4 POLLUTION CAUSED BY SHIPS
(a)
(25539)
8118/04
—
(b)
(25956)
12537/04
—
| 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 | Article 34(2)(b) EU; consultation; unanimity
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| Deposited in Parliament | (b) 22 September 2004
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| Department | Home Office
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| Basis of consideration | (b) EM of 12 October 2004
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| Previous Committee Reports | HC 42-xxvi (2003-04), para 3 (7 July 2004), HC 42-xxii (2003-04), para 8 (9 June 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 | (a) Cleared
(b) Not cleared; further information requested
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Background
4.1 Following the sinking of the oil tanker Prestige off
the north-west coast of Spain in November 2002, the Commission
made proposals seeking to ensure that any person who caused or
contributed to a pollution incident through grossly negligent
behaviour was made subject to appropriate sanctions. The object
of the proposals was to 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 or the MARPOL Convention).
4.2 In their original form, the proposals consisted
only of a Directive. A number of Member States (including the
United Kingdom) were opposed to a measure under the EC Treaty
which imposed criminal penalties, since this was beyond the competence
of the Community. In response to this criticism, the Commission
produced a draft Framework Decision under the EU Treaty which
would serve to implement the draft Directive by making provision
for criminal penalties in respect of the acts defined in the Directive.
4.3 We cleared the text of the draft Directive from
scrutiny on 7 July, noting that in its amended form it was to
apply "in accordance with international law", and specifically
that it was to apply to the internal waters of a Member State,
including its ports, only in so far as the MARPOL regime applied
to those waters. We nevertheless noted that the draft Directive
contained a narrower form of the exception than that permitted
under MARPOL in the case of pollution resulting from damage to
a ship. The exception under the Directive would apply only in
international straits, the Exclusive Economic Zone and the high
seas, and would exempt only the owner, the master and the crew
(when acting under the master's instructions).
4.4 We held the draft Framework Decision (document
(a)) under scrutiny. The Parliamentary Under-Secretary of State
at the Home Office (Caroline Flint) informed us by letter of 19
July of the state of negotiations, remarking that the Netherlands
Presidency was keen to advance consideration of the Framework
Decision as much as possible and was hoping to secure an agreement
before the end of the year.
The revised draft Framework Decision
4.5 The revised draft Framework Decision (document
(b)) reflects the outcome of negotiations within the Council's
Substantive Criminal Law Working Group and the Article 36 Committee[11]
in September. Article 2 of the Framework Decision (which provides
for an infringement of Article 3a and b of the Directive to be
made criminal) now has an exception in Article 2(2). This provides
that Article 2(1) does not apply to "crew members, when not
acting under the master's responsibility, in respect of infringements
that occur in straits used for international navigation, exclusive
economic zones and on the high seas where the conditions set out
in Annex I, Regulation 11(b) or in Annex II, Regulation 6(b),
of MARPOL 73/78 are satisfied".
4.6 The provisions of Article 2(2) therefore reverse
the effect of the original proposal which did not allow for these
MARPOL exceptions. (Annex I to MARPOL deals with oil pollution.
Regulation 11b provides an exception from the general prohibition
on discharges of oil into the sea to cover cases where the discharge
arises from damage to a ship, provided that all reasonable precautions
are taken to prevent or minimise the discharge and provided the
owner or master does not intend to cause damage, or is reckless
as to whether such damage will result. Regulation 6b of Annex
II provides the like exception in relation to the discharge of
noxious liquid substances.)
4.7 As before, Article 4(7) provides that imprisonment
for an offence under the Framework Decision may be imposed only
where this is permissible under international law, and in particular
under Article 230 of the UN Convention on the Law of the Sea (UNCLOS).
However, the provision has been amplified by a further provision
which states that, pursuant to Article 311 of UNCLOS, Member States
do not consider ships flying the flag of other Member States to
be foreign ships within the meaning of Article 230. (The effect
of this appears to be that the protection against imprisonment
for the crew of a foreign vessel will not apply within the Member
States in the case of a vessel flying the flag of a Member State.)
4.8 Article 6 provides for fines against legal persons
and in the current version provides for a maximum fine of at least
between €150,000 and €300,000. In the most serious cases,
(including those where an intentional discharge causes death or
serious injury) a fine of between €750,000 and €1.5
million is to be provided for.
4.9 Article 7 provides for jurisdiction. Each Member
State is required to make rules "so far as may be permitted
by international law" to establish jurisdiction over offences
committed within its territory, its exclusive economic zone,
or on board a ship carrying its flag. In addition, Member States
are required to establish jurisdiction on more indirect grounds,
such as the case where the offence is committed outside its territory
but has resulted in "damages" within its territory and
the vessel is voluntarily within a port or at an offshore terminal
of the Member State, or where the offence is committed on the
high seas and the ship is voluntarily within a port or at an offshore
terminal of that Member State.
4.10 In a new addition to Article 7, Member States
are required to establish jurisdiction where the offence is committed
in straits used for international navigation subject to the regime
for transit passage, as provided for in Part III, section 2 of
UNCLOS. (By virtue of Articles 37 to 44 UNCLOS a right of transit
passage may be exercised by vessels for the purpose of "continuous
and expeditious transit of the strait between one part of the
high seas or an exclusive economic zone and another part of the
high seas or an exclusive economic zone". By virtue of Article
39, ships in transit passage are required to comply with generally
accepted international regulations, procedures and practices for
the prevention, reduction and control of pollution from ships.)
4.11 The remaining provisions of the draft Framework
Decision are materially unchanged.
The Government's view
4.12 In her Explanatory Memorandum of 12 October
2004 the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains that the UK has secured amendments to
Article 2(2) which will provide some protection for the crew of
a ship where they are not acting under the master's responsibility
and the discharge occurs in straits used for international navigation,
the high seas, or a Member State's exclusive economic zone and
the discharge was the result of damage to the ship. The Minister
adds that this will allow Member States to choose not to apply
criminal sanctions to members of the crew in circumstances where
international law, in the form of the MARPOL Convention and UNCLOS
would not treat the crew as having committed an offence.
4.13 On the question of fines for legal persons,
the Minister explains that the Government considers that the approximation
of financial penalties for legal persons, as proposed in Article
6 "has some merit". The Minister adds that as the courts
in the UK have a discretion to impose unlimited fines, the Government
does not have any difficulties with the figures now proposed as
a compromise.
4.14 The Minister explains that the provisions of
Article 7 on jurisdiction are not finalised, "due to residual
outstanding issues about whether straits used for international
navigation should fall within the territory in question".
The Minister adds that the Government agrees with the Presidency
that a reference to straits is superfluous, and informs us that
the Presidency has proposed a Council Declaration as a solution
to this issue and that the Government supports this in theory.
The Minister tells us that if this declaration is agreed at the
Article 36 Committee, it will form part of the text of the Framework
Decision and will be deposited.
4.15 The Minister adds that the Government is, in
the main, content with the current version of the Framework Decision
and believes it to be a good compromise.
Conclusion
4.16 We are grateful to the Minister for her Explanatory
Memorandum, but in our view it leaves a number of matters unexplained.
We therefore ask the Minister first to explain the concept of
"not acting under the master's responsibility" as used
in Article 2(2). This concept does not appear to be used in Regulation
11b of MARPOL and it is not clear how far it reduces the scope
of the MARPOL exception.
4.17 Secondly, we ask the Minister to explain
the effect of, and the justification for, the new provision in
Article 4(7) under which Member States are required to make a
declaration under Article 311 UNCLOS that they will not regard
a ship carrying the flag of a Member State as a "foreign"
ship for the purposes of Article 230 UNCLOS. We particularly ask
the Minister if this will lead to an increased risk of imprisonment
of British crews in other Member States in relation to pollution
incidents.
4.18 Thirdly, we ask the Minister to ensure that
the text of the declaration on jurisdiction over international
straits is made available to us in sufficient time to permit us
to scrutinise its purpose and effect.
4.19 We clear document (a), as it has been superseded,
but shall hold document (b) under scrutiny pending the Minister's
reply.
11 A committee of senior officials established under
Article 36 EU to assist the Council in its work. Back
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