October 26, 2004

EU Justice Ministers take hard line on ship-source pollution

European Justice and Home Affairs (JHA) Ministers, meeting as the European Council, look to be taking a hard line on criminalizing ship source pollution, if discharges are "commited with intent, recklessly or through serious negligence."

However, for the moment, the governments of Greece, Cyprus and Malta, have prevented the achievement of the unanimity needed for the Justice Ministers to adapt a framework decision and it will now go to the European Council (the regular "summit meeting" of Heads of State and Government of EU Member States, and the President of the European Commission) which is scheduled to have its next session in Brussels on November 4 and 5.

The Council had adopted a common position on a draft directive on ship source pollution and the introduction of sanctions for infringements. Today the Justice Ministers discussed the text of a framework decision on the issue that would set the stage for facilitating criminal investigations of pollution incidents, ensuring effective prosecutions and imposing "effective, proportionate and dissuasive criminal penalties."

It remains to be seen whether , at the summit, Greece, Cyprus and Malta will be able to withstand the pressures put on them by countries that have experienced major pollution incidents, such as the Erika and Prestige disasters.

Meantime, what follows is the verbatim draft report of today's JHA meeting, given in the original Eurocratese.

The Council discussed the text of the Framework Decision to strengthen the criminal law framework for the enforcement of the law against ship-source pollution, on the basis of a Presidency compromise text.

The debate at the Council focused mainly on the relation between the Framework Decision and the MARPOL (Convention for the prevention of pollution from ships) and UNCLOS (UN Convention on the Law of the Sea), as well as on the possibility of introducing a ceiling for the maximum fines to be imposed to legal persons.

The Presidency, noting that three Member States could not agree with the text proposed by the Presidency, decided to forward the draft Framework Decision to the European Council.

It should be noted that the fight against intentional or negligent ship-source pollution is among the European Union's priorities. The conclusions of the Copenhagen European Council of 12 and 13 December 2002 (points 32 to 34) and the statement of the JHA Council of 19 December 2002 following the shipwreck of the tanker Prestige, in particular, express the Union's determination to adopt all the measures needed to avoid recurrences of such damage.

To this end, the Council adopted a Common Position on a draft Directive on ship-source pollution and the introduction of sanctions for infringements. The main principle of the draft Directive is that all discharges of polluting substances are considered infringements if they are committed with intent, recklessly or through serious negligence. It allows Member States to take the necessary measures to ensure that these violations are subject to effective, proportionate and dissuasive sanctions which may include criminal or administrative sanctions.

With a view to supplement these provisions, there should be an approximation of, among other things, the level of penalties corresponding to the seriousness of offences in relation to the natural or legal persons who commit them or are liable for them.

The purpose of the Framework Decision discussed by the JHA Council is therefore to supplement the said Directive agreed by the Council in June with detailed rules in criminal matters.

In doing so, provisions will be laid down to facilitate criminal investigations .Member States will be able to set up joint investigation teams with which Europol could be associated.

Furthermore, rules on cooperation will be laid down to ensure that the offences will be effectively prosecuted. To this end, the European Union will supplement the results obtained in regional or international organisations. The United Nations Convention on the Law of the Sea of 1982, signed by all the Member States of the Union and with the European Community as a party, is particularly important in this context.

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

The criminal penalties may be accompanied by other penalties or measures, in particular fines, or the disqualification for a natural person from engaging in an activity requiring official authorisation or approval, or founding, managing or directing a company or a foundation, where the facts having led to his or her conviction show an obvious risk that the same kind of criminal activity may be pursued again.

As regards sanctions against legal persons, each Member State shall take the necessary measures to ensure that a legal person held liable is punishable by effective, proportionate and dissuasive sanctions as criminal or non-criminal fines, or exclusion from entitlement to public benefits or aid; temporary or permanent disqualification from engaging in commercial activities; placing under judicial supervision; a judicial winding-up order; or the obligation to adopt specific measures in order to eliminate the consequences of the offence which led to the liability of the legal person.

The Framework Decision has to be adopted by unanimity at the Council.


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