On 14 September, the Council adopted, without discussion, a Directive amending Directive 2005/35/EC on ship source pollution and on the introduction of penalties for infringements, following a first-reading agreement reached with the European Parliament under the co-decision legislative procedure. Member States would be, therefore, obliged to apply criminal penalties to ship source pollution. Member states will have a year to adopt the laws, regulations and administrative provisions required to comply with this Directive.
It should be recalled that the Commission proposed in 2003 a Directive providing that ship-source pollution should be considered a criminal offence and a Framework decision providing for the approximation of criminal penalties' levels for those criminal offences. In 2005, the legislation was adopted but not in the way that the Commission demanded. However, the ECJ in October 2007 annulled the Framework Decision and reiterated that provisions defining criminal offences and related to the nature of sanctions may be adopted under the EC Treaty if they are necessary to guarantee that EC rules on maritime safety are effective.
The Commission was therefore allowed to merge the two texts. Hence, it has proposed a draft Directive amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements which is very similar to the original proposal made in 2003.
Whereas presently Member States may choose between penal law and administrative law under the Directive they will have to use criminal law to deal with the most serious maritime pollution matters. Some Member States will have to amend their national legislations.
Member States are required to ensure that ship-source discharges of polluting substances into the seas are considered as criminal offences if committed with “intent, recklessly or with serious negligence and result in serious deterioration of the quality of the water” whatever the nationality of those responsible or the flag State of the vessel. Moreover, inciting or aiding and abetting such activities must also be considered a criminal offence.
Under the annulled Framework Decision Member States were allowed to provide for non-criminal sanctions in minor cases where the act committed does not cause any deterioration of water quality however such provision was not included in the Commission proposal. The Czech presidency has agreed that less serious cases of illegal discharges, which do not result in a deterioration of the water quality, would not be considered as criminal offences therefore the Member States will be able to deal with it as administrative infringements. However, the European Parliament was able to introduce an amendment which specifies that if these less serious infringements are done repeatedly or intentionally, or due to serious negligence they will be considered as criminal offences.
The European Scrutiny Committee believes that “the European Parliament’s amendment to criminalise repeated minor cases of discharge, even where cumulatively they have a polluting effect” is not “an essential element for combating serious environmental offences” which justifies a criminal penalty, according to the test laid down by the ECJ. According to the ESC “There is, therefore, a risk that the criminal penalties in this Directive go beyond the terms of the ECJ’s judgment.”
Member States will also have to ensure that legal persons can be held liable for the abovementioned criminal offences “committed for their benefit by any natural person acting either individually or as part of an organ of the legal person, who has a leading position within the legal person.” Moreover, Member States will be required to ensure that a “legal person can be held liable where lack of supervision or control by a natural person (…) has made possible the commission of the criminal offence (…) for the benefit of the legal person by a natural person under its authority.”
Under the directive the liability of a legal person does not exclude criminal proceedings against natural persons who are involved as perpetrators, inciters or accessories in the criminal offences. The text does not specify what type of penalties should be applied or the amount to be paid as a fine because, presently, the Community is not allowed to do so. Member States are therefore required to ensure that the abovementioned offences are punishable by effective, proportionate and dissuasive penalties.
Following the ECJ ruling the Commission has not included provisions on criminal penalties types and levels. However, the possibility of harmonisation of sanction levels is not excluded; in fact the Commission is just waiting for the Lisbon Treaty to enter into force to put forward another legislative proposal. Whereas the European Commission has no powers to bring infringement proceedings in case of a Member State does not correctly implement a framework decision it can do it with regard to a directive.
It is important to mention that, last December, the Commission brought an action before the ECJ against the UK for failure to fully transpose into national law the Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements.
