Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements was adopted in 2005. Its main objective was to transpose into the European law the standards introduced by the International Convention for the Prevention of Pollution from Ships (MARPOL) related to the prohibition of polluting discharges into the sea and to specify the sanctions to be imposed. The rationale for transposing MARPOL into EU law was that the implementation of MARPOL showed discrepancies among EU Member States, in particular in relation to the imposition of penalties for discharges of polluting substances from ships, therefore there was a need to harmonise MARPOL implementation at Community level.
The original Directive was supplemented by Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal law framework for the enforcement of the law against ship-source pollution, which was annulled by the European Court of Justice in its case C-440/05 in 23 October 2007. In consequence of this annulment, the European Commission prepared an amendment of the Directive as Directive 2009/123, which incorporated into the body of its text many elements that were part of the previously annulled Framework Decision. In particular it extended the liability for discharges onto legal persons and it obliged the Member States to treat illegal discharges not only as infringements but also in some circumstances as criminal acts. Member States had to comply with the amended Directive by 16th of November 2010.
In short summary: the Directive provides that it applies to “discharges of polluting substances from any ship, irrespective of its flag, with the exception of any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service”. It covers any discharge of polluting substances into:
committed with intent, recklessly or by serious negligence.
Directive 2005/35 provides that Member States have to ensure that ship-source discharges of polluting substances will be treated as infringements if committed with intent, recklessly or by serious negligence”. This has been changed by Directive 2009/123 which brought a clarification that not only all discharges have to be treated as infringements but actually in the majority of cases those infringements should be considered as criminal offences. Only discharges that are minor and do not cause deterioration of the quality of water, do not have to be treated as crimes. They are still infringements but they can be of administrative nature. However, even minor cases sometimes can be treated as crimes, when they are repeated and result in deterioration in the quality of water. In all cases the penalties imposed have to be effective, proportionate and dissuasive.
EMSA organised two workshops on the implementation of the Ship-source pollution Directive: in 2007 and 2011 and in 2011 conducted a Study on the practical implementation of the Directive 2005/35.