Documents considered by the Committee on 10 June 2009 - European Scrutiny Committee Contents


15 Pollution caused by ships

(29560)

7616/08

COM(08) 134

Draft Directive amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements

Legal baseArticle 80(2) EC; co-decision; QMV
DepartmentJustice
Basis of considerationMinister's letters of 24 April, 29 April, and 15 May 2009
Previous Committee ReportHC 16-xxxii (2007-08), chapter 5 (22 October 2008), HC 16-xxi (2007-08), chapter 8 (14 May 2008), and see (24535) 7312/03: HC 42-ix (2003-04), chapter 12 (4 February 2004), HC 42-xiv (2003-04), chapter 3 (24 March 2004), HC 42-xxii (2003-04), chapter 8 (9 June 2004) and HC 42-xxvi (2003-04), chapter 3 (7 July 2004)
To be discussed in CouncilJune
Committee's assessmentLegally and politically important
Committee's decisionCleared

Background

15.1 In 2003 the Commission presented a draft Directive, based on Article 80(2)EC, on pollution caused by ships ("ship-source pollution"). The proposal, as it then stood, sought to apply at Community level some of the requirements of the 1973 International Convention for the Prevention of Pollution from Ships and its 1978 Protocol (often referred to as MARPOL 73/78) and to ensure that any person who caused or contributed to a pollution incident through deliberate or grossly negligent behaviour was made subject to criminal sanctions.

15.2 The previous Committee identified two main issues. The first was the degree to which the Directive was consistent with the regime established by MARPOL 73/78 and with the United Nations Convention on the Law of the Sea (UNCLOS), notably on the question of liability where the discharge of polluting substances is the result of damage to a ship or its equipment (e.g. following a collision). MARPOL 73/78 contains an exception for discharges resulting from damage to a ship or its equipment, so that the owner or master is to be held responsible only if he acted with intent to cause damage to the ship or where he acted recklessly and with knowledge that damage would probably result, but the Directive limited the exception to international straits, the Exclusive Economic Zone of a Member State and the high seas.[60] As the then Minister commented at the time, this introduced a conflict with UNCLOS, which requires coastal States to comply with international rules and standards, such as MARPOL, when dealing with foreign ships outside their territorial sea. The second main issue was the inclusion by the Commission of criminal law measures in a Directive proposed under the EC Treaty. A number of Member States, including the UK, objected to these provisions on the grounds that the Community lacked competence to prescribe criminal law rules. In the light of this objection, the Commission revised its proposal for a Directive and submitted an accompanying EU Framework Decision to specify criminal penalties for the acts prohibited by the Directive.

15.3 The Commission continued to argue, however, that the Community did have the necessary competence and brought proceedings for the annulment of the Framework Decision, shortly after it was adopted in 2005. In its ruling in October 2007 in Case C-440/05 Commission v. Council the ECJ found, annulling Framework Decision:

  • that environmental protection was an objective of the common transport policy under Article 80(2) EC;
  • that, as such, the Community could require Member States to introduce criminal penalties under Article 80(2) EC where these were considered to be "an essential measure for combating serious environmental offences[61]";
  • that ship-source pollution had sufficiently serious environmental consequences to justify the Community requiring Member States to apply criminal penalties to certain forms of conduct;
  • but that the Community was not competent to determine the type and level of those criminal penalties.

Previous scrutiny

15.4 In 2008 the Commission subsequently proposed an adaptation of Directive 2005/35/EC[62] which would incorporate the relevant provisions of the annulled Framework Decision. When we considered this proposal at our meeting on 14 May 2008 we noted the Government's comment that the Commission's approach to seeking to add a criminal law element to the 2005 Directive had the effect of distorting the overall scheme of the instrument and of creating a few potentially significant problems. One of these was that simply replacing the word "infringement" with "criminal offence" in the Directive would oblige Member States to apply the criminal law to discharges of polluting substances into the seas to the exclusion of any alternative administrative or civil sanctions. Another was that the proposed new Article 4(1) (which required Member States to criminalise discharges of polluting substances into any of the areas mentioned in Article 3(1))[63] could create a very broad obligation which could require Member States to ensure that the discharge of polluting substances in the high seas was treated as an offence under national law whatever the nationality of those responsible or the flag State of the vessel.[64] Further issues were the new Article 4, which took insufficient account of the exceptions under the existing Directive for discharges from any warship, naval auxiliary or other State-owned ship used only on government non-commercial service. Finally, in cases where damage to the ship or its equipment results in the discharge, the exception for crew members was wider under Article 2(2) of the annulled Framework Decision than it is under Article 5(2) of the Directive.[65]

15.5 On 4 October 2008 the then Parliamentary Under-Secretary of State at the Ministry of Justice (Bridget Prentice) informed us by letter that the revised text "reflects UK drafting suggestions on key measures". A drafting structure had been adopted which ensured that the obligations concerning criminal offences were incorporated without altering the basic provisions in the Directive on polluting infringements that could be dealt with through administrative means. The Minister explained that the Government believed that these changes, together with the inclusion of a recital making clear that the Directive imposes no obligation to apply penalties in any particular case, "satisfactorily ensure[d] that the criminal obligations do not exclude the possibility of Member States employing alternative administrative solutions where appropriate". The Minister also explained that the new structure removed the need further to clarify the exceptions relating to warships, naval auxiliaries, and State-owned ships.

15.6 In addition, the Minister confirmed that the latest text contains updated cross-references to the MARPOL exceptions, notably in relation to cases where damage to the ship or its equipment results in a discharge. The Minister referred, in this regard, to the removal of the ambiguous reference to the crew having to be "acting under the master's responsibility" in order to be exempted (a qualification which is not made in the MARPOL Convention). The Minister explained that the new text "does not achieve parity" with the MARPOL exceptions themselves, but that it went further than the provision of the annulled Framework Decision which it replaces, in that it applies to all the infringements referred to in the 2005 Directive, not merely those which were made criminal under the Framework Decision. The Minister concluded that the Government "is satisfied that this amounts to the best achievable balance between respecting the international standards whilst establishing an effective EU regime".

15.7 In our Report,[66] we concluded that a number of useful improvements have been made to the proposal and that the points we had raised previously had been substantially addressed. In view of the opening of first reading negotiations with the European Parliament, we decided to hold the document under scrutiny but indicated to the Minister that she may agree to the text going forward as a basis for those negotiations. We looked forward to an account, in due course, of the outcome of those negotiations.

The Minister's letter of 24 April 2009 and the Committee's response

15.8 On 24 April 2009, the Parliamentary Under-Secretary of State at the Ministry of Justice (Lord Bach), wrote to the Committee informing us that, since the previous correspondence in October 2008, the Transport Committee of European Parliament (EP) had published its final report and recommendations for first reading amendments to the text in February, since when the draft had been subject to negotiation in JHA Counsellor and Trialogue (Presidency, Commission, EP Rapporteur) sessions. Although most of the amendments were "broadly acceptable" to the UK, the Minister wanted to take the opportunity to explain one that was not "ahead of a critical period of negotiations".

15.9 The Minister explained that the EP was determined that "repeated, deliberate or seriously negligent discharges by ships must be regarded as criminal offences, regardless of whether they have a polluting effect." The concept of criminalising repeated minor discharges was not, however, recognised in the original Directive of Framework Decision, but, according to the EP, criminalising such behaviour was the only way to halt a common practice, which has transformed the principle of the "polluter pays" into "pay to pollute". This was "a key concern", which the EP wished to have recognised both in a recital and an article.

15.10 In the Minister view, "where discharges have no polluting effect, they are by definition in the text itself regarded as 'minor cases' and should only be subject to administrative sanctions. Subject to agreed exceptions, the Directive already treats any discharges which have a polluting effect and which were committed with intent, recklessly or by serious negligence as criminal offences. At the point where repeated minor discharges do in fact have a polluting effect, the criminal offence would be committed. We prefer the current drafting because it enables Member States to retain prosecutorial discretion in less serious cases. The Government believes that the final Directive should not exceed the scope of the original dossiers nor should it introduce a new provision at this late stage. This view is shared by the Presidency, Commission and the majority of Member States."

15.11 We wrote on 29 April in response to the Minister's letter. In terms of the scrutiny process, we asked him to explain why we had not been informed of the opinion of the European Parliament long before 24 April, when there was sudden pressure for a first reading deal and negotiations were drawing to a rapid end. We reminded the Minister that the Guidance for departments on parliamentary scrutiny of EU documents required that the Scrutiny Committees be informed of the EP Opinion by a letter from the responsible Minister to the Committee Chairmen. In terms of substance, we added that we fully agreed with the Government, the Commission, and other Member States that the obligation to criminalise minor discharges went beyond the scope of the original Directive and would unacceptably interfere with prosecutorial discretion. We asked to be updated urgently on the emerging compromise text.

The Minister's letter of 29 April 2009 and the Committee's response

15.12 On 29 April the Minister wrote to update the Committee on the negotiations and "to share the Government's positive view on the final compromise text which goes forward to … Coreper on 29 April for approval with a view to the European Parliament delivering its opinion on 5-6 May. It is expected that agreement will be reached at First Reading and that the Council will then approve the Directive in the form amended by the Parliament". A copy of the final compromise text was attached to the Minister's letter.

15.13 The Minister informed us that, at the JHA Counsellor's meeting on 27 April, the EP had put forward a compromise proposal, which clarified that repeat minor discharges would only be criminalised under the Directive if they had a "cumulative polluting effect". This met the Government's concerns, although the Minister comments that "such acts would have already been caught by the instrument as it stood". He confirmed that this was the only issue that would have resulted in a significant change to the text from the version we considered in October. In addition, there was an important restatement (in a recital) from the original Framework Decision of the distinction between administrative sanctions for low-level, non polluting acts and criminal sanctions for serious discharges.

15.14 The Minister concluded overall that the Government's objectives had been achieved. These were to ensure that: the text was compatible with MARPOL; followed a cogent drafting structure similar to that of the Environmental Crime Directive; the obligations to penalise conduct did not exclude alternative administrative penalties "where appropriate in less serious cases"; all categories of persons associated with the maritime industry were included within the scope of the proposed offences; and it represented a balanced interpretation of the intention of the original Directive and Framework Decision.

15.15 In relation to the lack of scrutiny of the first reading agreement by the Committee, the Minister wrote:

"I am very sorry for late sight of the final text for these negotiations […] but this itself was only agreed on 28 April and I have sent it to you at the earliest opportunity. The repeat minor discharges issue led to some very difficult last minute timetabling and negotiation challenges for the Presidency. These were compounded by the push to secure first reading agreement at what will be the last plenary session before the European Parliament elections. I appreciate this set of circumstances has prevented the final text from being given due consideration by the Committee and the possibility of fully clearing scrutiny."

15.16 We replied to the Minister on 6 May, making it clear that the timing of his letter — it was dated the same day as the final Coreper meeting — had left us no opportunity to scrutinise the final compromise text at all for a Community proposal which would amend national criminal legislation. We asked for a further report once the first reading deal had been agreed.

The Minister's letter of 15 May

15.17 The Minster wrote again on 15 May to inform us that Coreper and the European Parliament agreed, on 29 April and 5 May respectively, to the compromise text. The Minister apologised again for not informing us in good time for us to be able to scrutinise the compromise text, explaining how fraught the negotiations were with a compromise proposal from the EP only appearing on 27 April. He mentioned again that the timetable was not helped by the Presidency's desire to get a deal before the dissolution of the European Parliament for the June elections, hence why Coreper met so urgently on 29 April. He added, candidly, that:

"I regret that we did not send you the European Parliament's Transport Committee's report and recommendations for amendments to the text when they were published in February, notwithstanding that these did not constitute a formal opinion at that stage. Given the expressed hope for a first-reading deal, I recognise that it would have been useful for the Committee to have been appraised [sic] earlier of the issues raised in the European Parliament. I apologise on behalf of my Department for this misjudgement."

15.18 In concluding, he states that "officials are discussing whether there is anything more we could do to assist the Committee in situations such as this, which I believe occur only rarely" and offers "to come in to talk to the Committee about this unusual case and the implications of the co-decision legislative procedure more generally for the Parliamentary scrutiny of my Department's dossiers".

Conclusion

15.19 We thank the Minister for his letters.

15.20 In scrutinising EC legislation we are particularly vigilant to ensure that the reach of Community law into national criminal law extends only so far as permitted by conferred powers or, as in this case, a judgment of the ECJ.

15.21 Had we been consulted in time, we would have had serious reservations about whether the European Parliament's amendment to criminalise repeated minor cases of discharge, even where cumulatively they have a polluting effect, was "an essential element for combating serious environmental offences" that justified a criminal penalty, in accordance with the test laid down by the ECJ in Case C-440/05 Commission v Council. Whether this amendment was "essential" is in doubt given that the cumulative polluting effect of such minor discharges would already have been treated as a criminal offence in the text agreed by the Council, as the Minister states in his letters of 24 and 29 April. There is, therefore, a risk that the criminal penalties in this Directive go beyond the terms of the ECJ's judgment.

15.22 We recognise that the Government, with many other Member States, was similarly concerned by the European Parliament's amendment, negotiated hard to defeat it, and finally accepted what appeared to be the best possible compromise in the circumstances. But we very much regret that, through misjudgement of the Minister's department, we were only informed rather than consulted on the entire first reading stage of this important proposal, leaving us no opportunity for scrutiny.

15.23 The adoption by the Council of the first reading agreement on 29 April amounts to a breach of the Scrutiny Reserve Resolution. The proposal now having been formally adopted, however, we have no other option than to clear it from scrutiny.

15.24 We take the Minister up on his offer to come before the Committee, when we will discuss both the contents of this Directive and how to ensure that similar scrutiny oversights on first reading agreements are avoided.


60   The exception did not, therefore, apply to internal waters or the territorial waters of a Member State, these being referred to separately in Article 3(1)(a) and (b) of Directive 2005/35/EC. International straits, the Exclusive Economic Zone and the high seas are covered by Article 3(1)(d) and (e). Back

61   Applying its reasoning in C-176/03 Commission v. Council (the Environmental Crime Case) Back

62   OJ No. L 255, 30.09.05, p.11. Back

63   I.e. internal waters, territorial sea, international straits, exclusive economic zones and the high seas. Back

64   A prescriptive jurisdiction on this wide basis appears to raise questions of compatibility with the United Nations Convention on the Law of the Sea (UNCLOS) which, save for a limited number of exceptions, reserves jurisdiction to the flag State over incidents occurring on the high seas (cf.UNCLOS Article 92(1)). It also appears that MARPOL 73/78 does not authorise the assertion of jurisdiction over vessels on the high seas by a non-flag State. Back

65   The Directive introduces the further qualification that the crew must have been acting under the master's responsibility in order to qualify for the exception from liability. Back

66   HC 16 -xxxii (2007-08), chapter 5 (22 October 2008) Back


 
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