  criminal  offences  and  does  only  generally 
establishes that criminal penalties should be applied to natural persons. It leaves the Member 
States the choice of whether criminal penalties should also apply to legal persons.  

The proposal therefore complies with the subsidiarity principle. 

Proportionality principle 

The proposal complies with the proportionality principle for the following reasons: 

The action chosen is a Directive, which leaves Member States a high degree of flexibility in 
implementation, including for determining the types and levels of penalties. Only a minimum 
standard is set. Member States are free to maintain or introduce more stringent measures, for 
example to establish additional criminal offences or to introduce criminal penalties for legal 
persons too. This is made clear explicitly in Article 1(2) of Directive 2005/35/EC. 

Implementation of the Directive entails no significant financial and administrative burden as 
the criminal law and judicial structures required already exist in every Member State.  

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Choice of instruments 

Proposed instrument: Directive. 

Other means would not be adequate for the following reason: 

The existing Directive 2005/35/EC must be brought into line with the Court ruling in case C-
440/05. A directive can only be amended by an amending directive. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION 

Correlation table 

The Member States are required to communicate to the Commission the text of their national 
provisions transposing the Directive along with a correlation table between those provisions 
and this Directive. 

European Economic Area 

The  proposed  act  concerns  an  EEA  matter  and  should  therefore  extend  to  the  European 
Economic Area. 

Detailed explanation of the proposal 

1. Criminal offence 

Member  States  are  required  to  lay  down  that  any  ship-source  discharge  of  polluting 
substances, as defined in Article 2 of Directive 2005/35/EC, into any of the areas referred to 
in Article 3(1) of Directive 2005/35/EC, if committed with intent, recklessly or with serious 
negligence,  is  to  be  considered  a  criminal  offence.  The  definition  of  “criminal  offence” 
corresponds to Article 2 of the annulled Framework Decision 2005/667/JHA.  

2. Liability of legal persons 

As  stated  in  the  annulled  Framework  Decision,  Member  States  should  ensure  that  legal 
persons  can  be  held  liable  for  the  criminal  offences  committed  for  their  benefit  by  certain 
persons acting on their behalf or when lack of supervision or control enabled those persons to 
commit an offence.  

3. Penalties 

Penalties imposed against ship-source pollution offences must be effective, proportionate and 
dissuasive, for both natural and legal persons.  

In addition to this requirement, for the criminal offence defined in the new Article 4 Member 
States are required to provide that the penalties for natural persons be of a criminal nature. For 
legal persons, it is not specified whether the penalties should be of a criminal or non-criminal 

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nature.  Member  States  that  do  not  recognise  the  criminal  liability  of  legal  persons  in  their 
national law are therefore not under any obligation to change their national system.  

4. Implementation period  

The period for implementation by the Member States is six months, taking into account that 
Article 1 largely covers the same content as Articles 2, 3 and 5 of the annulled Framework 
Decision  2005/667/JHA.  The  period  for  implementation  of  this  Framework  Decision  ended 
on 12 January 2007, so Member States will already have done a significant part of the work to 
implement this Directive. 

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2008/0055 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

amending Directive 2005/35/EC on ship-source pollution and on the introduction of 
penalties for infringements 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission2, 

Having regard to the opinion of the European Parliament3, 

Having regard to the opinion of the European Economic and Social Committee4, 

Having regard to the opinion of the Committee of the Regions5, 

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

Whereas:  

(1) 

(2) 

2 
3 
4 
5 
6 
7 
8 

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 penalties for 
infringements6, and also of this amendment, is to approximate the definition of ship-
source  pollution  offences  committed  by  natural  or  legal  persons,  the  scope  of  their 
liability  and  the  criminal  nature  of  penalties  that  can  be  imposed  for  such  criminal 
offences by natural persons. 

On  23  October  2007  the  Court  of  Justice  of  the  European  Communities  annulled7 
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,8  which  had 
previously  supplemented  Directive  2005/35/EC  with  criminal-law  measures.  This 
amendment to the Directive fills the legal vacuum following the judgment.  

OJ C., p.  
OJ C., p.  
OJ C., p.  
OJ C., p.  
OJ L 255, 30.9.2005, p.11. 
See Case: C-440/05 Commission v Conseil, not yet published in the European Court Reports. 
OJ L 255, 30.9.2005, p.164. 

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(3) 

(4) 

(5) 

Criminal  penalties,  which  demonstrate  social  disapproval  of  a  different  nature  than 
administrative  sanctions,  strengthen  compliance  with  the  legislation  against  ship-
source pollution in force.  

Common rules on criminal penalties make it possible to use more effective methods of 
investigation and assistance within and between Member States.  

Effective,  proportionate  and  dissuasive  penalties  should  also  apply  to  legal  persons 
throughout  the  Community  because  frequently  ship-source  pollution  offences  are 
committed in the interest of legal persons or for their benefit.  

(6)  Member States should provide information to the Commission on implementation of 

this Directive, in order to enable the Commission to evaluate its effect.  

(7) 

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

(8) 

This Directive respects fundamental rights and observes the principles recognised by 
Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental 
Rights of the European Union, 

(9) 

Directive 2005/35/EC should therefore be amended accordingly.  

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 2005/35/EC is amended as follows: 

(1) 

The title is replaced by the following:  

“Directive  of  the  European  Parliament  and  of  the  Council  on  ship-source  pollution 
and  on  the  introduction  of  penalties,  including  criminal  penalties,  for  pollution 
offences”. 

(2) 

In  Articles  5(1)  and  (2),  Article  6(2)  and  Article  7(2),  the  term  “infringement”  is 
replaced by “criminal offence”.  

(3) 

Article 4 is replaced by the following:  

“Criminal offences 

1.  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  criminal 
offences if committed with intent, recklessly or with serious negligence.  

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2. 

Each Member State shall take the measures necessary to ensure that inciting or 
aiding and abetting a criminal offence referred to in paragraph 1 is punishable 
by criminal law. ” 

(4) 

After Article 5, the following Article 5a is inserted:  

“Penalties against natural persons 

1. 

2. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the 
criminal  offences  referred  to  in  Article  4  are  punishable  by  effective, 
proportionate and dissuasive criminal penalties.  

Each  Member  State  shall  take  the  measures  necessary  to  ensure  that  the 
criminal penalties referred to in paragraph 1 apply to any person who is found 
responsible by a court for a criminal offence within the meaning of Article 4.” 

(5) 

After Article 5a, the following Article 5b is inserted:  

“Liability of legal persons 

1. 

Each  Member  State  shall  take  the  measures  necessary  to  ensure  that  legal 
persons  can  be  held  liable  for  the  criminal  offences  referred  to  in  Article  4, 
committed for their benefit by any natural person acting either individually or 
as part of an organ of the legal person, who has 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. 

2.  Apart from the cases provided for in paragraph 1, each Member State shall take 
the measures necessary to ensure that a legal person can be held liable where 
lack of supervision or control by a natural person referred to in paragraph 1 has 
made possible the commission of the criminal offence referred to in Article 4 
for the benefit of the legal person by a natural 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 criminal offences referred to in Article 4.” 

(6) 

After Article 5b, the following Article 5c is inserted: 

“Penalties against legal persons 

1. 

Each  Member  State  shall  take  the  measures  necessary  to  ensure  that  a  legal 
person held liable pursuant to Article 5b(1) and (2) is punishable by effective, 
proportionate and dissuasive penalties.  

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2. 

Each  Member  State  shall  take  the  measures  necessary  to  ensure  that  the 
penalties  referred  to  in  paragraph  1  apply  to  any  legal  person  who  is  found 
responsible by a court for a criminal offence within the meaning of Article 4.” 

(7) 

Article 8 is deleted. 

Article 2 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary  to  comply  with  this  Directive  not  later  than  six  months  following  the  date  of  its 
entry  into  force.  They  shall  forthwith  communicate  to  the  Commission  the  text  of  those 
provisions and a correlation table between those provisions and this Directive.  

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

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

Article 3  

Article 4 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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