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
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| Legal base | Article 80(2) EC; co-decision; QMV
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| Department | Justice
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| Basis of consideration | Minister's letters of 24 April, 29 April, and 15 May 2009
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| Previous Committee Report | HC 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)
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| To be discussed in Council | June
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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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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