12 Nitrogen oxide emissions from shipping
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6714/14
COM(14) 83
| Draft Council Decision on the position to be adopted at the International Maritime Organisation during the 66th session of the Marine Environment Protection Committee on the adoption of amendments to MARPOL Annex VI concerning the delay of the Tier III NOx emission standards
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| Legal base | Articles 192(1) and 218(9) TFEU; QMV
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| Documents originated | 17 February 2014
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| Deposited in Parliament | 24 February 2014
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| Department | Transport
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| Basis of consideration | EM of 13 March 2014
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| Previous Committee Report | None
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| Discussion in Council | See para 12.5 below
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| Committee's assessment | Legally important
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| Committee's decision | Cleared
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Background
12.1 Annex VI of the International Convention for
the Prevention of Pollution from Ships (MARPOL) seeks to limit
emissions of nitrogen oxides (NOx) from marine diesel engines,
with different tiers of control applying according to the ship
construction date. In general, so-called Tier II limits have applied
to vessels constructed on or after 1 January 2011, whilst more
stringent Tier III limits are due to come into effect on 1 January
2016, but only in Emissions Control Areas (ECAs) for NOx established
under the Convention.
The current proposal
12.2 The Marine Environment Protection Committee
of the International Maritime Organisation (IMO) is shortly to
consider a proposal from the Russian Federation that the entry
into force of the Tier III limits should be deferred for five
years, on the grounds that insufficient abatement technology is
available. This draft Council Decision would endorse the proposition
that the EU should oppose such a course, and that the Union's
position would also be expressed by those Member States which
are members of the IMO, acting jointly in the interests of the
Union, the Commission arguing that environmental protection is
in large measure regulated by Union legislation, with the EU having
extensively exercised competence in the area of air and water
quality policy, and regulated a wide range of pollutants —
including nitrogen oxides — and a wide range of sources,
including all forms of transport.
The Government's view
12.3 In his Explanatory Memorandum of 13 March 2014,
the Parliamentary Under-Secretary of State for Transport (Stephen
Hammond) says that, based on a body of evidence presented to the
IMO, the majority of its Members (including the UK) do not share
the Russian view, there being concern that the proposed delay
would undo a key element of the 2008 negotiations which led to
the revision of Annex VI, and significantly harm those ship owners,
technologists and engine manufacturers who have invested in NOx
abatement systems, making it is less likely that owners will invest
in technology in advance of legislative deadlines. Consequently,
the Government generally agrees with the Commission that the proposed
Russian amendments are unwelcome, and could give rise to a significant
risk that a delay would harm the credibility of the IMO and result
in individual Member States or regional blocs taking action on
NOx, which could in turn result in competing standards, with ship
owners unable to invest in a single globally acceptable solution.
12.4 However, although the Minister says that it
could be argued that the objective of ensuring Member States act
jointly could only be achieved by action at EU level, the Government
is not convinced that the proposal complies with the principle
of subsidiarity. In particular, it has significant concerns that
the Council Decision could represent an extension of competence,
and result in EU Member States being unable to act effectively
in international negotiations in the future. It also considers
that accepting a Council Decision on this issue could result in
the Commission claiming exclusive EU competence over the wider
issue of NOx emissions from shipping at a later stage, given the
Commission's ambitions in this area, and that it is in particular
seeking to establish ECAs for NOx in European waters, including
the North Sea and English Channel.
12.5 The Minister also comments that a Council Decision
on this issue could make it extremely difficult to resist such
moves in the future, but he points out that, when the proposal
was discussed recently at a working group, it was clear that there
was no support for it among Member States, and the proposed Decision
will therefore not be put to the Council for agreement, and no
further work will be done on it — a development which he
welcomes. Furthermore, he points out that the Decision is unlikely
to be needed to block the Russian proposal, as the majority of
EU Member States which are parties to Annex VI will vote against
it, regardless of the Council Decision. He also says that the
discussions in the Marine Environment Protection Committee will
not be straightforward as the parties are likely to explore a
compromise before taking a potentially divisive vote, and he suggests
that the proposed Council Decision would allow little room to
negotiate, and prevent EU Member States taking part in any discussions
on the issue within IMO, thereby risking an outcome which goes
against the best interests of the EU.
Conclusion
12.6 It seems clear that, in policy terms, the
approach suggested by the Commission is in line with that favoured
by the UK, and is soundly based. However, on the legal issues:
i) we do not find the Government's vague concerns
about subsidiarity convincing, concerns which are contradicted
by its concession that joint action by Member States might only
be achievable at EU level. We do not consider whether a Reasoned
Opinion is appropriate because the subsidiarity Protocol[43]
does not apply to this proposal; but
ii) we support the Government's separate and
specific concerns about the implications for national competence
in the wider area of NOx emissions from shipping. We agree that
the adoption of the current draft Decision could lead to the EU
asserting exclusive external competence in that wider policy area
and also, in our view, the pre-emption by the EU of corresponding
internal shared competence.
12.7 We are therefore reassured that the proposed
Decision will not progress to agreement in Council due to lack
of political support and we are content to clear the document
from scrutiny provided that should that situation change:
i) we will be immediately informed; and
ii) the Government will continue to reserve
its position on competence and register its opposition to the
draft Council Decision.
43 Protocol (No. 2) to the Treaties on the application
of the principles of subsidiarity and proportionality. Back
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