Tougher rules on marine pollution to enter force
A directive setting criminal penalties for the most serious cases of maritime pollution will enter force in mid-November following their publication in the EU's official journal on Tuesday (27/10/2009). Member states have until 16 November 2010 to transpose them into national law.
The rules oblige EU-states to impose criminal charges for intentinal, reckless or seriously negligent polluting discharges by ships. However, they do not specify penalty levels. The rules replace a 2005 directive requiring penalties but not necessarily criminal charges.
Criminal penalties for serious maritime polution
The European Commission presented, on 11 March, a draft directive that criminalises acts of maritime pollution committed intentionally or as a result of serious negligence. It did the same back in 2003, but was rebuffed by the Council of Ministers after almoest two years of struggle. The new directive will modify Directive 2005/35/EC on ship-source pollution. The difference with the existing scheme is that the new proposal obliges the member states, in certain circumstances, to impose criminal penalties on persons responsible for maritime pollution. Doing so is an option today: the sttes have the choice between criminal and administrtive penalties for such cases. In the future, criminal penalties will be the rule, at least for naturlar persons, because the states will still be able to apply administrative penalties to legal persons.
In 2003, when it presented the proposal that was to become Directive 2005/35, the Commission proposed to qualify as a "criminal offence" the discharge of polluting substances by ships if the act was intentional or the result of serious negligence. The types and levels of criminal penalties were to be set out in a Council framework decision under the third pillar, to be adopted in parallel. The Council of Ministers, however, then insisted for more than 18 months that the question of criminal penalties could in no case be based on a second pillar text. To put it plainly, the directive could not define the acts of pollution as criminal offences. To avoid dragging out the matter indefinitely, the Commission and the European Parliament gave up the fight. Framework Decision 2005/667/JHA thus defined the acts as criminal offences, under certain conditions, and laid down the nature, type and level of penalties.
Last October, an EU Court of Justice ruling cancelled the framework decision on the grounds that the obligation to impose criminal penalties for acts of maritime pollution should have been adopted under the Common Transport Policy and consequently in the directive, not the framework decision. The ruling confirmed the Commission's view. Moreover, it was the EU executive that had turned to the Court, based on a judgement handed down in September 2005 (Case C-176/03), which recognised that the Community was entitled to impose criminal penalties to guarantee compliance with environmental protection rules.
The proposal of 11 March brings back under the first pillar (Directive 2005/35) certain elements currenlty under the third (Framework Decision 2005/667), but not all. The Court did not acknowledge the Community's right to determine the type of criminal penalties applicable (prison sentences, for instance) or their level. A Commission spokesman nevertheless made it clear that new proposals could be tabled following ratification of the Treaty of Lisbon, which opens up possibilities in that respect. Meanwhile, the member states are invited to transpose the new text within six months of its adoption. The short timeframe is due to the fact that the provisions were already set out in the framework decision, which should haven been transposed by January 2007 at the latest. For those lagging behind, the Commission will now have a big stick: the possibility of taking the matter to the ECJ. It did not have that option with the framework decision. The text will be referred to the justice and home affairs ministers (co-decision procedure), rather than the transport ministers.