EU Ship Source Pollution Directive


Published: 19 April 2007

Amendments as of 19 Apr 2007 are shown in blue

Originally posted 30 March 2007

Members will be aware of the increasingly high profile which the European Community is taking in the regulation of shipping, particularly in relation to environmental protection.  Members States are required by 1 April 2007 to implement a particularly controversial measure, the EU Ship Source Pollution Directive.

The aspect which attracted most attention is the criminalisation of pollution caused by “serious negligence”.  This expression is imprecise and there are worries about how it would be interpreted by a Court after a high profile incident. The industry has become increasingly concerned over the trend towards criminalisation of seafarers. However it is not only shipowners and crew who have cause to be concerned. The Directive extends to any persons who cause or contribute to pollution, so that charterers, classification societies, salvors and others may find themselves facing criminal proceedings even though the pollution was caused accidentally. The same all-embracing approach has been taken to geographical scope as the Directive applies not just to territorial waters but also exclusive economic zones and the high seas.

The Directive is under challenge from a number of industry bodies headed by INTERTANKO which have petitioned the European Court of Justice to consider the legality of certain features of the Directive, particularly in relation to areas of potential conflict with MARPOL.

It is reported that Cyprus, Malta and Greece do not intend to implement the Directive pending the ECJ ruling but Spain, Belgium, Germany, Estonia, Czech Republic, Sweden and the Netherlands have done so. The enforceability of the Directive in States which have not yet implemented it is unclear.

The determination of the Europe Community to enforce the Directive is apparent from the following Press Release.

Press Release

Brussels, 29 March 2007

New EU rules to crack down on sea pollution come into effect

Starting in April, the 27 Member States of the European Union will display their common determination to tackle unlawful discharges at sea by giving full effect to legislation adopted in 2005. Europe will at long last have a sufficiently dissuasive system of penalties to prevent and deal with maritime pollution more effectively. Illicit discharges at sea are, alas, still being made  and preventing them is now more than ever a priority for Europe.

"We must get tough on illegal discharges and gross negligence must be fought at all cost: the threat of criminal penalties hanging over polluters' heads will help to protect our coasts. We cannot tolerate deliberate pollution or gross negligence by a minority of operators who tarnish the image of the shipping industry," said Jacques Barrot, Commission Vice-President in charge of transport.

Directive 2005/35 on ship-source pollution and the introduction of penalties for infringements is intended, in line with international law, to impose penalties on any party – master, owner, charterer, classification society, etc. – found to have caused or contributed to illegal pollution deliberately or as a result of gross negligence.

The Directive tackles discharges in all sea areas, including on the high seas. It applies to all ships calling at EU ports, whatever flag they fly. The scheme also provides for cooperation between Port State Authorities to enable action to be taken at the next port of call.

The Directive is also designed to enhance cooperation between Member States to detect illegal discharges and develop methods to identify a discharge as originating from a particular ship. The European Maritime Safety Agency will assist the Commission and Member States in this task.

The Member States are obliged to incorporate this Directive into their national law by 31 March 2007. The Commission will leave no stone unturned to ensure that it is implemented.