June 11, 2004

EC moves forward on pollution sanctions

European Union Transport, Energy and Telecommunications ministers today reached political agreement on a common position on a draft directive on ship-source pollution and on the introduction of sanctions for infringements.

Once the agreed text has been finalized and formally adopted by the Council at one of its forthcoming sessions, it will be transmitted to the European Parliament for a second reading.

The compromise text agreed by Ministers is intended to use the Community's rights under the United Nations Convention on the Law of the Sea (UNCLOS), whilst largely complying with obligations under the MARPOL Convention.

The main principle of the draft directive is that all discharges of polluting substances are considered as infringements if they are committed with intent, recklessly or by serious negligence .

EU Member States are allowed to take the necessary measures to ensure that these infringements are subject to "effective, proportionate and dissuasive sanctions, which may include criminal or administrative sanctions."

Exceptions provided for are in line with the MARPOL Convention, e.g. cases when a discharge is made in order to save lives or the ship itself.

In the case of a discharge following an accident, the general rule applies :

if the discharge takes place in the internal waters or territorial sea of a Member State, it is considered as an infringement for all persons, if committed with intent, recklessly or be serious negligence.

If, on the other hand, the discharge takes place outside the internal waters and territorial seas, the relevant exception in the MARPOL Convention applies to the owner of the ship, the master and the crew when acting under the master's responsibility.

The third important element of the compromise text is that which allows, under the UNCLOS Convention, a coastal State to take enforcement measures with respect to ships in transit in case of a discharge in the Exclusive Economic Zone. The agreed text provides for Member States to exercise their rights under UNCLOS Article 220(6), i.e. if there is a clear objective evidence of a discharge causing major damage. In this case, the Member State concerned shall submit the matter to its competent authorities with a view to institute proceedings, including detention of the ship, in accordance with its national law.

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