Europe Unites Against Marine Polluters

BRUSSELS, Belgium, July 11, 2005 (ENS) - The European Union is poised to make discharging pollution from ships a crime, whether the discharge is intentional or negligent, both in coastal waters and on the high seas. Individual member states have had a variety of sanctions against ship discharges in place, now all laws covering these crimes will be harmonized across the 25 EU member states.

Despite lingering disagreements over terms of imprisonment, tomorrow the European Council of Ministers will adopt two pieces of legislation - one that defines the marine pollution crimes and another that defines and harmonizes the level of penalties.

Fines can range up to 1.5 million euros (US$1.8 million) in the most serious cases. The new harmonized levels of financial penalties represent a 10 fold increase as compared to the current fines available at national level in some member states.

“Illegal discharges and serious negligence must be fought at all cost: the threat of criminal sanctions will help to protect our coasts,” said Jacques Barrot, vice president responsible for transport. “We can no longer tolerate intentional pollution or serious negligence by a small minority of operators who do not comply with international standards and tarnish the image of the maritime industry."

Urgency for action against ship sources of pollution, such as oil spills, was galvanized by the Prestige oil spill in November 2002 that fouled Spanish and Portuguese coasts with 64,000 metric tons of oil, and the Erika spill in 2000 that spread oil for miles along the Brittany coast of France.


The tanker Prestige wallows in heavy seas off the Spanish coast. November 2002. (Photo courtesy Spanish Navy)
After the shipwreck of the Prestige, Eurojust organized coordination meetings in Spain and in France to share experience in managing such cases and to explore the possibility of centralizing the ongoing prosecutions into a single proceeding.

Now ship source pollution will be covered by the two new measures. One law, known as a Directive, establishes that marine pollution by ships is an infringement.

In the most serious cases, the other piece of legislation, known as a Framework Decision, provides that these infringements will be regarded as criminal offenses, subject to criminal penalties.

Sanctions will be applicable to any person - including the master, the owner, the operator, the charter of a ship or the classification society - who has been found to have caused or contributed to illegal pollution intentionally or by means of serious negligence.

The Directive applies to discharges in all sea areas, including the high seas. It is enforceable for all ships calling at EU ports irrespective of their flag.

The measure provides for cooperation between port authorities of all EU member states, which will make it possible for proceedings to be initiated against the polluter in its next port of call. The Framework Decision also contains special rules on jurisdiction.

The Directive aims at enhancing cooperation among member states to detect illegal discharges and to develop methods to identify a discharge as originating from a particular ship.

The European Maritime Safety Agency will assist the European Commission and member states to establish methods of identification.

Vice-President Franco Frattini, the commissioner responsible for justice, freedom and security, said that for the first time all 25 member states had agreed to criminalize the most serious conduct and provide for criminal sanctions.


European Justice Commissioner Franco Frattini of Italy (Photo courtesy European Commission)
“Although I personally regret that unanimity could not be reached between the Member States to agree on a common position with regards to prison sentencing, most member states already provide for imprisonment in such cases and the Commission aims to present a new proposal in five years time on this issue based on the practical application of the instrument,” Frattini said.

The European Union wants to impose terms of imprisonment - the minimum highest levels of which are harmonized across member states, depending on the gravity of the offense.

But the United Nations Convention on Law of the Sea (UNCLOS) provides that prison sentences cannot be imposed for offenses committed by foreign vessels beyond the territorial sea.

Unanimity could not be reached at Union level on the exclusion of EU vessels from the definition of “foreign vessels” under UNCLOS in such cases.

Under the Framework Decision that will be adopted tomorrow the Commission shall, after five years from the date of implementation of the Framework Decision, submit a report to the Council on the issue of "foreign vessels."

This report may include the proposal that member states shall consider a ship flying the flag of another member state not to be a foreign ship within the meaning of UNCLOS.

Meanwhile, penalties for ship discharges may take the form of fines. Minimum highest levels are harmonized, and, depending on the gravity of the offense, fines may vary from a maximum of at least between 150,000 and 300,000 euros (US$181,000 and $362,000) up to a maximum of at least 750,000 and up to 1.5 million euros (US$905,000 up to $1.8 million) in the most serious cases.


Volunteers attempt to clean the rocky coastline of the Spanish province of Galicia, fouled by the Presige oil spill. March 2003. (Photo courtesy Viajero)
The European Parliament and the Council have decided to consider in the near future how to reinforce synergies between enforcement authorities such as national coast guard services.

Cooperation is also enhanced in the criminal justice area. The Framework Decision provides for a mutual mechanism of information exchange among EU member states if one of them is aware of the risk of a criminal offense in another’s territory.

With this Directive, the EC introduces legislation for all cases of pollution - both intentional and accidental - that occur in the EU coastal waters, but also on the high seas.

But under international law, this legislation will be enforceable only upon ships which enter an EU port, regardless of their flag.

International law implies some limitations as to the methods of enforcing ship-source pollution laws for ships in transit in the coastal zones. So, the Directive obliges member states to cooperate closely with one another. This will make it possible for proceedings to be initiated against the polluting party in the ship's next port of call.

This network of information-sharing and enforcement cooperation is extended to third countries if the next port of call is outside the European Union.

The Directive also aims at enhancing cooperation among member states to detect illegal discharges and to develop methods to identify a particular discharge as originating from a particular ship. The European Maritime Safety Agency will assist the Commission and member states to develop identification methods.

Oil spills can continue to pollute for months after the original incident. A November 2003 report prepared by WWF a year after the Prestige spill documented that between five and 10 thousand metric tons of oil was still floating offshore and settling on the coast from time to time.