3 Pollution caused by ships
| (a)
(24535)
7312/03
COM(03) 92
(b)
(25202)
16191/03
—
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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
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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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| Department | (a) Transport
(b) Home Office
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| Basis of consideration | Minister's letter of 5 March 2004
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| 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), HC 42-ix (2003-04), para 12 (4 February 2004)
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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 | Not cleared; revised texts awaited
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Background
3.1 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 considered the draft Directive again
on 4 February together with latest version of the Framework Decision
(document (b)). 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). The Commission's
proposals for a Framework Decision under Article 34(2)(b) EU addressed
the concern of those Member States (including the UK) which 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.
3.2 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".
3.3 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.
Article 4(5) appeared to us still to contain a list of connecting
factors with an obligation to apply them in the priority set out.
We agreed with the Minister that the provisions of Article 4(4)
and (5) were too mandatory in nature and considered that there
was no need to adopt a binding ranking of connecting factors for
the exercise of jurisdiction. We thought that amendments were
necessary in order to make it clear that Member States remained
free to cooperate as they wished.
3.4 We also supported the Minister in her continued
efforts to secure the deletion of Article 5. This obliged a Member
State to conduct a criminal investigation and we agreed with the
Minister that such obligations could not be imposed under Article
31EU. Finally, we noted that the proposal required Member States
to treat offences committed within the context of a criminal organisation
as an aggravating factor. Like the Minister, we did not see the
relevance of the reference to participation in criminal organisations
(i.e. to organised crime) in a measure dealing with marine pollution
and we looked forward to further explanation of this point.
The Minister's letter
3.5 In his letter of 5 March the Parliamentary Under-Secretary
of State at the Department for Transport (David Jamieson) informs
us of further developments on the draft Directive (document (a)).
The Minister informs us that the Presidency has produced a compromise
text which defines illegal discharges in terms of the MARPOL Convention[8]
and that this is welcome to the United Kingdom. The Minister also
reports that the compromise text requires Member States to take
such enforcement action as they are empowered to take under the
United Nations Convention on the Law of the Sea. The Minister
indicates that the UK is likely to be able to agree to this, provided
that suitable qualifying language can be negotiated to allow for
the necessary degree of national discretion. The draft Directive
also contains only a single reference to "criminal proceedings",
which the Minister informs us is acceptable to the UK in the context
in which it is made.
3.6 The Minister adds the following comment on the
state of negotiations within the Council:
"The UK and a number of other Member States
are well disposed towards the Irish Presidency's compromise text.
However, there are other Member States which support the Commission
in opposing the definition of illegal discharges in terms of MARPOL,
seeking instead to apply a regime which would be more stringent
than MARPOL (in those areas where this can be achieved without
actual treaty conflict).
"Negotiations are at a delicate stage. Neither
group of Member States appears willing to give way on this issue
of fundamental principle. However, all Member States are conscious
that this Directive has been drafted to satisfy one of the conclusions
of the Transport Council on 13 December 2002. Accordingly, the
Directive represents a political commitment for all Member States."
3.7 The Minister also informs us of the amendments
adopted by the European Parliament on its first reading vote on
13 January 2004. Of these amendments, the UK strongly supports
the EP amendment to amend the definition of "illegal discharge"
to bring it precisely into line with the MARPOL Convention, but
the Minister informs us that the Commission does not accept this
amendment. The Minister further reports that, although the UK
can accept a significant number of the EP's amendments, there
are other substantive amendments which it opposes.
3.8 The Minister describes these amendments and the
UK position on them as follows:
"The European Parliament has voted to amend
the Directive in such a way that its provisions would apply to
EC Member States' ships anywhere in the world. As a flag State,
the UK would wish to apply the same law to UK ships anywhere in
the world. However, this wording would appear to require the UK
and other EC Member States to exercise enforcement powers which,
properly, they possess as coastal States and port States over
UK ships anywhere in the world — which is not the object
of the Directive nor is it a practical proposition. The Commission
has already indicated that it considers this amendment unacceptable.
"The European Parliament has voted to amend
the Directive in such a way that it would give the European Maritime
Safety Agency (EMSA) a co-ordination role and a role in creating
a public database on ships and illegal discharges. This goes appreciably
further than the UK would wish any reference to EMSA in this Directive
to go. The Commission has already indicated that it cannot accept
this amendment.
"The European Parliament has voted to amend
the Directive so that it explicitly refers, in a list of persons
and bodies who may be found responsible for illegal discharges,
to 'the competent (port) authority'. The UK does not favour having
an indicative list in the Article in question. The UK would certainly
not wish to add either the competent authority or the port authority
to that list, and the European Parliament's choice of the words
'the competent (port) authority' is especially objectionable because
of its inherent ambiguity in relation to the UK's system. The
Commission has already indicated that it cannot accept this amendment.
"The European Parliament has voted to amend
the Directive in such a way as to insert 'confiscation of the
ship' in the list of available sanctions. The detailed treatment
of sanctions, including fines, is for the Framework Decision and
not for the Directive. Moreover, the confiscation of the ship
would be a disproportionate sanction. The UK also has serious
concerns about the practicability of operating such a regime.
The Commission, however, has accepted the amendment.
"The European Parliament has voted to amend
the Directive in such a way as to set out a prescriptive timetable
for installing equipment on ships for the monitoring and early
identification of ships discharging polluting substances in violation
of the Directive. The UK does not consider it appropriate to include
such a prescriptive timetable in the Directive. The Commission
has already indicated that it considers this amendment unacceptable.
"The European Parliament has voted to amend
the Directive in such a way as to require the Commission to submit
a proposal for the creation of a European Coastguard. The UK does
not believe that a European Coastguard would add value to existing
arrangements between neighbouring and regional States (EU and
non-EU). What is needed is for effective co-operation. The Commission,
however, considers this amendment acceptable in principle."
Conclusion
3.9 We thank the Minister for informing us of
the latest state of the negotiations on the Directive, and we
look forward to the opportunity to consider a revised draft in
good time before it is submitted to the Council for political
agreement.
3.10 We agree with the views expressed by the
Minister on the amendments proposed by the European Parliament.
In particular, we consider that the confiscation of a ship is
both disproportionate and essentially penal in character. In our
view, the only place for such a provision is in a Framework Decision
under the EU Treaty. We also see no justification for the concept
of a European Coastguard.
3.11 We shall hold the documents under scrutiny
pending the deposit of revised texts.
8 The International Convention for the Prevention of
Pollution from Ships 1973 and its Protocol of 1978 (generally
referred to collectively as MARPOL 73/78). Back
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