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. source: Council Document re. 11964/3/04 of 7 October 2004 "Statement of the Council's reasons" TheforthcomingEC 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."

5. EC Directive, Article 8: Pollution “ infringements are subject to effective, proportionate and dissuasive sanctions, which may include criminal or administrative sanctions”. Dissuasive Sanctions MARPOL, Article 4: “Penalties shall be adequate in severity to discourage violations” 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. MARPOL “(…) except if the owner or the master acted (…)” Accidental Spillsthe chain of liability 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. Greece Presidential Decree 55/1998 Article 13 Any person who causes serious pollution wilfully or negligently, is liable for criminal, administrative and disciplinary sanctions the liability “test”under existing national legislation

11. the liability “test”under 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. 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.” the liability “test”under existing national legislation

13. Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law the liability “test”outside maritime 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. 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“ “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

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 ▼ recklessness or serious negligence

17. ancillary initiatives in criminal law • Commission Proposal for a Council Framework Decision on certain procedural rightsin 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. 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? but all the actors must contribute actively