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 ...
source	COM(2023)273
date	01-06-2023

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

This proposal concerns a modification of Directive 2005/35/EC ¹ on ship-source pollution and on the introduction of penalties for pollution offences as amended by Directive 2009/123/EC ².

The policies on preventing pollution from ships were developed between 2000 and 2009, in the wake of two major maritime accidents involving the ships Erika and Prestige, which caused substantial oil spills ³. Directive 2005/35/EC (hereinafter ‘SSP Directive’ or ‘Directive’) regulates penalties for illegal discharges of oil and noxious liquid substances from ships into the sea. Not all waste that is generated on ships has to be delivered to ports. Some can be discharged into the sea. An illegal discharge is a discharge from a ship that does not meet the relevant International Maritime Organization (IMO) rules, i.e. the standards set in the International Convention for the Prevention of Pollution from Ships (Marpol 73/78).

The main objective of the Directive is to incorporate these international standards into EU law and to ensure that those responsible for illegal discharges of polluting substances are subject to dissuasive, effective and proportionate penalties in order to improve maritime safety and to better protect the marine environment from pollution by ships.

The Directive sets out an enforcement system where monitoring and verification activities carried out by the Member States lead to penalties on those responsible for infringements. The process is threefold: first, surveillance tools detect a potential discharge from a ship; second, the competent authority decides whether to dispatch a boat or aircraft to check on-scene if the pollution can be confirmed; third, evidence is collected and, if the offender is identified, penalties are applied. Imposing penalties for pollution offences from ships finds its origin in international law. The United Nations Convention on the Law of the Sea (UNCLOS) specifies, among other things, that a State can impose penalties for pollution committed by a foreign vessel in case of major damage to the coastal State or if the flag State in question has repeatedly disregarded its enforcement obligations. EU flag States are also required to impose penalties in line with UNCLOS on their ships if they discharge polluting substances illegally into sea in or outside the EU.

The European Green Deal reaffirms the Commission’s ambition to protect its population from environment-related risks and impacts, setting the pathway to a healthy planet for all. This proposal is one of EU’s initiatives aimed at reducing pollution from maritime transport in its seas and is in line with the smart and sustainable mobility strategy ⁴ and zero-pollution action plan ⁵.

The Commission carried out the first ex-post evaluation of the Directive in 2022 and found that it successfully contributed to the incorporation of international rules on ship-source pollution into Member State law and improved the detection of pollution from ships. In particular, the Directive was the impetus behind the creation of the CleanSeaNet service - an EU satellite-based oil spill monitoring and vessel detection service managed by the European Maritime Safety Agency (EMSA).

However, the evaluation identified a number of shortcomings: (1) the current scope of the Directive does not cover all relevant polluting substances of the international regime e.g. garbage or sewage discharges into sea; (2) information exchange and/or expertise to effectively detect, verify and penalise pollution from ships are irregular across the EU Member States and generally insufficient; (3) there is an unbalanced dissuasive effect of the penalties currently applied across the EU for ship-source pollution; i the current reporting by Member States is incomplete and results in a lack of detailed information on ship-source pollution and related penalties imposed across the EU over time.

In light of this, offenders discharging polluting substances illegally are not always identified, and rarely penalised. For this reason, a proposal to amend Directive 2005/35/EC has been prepared. The specific objectives of the revision are to: (1) incorporate international standards into EU law by aligning the Directive with Marpol Annexes on discharges into the sea; (2) support Member States by building their capacity to detect pollution incidents, verify, collect evidence and effectively penalise identified offenders in a timely and harmonised manner; (3) ensure that persons (natural and legal) responsible for illegal discharges from ships are subject to effective, proportionate and dissuasive penalties; and i ensure simplified and effective reporting on ship-source pollution incidents and follow-up activities.

• Consistency with existing policy provisions in the policy area

There is a close link with Directive (EU) 2019/883 ⁶ on port reception facilities (PRF) for the delivery of ship waste. Directive (EU) 2019/883 introduced stronger rules and better monitoring of ships’ waste delivery at ports. This translated into a better capacity in ports to receive waste from ships and less waste discharged at sea. However, some ships may still decide to illegally discharge waste at sea, to avoid paying for the PRF, especially since the Directive 2005/35/EC on illegal discharges does not cover the same substances (hence they could not be penalised under Directive 2005/35/EC). This is why, at the time of adoption of Directive 2019/883, the co-legislators called for a review of Directive 2005/35/EC to match the scope with Directive (EU) 2019/883 and make the penalties proportionate. Specifically, ships should be discouraged from breaching EU law through a strong system of proportionate and effective penalties in parallel to waste collection solutions offered in EU ports . These two Directives jointly ensure that the EU and its Member States comply with their obligations relating to ship-source pollution under Marpol 73/78.

It is therefore proposed to align the scope of Directive 2005/35/EC with that of Directive 2019/883/EC ⁷ in order to improve pollution prevention for the marine environment in Europe.

The proposal is consistent with Directive 2009/16/EC ⁸ on port State control, Directive 2009/18/EC ⁹ on maritime accident investigation and Directive 2009/21/EC ¹⁰ on flag State requirements. The three EU maritime safety Directives are based on the rules and standards established by the IMO at international level and are complementary to one another and to this Directive. The flag State Directive lays down rules for ship inspections and fleet oversight for EU flag State administrations which are relevant for preventing pollution of the marine environment in and outside of the EU. When stronger environmental rules become effective under the international conventions, the flag State‘s responsibility to enforce them is automatically extended. The port State control Directive is also relevant here as it supports, through the required inspections, the detection and correction of lack of compliance not only with safety but also with pollution prevention rules and standards. Regarding maritime accidents, they not only cause casualties and economic losses but can have a direct impact on the environment, e.g. oil pollution, hence the link to the SSP Directive which addresses such pollution.

• Consistency with other EU policies

The revised Directive is complementary to Directive (EU) 2023/xxxx ¹¹ on environmental crime. Directive (EU) 2023/xxxx introduced criminal sanctions for serious environmental offences including offences of illegal discharges from ships. The criminal provisions in Directive 2005/35/EC are therefore no longer necessary because criminal penalties for ship-source pollution offences are provided for by Directive (EU) 2023/xxxx. Consequently, this proposal removes from Directive 2005/35/EC the criminal provisions of Articles 5 and 8. Directive 2005/35/EC continues to include the sectorial provisions on the relevant obligations and prohibitions (e.g. the definition of illegal discharges) and provides for administrative penalties for ship-source pollution when the act will not qualify for criminal proceedings. To ensure the effectiveness of national enforcement efforts, the administrative and criminal enforcement regimes must be seen as interlinked parts of one system and should coexist.

Directive 2008/56/EC ¹² on the marine strategy framework is the principal EU legal instrument for protecting and conserving the marine environment, its species and habitats. It enshrines the ecosystem approach to the management of human activities (including fishing, tourism, recreation) having an impact on the marine environment. Directive 2005/35/EC contributes to the objectives of Directive 2008/56/EC by introducing dissuasive penalties for illegal discharges of polluting substances by ships across seas in Europe.

The proposal also supports the final proposals of the Conference on the Future of Europe, in particular the proposals on tackling pollution, more specifically Proposal 2.7 to ‘combat … ocean pollution, including through … promoting of environmentally friendly shipping by using best available technologies …’. The EU is also committed to the 2030 Agenda for Sustainable Development and its Sustainable Development Goals, of which SDG 14 (‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development’) is the most relevant for this proposal.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

Title VI (Articles 90-100) of the Treaty on the Functioning of the Union (TFEU) establishes the EU’s prerogative to make provisions for the common transport policy, which gives the EU the right to act on ship-source pollution. According to Article 100(2) TFEU, the EU legislator may lay down appropriate provisions for sea transport. Article 91(1)(a) TFEU provides that the EU has competence in the field of transport to lay down common rules applicable to international transport. In view of this, the revised Directive would be based on Article 100(2) TFEU.

• Subsidiarity

Ship-source pollution typically leads to damage with cross-border implications. Due to the frequent transboundary impact of marine pollution and the fact that perpetrators act across borders, action by Member States alone would not be sufficient to tackle this problem. Diverging national approaches on this issue hinder efficient cooperation between Member States and allow offenders to escape penalties.

As all Member States have ratified Marpol 73/78, they could have potentially incorporated international standards on the prevention of pollution from ships on their own. However, the Directive transposes and complements the international regime by: (1) helping Member States to identify the offenders by supplying satellite surveillance information on potential oil spills; and (2) providing a liability regime facilitating the penalisation of polluters. The added value of this proposal is that it will complement the international framework with the liability regime (by clarifying the existing regime) and with better information for Member States (thanks to improved surveillance covering more types of pollutants and information exchange based on EU digital tools). The revision also aims to introduce new provisions on penalties without affecting Directive (EU) 2023/xxxx. These goals cannot be achieved by Member States acting alone. A harmonised legal framework and common digital tools are needed. For example, satellite surveillance provided by CleanSeaNet represents good value due to economies of scale. EU-level action would be more effective than action at national level because of its stronger deterrent effect on perpetrators that act across borders.

• Proportionality

The proposal has been prepared in view of the latest developments at the international arena and the results of the ex-post evaluation. The Commission has also carried out an impact assessment to identify and assess alternative ways to achieve the same objectives.

The proposed extension of the Directive’s scope to cover all Annexes of Marpol 73/78 (i.e. all substances covered by Marpol 73/78 and illegally discharged by ships into the sea) aims to better prevent pollution in the marine environment and to align with the scope of Directive 2019/883/EC. The enforcement of Directive (EU) 2019/883 is, together with Directive 2005/35/EC, a key component of measures to prevent ship-source pollution. In addition, the proposal concentrates on technical support to Member States through training platforms, guidance, best practice exchanges and promoting the use of EU digital tools for the collection and exchange of information. The proposal does not set out a strict regulatory approach on levels of penalties or a major mandatory target for Member States’ verification activities. Instead, it tackles the problem in a proportionate way by providing better information on potential spills from a central, cost-effective service and sharing information to make the verification activities more targeted, so as to not go beyond what it necessary to achieve the specific objectives. The proposal also relies on clarifications of the existing liability regime, more detailed provisions on the determination of the level and type of penalties with a view of successfully penalising polluters for more types of polluting substances. No detailed provisions are proposed in areas where the objectives might be better achieved by action in other policy areas.

• Choice of the instrument

As the amendments concern Directive 2005/35/EC alone, an amending Directive is the most appropriate legal instrument.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

The Directive was subject to an ex-post ‘back-to-back' evaluation (i.e. the evaluation and impact assessment were launched at the same time). The data available for the evaluation was not sufficiently robust to make a complete ex-post assessment for all Member States. Representative data was not available to measure the relevant indicators, e.g. the proportion of identified pollution incidents of Marpol 73/78 Annex I and II type substances subject to penalties. Despite the limitations, the evaluation gives a snapshot of the existing information on the implementation of the Directive.

The evaluation concluded that the objectives of the Directive were not fully achieved and that the scope of polluting substances covered by the Directive is too narrow. The Directive set out a common legal framework for ship-source pollution offences in the EU, but its effectiveness was limited. It integrated Marpol 73/78 rules into EU law and ensured that Member State legislation is also aligned, but data quantifying the role that the Directive had in practice is lacking. The Directive resulted in a successful satellite surveillance tool for oil pollution monitoring - the CleanSeaNet service. This however does not entirely solve the problem of identifying the polluters because satellite surveillance accuracy has, so far, been limited. Some verification aspects could have been managed more effectively. For instance, many spills are not verified on the spot and Member States could have been logging more feedback data in CleanSeaNet. The Directive has not fully achieved the anticipated outcome on the prosecution of offenders. The evaluation also concluded that more clarification is needed on the existing liability regime and more details on the level and type of penalties in the Directive. However, the main conclusion of the evaluation was the need to extend the scope of the Directive to cover the full range of discharges of polluting substances into the sea regulated under Marpol 73/78.

• Stakeholder consultations

1. The main consultation activities for the ex-post evaluation and impact assessment included:

- An open public consultation, organised by the Commission, which ran from 9 December 2021 to 3 March 2022. The public consultation put forward questions on both the impact assessment and the evaluation. Stakeholder input was low, with answers submitted by only 30 respondents.

- Two targeted stakeholder surveys to gather specific information, one for the evaluation and one for the impact assessment, organised by the consultant in charge of the external support study, running, respectively, from December 2021 to February 2022 and June to July 2022.

- Three rounds of interviews with EU-level representatives of key stakeholders organised by the consultant in charge of the external support study, running intermittently between November 2021 and September 2022, to fill specific information requests, in support of the evaluation and to refine the overall problem definition and possible policy options.

- Additional targeted consultation activities organised by the Commission to consult Member States and key stakeholders on possible policy measures and the results of the impact assessment. These activities took place during a meeting of the EU Committee on Safe Seas and the Prevention of Pollution from Ships (2 June 2022), meetings of the European Sustainable Shipping Forum (18 May 2022 and 18 January 2023) and its subgroup: Waste from Ships (22 March 2022, 4 June 2022 and 14 February 2023), the EU/EEA Maritime Transport Directors (3 October 2022) and the North Sea Network of Investigators and Prosecutors (25 April 2022). A final workshop to validate the conclusions of the support study attended by Member States, NGOs and industry representatives was organised on 22 September 2022.

The information collected from stakeholders was key in allowing the Commission to refine the policy options and assess their economic, social and environmental impacts, and then to compare them and select the preferred option. Findings from those processes complemented the desk research carried out as part of the external support study.

• Collection and use of expertise

This review builds primarily on the data collected during the ex-post evaluation. The Commission has gathered extensive technical advice from several expert studies including a comprehensive preparatory study for the review of the Directive. Member State authorities, industry actors and civil society were asked to provide input for the preparation of the study.

The preparation of this proposal also required input from experts from the Commission and EMSA on the concrete formulation of technical definitions and legal drafting.

• Impact assessment

The legislative proposal is based on an impact assessment. Three policy options, covering different policy measures, were examined in terms of their effectiveness in achieving the objectives as well as their environmental, economic and social impacts. For each specific objective, a series of measures were identified. The measures, which are complementary and not mutually exclusive, were grouped into three policy options. All three policy options entailed aligning the scope of Directive 2005/35/EC with the Marpol 73/78 Annexes and covering these discharges into the sea.

- Option A leaves the most discretion to Member States in implementing Marpol 73/78 standards, while keeping the level of EU support sufficiently high (training, guidance, digital tools, access to information on possible spills). It keeps the Member States responsible for informing the public through national websites. This option takes a national approach in determining the type of penalty and does not regulate the level of penalty. In brief, there is more adaptability for Member States under this option with a minimum of EU intervention.

- Option B (the preferred option) focuses on strengthening cooperation between Member States mainly by strengthening EU support (training, guidance, digital tools, access to information on possible spills). It provides for criteria for determining the levels of penalties and is expected to provide a structure for cooperation among Member States and strengthen Member States’ enforcement action by means of technical support from EMSA, without introducing major new regulatory measures and costs for Member States.

- Option C focuses on stronger EU regulatory action to complement cooperation among Member States. It obliges Member States to verify at least 60% of their CleanSeaNet alerts and is expected to generate higher enforcement costs. On the levels of penalties, it specifically strengthens harmonisation across the EU by setting their values. On the other hand, it provides the same structure for cooperation between Member States as the two other options (training, guidance, digital tools, access to information on possible spills).

The policy choice brought forward by this proposal is Option B because it was assessed as the most efficient and proportionate. There are however serious data gaps, low stakeholder input and high uncertainty about the impacts, especially the environmental benefits estimated for the three options. Option B and C are more efficient than Option A, specifically thanks to the benefits of providing harmonised solutions at EU level, as compared to multiple national approaches.

The Regulatory Scrutiny Board issued a positive opinion (with reservations) on the impact assessment on 27 March 2023. Annex I to the impact assessment explains how the Regulatory Scrutiny Board comments were addressed in the report.

One of the conclusions of the impact assessment pointed to the limitations for the assessment that had resulted from the scarcity of data. For this reason and beyond the outcome of the impact assessment, the Commission considered appropriate to propose an additional measure that would facilitate a more homogenous collection of data and provide for more visibility regarding the effective monitoring carried out by Member States and the related proportion of actual pollution incidents. The proposed measure will complement the measures in the preferred option as per the impact assessment (Option B) by incentivising better monitoring through an obligation for each Member State to verify at least 10% of alerts sent by CleanSeaNet each year. This verification threshold has a small effect on the costs (EUR 0.5 to EUR 0.8 million per year), because it is already achieved by most Member States, while the Commission believes that it will incentivise more effective monitoring of the Directive and help to ensure implementation by all Member States. This additional measure does not alter in a significant way the ranking of options and the choice of the preferred policy option.

• Regulatory fitness and simplification

The focus of the proposal is on increasing the efficiency of the existing measures given that this is a Directive that has been evolving since 2005 and amended in 2009 in response to new developments, including court rulings, international obligations under Marpol 73/78 and changes in technologies. Some clarifications and simplifications will be introduced in the revised Directive. This includes clarifications on the existing liability regime and the simplification of reporting obligations, with focus on digital solutions.

The proposal is not expected to result in additional administrative costs or adjustments costs for the private sector or the public. More penalties may be expected for ships not meeting Marpol 73/78 requirements. On the positive side, the level playing field should benefit compliant ship operators. In addition, businesses and especially the general public will benefit from the reduction in ship-source pollution.

The proposal does not include requirements for ship operators and is thus not expected to have an impact on SMEs. It does not create new obligations for businesses and would not have an impact on their costs. The extension of the Directive’s scope to cover additional substances under Marpol 73/78 may be relevant for recreational craft and fishing vessels, sector segments with high SME participation. However, the fact that this extension is focused on the enforcement of international standards means that the shipping sector must comply with these standards with or without the Directive and no impact on costs is expected for the compliant SMEs. The initiative is therefore considered non-relevant for SMEs.

• Fundamental rights

The Charter of Fundamental Rights of the European Union, as an instrument of primary EU law, enshrines the fundamental rights enjoyed by people across the EU. Overall, the proposal is expected to better protect fundamental rights and individual freedoms, especially with regards to justice, fair trials, non-discrimination, equal treatment of perpetrators and the principle of legality, and the right to proportionate and effective penalties. The exception from liability of crew, masters and owners is further clarified in the proposal. Their protection is therefore strengthened through a more integrated harmonisation of international rules into national laws and better observance of the rule of law and fair trial principles. It further safeguards the principle of equality, contributing to non-discrimination and equal treatment of seafarers. The measures ensuring clearer delimitation between the infringements falling within the criminal and administrative procedure will also facilitate the equal treatment of perpetrators across the EU. This initiative will result in better observance of the right to justice by improving the definition of infringement subject to administrative or criminal procedure. The proposal further ensures the protection of personal data.

4. BUDGETARY IMPLICATIONS

The current net costs of the proposal amount to EUR 125.8-134.7 million over 2025-2050. The budget impact of the proposal is described in more detail in the Legislative Financial Statement annexed to this proposal for information. The budget impact of the proposal is already included in the Commission’s Proposal for a Regulation of the European Parliament and of the Council on the European Maritime Safety Agency and repealing Regulation (EC) No 1406/2002.

The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The success of the Directive would mean that the person (legal or natural) responsible for the pollution of the sea is adequately penalised to produce a deterrent effect thus prevent pollution in the future. Penalties for ship-source pollution can be seen as the last line of defence for pollution prevention and the protection of the marine environment and human health. The first line of defence for maritime safety and pollution prevention is provided through flag State control and the second line of defence through port State control legislation, however, ships may still cause pollution of the sea through accidents and (intentional) operational discharges.

The Commission will monitor the implementation and effectiveness of this initiative through a number of actions and a set of core indicators that will measure progress towards achieving the specific objectives. Adequate monitoring and reporting arrangements have been identified in the impact assessment. EMSA will play an important role in this process, as the Agency is in charge of visits to the Member States and the development and operation of the digital tools for maritime transport - the Integrated Maritime Services and CleanSeaNet.

The implementation can be checked by means of monitoring if the feedback on verification to CleanSeaNet alerts is being provided by the Member States in a timely and effective manner and if information on evidence collection and administrative proceedings is uploaded to the reporting tool regularly. The Commission, with the support of EMSA, will develop a public website with core indicators on the implementation rate and the key non-confidential information on incidents of illegal discharges; the website will be updated regularly with data from the reporting tool to keep the public informed on the implementation and penalties imposed. EMSA will carry out cycles of visits to Member States to verify operations on the ground as part of EMSA’s support role to the Commission ¹³. Additionally, upon request, horizontal analysis and technical assistance will be provided by EMSA and reported to the Commission and Member States.

The impacts of the Directive should be evaluated no later than five years after the transposition date of the legislation. It is expected that more robust and representative data will already be available to prepare a complete evaluation for all Member States. In this context, an expert study would be needed to estimate the progress made on penalty levels. The evaluation should also examine the data available on environmental benefits and the possibility to extend the scope to new developments in Marpol 73/78 and air pollution. Afterwards, in line with the five-year EMSA review cycle of visits to Member States, the Commission will regularly analyse the Directive’s implementation.

• Explanatory documents (for directives)

Explanatory documents are not required as the proposal aims to simplify and clarify the existing regime.

• Detailed explanation of the specific provisions of the proposal

The title of the Directive

The title lays out the subject matter of the Directive in a more precise manner by adding the element to the title of ‘the enforcement of international standards’. This change aims at clarifying that the subject-matter of the Directive is not the introduction of new substantive standards for ship-source pollution, but the transposition and enforcement of already adopted international standards. The element of ‘criminal penalties’ set out in the current title has been deleted for reasons of legal coherence with Directive (EU) 2023/xxxx on environmental crime.

Article 1 - Purpose

The general objective of the Directive is amended to specify that adequate penalties, in this Directive, mean dissuasive, effective and proportionate penalties. This refers to administrative penalties. The element of ‘criminal penalties’, existing in the current Directive, has been deleted from the purpose for reasons of legal coherence with the Directive (EU) 2023/xxxx on environmental crime.

Article 2 - Definitions

Article 2 paragraph 2 updates the definitions which have been problematic or refer to the outdated scope of the Directive and introduces one new definition. Firstly, the definition of ‘polluting substances’ under paragraph 2 is adapted to the extended scope of the Directive which covers Marpol 73/78 Annex I-VI. A new definition under point 2a introduces ‘Exhaust Gas Cleaning System residue’, i.e. discharges from scrubbers into the sea, as the substance covered under the extended scope of the Directive with regards to Annex VI to Marpol 73/78, taking into account the guidelines developed by the IMO. A new definition in point 5a incorporates the internationally agreed definition of ‘company’ in the Directive, in alignment with the International Management Code for the Safe Operation of Ships and for Pollution Prevention (ISM Code)¹⁴, implemented in Union law by virtue of Regulation (EC) No 336/2006 ¹⁵.

Article 4 - Prohibition of discharges

Article 4 sets out the general prohibitions covered by this Directive. An illegal discharge can be attributed to a natural or legal person and national provisions implementing this Directive should provide for holding such persons accountable. Some of the prohibitions from the current Directive (Marpol 73/78 Annex I-II substances) are updated versions of the existing ones, however some are new (Marpol 73/78 Annex III-VI substances). The notion of ‘minor cases’ is removed as a result of the findings of the ex-post evaluation that this term is problematic and is not interpreted in the same way by the Member States. Furthermore, this term was relevant only for the application of criminal penalties, which are now outside the scope of the Directive.

Article 5 - Exceptions

The proposal in Article 5 sets out the exceptions from the prohibitions stated under Article 4 in case where a discharge into the sea takes place after damage to a ship or its equipment occurs. This article is only applicable if the condition of ship/equipment damage is met. The provision has been amended clarify the existing liability regime under Marpol 73/78, by spelling out the applicable rules without changing them as compared to Directive 2005/35/EC. The notion of ‘owner’ used in Marpol 73/78 is clarified by using instead the notion of ‘company’ as it may represent different entities that manage a ship. This exception applies therefore to any organisation which has assumed the operation of the ship, in alignment with the ISM Code. The provision applies to the extended scope of the Directive. Exceptions for criminal offences (Article 5a) and its further details (Article 5b) have been deleted for reasons of legal coherence with the Directive (EU) 2023/xxxx on environmental crime. The thresholds for criminal liability for ship-source pollution offences introduced by Directive 2009/123/EC are removed because Directive (EU) 2023/xxxx now addresses these thresholds.

Article 6 - Enforcement measures with respect to ships within a port of a Member State

The provision does not change as compared to the existing one. To assist Member States with discharging their obligations under Article 6, a new Annex to the Directive is provided pointing to an indicative list of irregularities or information that could give rise to a suspicion that an illegal discharge might have taken place, which in turn triggers the obligation of the port State to inspect the incident.

Article 8 - Penalties

The article is amended due to the implications of Directive (EU) 2023/xxxx on environmental crime. The revision of Directive 2005/35/EC will cover administrative penalties only whereas Directive (EU) 2023/xxxx covers criminal penalties for ship-source pollution. It specifies the principles that should govern the introduction of penalties in national law provisions in transposition of the Directive, meaning that they should be effective, proportionate and dissuasive. The system of administrative penalties introduced in the national legal order should be without prejudice to Directive (EU) 2023/xxxx and the penalties provided therein.¹⁶ A new paragraph to Article 8 specifies the type of penalties that should at least be provided in the national legal order, which should include fines imposed to the company of the ship, recognising the international rules applicable to shipping that operational and/or technical management of the ship could be delegated by the registered owner to a different company. In such cases, the company would be held responsible for illegally discharging polluting substances into the sea instead of delivering them to port reception facilities, unless it proves that another person, namely the master or a member or members of the crew, the latter not acting under the responsibility of the master, was responsible for the discharge. A new paragraph to Article 8 clarifies that if it is proven that another person was responsible for the infringement other than the company, they should be subject to penalties in accordance with Directive 2005/35/EC. Criminal penalties against natural persons (Article 8a), liability for criminal offences (Article 8b) and criminal penalties against legal persons (Article 8c) have been deleted for reasons of legal coherence with Directive (EU) 2023/xxxx on environmental crime.

Article 8d - Effective application of penalties (new)

This is a new article aiming at the consistent application of the penalty system provided by the Directive across the Union and the approximation of the penalties imposed. National judicial and administrative authorities should take into account all relevant circumstances when determining the level of penalties to be imposed to the polluter. Taking into account the diverse nature of polluting substances covered under this Directive and the importance of consistent application of these penalties across the Union in light of the cross-border nature of ship-source pollution, further effectiveness of penalty levels will be defined in an implementing act through the establishment of concrete criteria for the application of penalties for discharges of different polluting substances into the sea. An example of such additional criteria might be on the basis of the geographical area where a discharge of a specific type of polluting substance took place, depending on the sensitivity of the area to the chemicals contained in the polluting substance, e.g. illegal discharges of cooking oil in the Baltic Sea.

Article 10 – Exchange of information and experience

The underlying principle of the provision has not changed - the Commission shall assist Member States in their enforcement activities with the support of EMSA. The title of the article has been amended to reflect that the measures outlined in this article concern the exchange of information and experience necessary for the effective implementation of the Directive and the cooperation between the parties concerned.

In order to improve the information exchange between the Member States, provisions have been added on strengthening the existing digital tools at the disposal of the Member States, in particular CleanSeaNet, and improving the automatic links between the existing maritime safety databases and information exchange systems, including THETIS, THETIS-EU and SafeSeaNet, in order to provide timely and accurate information in a user-friendly format in the Integrated Maritime Services and to allow better targeting by the Member States. In order to ensure the effective monitoring of the Directive’s implementation by all Member States, a verification rate of 10% per year by each Member State of the alerts sent by CleanSeaNet is also provisioned. Access of national authorities across the enforcement chain to such information should be facilitated, as well as access for authorities of other Member States interested in such information, in order to minimise the administrative burden of enforcement activities. The Commission will provide the fora where the exchange of experience between Member States’ authorities and experts should take place. For this purpose, meetings of experts for establishing common practices and guidelines are proposed, for example through the establishment of a dedicated expert group. The provisions on the tasks of EMSA were removed from the article as these tasks are defined in a separate legal instrument.

Article 10a – Reporting (new)

The reporting obligations of Member States have been replaced with a more detailed system of reporting to the Commission on the implementation of the Directive. Accordingly, reporting should now take place as soon as the relevant activities are completed, by means of a dedicated electronic reporting tool developed and maintained by EMSA. This arrangement ensures a concrete and more effective reporting system by avoiding a time lag between the date of the pollution incident or the administrative proceedings and the actual date of reporting. The article requires Member States to report relevant data concerning (i) inspections, (ii) verification activities and (iii) penalties imposed. It also requires Member States to record in CleanSeaNet the verification activity undertaken after a CleanSeaNet alert is sent to the Member State or the reasons for not following up such an alert. An implementing act is foreseen to provide more detailed rules on the procedure for reporting, including specifying the type of information to be reported. The Commission will monitor the implementation and effectiveness of this Directive with the support of EMSA through these actions and will be in position to assess the indicators that will measure progress towards achieving the objectives of the Directive.

Article 10b – Training (new)

This provision aims at assisting Member States in their training activities of the relevant authorities involved across the enforcement chain with a view to ensure that all parties involved have the necessary specialised skills and abilities to perform their roles effectively. The article provisions that the Commission, with the technical support of EMSA, will provide training to the EU Member States to better fulfil their responsibilities under the Directive, given the widened scope and new regulatory developments at the IMO, relevant for the implementation of this Directive. On this basis, EMSA will regularly carry out workshops and cover (i) new technological developments, including new digital tools, with regards to the implementation of the Directive; and (ii) best practices of the Member States and their methods for evidence collection and verification of illegal discharges.

Article 10c - Publication of information (new)

This is a new article. The Commission will ensure that key, non-confidential and up-to-date information on ship-source pollution is available online. On this basis, EMSA will publish online an overview and update it regularly. This way, the general information on each ship-source pollution incident in the EU will be accessible to the public. This would include information such as the details of an alert from satellite surveillance, its follow-up by the Member State concerned, facts of verification on-scene or ship inspection and the end result of the proceeding, for example, the administrative fine imposed, including its level, the name, flag and IMO number of the ship against which it was imposed and the key facts of the case in which it was imposed. EMSA will also make publicly available an overview on the implementation and enforcement of this Directive per Member State by providing country profiles with information measuring progress towards achieving the specific objectives such as the number of identified pollution incidents or the number of administrative proceedings per country as well as some key indicators on their ratios. A new Annex to the Directive is provided pointing to the type of publicly available information.

Article 10d - Protection of persons who report potential illegal discharges (new)

The new set-up of the EMSA digital tools will provide a gateway for alerting the Member State that an illegal discharge from a ship occurred at sea. Whistle-blowers (i.e. natural persons who report information on breaches acquired in the context of their work-related activities) will have a dedicated channel to report the potential offences. This article makes reference to the protection of whistle-blowers by the link to the Directive (EU) 2019/1937 laying down minimum standards for the protection of persons reporting the following breaches of Union law.

Article 12a - Evaluation and review (new)

This is a new article. This provision provides that the Commission will produce an evaluation of the implementation of the Directive five years after transposition. A review clause has also been added hereby stating that any future modifications of the international standards for prevention of pollution from ships which have been made subject to control by Marpol 73/78 should be taken into account during the review.

Articles 13 - Committee Procedure

This is a new standard article for the adoption of implementing acts.

Former Articles 5a-b, 8a—c, 11, 14 and 15 and the sole Annex have been deleted

The above mentioned articles were deleted in principle due to the implications of the Directive (EU) 2023/xxxx on environmental crime as well as in cases where they are no longer relevant. The sole Annex to Directive 2005/35/EC has been deleted as outdated.

Annex I (new)

This is a new Annex providing examples of situations when enforcement activities should be triggered because there is a suspicion that a ship discharged polluting substances illegally. In such case, the Member State must carry out an inspection at port to check and collect information on the circumstances of the illegal discharge as well as the evidence. The Annex includes an indicative list of examples of irregularities and information that could trigger the obligation to inspect e.g. results of previous port state inspections or an inspection carried out by police, environmental or other authorities, inspections on the delivery of waste from ships in port reception facilities, or information exchanged or received by means of the Integrated Maritime Services. If the inspection reveals facts that an illegal discharge took place, then appropriate proceedings must be instituted, as appropriate.

Annex II (new)

This is a new Annex providing a non-exhaustive list of types of information that is to be disclosed to the public on each pollution incident and on the implementation of the Directive by each Member State. Such information will be provided in a user-friendly format, for instance, in the form of a map where a user can zoom into the geographical area of interest and see how pollution incidents are handled in a particular year. The information available publicly would be provided in non-technical language with the aim to give the public information on how Member States follow up pollution incidents and which ships were fined.