Brussels, 10/03/2008 (Agence Europe) - On Tuesday 11 March, the European Commission intends to adopt a proposal for a directive to strengthen existing Community legislation regarding sanctions on those responsible for pollution by ships.
The 2005 directive on pollution caused by ships already provided for discharges of polluting substances or oil spills from ships to be considered as criminal offences that should be punished in consequence. Provisions relating to the (criminal) sanctions regime applied to behaviour set out in the directive as a criminal offence were defined in a framework decision of 2005, adopted in complement. Nonetheless, the Court of Justice of the European Communities cancelled this framework decision in October on the grounds that its adoption was outside the Community legislative framework (see EUROPE 9530). The new proposal for a directive, which aims to fill the legal vacuum thus created, amends the 2005 directive by reproducing the content of the cancelled framework decision.
The Commission suggests in particular that complementary provisions should be introduced into the directive on: - incrimination: member states must mention that any discharge of polluting substances by a ship in the zones defined (territorial and inland waters, ports, high seas) is to be considered as a criminal offence whether it is committed intentionally, by inadvertence or as a result of serious negligence; - the extent of the liability of legal persons: as indicated in the cancelled framework decision, member states ensure that legal persons may be held accountable for infringements committed to their benefit by persons acting on their behalf or when a lack of surveillance or control has made infringements by such persons possible; - and the nature of penalties: penalties applied for offences involving pollution caused by ships must be “effective, proportionate and dissuasive” not only for natural persons but also for legal persons. Member states must mention that sanctions applied to natural persons are of a criminal kind. For legal persons, it is not specified whether this is the case. Member states that do not recognise the criminal responsibility of legal persons in their national law are therefore not obliged to amend their provisions. As soon as the directive is adopted, member states will have only six months in which to transpose the directive in so far as they have already carried out a considerable share of the work by transposing the cancelled framework decision. (B.C.)