EC on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences - Main contents

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dossier	COM(2023)273 - Amendment of Directive 2005/35/EC on ship-source pollution and on the introduction of penalties, including criminal ...
document	COM(2023)273
date	June 1, 2023

Article 1

Amendments to Directive 2005/35/EC

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 the enforcement of international standards on pollution from ships and on the introduction of penalties for pollution offences’;

(2) Article 1 is replaced by the following:

‘Article 1

Purpose

1. The purpose of this Directive is to incorporate into Union law international standards on pollution from ships and to ensure that persons responsible for illegal discharges of polluting substances are subject to dissuasive, effective and proportionate administrative penalties in order to improve maritime safety and to enhance protection of the marine environment from pollution by ships.

2. This Directive does not prevent Member States from taking more stringent measures in conformity with international law, by providing for administrative or criminal penalties in accordance with their national law.’;

(3) Article 2 is replaced by the following:

‘Article 2

Definitions

For the purposes of this Directive, the following definitions shall apply:

1. ‘Marpol 73/78’ means the International Convention for the Prevention of Pollution from Ships, 1973 and its 1978 Protocol, in its up-to-date version;

2. ‘polluting substances’ means substances subject to regulation by Marpol 73/78 Annexes I (oil), II (noxious liquid substances in bulk), III (harmful substances carried by sea in packaged form), IV (sewage from ships), V (garbage from ships) and Exhaust Gas Cleaning System residue;

3. ‘Exhaust Gas Cleaning System residue’ shall mean any material removed from the washwater or the bleed-off water by a treatment system or discharge water that does not meet the discharge criterion, or other residue material removed from the exhaust gas cleaning system discharged overboard as a result of the operation of a compliance method for emissions reductions, as defined in Annex VI Regulation 4 to Marpol 73/78, used as an alternative in terms of emissions reductions to the standards set forth in Regulation 14 of Annex VI to Marpol 73/78, taking into account the guidelines developed by the IMO;

(a) ‘discharge’ shall mean any release howsoever caused from a ship, as referred to in Article 2 of Marpol 73/78;

4. ‘ship’ means a seagoing vessel, irrespective of its flag, of any type whatsoever operating in the marine environment and shall include hydrofoil boats, air-cushion vehicles, submersibles and floating craft;

5. ‘legal person’ means any legal entity in possession of such status under applicable national law, other than States themselves or public bodies in the exercise of State authority or public international organisations;

6. ‘company’ means the shipowner or any other organisation or person, such as the manager or the bareboat charterer, which has assumed the responsibility for the operation of the ship from the shipowner.’;

(4) Article 4 is replaced by the following:

‘Article 4

Infringements

1. Member States shall ensure that discharges of polluting substances into any of the areas set out in Article 3(1) are regarded as infringements, unless:

(a) for polluting substances subject to regulation by Annex I to Marpol 73/78, it satisfies the conditions set out in Annex I Regulations 15, 34, 4.1 or 4.3 to Marpol 73/78;

(b) for polluting substances subject to regulation by Annex II to Marpol 73/78, it satisfies the conditions set out in Annex II Regulations 13, 3.1.1 or 3.1.3 to Marpol 73/78;

(c) for polluting substances subject to regulation by Annex III to Marpol 73/78, it satisfies the conditions set out in Annex III Regulation 8.1 to Marpol 73/78;

(d) for polluting substances subject to regulation by Annex IV to Marpol 73/78, it satisfies the conditions set out in Annex IV Regulations 3, 11.1 and 11.3 to Marpol 73/78;

(e) for polluting substances subject to regulation by Annex V to Marpol 73/78, it satisfies the conditions set out in Annex V Regulations 4.1, 4.2, 5, 6.1, 6.2, 7 to Marpol 73/78 and section 5.2 of part II-A of the International Code for Ships Operating in Polar Waters (Polar Code); and

(f) for Exhaust Gas Cleaning System residue, it satisfies the conditions set out in Annex VI Regulations 14.1, 14.4, 14.6 and 3.1.1 to Marpol 73/78.

2. Each Member State shall take the necessary measures to ensure that any natural or legal person having committed an infringement within the meaning of paragraph 1 is held liable therefor.’;

(5) Article 5 is replaced by the following:

‘Article 5

Exceptions

1. A discharge of polluting substances subject to regulation by Annexes I, II and VI to Marpol 73/78 into the areas set out in Article 3(1) points (c), (d) and (e) shall not be regarded as an infringement for the company, the master or the crew, if both of the following conditions are fulfilled:

(a) the discharge results from damage to a ship or its equipment;

(b) all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge.

2. Paragraph 1 shall not apply where the company, the master or the crew responsible for the damage acted either with intent to cause damage or recklessly and with knowledge that damage would probably result.’;

(6) Article 5a is deleted;

(7) Article 5b is deleted;

(8) In Article 6, the following paragraph 3 is added:

3. An indicative list of irregularities or information within the meaning of paragraph 1 is provided in Annex I to this Directive.’;

(9) Article 8 is replaced by the following:

‘Article 8

Penalties

1. Without prejudice to the obligations of Member States under Directive (EU) 2023/xxxx ³⁶ Member States shall lay down a system of administrative penalties for the breach of national provisions implementing Articles 4 and Article 5(2) of this Directive and shall ensure that they are applied. The administrative penalties provided for shall be dissuasive, effective and proportionate.

2. Member States shall ensure that penalties introduced in transposition of this Directive include fines which are imposed to the company at the time of the infringement, unless the company can prove that the master or, if not acting under the responsibility of the master, the crew was responsible for the infringement.

3. In the case that it is proven that the master or, if not acting under the responsibility of the master, the crew was responsible for the commission of the relevant infringement, Member States shall ensure that penalties are imposed to such persons in accordance with the provisions of this Directive.’;

(10) Article 8a is deleted;

(11) Article 8b is deleted;

(12) Article 8c is deleted;

(13) The following Article 8d is inserted:

‘Article 8d

Effective application of penalties

1. Member States shall ensure that, when determining and applying the type and level of administrative penalty to a natural or legal person found by competent authorities to be responsible for an infringement within the meaning of Articles 4 and 5(2), the competent authorities take into account all relevant circumstances of the infringement, including:

(a) the nature, gravity and the duration of the discharge;

(b) the degree of culpability of the responsible person;

(c) the damage caused from the discharge to the environment or human health;

(d) the financial strength of the responsible person, taking into account, as appropriate, the annual world-wide turnover of the responsible legal person;

(e) the economic benefits generated or expected to be generated for the responsible person from the infringement;

(f) measures taken by the responsible person to prevent the discharge or mitigate its impacts;

(g) the level of cooperation of the responsible person with the competent authority, including any action aiming to circumvent or obstruct an appropriate inspection or other investigation by a competent authority; and

(h) any previous infringement by the responsible person.

2. In order to ensure the uniform application of this Article, the Commission may, by means of implementing acts, lay down detailed rules on the criteria to be considered by Member States when applying penalties in respect of each type of polluting substance pursuant to this Directive. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13.’;

(14) Article 10 is replaced by the following:

‘Article 10

Exchange of information and experience

1. For the purposes of this Directive, the Member States and the Commission shall cooperate in the exchange of information, building on the Union Maritime Information and Exchange System set out in Article 22a(3) of and Annex III to Directive 2002/59/EC ³⁷ (SafeSeaNet), in order to attain the following objectives:

(a) enhance the information required for the effective implementation of this Directive, in particular as provided by the European satellite-based pollution detection service set up by this Directive (CleanSeaNet), with a view to develop reliable methods of tracing polluting substances in the sea;

(b) develop and implement an appropriate control and monitoring system, integrating information provided under paragraph (a) with information made available in SafeSeaNet and other Union information databases and tools, including disseminating information on actual or potential discharges of Exhaust Gas Cleaning System residue to the dedicated module of THETIS set up by under Commission Implementing Decision 2015/253 ³⁸ (THETIS-EU), in order to facilitate the early identification and monitoring of ships discharging polluting substances, with a view to optimise enforcement actions undertaken by national authorities;

(c) make optimum use of the information provided in accordance with paragraph (a) and (b) as well as reported by Member States pursuant to Article 10a, with a view to facilitate access to and exchange of such information between competent authorities and with authorities of other Member States and the Commission; and

(d) within three years from the date of transposition of this Directive, ensure that competent authorities verify at least 10% of the alerts sent by CleanSeaNet every year.

2. The Commission shall provide for the organisation of exchange of experiences between Member States’ national authorities and experts, including those from the private sector, civil society and trade unions, on the application of this Directive across the Union, with a view to establish common practices and guidelines on the enforcement of this Directive.’;

(15) The following Articles 10a, 10b, 10c and 10d are inserted:

‘Article 10a

Reporting

1. The Commission shall establish an electronic reporting tool, for the purposes of collection and exchange of information between the Member States and the Commission on the implementation of the enforcement system provided by this Directive.

2. Member States shall ensure that the following information relating to the actions undertaken by their competent authorities is reported through the electronic reporting tool referred to in paragraph 1:

(a) information relating to the follow-up by competent authorities of an alert sent by CleanSeaNet or the reasons for not following up such an alert, as soon as the follow-up activities are completed;

(b) information relating to the inspections undertaken in accordance with Article 6, as soon as the inspection is completed;

(c) information relating to the actions undertaken in accordance with Article 7, as soon as such actions are completed;

(d) information relating to penalties imposed in accordance with this Directive, without undue delay and in any case, by 30 June each year for penalties imposed during the previous calendar year. To the extent that information relating to penalties include personal data, such information shall be anonymised.

3. In order to ensure the uniform application of this Article, the Commission may, by means of implementing acts, lay down detailed rules on the procedure for reporting the information mentioned in paragraph 2, including specifying the type of information to be reported, in accordance with the examination procedure set out in Article 13.

4. Member States shall notify the Commission of the entitled authorities that will have access to the reporting tool set out in paragraph 1.

Article 10b

Training

The Commission shall facilitate the development of capacities of Member States by providing, as appropriate, training to the authorities responsible for the detection, verification and enforcement of infringements under the scope of this Directive.

Article 10c

Publication of information

1. Based on information reported by Member States in accordance with Article 10a, the Commission shall make publicly available a regularly updated Union-wide overview on the implementation and enforcement of this Directive. The overview shall include the information listed in Annex II to this Directive.

2. Without prejudice to Directive 2003/4/EC ³⁹, the Commission shall take appropriate measures to protect the confidentiality of information obtained in implementation of this Directive.

Article 10d

Protection of persons who report potential infringements

1. The Commission shall develop and maintain a confidential online external reporting channel for receiving reports, within the meaning of Directive (EU) 2019/1937 ⁴⁰ on potential infringements of this Directive and shall relay such reports to the Member State or Member States concerned.

2. Member States shall ensure that national competent authorities receiving reports of violations of this Directive, submitted through the channel referred to in paragraph 1, provide feedback and follow-up on those reports in accordance with Directive (EU) 2019/1937.

3. The Commission may restrict the application of Articles 14 to 22, 35, and 36, as well as Article 4 of Regulation (EU) 2018/1725 ⁴¹ for the data subjects who are part of or mentioned in the report submitted through the channel referred to in paragraph 1 and who are not the data subjects submitting this report. This restriction may apply only for the duration necessary to investigate the report referred to in paragraph 2 by the competent Member State authorities.’;

(16) Article 11 is deleted;

(17) Article 12 is deleted;

(18) The following Article 12a is inserted:

‘Article 12a

Evaluation and review

1. By [OP: Please insert a date: five years from the date of transposition of this amending Directive], the Commission shall carry out an evaluation of this Directive. The evaluation shall be based on at least the following:

(a) the experience gathered from the implementation of this Directive; and

(b) the information reported by Member States pursuant to Article 10a and the Union wide overview provided in accordance with Article 10c.

2. As part of the review, the Commission shall assess the possibility of modifying the scope of this Directive, if appropriate, in view of among other elements the international standards for the prevention of air pollution from ships subject to regulation by Marpol 73/78, notably sulphur oxide and nitrogen oxide emissions from ships, as well as in view of other standards regulating discharges from ships which have been made subject to regulation by Marpol 73/78, such as black carbon, marine litter, container loss, loss of plastic pellets and underwater noise.’

(19) Article 13 is replaced by the following:

‘Article 13

Committee Procedure

1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS), established by Article 3 of Regulation (EC) No 2099/2002 ⁴² COSS shall be a committee within the meaning of Regulation (EU) No 182/2011 ⁴³.

2. Where reference is made to this Article, Article 5 of Regulation (EU) No 182/2011 and Article 5 of Regulation (EC) No 2099/2002 shall apply.’;

(20) Article 14 is deleted;

(21) Article 15 is deleted;

(22) The sole Annex is deleted;

(23) The text set out in Annex I to this Directive is added as Annex I;

(24) The text set out in Annex II to this Directive is added as Annex II.

Article 2

Transposition

1. Member States shall adopt and publish, by [OP: Please insert a date: one year from the date of entry into force of this amending Directive] the laws, regulations and administrative provisions necessary to comply with this Directive.

When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive and any subsequent amendment(s) affecting them.

Article 3

Application of Directive 2009/123/EC

As regards infringements to be regarded as criminal offences pursuant to Directive 2005/35/EC as amended by Directive 2009/123/EC ⁴⁴ and the corresponding penalties, Member States not bound by Directive (EU) 2023/xxxx shall remain bound by Directive 2005/35/EC as amended by Directive 2009/123/EC.

Article 4

Entry into force

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

Article 5

Addressees

This Directive is addressed to the Member States.