Brussels, 14/07/2005 (Agence Europe) - On 12 July the Council formally adopted the framework decision and directive on punishing maritime pollution, despite the refusal by Greece and Malta (with the abstention of Cyprus) of going further in international law, during a vote by qualified majority on the directive. These two tendencies enables Community law to incorporate the United Nations Conference on the Law of the Sea (UNCLOS) and the international convention on maritime pollution prevention from ships (MARPOL), while proceeding to the necessary adaptations.
The directive defines the infringements and extends the application of sanctions to all those in the maritime transport chain who are deemed guilty of causing or contributing to the cause of illegal pollution, wherever this occurs. This liability therefore concerns not only ship owners and the ship captains as laid down in the MARPOL convention but also the charterer, manager or company. However, the directive, nevertheless establishes a distinction in the liability system between on the one hand internal and territorial waters and on the other, extra-territorial waters. In the first case, the directive involves law contained in the UNCLOS convention, that allow coastal States to take stricter measures than those applicable in international law. Therefore, liability extends to all cases of illegal pollution, committed out of lack of care, unintentionally or serious negligence. In the context of extra-territorial waters, the directive complies with provisions in the MARPOL convention, according to which the capital and the ship owner cannot be sanctioned unless they have acted “either with the intention of causing damage, either recklessly and with the knowledge that damage will probably be caused”. It also includes the application of the same system for members of the crew when they are acting under captain's orders, while the stricter criteria of “serious negligence” applies to all the other actors in the chain.
The framework decision, which completes the directive for elements under the third pillar (criminal law), explains that infringements have to be considers as misdemeanours covered by criminal sanctions, except for less serious cases, complicity and incitement. In this connection, Member States are called on to include a range of “effective, proportionate and dissuasive” criminal sanctions. Member States agreed on the new harmonised minimum levels for maximum fines applicable to natural persons and which are ten times higher than the current fines in some Member States. Two levels are set out, depending on the seriousness of the misdemeanour, and which can go up to a maximum of 750,000 to 1 500,000 euros in the most serious cases. Nonetheless, the UNCLOS convention includes prison sentences that cannot be applied for infringements committed outside territorial waters by foreign boats. On this point, unanimity was not gained for going further than the UNCLOS convention. In this way Member States still consider that boats flying the flag of another Member States is a foreign boat in the sense of the UNCLOS convention. While regretting the absence of a common position on this point, the Commissioner for justice, freedom and security, Franco Frattini declared, “most Member States already have prison sentences for such acts and the Commission intends to submit a new proposal in five years on this question on the basis of the instrument's practical action”.
European legislation is applicable to all boats harbouring in EU ports, whatever flag they are flying but international law includes restrictions for boats in transit in coastal waters. In this case, the directive calls on States to closely cooperate with each other and exchange information so that proceedings can be initiated in the closest port of call. In the event of the later being located outside the EU, this cooperation network extends to third countries. The European Agency for Maritime Security will assist the Commission and Council strengthen cooperation between Member States for detecting illegal discharges and elaborating methods that attribute discharges to a specific boat. The Council and Parliament are also planning on examining the modalities for cooperation between the national coast guard services.
The directive and framework decision will be transposed into the national law of 30 European countries: 25 Member States, Bulgaria and Romania (for the directive alone), Norway, Lichtenstein and Iceland (in application of the EEE agreement).