Not cleared from scrutiny; further information requested; drawn to the attention of the Transport Committee, Environmental Audit Committee and Environment, Food and Rural Affairs Committee
Proposal for a Directive of the European Parliament and of the Council on port reception facilities for the delivery of waste from ships, repealing Directive 2000/59/EC and amending Directive 2009/16/EC and Directive 2010/65/EU
Article 100(2) TFEU; ordinary legislative procedure; QMV
(39447), 5454/18 + ADDs 1–4, COM(18) 33
6.1The marine environment is increasingly threatened by both discharges of waste from ships and marine litter deriving mostly from land-based activities. One of the underlying problems is a lack of adequate facilities in ports to receive waste from ships. As part of its Plastics Strategy and following a review of the existing framework, the European Commission therefore proposes an overhaul of the current legislation covering port reception facilities (PRF) to collect waste from ships.
6.2The proposal aims to update and revise the PRF Directive, including by alignment with the latest MARPOL (International Convention for the Prevention of Pollution from Ships) requirements, and with a special focus on marine litter. It also aims to provide consistency with other EU Acts and monitoring and reporting obligations. It seeks to clarify and strengthen implementation, monitoring and enforcement through a combination of incentive and enforcement measures. These include amended requirements on cost recovery, which are extended to fishing vessels. Under the proposals, vessels will pay a flat “indirect” fee to the port/harbour irrespective of whether they deliver any waste or not. However, this should also give these ships the right to deliver all their garbage without having to pay any additional fees, including any derelict fishing gear and passively fished waste. For other forms of waste, a top-up “direct” fee can be charged based on the volume of waste and other criteria.
6.3The Parliamentary Under-Secretary of State for Transport (Nusrat Ghani) signals the Government’s support for the overall approach and principles of the proposal, which aligns with Government’s own objectives to reduce plastic waste, and forms a contribution to the UK’s 25-year environmental plan.
6.4While the majority of the proposals are in line with the UK’s existing implementation of the current PFR Directive, some will require further clarification and the Government is still considering its position on four elements:
The Government’s initial concerns about these issues are set out in more detail below.
6.5The Government is undertaking stakeholder engagement, the initial indications from which suggest that stakeholders share the Government’s concerns. The Government will participate in negotiations with a view to ensuring that the proposal does not result in a measure that contains anything that goes beyond MARPOL requirements and, wherever possible, is proportionate, while removing red tape and lowering costs.
6.6Turning to Brexit, it is relevant to note that the transposition deadline is 31 December 2020, which may fall at the very end of any post-Brexit transition period. The Minister notes that the proposal will affect third countries using EU and EEA (European Economic Area) ports, thus clarifying that the legislation will remain relevant to the UK post-Brexit. She adds that, post-Brexit, the UK will continue to play an important role in the international organisations that regulate shipping and will continue to work with other European countries on matters of common interest, such as the exchange of information on the safety of shipping and on pollution.
6.7Like the Government, we are supportive of measures to reduce waste in the marine environment, and particularly to tackle the growing problem of plastic waste.
6.8We note the Government’s intention to negotiate with a view to ensuring that the proposal does not result in a measure that contains anything that goes beyond the international (MARPOL) requirements. Should the Government be successful in that regard, the Brexit implication is that EU requirements would not differ from international requirements. On the other hand, any differences between EU and international requirements would affect the UK post-Brexit as a third country using EU ports. We ask the Minister to set out the instances where the proposal goes beyond the MARPOL requirements.
6.9On the details of the proposal, we consider the cost recovery provisions to be particularly contentious, and notably those relating to fishing vessels. As the Minister observes, the proposal could impose on the fishing industry the greatest burden of paying for delivery of passively-fished marine litter even though much of the litter will result from other offshore and onshore activities. When the Minister next writes to update us on progress, we would welcome information on the current approach to collection of marine litter by the fishing industry, including the work of voluntary initiatives such as Fishing For Litter.
6.10Taking into account concerns over the provisions on cost recovery, we would ask the Minister to reflect on an approach which supports the Commission’s objectives, but leaves the detail of cost recovery to each Member State. Any such detail might bear in mind the proposed requirement in Article 4 that “the fees charged for delivery [should] not create a disincentive for ships to use the port reception facilities”. This requirement strikes us as a helpful principle, which might usefully underpin the discussion on the proposal.
6.11The Government’s assessment of the proposal is ongoing, and stakeholder consultation is taking place. We ask for an update on the Government’s position once it is clearer and we ask too for any available indication of the positions to be taken by other Member States.
6.12We retain the proposal under scrutiny and draw it to the attention of the Environment, Food and Rural Affairs Committee, the Environmental Audit Committee and the Transport Committee.
Proposal for a Directive of the European Parliament and of the Council on port reception facilities for the delivery of waste from ships, repealing Directive 2000/59/EC and amending Directive 2009/16/EC and Directive 2010/65/EU: (39447), + ADDs 1–4, COM(18) 33.
6.13Recently, the problem of marine litter has come to the fore, as evidence increases of the effects on marine ecosystems and of the impacts on human health. Although most sources of marine litter are land-based, shipping also has an important role to play in discharges of household waste and operational waste at sea.
6.14The European Commission’s proposal is part of the Regulatory Fitness and Performance (REFIT) programme and follows an evaluation in 2016 of the current Directive 2000/59/EC on Port Reception Facilities (the PRF Directive). The proposal is intended to repeal and replace the PRF Directive and amend related Directives 2009/16/EC on Port State Control and 2010/65/EU on Reporting Formalities.
6.15Operational discharges of waste from ships are controlled under the International Convention for the Prevention of Pollution from Ships (the MARPOL Convention), adopted by the International Maritime Organisation (IMO) in 1973. This requires the Contracting Parties to provide for port reception facilities for waste that ships are not allowed to discharge into the sea.
6.16The PRF Directive is based on MARPOL requirements, and aims to harmonise the operation of PRF across the EU to further reduce the discharge of ship-generated waste and cargo residues into the sea, especially illegal discharges, by improving the availability and use of PRFs, and providing an effective enforcement mechanism. The EU PRF system focuses mainly on the shore-side adequacy of the PRF through waste reception handling plans, cost recovery systems, and appropriate enforcement. It is intended to complement MARPOL, which primarily focuses on ship-based operations.
6.17The most important changes introduced by the new Directive are outlined below.
6.18All vessels calling at a port will be charged a flat “indirect” fee to cover indirect administrative costs (such as those relating to the preparation of waste reception and handling plans) and a significant part of the direct operational costs. Vessels may also be charged a “direct” fee on the basis of the types and quantities of waste actually delivered by the ship as well as the nature of the ship. A reduced fee should be applied for ships that can demonstrate sustainable waste management on board.
6.19Similar to other vessels, fishing vessels will be required to pay the indirect fee to the port/harbour irrespective of whether they deliver any waste or not. Payment of this fee will, however, cover delivery of all garbage, including any derelict fishing gear and passively-fished waste without having to pay any additional direct fees (based on volumes).
6.20The definition of “waste from ships” is expanded to include all waste dealt with by MARPOL, including passively fished waste.
6.21The notion of ‘adequate port reception facilities’ has been more clearly described in line with IMO guidance. The requirement for separate collection of waste stemming from the Waste Framework Directive has been expressly included. It is also the case that fees charged for waste delivery should not create a disincentive for ships to use the port reception facilities.
6.22As regards the waste reception and handling plans, which are instrumental for achieving adequacy of port reception facilities, stronger emphasis has been placed on the requirements to consult port users or their representatives.
6.23Ships (other than fishing vessels and recreational craft below 45 metres) must give advance notice of their arrival in port. The necessary advance waste notification form has been fully aligned with that of the relevant IMO voluntary Circular and is set out in a new Annex. Having arrived at port and delivered their waste, ships must be issued with a waste receipt.
6.24There are a number of exemptions from the obligation to deliver waste, including:
6.25The Minister welcomes the overall approach and principles of the proposal, which aligns with Government’s own objectives to reduce plastic waste, and forms a contribution to the UK’s 25 year environmental plan. The majority of the suggestions, she says, are in line with the UK’s existing implementation of the current PRF Directive, except for a few minor modifications. For example, the Government welcomes the proposal for exemption provisions as it mirrors the approach already adopted by the UK. A few provisions will require further clarification throughout the negotiation process, for example definitions, reporting, and the provisions for delegated and implementing acts.
6.26The Government is still considering four elements of the proposal, affecting ports and shipping sectors. These are: introduction of an indirect fee for garbage; issuing of a waste delivery receipt; separate collection of waste from ships in port; and delivery of passively fished waste.
6.27On the introduction of an indirect fee for garbage, the Government has concerns that introducing a one fee system may have unintended consequences. The proposal would permit that fee to be set at a level which covers all the costs of port reception facilities for garbage. This means the fee would reflect the considerably higher cost of the subsequent treatment of dangerous or hazardous waste (which can fall within the garbage category). Thus, vessels which do not discharge dangerous or hazardous waste, or do so in only small quantities, would be faced with disproportionate costs. This brings into question the proper application of the ‘polluter pays’ principle.
6.28Regarding the issuing of a waste delivery receipt (WDR), the Government accepts the overall principle to help improve enforcement of the delivery of waste to shore by more accurately capturing the quantity and type of waste generated and delivered by ships. The delivery of specialist wastes (e.g oil, sewage etc) which are delivered and paid directly to the licenced waste contractor, is already required to be measured through a flow metre (a gauge which measures the flow rate of liquid) and a receipt issued. However, waste such as paper, plastics, packaging, glass etc are measured in cubic meters done by visual estimate, which is subjective, less accurate than weighing and therefore subject to discrepancies.
6.29Ports in the UK typically incentivise the delivery of waste by minimising the waste fee through the provision of a communal bin or skip to receive wastes, which are filled by the ship’s crew. These are replaced when filled. This proposal would require a licenced waste contractor to receive and verify waste from an individual ship before issuing a receipt, adding time and cost to the delivery process. This is likely to be welcomed by certain sectors (waste contractors, cruise industry and environmental groups) but seen as disproportionately burdensome by others.
6.30Concerning the separate collection of waste from ships in port, the Government is concerned as to the practical effect of the proposal, particularly on smaller ports where it may be impractical to permit the separate collection of wastes due to the limited/restricted size or access to the port.
6.31On the delivery of passively-fished waste, the Minister says:
“The Government welcomes the principles of passively-fished waste being delivered ashore because it assists in removing marine litter from our oceans. Under the proposal, passively-fished waste is captured as part of the ‘indirect fee’. The intended effect of the proposal is that no single shipping sector will bear the cost as it will be spread across the shipping sectors. This brings into question the ‘polluter pays principle’, as passive-fished waste results from many sectors, such as shipping, tourism, sewage systems, etc. However, due to the nature of the fishing sector, which has fishing-specific ports whose fees will reflect the quantities of passively-fished waste received, the fishing industry is likely to bear the greatest proportion of the cost burden for the passively-fished waste they deliver. Again, this is not in line with the ‘polluter pays’ principle’, and may not meet the Commission’s intention of spreading the cost across the shipping industry.
“Further clarification is needed to ensure the principle of ‘polluter pays’ and how in practical terms passively-fished waste may be delivered without disadvantaging a single sector.”
6.32Early indications from the Government’s stakeholder engagement on the proposal suggest that stakeholders share the Government’s concerns. The Government, says the Minister, will continue to participate in negotiations on the proposal with a view to ensuring that it does not result in a measure that contains anything that goes beyond MARPOL requirements and, wherever possible is proportionate, while removing red tape and lowering costs in line with the principles of REFIT.
6.33The Minister observes that the proposal will apply to third countries using EU and EEA ports but adds that the impact of this is likely to be limited since the proposed provisions closely follow the existing international MARPOL provisions.
6.34On the UK’s role in shipping policy post-Brexit, the Minister says:
“Shipping is a global industry, and after EU exit, the UK will continue to play an important role in the international organisations—the International Maritime Organization and the International Labour Organization—that regulate it. The UK already has a strong voice at the IMO, working closely with both EU and non-EU states on areas of common interest. We are committed to continuing to work with other European countries on matters of common interest, for example the exchange of information on the safety of shipping and on pollution.”
6.35The Government notes the Commission impact assessment, which found that substantial savings could arise from the proposals to harmonise and streamline the administration and enforcement of PRF requirements as they should result in more effective inspections. The Government understands that this was calculated on the basis of the base line cost of all Member States having fully implemented the current Directive according to the Commission’s guidelines, but it is apparent that implementation has in fact been divergent.
6.36The Minister agrees with the Commission’s assessment that additional compliance and operational costs will be associated with full implementation of the proposal. The Government is consulting key industry stakeholders (ports, harbour masters and shipping sectors) and is awaiting their input.
6.37The Bulgarian Presidency aims to give a progress report or achieve a general approach at the June 2018 Transport Council.
56 A European Strategy for Plastics in a Circular Economy.
5 March 2018