BRIEFING

EU Legislation in Progress

Revision of the Directive on

Ship-source Pollution
OVERVIEW
On 1 June 2023, the European Commission presented a legislative package to modernise and
reinforce maritime rules on safety and pollution prevention. It contained proposals for the revision
of five legislative acts, including the Directive on Ship-source Pollution. The aim is to combat
pollution from maritime ships, thereby preventing all ship-owners and operators, regardless of the
ship's flag, from releasing any type of illegal discharge into European seas, in line with International
Maritime Organization rules. The proposal contains a robust framework for penalties for
infringements, and their application. In addition, there would be an extended range of substances
classified as polluting, and enforcement would be strengthened.
Within the European Parliament, the file was assigned to the Committee on Transport and Tourism
(TRAN). The committee adopted its report on 17 November 2023. The Fisheries Committee (PECH)
submitted an opinion on 15 November 2023. Parliament's plenary confirmed the TRAN committee's
decision to enter into interinstitutional negotiations on 22 November 2023. The Council adopted its
general approach on 4 December 2023.
Proposal for a directive amending Directive 2005/35/EC on ship-source pollution and on the
introduction of penalties, including criminal penalties, for pollution offences
Committee responsible: Transport and Tourism Committee (TRAN) COM(2023) 273
1.6.2023
Rapporteur: Marian-Jean Marinescu (EPP, Romania) 2023/0171(COD)
Shadow rapporteurs: Sara Cerdas (S&D, Portugal)
Bergur Løkke Rasmussen (Renew, Denmark) Ordinary legislative
Jutta Paulus (Greens/EFA, Germany) procedure (COD)
Carlo Fidanza (ECR, Italy) (Parliament and Council
Leila Chaibi (The Left, France) on equal footing –
formerly 'co-decision')
Next steps expected: Completion of trilogue negotiations

EPRS | European Parliamentary Research Service

Author: Monika Kiss
Members' Research Service
PE 753.928 – December 2023 EN
EPRS | European Parliamentary Research Service

Introduction
The EU policies on preventing pollution from ships were developed between 2000 and 2009 in the
wake of two major maritime accidents involving the ships Erika and Prestige.
The Erika II package for maritime safety followed the sinking of the oil tanker Erika in 1999, releasing
thousands of tonnes of oil into the sea, killing marine life and polluting French shores. It sought to
protect and improve the marine environment from ships and potential accidents, including the
prevention of pollution from ships. Measures to this end included setting up a system to monitor
and control maritime traffic, requiring ships to declare dangerous or polluting goods, establishing a
compensation fund for oil pollution, and creating a role for the European Maritime Safety Agency
(EMSA) in this regard.
In 2005, the EU adopted the Directive on Ship-source Pollution (2005/35/EC) aware that the leading
cause of ship-source pollution is not always accidents but also intentional discharges. The objective
was to incorporate international standards in this area into EU law, in order to improve safety and
better protect the marine environment.
The proposal for the revision of the existing Directive 2005/35/EC on Ship-source Pollution is part of
a new legislative package for maritime safety, published on 1 June 2023. It seeks to combat pollution
from maritime ships by preventing all ship-owners and operators, regardless of the ship's flag, from
releasing any type of illegal discharge, in accordance with International Maritime Organization (IMO)
rules, into European seas. The proposal contains a robust framework for penalties for infringements,
and their application. In addition, there would be an extended range of substances classified as
polluting and enforcement would be strengthened.
The objective, in line with the Green Deal and the Sustainable Development Goals (SDGs 14 and 16),
is to protect the marine environment and to improve maritime safety. This would be achieved by
incorporating already existing, relevant IMO rules and standards, under the annexes of the
International Convention for the Prevention of Pollution from Ships (1973 Convention and
1978 Protocol) (MARPOL 73/78), and harmonising them with the current Directive on Port Reception
Facilities (PRF). This would include the introduction of penalties, including criminal penalties for
infringements for pollution offences, in line with the UN Convention on the Law of the Sea, UNCLOS.
A further future change would be alignment with the proposed revision of the European
Environmental Crime Directive, by including ship-source pollution on its list of offences.

Existing situation
The Ship-source Pollution Directive (2005/35/EC) currently in force was adopted on
7 September 2005 and incorporated legislation into the national law of EU Member States, as of
1 April 2007. The goal was to protect the marine environment from ship-source pollution and to
improve marine safety, by incorporating international IMO standards, in particular MARPOL
Annexes I and II, into EU law. This ensured that persons responsible for illegal discharges at sea were
subject to adequate penalties. The substances covered included oil, noxious liquid substances,
sewage, harmful substances in packaged form, garbage and air pollution from ships. The directive
covers all seagoing vessels, regardless of their flags. This directive led to the development of EMSA's
oil spill detection and monitoring system, CleanSeaNet. It is up to Member States to hold
ship-owners and operators responsible for infringements, to make them accountable and to ensure
that they are subject to effective, proportionate and dissuasive penalties, either criminal or
administrative.
The original directive was first amended in 2009, by Directive 2009/123/EC, after the Court of Justice
of the European Union annulled Council Framework Decision 2005/667/JHA. Under this
amendment, Member States were, as of then, required to pass legislation on criminal penalties for
ship-source pollution.

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Currently, however, some polluting substances included in the MARPOL annexes are not covered in
the existing directive, in particular harmful substances in packaged form, sewage, garbage,
discharge water and residues from scrubbers. Furthermore, a number of verified pollution incidents
and penalties imposed are not reported by Member States.
A 2021 joint report by EMSA and the European Environment Agency (EEA) signalled the pressure by
maritime transport on the environment. It was reported that between 2017 and 2019 the area
covered by EMSA's CleanSeaNet increased by 60 % and that it delivered over 7 000 images per year
with over 3 million square kilometres of sea area monitored every day, detecting over 7 000 possible
spills per year.

Parliament's starting position

Since the adoption of Directive 2005/35/EC and its amendment by Directive 2009/123/EC, the
European Parliament has continued to express support for maritime environmental protection from
ship-source waste and pollution and for efforts to strengthen the legal framework around criminal
offences in relation to illegal discharges.
In its resolution on the implementation of the European arrest warrant and surrender procedures
between Member States, adopted on 20 January 2021, the European Parliament highlighted the
importance of including ship-source pollution among other criminal offences in the framework of
an enhanced commitment to judicial cooperation.
Parliament also showed its commitment to marine environment protection in its resolution of
6 October 2022 on 'momentum for the ocean, strengthening ocean governance and biodiversity'.
The resolution called specifically for action against ship-source pollution and illegal waste discharge.

Preparation of the proposal

In June 2023, the European Commission presented an evaluation (SWD(2023) 159l) of the existing
Ship-source Pollution Directive, together with an impact assessment (IA) of the revision proposals,
drawing mostly on an independent study, conducted between 2021 and 2022, covering the
implementation period between 2007 and 2021. The evaluation is based on information collected
from a stakeholder consultation, as well as data and reports from Member States and EMSA. The
evaluation took account of 30 responses to a public consultation collected in early 2022.
The evaluation found that the directive had achieved its objectives to a limited degree. Eleven out
of 16 Member States reported that the directive had led to a reduced number of ship-source
pollution incidents. The tighter surveillance and the legal framework of penalties for infringements
had led to improved protection of the seas from ship-source pollution. The lack of sufficient data
however made it impossible to measure the dissuasive effect of the existing directive accurately.
The main shortcomings were described in the areas of harmonisation, detection, verification and
criminal and administrative penalisation.
The Commission proposal builds primarily on the data collected during this ex-post evaluation. The
suggested preferred option focuses on strengthening cooperation between Member States, mainly
by strengthening EU support. It would provide for criteria for determining the levels of penalties and
is expected to provide a structure for cooperation among Member States and strengthen Member
States' enforcement action by means of technical support from EMSA, without introducing major
new regulatory measures or costs for Member States.
The European Commission's Regulatory Scrutiny Board (RSB) issued a positive opinion
(SEC(2023) 209), on the IA on 27 March 2023 (see also Annex I to the IA).

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The changes the proposal would bring

The legislative proposal (COM(2023) 273) on ship-source pollution would encompass the following
proposed changes and measures:
 It aligns EU rules with international regulations by extending the scope of the existing
directive to polluting substances of IMO MARPOL 73/78 on illegal discharges into the
sea (harmful substances in packaged form, sewage, garbage, discharge waters and
residues from scrubbers).
 The proposal harmonises the Ship-source Pollution Directive with the Directive on
Port Reception Facilities (2019/883). This would facilitate a better exchange of
information between Member States about the entire range of substances as included
in MARPOL.
 CleanSeaNet is optimised through enhanced satellite surveillance and better
exchange of information between Member States for all MARPOL annexes. This would
help build Member States' capacity to detect pollution incidents, collect evidence and
effectively penalise offenders in a proportionate, timely and harmonised manner;
 The proposal offers a strengthened legal framework with clearer rules on
administrative penalties to ensure they are applied dissuasively and consistently to
pollution incidents. This would ensure that natural and legal persons responsible for
illegal discharges from ships are subject to effective, proportionate and dissuasive
penalties.
 It should ensure transparency, simplification and digitalisation in reporting
obligations, the publication of key indicators on pollution incidents online and follow
up actions such as the outcomes of criminal proceedings. This would lead to less
fragmented reporting by Member States, which currently hinders the analysis of ship-
source pollution infringements.
In the near future, the Directive on Ship-source Pollution should be further aligned with the
proposed revision for the European Environmental Crime Directive, which is awaiting Parliament's
position in first reading at this moment. Under this latter proposal, ship-source pollution would be
added to its list of offences. The Commission identified a need for criminal sanctions to ensure the
effective implementation of EU policies on protecting the environment in relation to offence
categories not currently covered by the directive (page 5), including for instance illegal ship
recycling and source discharge or polluting substances from ships (Directive 2005/35/EC).
An important condition for these proposed measures regarding the prevention of ship-source
pollution is enhanced and ensured support from EMSA. This would include additional satellite
monitoring services for Member States and an upgrade of the CleanSeaNet service. EMSA would
also be required to develop dedicated training and guidance documents.
As regards budgetary implications, the current net costs of the proposal total between
€125.9 million and 134.7 million from 2025 to 2050.

Advisory committees
The Economic and Social Committee (EESC) adopted its opinion on 20 September 2023. The
Committee of the Regions did not submit an opinion.

National parliaments
The deadline for the submission of reasoned opinions by national parliaments on the grounds of
subsidiarity, was 2 October 2023. Eleven Member States sent a response: Denmark, Germany,
Estonia, Finland, Ireland, Italy, Lithuania, Malta, Poland, Slovakia and Sweden. None of these
opinions expressed subsidiarity concerns.

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Stakeholder views 1
In preparation for the revision of Directive 2005/35/EC, a public consultation was conducted
between19 May and 16 June 2021 via the Commission's 'Have your say' platform. Eight replies were
received in total, six from non-governmental organisations (NGOs) and two from business
organisations. The NGOs, namely Ecology and Development Foundation (ECODES), the Clean Arctic
Alliance, Stand.earth, Bretagne Vivante, Surfrider Foundation Europe and Hazardous Waste Europe,
called for extending the directive's scope to include more MARPOL annexes. Austrian animal welfare
NGO Four Paws expressed concern over the illegal disposal of dead farm animals by ships
transporting large quantities of livestock.
Another consultation for stakeholders took place between 9 December 2021 and 3 March 2022.
Thirty stakeholders took part, including EU citizens, NGOs, academic/research institutions, industry
players, and representatives of Member States' public authorities. A significant share of participants
(68 %) thought that criminal penalties are an effective way to prevent ship-source pollution.
However, they were less positive concerning the results produced by the directive. Almost half of
participants reported having observed a decrease in criminal convictions for such infringements in
the past 10 years. The introduction of penalties for illegal discharges at sea had not led to a
noticeable improvement in vessel operators' compliance with the rules. Maritime industry
stakeholders, such as the European Community Shipowners' Associations (ECSA), the International
Chamber of Shipping (ICS), and the International Group of P&I Clubs (IG P&I), recognised the need
to protect marine environments but criticised the directive for leading to discrepancies with other
international instruments and consequently to legal uncertainty.
During the last feedback period from 2 June to 31 August 2023, after the Commission proposal had
been published, the European International Shipowners' Association of Portugal (EISAP) submitted
a position paper, according to which it seems suitable to introduce more effective application of
penalties via this initiative. EISAP pleads for the establishment of an electronic reporting system
between Member States and the Commission about measures taken and penalties imposed, and
welcomes the proposed public availability of information on measures.
The European Data Protection Supervisor (EDPS) has welcomed the requirement for Member States
to anonymise information relating to penalties when reporting on actions undertaken by their
competent authorities. As other categories of reporting information listed in the proposal might
also contain personal data, the EDPS recommends extending the obligation to anonymise personal
data to those additional categories. As regards the reporting of potential infringements, the EDPS
welcomes the requirement for the Commission to ensure the protection of whistle-blowers when
putting in place a centralised, online external reporting channel. The EDPS furthermore
recommends explicitly clarifying that the Commission will act as a supervisor in relation the
centralised online external reporting channel. It also recommends establishing the maximum
storage period for any personal data collected. The EDPS notes that certain data subject rights may
be restricted only when such a restriction respects the essence of fundamental rights and freedoms
and is a necessary and proportionate measure in a democratic society. The EDPS therefore
recommends re-assessing certain restrictions envisaged by the proposal, and ensuring that those
restrictions are limited to what is both necessary and proportionate.

Legislative process
The proposed revision of the Directive on Ship-source Pollution follows the ordinary legislative
procedure. In the European Parliament, the TRAN committee is responsible for the file and
appointed Marian-Jean Marinescu (EPP, Romania) as rapporteur. The rapporteur published his
draft report on 4 September 2023. The Committee on Fisheries (PECH) adopted an opinion on
15 November 2023.

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The TRAN committee adopted its report on 17 November 2023. The report proposes the following
additions and modifications to the Commission proposal, seeking to:
 ensure that all parties, including the maritime transport sector, national
administrations and civil society, have easy access to the text of reference for this
directive at the date of an infringement: when applying the provisions of this directive
and the corresponding national laws, MARPOL 73/78 and its annexes as referred to in
this directive in force at the date of infringement must be considered;
 clarify the level of penalties: it should be stated more clearly than in the Commission
proposal that the level of administrative penalties should not be fixed at such low
levels that these penalties' dissuasive, effective and proportionate character is
undermined. Maximum limits for administrative penalties as low as €10 000 for legal
persons, such as shipping companies, or minimum limits starting at only €10 for
natural persons and €32 for legal persons (as indicated for some Member States in the
accompanying impact assessment) seem to be far too low to penalise illicit behaviour
or even act as a disincentive;
 clarify and increase the level of verification: Member States should thoroughly analyse
all the alerts that they receive from CleanSeaNet. They should then perform a higher
percentage of on-the spot verification than envisaged by the Commission proposal;
 ensure that all interested parties have easy access to the full and updated texts of IMO
conventions, which is currently not the case.
The committee decision to enter into interinstitutional negotiations was confirmed by Parliament's
plenary on 22 November 2023.
In the Council, the Working Party on Shipping first discussed the proposal on 14 June 2023. The
Council agreed its position (general approach) on 4 December 2023. The Council intends to
introduce a number of changes to ensure clarity and coherence with international rules and
procedures, in particular those of MARPOL. The Council also wants to highlight that the proposal
concerns administrative penalties only, given the differing legal systems in the Member States.
Furthermore, according to the Council, more flexibility should be introduced as regards Member
States' obligations to verify and report pollution incidents, to avoid imposing an excessive
administrative burden.
EUROPEAN PARLIAMENT SUPPORTING ANALYSIS
Jansen T. with Juhász V., Revision of Directive 2005/35/EC on ship-source pollution and on the
introduction of penalties for infringements, EPRS, European Parliament, July 2023.

OTHER SOURCES
European Parliament, Ship-source pollution and introduction of penalties, Legislative Observatory (OEIL),
2023.

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ENDNOTES
1
This section aims to provide a flavour of the debate and is not intended to be an exhaustive account of all different
views on the proposal. Additional information can be found in related publications listed under 'European Parliament
supporting analysis'.

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© European Union, 2023.
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Second edition. The 'EU Legislation in Progress' briefings are updated at key stages throughout the legislative
procedure This is an update of the first edition, written by Karin Smit-Jacobs.