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Ship-source pollution and penalties for infringements
What may be characterised as the core piece of EU legislation in this area is Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements/4 It incorporates international standards for ship-source pollution, in effect the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78),75 into EU law and also aims to ensure that persons responsible for discharges of polluting substances are subject to adequate penalties. The Directive is based on a Treaty article corresponding to the current Article 100(2) TFEU relating to sea and air transport. It applies to discharges of polluting substances from any ship, irrespective of its flag, except ships used only on government non-commercial service. It does not prevent Member States from taking more stringent measures against ship-source pollution in conformity with international law. (Arts 1 and 3.)
The Member States shall ensure that ship-source discharges of polluting substances, including minor cases of such discharges, into the internal waters of a Member State/6 the territorial sea of a Member State, straits used for international navigation and subject to the jurisdiction of a Member State, the EEZ or equivalent zone of a Member State, and the high seas are regarded as infringements if committed with intent, recklessly, or with serious negligence.
Each Member State must ensure that any natural or legal person who has committed such an infringement can be held liable therefor. Exemptions apply with respect to some discharges allowed under MARPOL 73/78. (Arts 3—5.)
Infringements are to be regarded as criminal offences except for minor cases, where the act committed does not cause deterioration in the quality of water. Such offences shall be punishable by effective, proportionate, and dissuasive criminal penalties. There must also be dissuasive penalties applicable to legal persons (Arts 5a, 8a, and 8b). The provisions of the Directive must be applied in accordance with applicable international law, including UNCLOS (Art 9). This means that in most cases monetary penalties only may be imposed with respect to foreign vessels, even though State practice is increasingly moving in the direction of also using imprisonment as a penalty for serious pollution of the marine environment.
The Directive has provisions on enforcement measures with respect to ships within a port and ships in transit (Arts 6 and 7).
Originally the Directive was supplemented by Council Framework Decision 2005/667/JHA to strengthen the criminal law framework for the enforcement of the law against ship-source pollution.      But in 2007 that was annulled by the Court of Justice for having been based on the wrong legal basis/8 This led to the incorporation, through an amendment in 2009,79 into the Directive of many of the elements of the Framework Decision.
The validity of core parts of the Directive has been challenged on the ground that they would be incompatible with provisions in MARPOL 73/78 and UNCLOS, for example by laying down that liability is to be incurred for serious negligence. However, the Court of Justice found that the Directive’s validity could not be assessed in the light of either MARPOL 73/78 or UNCLOS, due to the nature of these agreements and their status in EU law/0 (See further section 4.7.2.)
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