12 Pollution caused by ships
| (a)
(24535)
7312/03
COM(03) 92
(b)
(24899)
12828/03
—
(c)
(25202)
16191/03
—
|
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
|
| Legal base | (a) Article 80(2) EC; co-decision; QMV
(b) and (c) Article 34(2)(b) EU; consultation; unanimity
|
| Document originated | (c) 18 December 2003
|
| Deposited in Parliament | (c) 5 January 2004
|
| Department | (a) Transport
(b) and (c) Home Office
|
| Basis of consideration | (a) and (b) Minister's letters of 5 and 17 December 2003
(c) EM of 15 January 2004
|
| Previous Committee Report | (a) HC 63-xxv (2002-03), para 8 (18 June 2003), HC 63-xxxiii (2002-03), para 12 (15 October 2003)
(a) and (b) HC 63 -xxxviii (2002-03), para 3 (19 November 2003)
|
| Discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | (b)cleared ; (a) and (c) not cleared; further information awaited
|
Background
12.1 We considered the draft Directive (document (a)) and the
then current version of the Framework Decision on 18 June, 15
October and 19 November 2003. We noted that the Commission's
proposals sought to ensure that any person who caused or contributed
to a pollution incident through grossly negligent behaviour was
made subject to appropriate sanctions and by so doing would secure
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).
12.2 We also noted that adoption of the Directive
would have the effect of extending Community competence is relation
to international aspects of pollution caused by ships. The Parliamentary
Under-Secretary of State at the Department for Transport (David
Jamieson) acknowledged that this was so, but also stated that
there was no evidence of any significant support from other Member
States for the UK's concerns.
12.3 We noted that when the draft Directive was considered
by the Council a number of Member States took the view 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.
12.4 We noted that, as well as providing for criminal
penalties for the illegal discharge of substances, the Framework
Decision required 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 had an option 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. Finally, Member
States were 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
the high sea and the State is the State of seaport".
12.5 The existence of the various heads of jurisdiction
gives rise to the possibility of positive conflicts of jurisdiction,
a matter dealt with under Article 4. This provided that the relevant
Member States might cooperate, availing themselves of Eurojust,
in order to decide which of them would prosecute the offence.
We noted that Article 4(5) still contained a list of connecting
factors and that appeared to be an obligation to give these priority
in the order set out, and we asked the Minister for her views
on whether the existence of this list was consistent with the
cooperation between Member States through Eurojust which the Minister
appeared to welcome.
12.6 We also supported the Government's intention
to seek deletion of Article 5. We agreed with the Minister that
a provision requiring a Member State to conduct a criminal investigation
exceeds the scope of Article 31 EU.
The Minister's reply
12.7 In her letter of 5 December 2003 the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) replies
to our concern over Article 4(5) as follows:
"We do not see any conflict between Article
4(5) and the role of Eurojust in resolving situations where more
than one Member State has jurisdiction. Article 4(5) specifies
factors to be taken into account in deciding which Member State
should exercise jurisdiction, but as in the Framework Decision
on the principle of ne bis in idem, these factors are indicative
and do not determine the decision. Eurojust could assist by facilitating
discussion between the parties and helping them to reach a decision,
which takes account of the factors in Article 4(5)."
The letter from the Secretary of State for Transport
to the Transport Committee
12.8 The Secretary of State for Transport (Mr Alistair
Darling) copied to us his letter of 17 December to the Chairman
of the Transport Committee in response to concerns that the Framework
Decision might have the effect of conferring competence on the
European Union. In his letter the Minister seeks to give a reassurance
that this will not be the case. The Minister states that third
pillar instruments, such as Framework Decisions, do not, as a
general rule, cede competence from the Member States to the European
Union or the European Community, because such instruments are
not part of the Community legal order and are not therefore subject
to the Community rules on external competence. The Minister nevertheless
agrees that adoption of the Directive would result in an extension
of exclusive external Community competence.
The revised draft proposal
12.9 The revised draft Framework Decision (document
(c)) reflects the outcome of a meeting of the Council working
group on 4 December. The principal changes concern Article 3.
Article 3b(1) now limits to serious cases the obligation of Member
States to provide for imprisonment. Article 3b(1a) provides that
other penalties, including criminal or non-criminal fines and
disqualification, may accompany the criminal penalties provided
for in Article 3b(1).
12.10 Article 3(2) has been amended to provide for
a minimum sentence of at least 5 to 10 years' imprisonment where
the offence causes death or serious injury, or where the offence
is committed "in the context of a criminal organisation within
the meaning of Joint Action 98/733/JHA". By virtue of Article
3b(4)and (5) a punishment of at least 2 to 5 years' imprisonment
is to be provided for where death or serious injury is caused
by gross negligence and of 1 to 3 years' imprisonment where substantial
damage to "water quality, to animal or vegetable species
or to parts of them" is caused by gross negligence.
The Government's view
12.11 In her Explanatory Memorandum of 15 January
2004 the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) welcomes the introduction of the reference to
other penalties or measures, including criminal or non-criminal
fines in the new Article 3b(1a) as suitable methods of tackling
ship-source pollution. The Minister adds that the Government
continues to have concerns about the minimum/maximum provisions
of Article 3b(2) to (5) and will be seeking further amendments
to the text. The Minister explains that the Government maintains
its view that the penalty provisions in the Framework Decision
should not focus unduly on imprisonment but should ensure that
those who have control over vessels, usually the ship-owners,
should be subject to effective non-custodial sanctions.
12.12 The Minister adds that in the Government's
view the relevance of the provision dealing with offences committed
within the context of a criminal organisation as an aggravating
factor for penalties has not been made out. The Minister explains
that the Government is examining the relationship between this
provision and the 1998 Joint Action on participation in a criminal
organisation.
12.13 The Minister also states that the Government
is concerned that the scope of the jurisdiction provisions in
Article 4(1)(e) and (g)[27]
is not clear, and that Articles 4(4) and (5) "are too mandatory
in nature". The Government will be aiming for clarification.
Conclusion
12.14 We thank the Minister for her letter and
Explanatory Memorandum. Like the Minister, we do not see the
relevance of the reference to participation in criminal organisations
in a measure dealing with marine pollution, and we shall look
forward to further explanation of this point.
12.15 We also share the view of the Minister that
the provisions of Article 4(4) and (5) are indeed too mandatory
in nature. As we have said before, we do not think there is any
need to adopt a binding ranking of connecting factors for the
exercise of jurisdiction, and we think that amendments are necessary
to make it clear that Member States remain free to cooperate as
they wish.
12.16 We also support the Minister in her continued
efforts to secure the deletion of Article 5, which continues to
oblige a Member State to conduct a criminal investigation. We
agree with the Minister that such obligations may not be imposed
under Article 31 EU.
12.17 We note the comment of the Secretary of
State on the effect of the Framework Decision on external exclusive
competence of the European Community, but we think it worth drawing
attention to our view that the draft Constitutional Treaty would
abolish the distinction between measures adopted under the EC
and EU Treaties in this respect and that, if adopted in its present
form, Article 12(2) of that draft Treaty would be likely to confer
an exclusive external competence on the Union in respect of the
subject-matter of the present draft Framework Decision.
12.18 We shall hold the current version of the
Directive (document (a)) and of the Framework Decision (document
(c)) under scrutiny pending deposit of revised versions. We clear
document (b) as it has been superseded.
27 These provide for jurisdiction to be provided for
where the offence is committed for the benefit of a legal person
with a registered office in its territory and 'in the high sea
and the State is the State of seaport' respectively. Back
| 
