32005L0035

WHAT DOES THIS DIRECTIVE DO?

• It creates rules that are applicable EU-wide on the imposition of penalties in the event of discharges of oil or other polluting substances from ships sailing in its waters.

KEY POINTS

• The current legislation states that ship-source polluting discharges constitute in principle a criminal offence. According to the directive, this relates to discharges of oil or other polluting substances from vessels. Minor discharges are not automatically considered as offences, except where repeated discharges lead to a deterioration in water quality.
• The persons responsible for discharging polluting substances may be subject to criminal penalties, if they have acted with intent, recklessly¹ or with serious negligence. The act of inciting or aiding and abetting a person to discharge a polluting substance may also lead to criminal penalties.
• The directive applies to all types of vessels, irrespective of their flag.
• Polluting discharges are forbidden in:
  • the internal waters, including ports, of an EU country;
  • the territorial waters of an EU country;
  • straits used for international navigation subject to the right of transit passage, as laid down in the 1982 United Nations Convention on the Law of the Sea;
  • the exclusive economic zone (EEZ)² of an EU country;
  • the high seas.

Exceptions

• This regime does not apply to discharges from warships or other ships owned or operated by a state and used only on government non-commercial service.
• Exceptions to the ban on discharges of polluting substances may be applied where human safety or that of the ship is in danger.

Legal persons

Directive 2009/123/EC amended Directive 2005/35/EC to improve rules on ship-source pollution and to ensure that those responsible for discharges of polluting substances are subject to adequate penalties. It requires EU countries to introduce rules on the liability of legal persons under private law³ such as companies.

• Companies may be subject to criminal penalties if an individual in a leading position within the company has committed a criminal offence for their benefit, whether this person has acted either individually or as part of the company.
• The company is also responsible for offences committed by an individual through oversight, specifically through a lack of supervision or control.
• The liability of the company must not exclude criminal proceedings against the individuals involved.

Applying penalties

Directive 2009/123/EC also requires EU countries’ national authorities to ensure that effective, proportionate and dissuasive penalties are applied, including for minor cases. They must cooperate when a vessel is found guilty of illegal discharging in their area of responsibility before the vessels calls at the port of another EU country.

FROM WHEN DOES THE DIRECTIVE APPLY?

It has applied since 1 October 2005. EU countries had to incorporate it into national law by 1 April 2007.

BACKGROUND

The sinking of the Prestige in November 2002 and of the Erika in December 1999 highlighted the need to tighten the net in relation to ship-source pollution. However, accidents are not the main source of pollution: most of it is the result of deliberate discharges (tank-cleaning operations and waste oil disposal).

These rules incorporate into EU law parts of the 1973 International Convention on the Prevention of Pollution from Ships and its 1978 Protocol (known as the Marpol Convention). This makes it possible to harmonise application of the rules of this convention.

KEY TERMS

1. Reckless action: action taken with the knowledge that it is likely to result in damage.
2. Exclusive economic zone (EEZ): it is generally understood to arise when a country assumes jurisdiction over the exploration and exploitation of marine resources off its coast. This section is normally considered to be a band extending 200 miles from the shore.
3. Legal persons under private law: all legal entities, such as companies, with the exception of states, public bodies and international public organisations.

ACTS

Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (OJ L 255, 30.9.2005, pp. 11–21).

Successive amendments to Directive 2005/35/CE have been incorporated in the basic text. This consolidated version is of documentary value only.

RELATED ACTS

Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ L 208, 5.8.2002, pp. 1–9). See consolidated version.

Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues – Commission declaration (OJ L 332, 28.12.2000, pp. 81–90). See consolidated version.