Sittings · Document

DRAFT REPORT (COM(2023)0273 – C90187/2023 – 2023/0171(COD)) 2023-09-04

On the proposal for a directive of the European Parliament and of the Council amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences

Committee on Transport and Tourism · Rapporteur: MarianJean Marinescu

on the proposal for a directive of the European Parliament and of the Council amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences

PR_COD_1amCom

Symbols for procedures

* Consultation procedure

*** Consent procedure

***I Ordinary legislative procedure (first reading)

***II Ordinary legislative procedure (second reading)

***III Ordinary legislative procedure (third reading)

(The type of procedure depends on the legal basis proposed by the draft act.)

Amendments to a draft act

Amendments by Parliament set out in two columns

Deletions are indicated in bold italics in the left-hand column. Replacements are indicated in bold italics in both columns. New text is indicated in bold italics in the right-hand column.

The first and second lines of the header of each amendment identify the relevant part of the draft act under consideration. If an amendment pertains to an existing act that the draft act is seeking to amend, the amendment heading includes a third line identifying the existing act and a fourth line identifying the provision in that act that Parliament wishes to amend.

Amendments by Parliament in the form of a consolidated text

New text is highlighted in bold italics. Deletions are indicated using either the ▌symbol or strikeout. Replacements are indicated by highlighting the new text in bold italics and by deleting or striking out the text that has been replaced.

By way of exception, purely technical changes made by the drafting departments in preparing the final text are not highlighted.

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

(COM(2023)0273 – C90187/2023 – 2023/0171(COD))

(Ordinary legislative procedure: first reading)

– having regard to the Commission proposal to Parliament and the Council (COM(2023)0273),

– having regard to Article 294(2) and Article 91(1), point (c) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90187/2023),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the Committee of the Regions of xx,

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the report of the Committee on Transport and Tourism (A90000/2023),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment 1

Proposal for a directive

Recital 3 a (new)

Text proposed by the Commission

Amendment

(3a) While the overarching objective of this Directive is to transpose important amendments to Marpol 73/78 in Union law, an up-to-date and complete text of Marpol 73/78 and its related annexes is not available on the website of the International Maritime Organization (IMO). This makes it burdensome for the sector, citizens and administrations to gain proper access to the text of Marpol 73/78 and other similar IMO conventions, and is an obstacle to full transparency and publicity in the IMO’s work.

Or. en

Amendment 2

Proposal for a directive

Recital 3 b (new)

Text proposed by the Commission

Amendment

(3b) When applying the provisions of this Directive and the corresponding national laws, the Marpol 73/78 and its Annexes referred to in this Directive in force at the date of infringement should be considered.

Or. en

Amendment 3

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9) The penalties provisioned by Directive 2005/35/EC should be strengthened by ensuring consistent application of administrative penalties throughout the Union. To strengthen the deterrent effect of penalties imposed for ship-source pollution offences, such penalties should take at least the form of fines imposed to the company of the ship, unless the company can prove that the master of the ship or a member or members of the crew, the latter not acting under the responsibility of the master, was responsible for the discharge. In this context, the company of ship means the shipowner or any other organisation or person, such as the manager or the bareboat charterer, which has assumed the responsibility for the operation of the ship from the shipowner, in alignment with the International Management Code for the Safe Operation of Ships and for Pollution Prevention (‘ISM Code’)24 , implemented in Union law by virtue of Regulation (EC) No 336/2006 of the European Parliament and of the Council25 . Directive 2005/35/EC should recognise that the management of the ship could be delegated by the registered owner to a different entity, which should then be held in the first place responsible for not implementing its obligations under the ISM Code to ensure the avoidance of damage to the environment or the assignment of shipboard operations to qualified personnel.

(9) The penalties provisioned by Directive 2005/35/EC should be strengthened by ensuring consistent application of administrative penalties throughout the Union. To strengthen the deterrent effect of penalties imposed for ship-source pollution offences, such penalties should take at least the form of fines imposed to the company of the ship, unless the company can prove that the master of the ship or a member or members of the crew, the latter not acting under the responsibility of the master, was responsible for the discharge. This possibility to hold the master or the crew responsible should, however, not prevent the payment of the full amount of the penalty. To ensure that any environmental damage caused by illegal discharges under this directive is effectively sanctioned with penalties, the company should remain responsible as a last resort. In this context, the company of ship means the shipowner or any other organisation or person, such as the manager or the bareboat charterer, which has assumed the responsibility for the operation of the ship from the shipowner, in alignment with the International Management Code for the Safe Operation of Ships and for Pollution Prevention (‘ISM Code’)24 , implemented in Union law by virtue of Regulation (EC) No 336/2006 of the European Parliament and of the Council25 . Directive 2005/35/EC should recognise that the management of the ship could be delegated by the registered owner to a different entity, which should then be held in the first place responsible for not implementing its obligations under the ISM Code to ensure the avoidance of damage to the environment or the assignment of shipboard operations to qualified personnel.

__________________

24 International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation by Assembly Resolution A.741(18) of 4 November 1993, as amended.

25 Regulation (EC) No 336/2006 of the European Parliament and of the Council of 15 February 2006 on the implementation of the International Safety Management Code within the Community and repealing Council Regulation (EC) No 3051/95 (Text with EEA relevance) (OJ L 64, 4.3.2006, p.1).

Or. en

Amendment 4

Proposal for a directive

Article 1 – paragraph 1 – point 5

Directive 2005/35/EC

Article 5 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. A discharge of polluting substances subject to regulation by Annexes I, II and VI to Marpol 73/78 into the areas set out in Article 3(1) points (c), (d) and (e) shall not be regarded as an infringement for the company, the master or the crew, if both of the following conditions are fulfilled:

1. A discharge of polluting substances subject to regulation by Annexes I, II, III, IV, V and VI to Marpol 73/78 into the areas set out in Article 3(1) points (c), (d) and (e) shall not be regarded as an infringement for the company, the master or the crew, if both of the following conditions are fulfilled:

Or. en

Amendment 5

Proposal for a directive

Article 1 – paragraph 1 – point 5

Directive 2005/35/EC

Article 5 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) the discharge results from damage to a ship or its equipment;

(a) the discharge results from damage to a ship;

Or. en

Amendment 6

Proposal for a directive

Article 1 – paragraph 1 – point 7 a (new)

Directive 2005/35/EC

Article 6 – paragraph 2

Text proposed by the Commission

Amendment

(7a) In Article 6, paragraph 2 is replaced by the following:

2. In so far as the inspection referred to in paragraph 1 reveals facts that could indicate an infringement within the meaning of Article 4, the competent authorities of that Member State and of the flag State shall be informed.

2. In so far as the inspection referred to in paragraph 1 reveals facts that could indicate an infringement within the meaning of Article 4, the Member State shall apply the provisions of this Directive taking into account Articles 8 and 9. The competent authorities of that Member State and of the flag State shall be informed.

Or. en

Amendment 7

Proposal for a directive

Article 1 – paragraph 1 – point 9

Directive 2005/35/EC

Article 8 – paragraph 3

Text proposed by the Commission

Amendment

3. In the case that it is proven that the master or, if not acting under the responsibility of the master, the crew was responsible for the commission of the relevant infringement, Member States shall ensure that penalties are imposed to such persons in accordance with the provisions of this Directive. In case, however, that the master or crew responsible for the commission of the relevant infringement can no longer be found or cannot afford to pay the full amount of the penalty, the company shall remain responsible as a last resort, for the payment of the full amount or of the remainder of the penalty;

Or. en

Amendment 8

Proposal for a directive

Article 1 – paragraph 1 – point 13

Directive 2005/35/EC

Article 8d – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. Member States shall not set or apply any “maximum administrative penalties” or “minimum administrative penalties” for infringements under this Directive that would be too low to ensure the deterrent nature, proportionality and effectiveness of these penalties.

Or. en

Amendment 9

Proposal for a directive

Article 1 – paragraph 1 – point 14

Directive 2005/35/EC

Article 10 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d) within three years from the date of transposition of this Directive, ensure that competent authorities verify at least 10% of the alerts sent by CleanSeaNet every year.

(d) within three years from the date of transposition of this Directive, ensure that every Member State analyses thoroughly 100% and verifies on the spot at least 40% of the alerts received from CleanSeaNet every year. A Member State can remain below this 40% on the spot verification threshold, if it is able to demonstrate to the Commission, in the framework of the reporting foreseen in article 10a, that the thorough analysis of the imagery received from CleanSeaNet clearly revealed a false alarm, caused by, inter alia, algae or light reflexion, making a verification on the spot redundant. Responsible authorities shall conduct verifications on the spot as quickly as possible, to prevent an illegal discharge from dispersing and therefore becoming undetectable by the time of arrival on the spot.

Or. en

Amendment 10

Proposal for a directive

Article 1 – paragraph 1 – point 15 a (new)

Directive 2005/35/EC

Article 10 e (new)

Text proposed by the Commission

Amendment

(15a) The following Article 10e is inserted:

Article 10e

Public accessibility of consolidated IMO conventions

The European Union and its Member States shall persistently request at IMO level that all IMO conventions, including Marpol 73/78, be made public and regularly updated in their full versions on the IMO homepage, accessible to everyone free of charge. Until this request is implemented by the IMO, the European Commission shall publish a full and updated text of Marpol 73/78 and its annexes on its website, at the latest one month after the entry into force of this directive.

Or. en

Amendment 11

Proposal for a directive

Article 1 – paragraph 1 – point 18

Directive 2005/35/EC

Article 12a – paragraph 2

Text proposed by the Commission

Amendment

2. As part of the review, the Commission shall assess the possibility of modifying the scope of this Directive, if appropriate, in view of among other elements the international standards for the prevention of air pollution from ships subject to regulation by Marpol 73/78, notably sulphur oxide and nitrogen oxide emissions from ships, as well as in view of other standards regulating discharges from ships which have been made subject to regulation by Marpol 73/78, such as black carbon, marine litter, container loss, loss of plastic pellets and underwater noise.

2. As part of the review, the Commission shall assess the possibility of modifying the scope of this Directive, if appropriate, in view of among other elements marine litter from sources other than ships, container loss for containers other than those already covered by Marpol annex III, loss of plastic pellets and underwater noise.

Or. en

EXPLANATORY STATEMENT

The main objective of the Commission proposal is to incorporate international standards on illegal discharges from ships into the sea into EU law and to ensure that those responsible for such discharges are subject to dissuasive, effective and proportionate penalties. The result should be to better protect the marine environment from pollution by ships and improve maritime safety. While the Rapporteur shares the aims of the Commission proposal, he proposes a number of additions and modifications to further improve the text, including:

He wants to ensure that all interested parties have easy access to the full and updated texts of International Maritime Organization (IMO) conventions - which is not the case at the time of writing. While the overarching objective of the Directive currently under consideration is to transpose important amendments to the International Convention for the Prevention of Pollution from Ships (known as ‘Marpol 73/78’) in Union law, an up-to-date and complete text of Marpol 73/78 and its related annexes is not available on the IMO‘s website. This makes it burdensome for the sector, citizens and administrations to gain proper access to the text of Marpol 73/78 and other similar IMO conventions, and is an obstacle to full transparency and publicity in the IMO’s work.

The Rapporteur also wants to ensure that all parties, including the maritime transport sector, national administrations and civil society, have easy access to the text of reference for this Directive at the date of an infringement. When applying the provisions of this Directive and the corresponding national laws, Marpol 73/78 and its Annexes as referred to in this Directive in force at the date of infringement must be considered.

Your Rapporteur also wishes to clarify the level of penalties. It should be spelled out more clearly than in the Commission proposal that the level of administrative penalties should not be allowed to be fixed at such low levels that, de facto, the dissuasive, effective and proportionate character of these penalties is undermined. Maximum limits for administrative penalties as low as EUR 10 000 for legal persons, such as shipping companies, or minimum limits starting at only EUR 10 for natural persons and EUR 32 for legal persons, as indicated for some Member States in the accompanying impact assessment, appear to be far too low for penalising manifestly illicit behaviour or even dissuading it.

Finally, the Rapporteur wishes to clarify and increase the level of verification. He proposes that Member States thoroughly analyse all the alerts that they receive from CleanSeaNet. They should then perform a higher percentage of on-the spot verification than foreseen in the Commission proposal. To avoid clearly unnecessary on-the spot-verifications, manifest false alarms, if revealed during the analysis of the imagery, can be subtracted from this objective.

With these and further amendments, the Rapporteur wants to further improve the effectiveness of the Ship Source Pollution Directive and turn it into a more powerful tool, to the benefit of everyone, reducing sea pollution and increase maritime safety, while maintaining the proportionality of all measures.