Changes from report parliamentary committee draft to plenary report

Change 1

ChangedRecital 3 a (new): (3a) While the overarching objective of this Directive is to transpose important amendments to Marpolthe 73/78International Convention for the Prevention of Pollution from Ships ('Marpol 73/78') of the International Maritime Organization (IMO), 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 OrganizationIMO’s (IMO).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.

Change 2

ChangedRecital 3 b (new): (3b) WhenThe applyingEuropean Commission and the provisionsMember ofStates thisshould Directiverequest andat theIMO correspondinglevel nationalthat laws,full thetexts of all IMO conventions, including Marpol 73/78 and its Annexesrelated referredannexes, tobe inmade thispublic Directiveon inthe forceIMO’s website, accessible to all free of charge, at the latest by [OP: Please insert a date: one year from the date of infringemententry into force of this amending Directive]. The IMO should bethereafter considered.regularly update the convention texts when required.

Change 3

RemovedRecital 9: (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…

AddedRecital 3 c (new): (3c) The power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission as regards amending this Directive, if necessary and for information purposes, in order to include in an Annex the full text of Marpol 73/78 and those of its annexes referred to in this Directive, and as regards subsequently amending that Annex, whenever required.

AddedRecital 3 d (new): (3d) When applying the provisions of this Directive via 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.

AddedRecital 6 b (new): (6b) Beyond the scope of the present directive, marine pollution is broader than the specific ship-source aspects covered by Marpol 73/78 annexes, as defined in Article 3 paragraph 8 of Directive (EU) 2008/56/EC and also covered by other relevant EU legislation. It results in harming biodiversity and living resources in marine ecosystems, as well as in hazards to human health and the impairment of the quality for use of sea water and the sustainable use of marine goods and services, hence hindering other marine activities, such as fishing, tourism and recreation. Underwater noise pollution, produced by shipping, is detrimental to marine species both in the short and long term, particularly to marine mammals, but also to fish, crustaceans, and invertebrates, as they use sound to find food, communicate with one another and avoid predators. Reporting by Member States of incidents involving excessive underwater noise should be encouraged. Air pollution, such as black carbon, PM or NOx, can become a public health threat, particularly in coastal areas, as well as the release of plastic microbeads and pellets from containers.

AddedRecital 9: (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…

AddedRecital 10: (10) National administrative and judicial authorities should take into account all relevant circumstances, including recidivism, when determining the level of penalties to be imposed to the polluter. Taking into account the diverse nature of polluting substances covered under Directive 2005/35/EC and the importance of consistent application of penalties across the Union in light of the cross-border nature of the regulated behaviour, further approximation and effectiveness of penalty levels should be fostered through the establishment of concrete criteria for the application of penalties for discharges of different polluting substances. In order to ensure the uniform conditions for the application of penalties, implementing powers should be conferred to the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council26 . The examination procedure should be used for the adoption of these implementing acts.

Change 4

ChangedArticle 1 – paragraph 1 – point 5,2, Article 5 – paragraph 1 – introductoryparagraph part:1: 1. AThe dischargepurpose of pollutingthis substancesDirective subjectis to regulationincorporate byinto AnnexesUnion I,law II,international III,standards IV,on Vpollution andfrom VIships toand Marpolto 73/78ensure intothat thepersons areasand setcompanies outresponsible infor Articleillegal 3(1)discharges pointsof (c),polluting (d)substances andare (e)subject shallto notdissuasive, beeffective regardedand asproportionate anadministrative infringementpenalties forin theorder company,to theimprove mastermaritime orsafety theand crew,to ifenhance bothprotection of the followingmarine conditionsenvironment arefrom fulfilled:pollution by ships.

Change 5

AddedArticle 1 – paragraph 1 – point 2, Article 1 – paragraph 2: 2. This Directive does not prevent Member States from taking more stringent measures in conformity with Union and international law, by providing for administrative or criminal penalties in accordance with their national law.

AddedDirective 2005/35/EC

AddedArticle 1 – paragraph 1 – point 3, Article 2 – paragraph 3: 3. ‘Exhaust Gas Cleaning System residue’ shall mean any material removed from the washwater or the bleed-off water by a treatment system or discharge water that does not meet the discharge criterion, or other residue material removed from the exhaust gas cleaning system as a result of the operation of a compliance method for emissions reductions, as defined in Annex VI Regulation 4 to Marpol 73/78, used as an alternative in terms of emissions reductions to the standards set forth in Regulation 14 of Annex VI to Marpol 73/78, taking into account the guidelines developed by the IMO;

AddedDirective 2005/35/EC

AddedArticle 1 – paragraph 1 – point 3, Article 2 – paragraph 3 – point a: deleted

AddedDirective 2005/35/EC

Change 6

RemovedArticle 1 – paragraph 1 – point 7 a (new), Article 6 – paragraph 2: (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 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.

AddedArticle 1 – paragraph 1 – point 5, Article 5 – paragraph 1 – point b a (new): (ba) the discharge was immediately reported to the authorities after its occurrence.

Change 7

RemovedArticle 1 – paragraph 1 – point 9, Article 8 – paragraph 3: 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;

AddedArticle 1 – paragraph 1 – point 5, Article 5 – paragraph 1 – point b b (new): (bb) The company, the master, or the crew shall provide documentary evidence or logs detailing the precautions taken to prevent or minimise the discharge upon request by relevant authorities.

Change 8

RemovedArticle 1 – paragraph 1 – point 13, Article 8d – paragraph 1 a (new): 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.

AddedArticle 1 – paragraph 1 – point 7 a (new), Article 6 – paragraph 2: (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 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.’