3 Pollution from ships
| (a)
(24535)
7312/03
COM(03) 92
(b)
(24480)
9008/03
COM(03) 227
(c)
(24899)
12828/03
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COR 1
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Draft Directive on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences.
Draft Council Framework Decision to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.
Draft Council Framework Decision to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.
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| Legal base | (a) Article 80(2) EC; co-decision; QMV
(b) Article 34(2)(b) EU; consultation; unanimity
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| Document originated | (c) 24 September 2003
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| Deposited in Parliament | (c) 25 September 2003
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| Department | (a) Transport
(b) and (c) Home Office
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| Basis of consideration | (b) and (c) EM of 21 October 2003
(a),(b) and (c) Minister's letter of 10 November 2003
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| Previous Committee Report | (a) and (b) HC 63-xxv (2002-03), paragraph 8 (18 June 2003), HC 63-xxxiii (2002-03), paragraph 12 (15 October 2003)
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| Discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | (b)Cleared ; (a) and (c) Not cleared; further information requested
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Background
3.1 We considered the draft Directive (document (a)) and the
then current version of the Framework Decision (document (b))
on 18 June and 15 October. We noted that the Commission's proposals
followed the sinking of the oil tanker Prestige off the north-western
coast of Spain in November 2002, and sought to ensure that any
person who caused or contributed to a pollution incident through
grossly negligent behaviour was made subject to appropriate sanctions.
We also noted that the Commission's proposal sought the more effective
enforcement of the International Convention for the Prevention
of Pollution from Ships 1973, and its Protocol of 1978 (generally
known collectively as MARPOL 73/78).
3.2 We noted that when the draft Directive was considered
at the Council's Transport Working Group on 9 and 15 April, a
number of Member States considered that criminal sanctions were
an issue which should be addressed intergovernmentally under the
EU Treaty and not by means of a directive under the EC Treaty,
and that the Commission had met this point by proposing a draft
Framework Decision for adoption under Article 34(2)(b) EU to supplement
the draft Directive.
3.3 We were sceptical about the value of these measures
and agreed with the Minister that the subject-matter was better
dealt with by the International Maritime Organization (IMO). We
were concerned that the principal substantive effect of the measures
was to confer exclusive external competence on the Community in
relation to IMO matters. We fully supported the Minister in his
efforts to ensure that these measures were in accordance with
the provisions of the 1982 UN Convention on the Law of the Sea
(UNCLOS) and the MARPOL Convention.
The revised draft Framework Decision
3.4 Document (c) is a revised version of the Framework
Decision following further consideration by the Council working
group on substantive criminal law.
3.5 Article 3 has been amended so as to provide that
the illegal discharge of substances within the meaning of the
Directive is to be punishable when committed intentionally or
with gross negligence. An exception may be provided for in de
minimis cases. Article 3b continues to provide for a sentence
of five to ten years' imprisonment, but this sentence is now to
be provided for only in cases where the offence is committed intentionally
or with gross negligence and has caused death or serious injury.
In other cases, a sentence of three to five years' imprisonment
is to apply where the offence is committed within the context
of a criminal organisation, where it causes substantial damage
to water quality or to 'animal or vegetable species or parts of
them'.
3.6 Article 4 requires Member States to establish
rules of jurisdiction where the offence is committed wholly or
partly within its territory, within its exclusive economic zone,
or by a ship flying its flag. In addition, Member States are to
establish jurisdiction where the offence is committed by one of
their nationals, provided the offence is criminal in the place
where it is committed or such place is not within the territorial
jurisdiction of a State, and also where the offence is committed
for the benefit of a legal person with a registered office in
its territory. In these two cases, a Member State may decide
that it will not apply these rules or apply them only in specific
circumstances. Finally, Member States are to establish jurisdiction
where the offence is committed 'out of its territory but has resulted
in damages within its territory' and where the offence is committed
'in high sea and the State is the State of seaport'.
3.7 Article 4 also addresses the possibility of positive
conflicts of jurisdiction. In a case in which more than one Member
States may assert jurisdiction, the relevant Member States may
cooperate in order to decide which of them will prosecute the
offence. In so doing, the Member States may avail themselves of
Eurojust. As with the previous version, Article 4 contains a list
of connecting factors which are to be 'taken into account in succession'.
3.8 Article 5, relating to criminal investigations
in the Port state, continues to oblige the competent authorities
to conduct an investigation 'in so far as permissible under international
law'. However Articles 6 and 7, relating to joint investigating
teams and the commencement of proceedings respectively, have been
deleted. The remaining Articles (8 to 13) are substantially unchanged.
The Government's views
3.9 In her Explanatory Memorandum of 21 October the
Parliamentary Under-Secretary of State at the Home Office (Caroline
Flint) sets out the Government's views on the draft Framework
Decision.
3.10 The Minister informs us that Article 3 of the
Framework Decision has been amended in order to bring it into
line with the MARPOL Convention and that the Government can support
the amended text since it maintains that the Framework Decision
and the Directive should not go further than MARPOL. The Government
would be prepared to agree to the deletion of a de minimis
exception in Article 3, so long as the Directive remains consistent
with MARPOL, since the latter provides de minimis rules.
3.11 In relation to Article 3b, the Minister explains
that the Government takes the view that imprisonment may not be
the best means of addressing ship-source pollution. The Minister
adds this comment:
"In practice, it will normally be the master
and crew who are subject to imprisonment because of the relative
ease with which they can be apprehended, and the relative difficulty
of apprehending the other parties concerned. The Government believes
that there is a risk that the punishment will fail to be effective
or dissuasive, as the penalties will not normally affect the most
important party — the ship owner."
3.12 The Minister points out that Article 4 has
been amended in order to bring it into line with previously agreed
framework Decisions, and that the Government welcomes the use
of this previously agreed structure. The Minister adds that the
Article makes particular mention of the role Eurojust can play
in helping to resolve conflicts of jurisdiction.
3.13 In relation to Article 5, the Minister explains
that the Government will continue to seek the deletion of this
provision, for the following reason:
"The Government is of the opinion that this
article requires the competent authorities of a Member State to
conduct a criminal investigation where they are informed of a
suspected offence under Article 6(1) of the Directive. Such a
requirement does not seem to fall within the scope of the legal
base cited. Article 31 TEU relates specifically to co-operation
between Member States, whereas this provision of the Framework
Decision is placing an obligation on a Member State to act unilaterally."
3.14 In his letter of 10 November the Parliamentary
Under-Secretary of State at the Department of Transport (Mr David
Jamieson) informs us of the current position in relation to the
draft Directive and the Framework Decision. The Minister explains
that the Directive has been considered at two Transport Working
Group meetings in September and at the Transport Council on 9
October. The Minister reports as follows on the outcome of those
meetings:
"The outcome of the policy debate at the October
Transport Council was that Member States agreed on the need to
integrate international requirements into European legislation,
and that measures should be dissuasive. There were objections
to the inclusion of criminal law matters in the Directive, with
nearly all Member States seeking to have criminal sanctions covered
by a Council Framework Decision under the Third Pillar of the
EU Treaty. Member States were divided on the question of whether
the Directive should impose a more stringent regime than the International
Convention for the Prevention of Pollution from Ships 1973/78
(MARPOL), but there was agreement that it should be possible to
adopt measures covering ships flying third country flags. Some
Member States preferred to ban insurance against fines as a deterrent,
but others noted that insurable fines were more likely to be paid
and culpability ensured."
3.15 The Minister notes that the text of the parallel
Framework Decision is being considered in the substantive criminal
law working group and that some progress is being made, but that
'there are problems associated with the fact that the text of
the Directive is not yet in its final form'.
3.16 On the question of external competence (a matter
to which we drew attention on 18 June and 15 October), the Minister
reports as follows:
"UK officials raised this in the Transport working
group which then referred the question to the Council Legal Service.
The Council Legal Service stated that the Directive would result
in an extension of Community competence and the result would be
shared competence between the Community and the Member States,
not an extension of exclusive Community competence. However, my
Department's lawyers have pointed out that competence may be shared
between Community and Member States, in the sense that Member
States will be able to negotiate on other aspects of ship source
pollution at international level which are not covered by the
rules in the new legislation, but it will still only be the Community
which can act at international level to change Community rules.
Accordingly, the Directive will have the effect of extending exclusive
external Community competence. Unpalatable as this is, however,
there is little that the UK can do. When the UK raised the issue
in the Transport working group, hardly any other Member States
appeared to share our concerns. If we wished to continue to make
an issue of this, there is no evidence that the UK would receive
any significant support from other Member States. It is worth
recalling that the proposed Directive is the direct outcome of
one of the December 2002 Transport Council conclusions, and thus
represents a political commitment for all Member States."
Conclusion
3.17 We thank the Ministers for their helpful
and candid assessments of these proposals. We agree that there
have been improvements in the draft Framework Decision. However,
we note that Article 4(5) still contains a list of connecting
factors for the exercise of jurisdiction and that there appears
to be an obligation to give these priority in the order set out.
We ask the Minister for her views on whether the existence of
this list is consistent with the cooperation between Member States
through Eurojust which the Minister appears to welcome.
3.18 We support the Minister in her desire to
see the deletion of Article 5 of the Framework Decision on the
grounds that it exceeds the scope of what may be done under Article
31 EU.
3.19 We clear document (b) on the grounds that
it has been superseded, but we shall hold documents (a) and (c)
under scrutiny pending further information from the Ministers
on the progress of these negotiations.
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