Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

▸9 unchanged paragraphs

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

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

(Ordinary legislative procedure: first reading)

The European Parliament,

– 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,

Changed– having regard to the report of the Committee on Transport and Tourism (A90000/2023),(A9-0365/2023),

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.

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.

AddedRecital 11: (11) When a Member State suspects that a ship within its port or at an off-shore terminal committed an illegal discharge, an appropriate inspection should take place to establish the circumstances. In order to assist Member States with their obligations under Directive 2005/35/EC to inspect such ships, Annex I to Directive 2005/35/EC provides an indicative list of irregularities or information that should be taken into account by competent authorities on a case-by-case basis when determining whether a ship should be considered suspect.

AddedRecital 12: (12) The accompanying measures for cooperation and the reporting obligations of Member States have not been sufficient until now to allow a complete analysis whether polluters face effective, dissuasive and proportionate penalties and that adequate data is made available to the Commission and EMSA to monitor the implementation of Directive 2005/35/EC. In order to ensure the effective and consistent enforcement of Directive 2005/35/EC, exchange of information, experience and best practices should be facilitated through enhanced cooperation, while at the same time ensuring that adequate data are made available to the Commission and EMSA in order to allow the proper monitoring of the implementation of Directive 2005/35/EC.

AddedRecital 13: (13) The existing satellite-based service ‘CleanSeaNet’ which notifies Member States authorities on potential illegal discharges, should be further enhanced to include information on the additional polluting substances under the scope of Directive 2005/35/EC. Information relating to potential or actual discharges reported by Member States in accordance with Directive 2005/35/EC and to other Union maritime safety databases, such as the Union Maritime Information and Exchange System established by Directive 2002/59/EC of the European Parliament and of the Council27 (‘SafeSeaNet’) and the Inspection Database set up by Directive 2009/16/EC of the European Parliament and of the Council28 (‘THETIS’) should be integrated and disseminated in a user-friendly electronic format to the national authorities involved in the enforcement chain in order to facilitate their timely response. Such information, when relating to an actual or potential discharge of Exhaust Gas Cleaning System residue from a ship, should further be automatically disseminated to the dedicated module of THETIS set up by under Commission Implementing Decision 2015/253 (‘THETIS-EU’), in order to assist Member States with enforcement actions undertaken in accordance with the provisions of Directive (EU) 2016/802. In order to ensure the effective monitoring of the Directive’s implementation by all Member States, a verification rate of 50% per year of the alerts sent by CleanSeaNet should be ensured by each Member State wi…

AddedRecital 14: (14) The Sub-group on Waste from Ships, which was set up under the European Sustainable Shipping Forum, and which brought together a wide range of experts in the field of ship-source pollution and the management of waste from ships, was adjourned in December 2017 in view of the start of interinstitutional negotiations of Directive (EU) 2019/883. Since that temporary Sub-group provided valuable guidance and expertise to the Commission, a similar expert group should be created with a mandate of exchanging experience on the application of this Directive in order to assist Member States in building their capacity to prevent, detect and verify pollution incidents and ensure the effective enforcement of Directive 2005/35/EC.

AddedRecital 15: (15) The European Maritime Safety Agency (‘EMSA’) established by Regulation (EU) xxxx/xxxx29 should provide the necessary support to the Commission and the relevant Member State authorities to ensure the implementation of this Directive.

AddedRecital 15 a (new): (15a) In order to be able to tackle the problem of ocean container pollution more effectively at European level, the new reporting obligations to IMO under chapter 5 of the International Convention for the Safety of Life at Sea (SOLAS) should not remain limited to IMO level. Member States should also report on this issue to the European Commission and EMSA on a yearly basis.

AddedRecital 16: (16) Member States should report to the Commission and EMSA the information needed to ensure a proper monitoring of the implementation of Directive 2005/35/EC. In order to limit administrative burden and assist the Commission in analysing the data provided by Member States, such information should be reported by Member States through a dedicated electronic reporting tool developed by EMSA. To the extent that such information relates to penalties imposed to or involving natural persons, such information shall be anonymised. In order to ensure that information reported in accordance with Directive 2005/35/EC is comparable in type among Member States and collected on the basis of a harmonised electronic format and procedure for reporting, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

AddedRecital 17: (17) In order to assist Member States with the development of their capacities regarding effective enforcement of Directive 2005/35/EC by the national administrative and judicial authorities, the Commission and EMSA should provide Member States with guidance and training relating to, inter alia, best methods and practices for detection, verification and evidence collection, as well as guidance on relevant regulatory developments of Marpol 73/78 and on technological developments available, including new digital tools, in order to facilitate effective, cost-efficient and targeted enforcement activities.

AddedRecital 18: (18) In order to increase public awareness in ship-source pollution discharges and improve environmental protection, information provided by the Member States on the application of Directive 2005/35/EC should be made publicly available in a disaggregated form, with data for every Member State, through a Union-wide overview and include the information listed in Annex II of Directive 2005/35/EC. Directive 2003/4/EC of the European Parliament and of the Council30 aims to guarantee the right of access to environmental information in the Member States in line with the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention), to which the Union is a party. The Commission should protect the confidentiality of information received by Member States, without prejudice to the provisions of Directive 2003/4/EC.

AddedRecital 19: (19) Directive (EU) 2019/1937 of the European Parliament and of the Council31 lays down minimum standards on reporting of breaches of Union law, including of Directive 2005/35/EC and for the protection of persons reporting such breaches. Member States should ensure, in particular, that crew under the scope of Directive (EU) 2019/1937 reporting actual or potential illegal discharges are granted protection, adequate support and material assistance, where necessary. In addition to the existing reporting channels provided at national level as regulated under Directive (EU)2019/1937, the Commission should make available a centralised online external reporting channel for reporting actual or potential illegal discharges and relay such reports to the Member State or Member States concerned, which should subsequently handle these reports in accordance with Directive (EU) 2019/1937, including with regards to acknowledgement of receipt, adequate feedback and follow-up. The Commission should ensure the protection of the confidentiality of the identity of reporting persons, including, where necessary, by restricting the exercise of certain data protection rights of persons concerned, such as of individuals included in the report as participating in the potential illegal discharge, in line with Article 25(1) points (c) and (h) and Article 25(2) of Regulation (EU) 2018/1725 of the European Parliament and of the Council32 , to the extent and as long as necessary to prevent and address attem…

Directive 2005/35/EC

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.

Directive 2005/35/EC

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

AddedArticle 1 – paragraph 1 – point 3, Article 2 – paragraph 3a (new): 3a. ‘discharge’ shall mean any release howsoever caused from a ship, as referred to in Article 2 of Marpol 73/78;

AddedDirective 2005/35/EC

AddedArticle 1 – paragraph 1 – point 4, Article 4 – paragraph 1 – point f: (f) for Exhaust Gas Cleaning System residue, it satisfies the conditions set out in Annex VI Regulations 4, 14.1, 14.4, 14.6 and 3.1.1 to Marpol 73/78, taking into account the guidelines developed by the IMO.

AddedDirective 2005/35/EC

AddedArticle 1 – paragraph 1 – point 4, Article 4 – paragraph 2: 2. Each Member State shall take all necessary measures to ensure that any natural or legal person having committed an infringement within the meaning of paragraph 1 is held liable therefore;

AddedDirective 2005/35/EC

AddedArticle 1 – paragraph 1 – point 5, Article 5 – paragraph 1 – introductory part: 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 (b), (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:

AddedDirective 2005/35/EC

Article 1 – paragraph 1 – point 5, Article 5 – paragraph 1 – point a: (a) the discharge results from damage to a ship;

Directive 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.

Directive 2005/35/EC

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.

Directive 2005/35/EC

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.’

Directive 2005/35/EC