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The European Union Initiative:

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The European Union Initiative: Responsibilisation, Not Criminalisation Fotis Karamitsos European Commission Director for maritime and inland waterway transport ... – PowerPoint PPT presentation

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Title: The European Union Initiative:


1
The European Union Initiative
  • Responsibilisation,
  • Not Criminalisation

Fotis Karamitsos European Commission Director for
maritime and inland waterway transport
intermodality
2
Prevention of marine pollution
from a global perspective
to a regional approach
3
The EC initiatives
  • The EC system is efficient

with the ultimate intervention of the Court of
Justice of the EC which "ensures that in the
interpretation and application of the EC Treaty
the law is observed
  • The EC measures to prevent ship source pollution
    are comprehensive

- a better coordination to inspect and
prosecute potential offenders
- a common approach as regards the persons to
be sanctioned and the level of penalties awarded
4
The forthcoming EC Directive on ship-source
pollution and on the introduction of sanctions
for infringements
the rationale behind
"The approach () is founded on the principle
of making full use of the Community's rights
under UNCLOS, whilst complying with Member
States obligations under MARPOL."
  • source Council Document re. 11964/3/04
  • of 7 October 2004 "Statement of the Council's
    reasons"

5
Dissuasive Sanctions
MARPOL, Article 4 Penalties shall be
adequate in severity to discourage violations 
  • EC Directive, Article 8
  • Pollution infringements are subject to
    effective, proportionate and dissuasive
    sanctions, which may include criminal or
    administrative sanctions.

EC Directive, Recital 15 any person
suspected of having committed an infringement
must be guaranteed a fair and impartial hearing
and the sanctions must be proportional
6
UNCLOS Article 230(2) Monetary penalties only
may be imposed with respect to violations of
national laws and regulations or applicable
international rules and standards for the
prevention, reduction and control of pollution of
the marine environment, committed by foreign
vessels in the territorial sea, except in the
case of a wilful and serious act of pollution in
the territorial sea.
Forthcoming Framework Decision to strengthen the
criminal-law framework for the enforcement of the
law against ship-source pollution - Article
4(7) Regarding custodial penalties, this
Framework Decision shall apply without
prejudice to international law and in particular
Article 230 of UNCLOS.
7
Accidental Spills under MARPOL
  • Annex I Regulation 11(b) and Annex II Regulation
    6(b),
  • the discharge into the sea of oil or oily
    mixture resulting from damage to a ship or its
    equipment is not illegal

(i) provided that all reasonable precautions have
been taken after the occurrence of the damage or
discovery of the discharge for the purpose of
preventing or minimizing the discharge and
(ii) except if the owner or the master acted
either with intent to cause damage, or recklessly
and with knowledge that damage would probably
result
8
Accidental Spillsthe chain of liability
  • MARPOL
  • () except if the owner
  • or the master acted ()

EC Directive, Article 8 the sanctions ()
apply to any person who is found responsible for
an infringement
9
Accidental Spills the liability test

recklessly and with knowledge that damage
would probably result
a virtually unbreakable system of limiting
liability (source IMO WebPages re. LLMC)
10
the liability testunder existing national
legislation
  • Greece
  • Presidential Decree 55/1998
  • Article 13
  • Any person who causes serious pollution wilfully
    or negligently, is liable for criminal,
    administrative and disciplinary sanctions

11
the liability testunder existing national
legislation
The Netherlands Penal Code Article 173b A
person who by negligence or carelessness is
responsible for unlawfully introducing any
substance on or onto the soil, into the air or
into surface waters is liable to a term of
imprisonment () or a fine () Wws (Act on
prevention of ship-source pollution) Article 5
(1) It is illegal to discharge ship-sourced
polluted substances in the sea (3)
Paragraph 1 is also valid for foreign ships
during the time they are within Dutch territorial
sea
12
the liability testunder existing national
legislation
  • Australia
  • Protection of the sea act 1983
  • Section 9 (3)
  • () damage to a ship or to its equipment is not
    non-intentional damage if the damage (...) arose
    as a result of the negligence of the master or
    owner of the ship.

13
the liability testoutside maritime law
  • Council Framework Decision 2003/80/JHA
  • of 27 January 2003 on the protection of the
    environment through criminal law

Article 3 Negligent offences Each Member State
shall take the necessary measures to establish as
criminal offences under its domestic law, when
committed with negligence, or at least serious
negligence, the offences enumerated in Article 2.
14
UNCLOS affects how MARPOL is implemented and
enforced
Source MARPOL - how to do it IMO Manual on
the practical implications of ratifying,
implementing and enforcing MARPOL - Section 4
Legislative and Enforcement Jurisdiction of Flag,
Coastal and Port States
  • MARPOL Article 9(2)
  • "Nothing in the present convention shall
    prejudice the codification and development of the
    law of the sea by the United Nations Conference
    on the Law of the Sea

15
UNCLOS Article 211(4) Coastal States may, in
the exercise of their sovereignty within their
territorial sea, adopt laws and regulations for
the prevention, reduction and control of marine
pollution from foreign vessels, including vessels
exercising the right of innocent passage. Such
laws and regulations shall () not hamper
innocent passage of foreign vessels.
UNCLOS Article 211(5) Coastal States ()
may in respect of their exclusive economic zones
adopt laws and regulations for the prevention,
reduction and control of pollution from vessels
conforming to and giving effect to generally
accepted international rules and standards
established through the competent international
organization or general diplomatic conference.
16
beyond territorial sea master, shipowner and
crew ? MARPOL test
beyond territorial sea all other operators ?
recklessness or serious negligence
within territorial sea all operators ? reckless
ness or serious negligence
17
ancillary initiatives in criminal law
  • Commission Proposal for a Council Framework
    Decision on certain procedural rights in criminal
    proceedings throughout the European Union
  • 28 April 2004 COM(2004)328
  • Commission Green Paper on mutual recognition of
    non-custodial pre-trial supervision measures
  • 17 August 2004 COM(2004)562

18
  • a genuine EC policy
  • to support
  • the maritime professions
  • Maritime education and training ? to ensure
    competent crews
  • Social conditions ? to pledge for decent living
    and working conditions for all seafarers
  • Promotion of the maritime professions ? to
    attract Europeans to a career at sea and later
    ashore in the maritime cluster

19
but all the actors must contribute actively
  • Scarce functional actions are taken to reverse
    shortages of officers and reinstate a rewarding
    profession
  • A lot of questions remain unanswered
  • What measures has the industry taken to recruit
    more Europeans on board ships?
  • How do governments ensure a maritime education of
    excellence?
  • Why do maritime protagonists like Greece maintain
    a lower status for Maritime Academies?
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