Documents considered by the Committee on 26 March 2014 - European Scrutiny Committee Contents


12 Nitrogen oxide emissions from shipping

(35818)

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
Legal baseArticles 192(1) and 218(9) TFEU; QMV
Documents originated17 February 2014
Deposited in Parliament24 February 2014
DepartmentTransport
Basis of considerationEM of 13 March 2014
Previous Committee ReportNone
Discussion in CouncilSee para 12.5 below
Committee's assessmentLegally important
Committee's decisionCleared

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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