Opinion of the European Economic and Social Committee on the 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 COM(2008) 134 final — 2008/0055 (COD)
Date: 2008-09-17
Institutions: European Economic and Social Committee
Subjects: ESC opinion, environmental liability, environmental offence, law of the sea, maritime safety, penalty, pollution control measures, pollution from ships

31.3.2009

EN

Official Journal of the European Union

C 77/69

Opinion of the European Economic and Social Committee on the ‘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’

COM(2008) 134 final — 2008/0055 (COD)

(2009/C 77/17)

On 4 April 2008 the Council decided to consult the European Economic and Social Committee, under
Article 80(2) of the Treaty establishing the European Community, on

Ship-source pollution and the introduction of penalties for infringements.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 16 July 2008. The rapporteur was
Mr Retureau.

At its 447th plenary session, held on 17 and 18 September 2008 (meeting of 17 September), the European
Economic and Social Committee unanimously adopted the following opinion.

1. Commission proposals

been lost over an interinstitutional conflict that has now been
settled, and this will make it possible to ensure better compli-
ance with environmental legislation in the future.

The EESC's opinion is

1.1
sought on the amendments
proposed by the Commission to the 2005 directive on ship-
source pollution, in order to comply with the case law of the
Court of Justice in the field of environmental crime as regards
the respective competences of the Community institutions, the
effectiveness of Community legislation, and the precedence of
the TEC over the TEU in relation to the Community policies
and objectives defined in the treaties.

2. General comments

2.1 With regard to criminal matters, the EESC again notes
in principle, no competence is conferred on the Com-
that,
munity by the treaties.

However, the Commission must be concerned with the
2.2
effectiveness of Community law, for which it has the power of
initiative, in order to implement the policies set down in the
TEC that fall within its remit. To this end, in its legislative initia-
tives it can propose that governments, in their national legisla-
tion, provide for proportionate, effective, dissuasive penalties —
including criminal penalties — against natural and legal persons
having committed offences against the environment, whether
deliberately or through gross negligence, directly or with accom-
plices, or who incite offences warranting the enforcement of
these penalties.

In its previous opinion (1), the EESC was critical of the
2.3
Commission's wide interpretation of the scope of Community
powers in criminal matters, and advocated a more moderate
interpretation, which ultimately proved to be in line with the
case law of the Court of Justice (2). Since 2000, much time has

The concern is sometimes expressed that

the future
2.4
the Treaties would lead to new changes in
amendment of
competences and hence in legislation, which would thus lose
stability and certainty. However, this fear does not seem to be
justified either by the current institutional situation or under
any application of
the Lisbon Treaty. Whatever happens,
Member States do not seem willing to lose their competences in
criminal matters, as these are considered sovereign and part of
the ‘hard core’ of State powers. Even a less radical change to the
respective competences of legislative institutions would not, ipso
facto, be justification for a fundamental change to the law.

2.5 Moreover, in ECJ case C-308/2006 regarding the legality
of the directive in terms of public international law, the Court
declined jurisdiction, thus bringing an end to the action. In fact,
even this case were brought before other international courts, it
would not be possible to resolve it
for legal and political
reasons too complex to enter into here. However, even if a
court did agree to give an advisory opinion on a draft Com-
munity law, this would not suffice to overrule the Community
legislature, which is reinforced by the internal supremacy of its
law over national legal systems and international law and, more-
over, is not bound by the latter.

(1) OJ C 220, 16.9.2003, p. 72.
(2) See ECJ judgment of 23 October 2007, Commission of the European
Communities supported by the European Parliament versus the
Council, case C-440/05.

Therefore, in full compliance with Community case law,
2.6
the proposal on ship-source pollution calls upon Member States
to provide for and introduce penalties in their criminal legisla-
tion for a limited number of serious cases which the proposal

C 77/70

EN

Official Journal of the European Union

31.3.2009

identifies. The penalties should be effective, proportionate and
dissuasive,
in order to combat these clearly defined infringe-
ments of Community law.

more effective way of strengthening European legislation and
compliance therewith for major issues.

2.7
This does not entail harmonising applicable criminal law,
as Member States are merely called on to treat certain infringe-
ments identified by the Community legislature as criminal
offences. However, ECJ case law does allow for the introduction
of obligations for Member States in criminal matters, which is a

2.8
The Committee therefore welcomes and supports the
proposal to amend the 2005 directive, and considers that the
new means of identifying and monitoring ships to be gradually
set up will ensure full compliance with the directive, by effec-
tively and systematically penalising illegal practices.

Brussels, 17 September 2008.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the
European Parliament and of the Council facilitating cross-border enforcement in the field of road
safety’

COM(2008) 151 final — 2008/0062 (COD)

(2009/C 77/18)

On 13 May 2008 the Council decided to consult the European Economic and Social Committee, under
Article 71(1)(c) of the Treaty establishing the European Community, on the

Proposal for a Directive of the European Parliament and of the Council facilitating cross-border enforcement in the field
of road safety.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 16 July 2008. The rapporteur was
Mr Simons.

At its 447th plenary session, held on 17 and 18 September 2008 (meeting of 17 September), the European
Economic and Social Committee unanimously adopted the following opinion.

1. Conclusions

nied by effective and efficient checks and penalties. The
Committee would therefore call on the Council and the Member
States to make urgent improvements on this front.

1.1
The Commission's draft directive sets out proposals
aimed at securing the more efficient and more effective enforce-
ment and supervision of traffic offences committed in another
Member State.

1.2
Its purpose is to help meet the Commission's 2001 objec-
tive of halving the number of road fatalities between that date
and 2010.

The target will be impossible to meet without further
1.3
action. The current proposal is part of that process and focuses
on tackling traffic offences committed in another Member State.

1.4
The Committee considers the draft directive to be a
sound approach to dealing effectively with offences committed
in another Member State. This must, however, also be accompa-

1.5
The Committee feels that, to make the directive more
effective, the list of offences proposed by the Commission needs
to be expanded to include all offences that have a bearing on
improving road safety.

1.6
the
In the interests of efficiency and effectiveness,
Committee feels that, to exchange information, use should be
made of an existing electronic network,
the
EUCARIS system, as the costs involved are low. The Commis-
sion is advised at least to carry out a feasibility study — or have
one carried out externally — on the possibility of expanding
existing systems to incorporate the planned data exchange.

instance,

for