25.11.2005 EN Official Journal of the European Union L 310/28 DIRECTIVE 2005/65/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 October 2005 on enhancing port security (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee (1), Having regard to the opinion of the Committee of the Regions (2), Acting in accordance with the procedure laid down in Article 251 of the Treaty (3), Whereas: (1) Security incidents resulting from terrorism are among the greatest threats to the ideals of democracy, freedom and peace, which are the very essence of the European Union. (2) People, infrastructure and equipment in ports should be protected against security incidents and their devastating effects. Such protection would benefit transport users, the economy and society as a whole. (3) On 31 March 2004 the European Parliament and the Council of the European Union adopted Regulation (EC) No 725/2004 (4) on enhancing ship and port facility security. The maritime security measures imposed by that Regulation constitute only part of the measures necessary to achieve an adequate level of security throughout maritime-linked transport chains. That Regulation is limited in scope to security measures on board vessels and the immediate ship/port interface. (4) In order to achieve the fullest protection possible for maritime and port industries, port security measures should be introduced, covering each port within the boundaries defined by the Member State concerned, and thereby ensuring that security measures taken pursuant to Regulation (EC) No 725/2004 benefit from enhanced security in the areas of port activity. These measures should apply to all those ports in which one or more port facilities covered by Regulation (EC) No 725/2004 are situated. (5) The security objective of this Directive should be achieved by adopting appropriate measures without prejudice to the rules of the Member States in the field of national security and measures which might be taken on the basis of Title VI of the Treaty on European Union. (6) Member States should rely upon detailed security assessments to identify the exact boundaries of the security-relevant port area, as well as the different measures required to ensure appropriate port security. Such measures should differ according to the security level in place and reflect differences in the risk profile of different sub-areas in the port. (7) Member States should approve port security plans which incorporate the findings of the port security assessment. The effectiveness of security measures also requires the clear division of tasks between all parties involved as well as regular exercises. This clear division of tasks and the recording of exercise procedures in the format of the port security plan is considered to contribute strongly to the effectiveness of both preventive and remedial port security measures. (8) Roll-on roll-off vessels are particularly vulnerable to security incidents, in particular if they carry passengers as well as cargo. Adequate measures should be taken on the basis of risk assessments which ensure that cars and goods vehicles destined for transport on roll-on roll-off vessels on domestic and international routes do not cause a risk to the vessel, its passengers and crew or to the cargo. The measures should be taken in a way which impedes as little as possible the fluidity of the operations. (9) Member States should be able to establish port security committees entrusted with providing practical advice in the ports covered by this Directive. (10) Member States should ensure that responsibilities in port security are clearly recognised by all parties involved. Member States should monitor compliance with security rules and clearly establish a responsible authority for all their ports, approve all security assessments and plans for their ports, set and communicate as appropriate security levels and ensure that measures are well communicated, implemented and coordinated. (11) Member States should approve assessments and plans and monitor their implementation in their ports. In order to keep disruption to ports and the administrative burden on inspection bodies to a minimum, the Commission's monitoring of the implementation of this Directive should be conducted jointly with the inspections provided for in Article 9(4) of Regulation (EC) No 725/2004. (12) Member States should ensure that a focal point for port security takes up the role of contact point between the Commission and Member States. They should inform the Commission which ports are covered by this Directive on the basis of the security assessments carried out. (13) The effective and standard implementation of measures under this security policy raises important questions in relation to its funding. The funding of extra security measures should not generate distortions of competition. By 30 June 2006, the Commission should submit to the European Parliament and the Council the findings of a study on the costs involved in measures taken under this Directive, addressing in particular the way financing is shared between the public authorities, port authorities and operators. (14) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. (15) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (5). (16) A procedure should be defined for the adaptation of this Directive to take account of developments in international instruments and, in the light of experience, to adapt or complement the detailed provisions of the Annexes to this Directive, without broadening the scope of this Directive. (17) Since the objectives of this Directive, namely the balanced introduction of appropriate measures in the field of maritime transport and port policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of the European scale of this Directive, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (18) Since this Directive concerns seaports, the obligations herein contained should not be applicable to Austria, the Czech Republic, Hungary, Luxembourg or Slovakia, HAVE ADOPTED THIS DIRECTIVE: Article 1 Subject matter 1. The main objective of this Directive is to introduce Community measures to enhance port security in the face of threats of security incidents. This Directive shall also ensure that security measures taken pursuant to Regulation (EC) No 725/2004 benefit from enhanced port security. 2. The measures referred to in paragraph 1 shall consist of: (a) common basic rules on port security measures; (b) an implementation mechanism for these rules; (c) appropriate compliance monitoring mechanisms. Article 2 Scope 1. This Directive lays down security measures which shall be observed in ports. Member States may apply the provisions of this Directive to port-related areas. 2. The measures laid down in this Directive shall apply to every port located in the territory of a Member State in which one or more port facilities covered by an approved port facility security plan pursuant to Regulation (EC) No 725/2004 is or are situated. This Directive shall not apply to military installations in ports. 3. Member States shall define for each port the boundaries of the port for the purposes of this Directive, appropriately taking into account information resulting from the port security assessment. 4. Where the boundaries of a port facility within the meaning of Regulation (EC) No 725/2004 have been defined by a Member State as effectively covering the port, the relevant provisions of Regulation (EC) No 725/2004 shall take precedence over those of this Directive. Article 3 Definitions For the purpose of this Directive: 1. ‘port’ means any specified area of land and water, with boundaries defined by the Member State in which the port is situated, containing works and equipment designed to facilitate commercial maritime transport operations; 2. ‘ship/port interface’ means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons or goods or the provision of port services to or from the ship; 3. ‘port facility’ means a location where the ship/port interface takes place; this includes areas such as anchorages, waiting berths and approaches from seaward, as appropriate; 4. ‘focal point for port security’ means the body designated by each Member State to serve as contact point for the Commission and other Member States and to facilitate, follow up and provide information on the application of the port security measures laid down in this Directive; 5. ‘port security authority’ means the authority responsible for security matters in a given port. Article 4 Coordination with measures taken in application of Regulation (EC) No 725/2004 Member States shall ensure that port security measures introduced by this Directive are closely coordinated with measures taken pursuant to Regulation (EC) No 725/2004. Article 5 Port security authority 1. Member States shall designate a port security authority for each port covered by this Directive. A port security authority may be designated for more than one port. 2. The port security authority shall be responsible for the preparation and implementation of port security plans based on the findings of port security assessments. 3. Member States may designate a ‘competent authority for maritime security’ provided for under Regulation (EC) No 725/2004 as port security authority. Article 6 Port security assessment 1. Member States shall ensure that port security assessments are carried out for the ports covered by this Directive. These assessments shall take due account of the specificities of different sections of a port and, where deemed applicable by the relevant authority of the Member State, of its adjacent areas if these have an impact on security in the port and shall take into account the assessments for port facilities within their boundaries as carried out pursuant to Regulation (EC) No 725/2004. 2. Each port security assessment shall be carried out taking into account as a minimum the detailed requirements laid down in Annex I. 3. Port security assessments may be carried out by a recognised security organisation as referred to in Article 11. 4. Port security assessments shall be approved by the Member State concerned. Article 7 Port security plan 1. Subject to the findings of port security assessments, Member States shall ensure that port security plans are developed, maintained and updated. Port security plans shall adequately address the specificities of different sections of a port and shall integrate the security plans for port facilities within their boundaries established pursuant to Regulation (EC) No 725/2004. 2. Port security plans shall identify, for each of the different security levels referred to in Article 8: (a) the procedures to be followed; (b) the measures to be put in place; (c) the actions to be undertaken. 3. Each port security plan shall take into account as a minimum the detailed requirements specified in Annex II. Where, and to the extent appropriate, the port security plan shall in particular include security measures to be applied to passengers and vehicles set for embarkation on seagoing vessels which carry passengers and vehicles. In the case of international maritime transport services, the Member States concerned shall cooperate in the security assessment. 4. Port security plans may be developed by a recognised security organisation as referred to in Article 11. 5. Port security plans shall be approved by the Member State concerned before implementation. 6. Member States shall ensure that the implementation of port security plans is monitored. The monitoring shall be coordinated with other control activities carried out in the port. 7. Member States shall ensure that adequate exercises are performed, taking into account the basic security training exercise requirements listed in Annex III. Article 8 Security levels 1. Member States shall introduce a system of security levels for ports or parts of ports. 2. There shall be three security levels, as defined in Regulation (EC) No 725/2004: — ‘Security level 1’ means the level for which minimum appropriate protective security measures shall be maintained at all times; — ‘Security level 2’ means the level for which appropriate additional protective security measures shall be maintained for a period of time as a result of a heightened risk of a security incident; — ‘Security level 3’ means the level for which further specific protective security measures shall be maintained for a limited period of time when a security incident is probable or imminent, although it may not be possible to identify the specific target. 3. Member States shall determine the security levels in use for each port or part of a port. At each security level, a Member State may determine that different security measures are to be implemented in different parts of the port depending on the findings of the port security assessment. 4. Member States shall communicate to the appropriate person or persons the security level in force for each port or part of a port as well as any changes thereto. Article 9 Port security officer 1. A port security officer shall be approved by the Member State concerned for each port. Each port shall, where practicable, have a different port security officer, but may, if appropriate, share a security officer. 2. Port security officers shall fulfil the role of point of contact for port security related issues. 3. Where the port security officer is not the same as the port facility(ies) security officer(s) under Regulation (EC) No 725/2004, close cooperation between them shall be ensured. Article 10 Reviews 1. Member States shall ensure that port security assessments and port security plans are reviewed as appropriate. They shall be reviewed at least once every five years. 2. The scope of the review shall be that of Articles 6 or 7, as appropriate. Article 11 Recognised security organisation Member States may appoint recognised security organisations for the purposes specified in this Directive. Recognised security organisations shall fulfil the conditions set out in Annex IV. Article 12 Focal point for port security Member States shall appoint for port security aspects a focal point. Member States may designate for port security aspects the focal point appointed under Regulation (EC) No 725/2004. The focal point for port security shall communicate to the Commission the list of ports concerned by this Directive and shall inform it of any changes to that list. Article 13 Implementation and conformity checking 1. Member States shall set up a system ensuring adequate and regular supervision of the port security plans and their implementation. 2. The Commission shall, in cooperation with the focal points referred to in Article 12, monitor the implementation of this Directive by Member States. 3. This monitoring shall be conducted jointly with the inspections provided for in Article 9(4) of Regulation (EC) No 725/2004. Article 14 Adaptations Annexes I to IV may be amended in accordance with the procedure referred to in Article 15(2), without broadening the scope of this Directive. Article 15 Committee procedure 1. The Commission shall be assisted by the committee set up by Regulation (EC) No 725/2004. 2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month. 3. The Committee shall adopt its Rules of Procedure. Article 16 Confidentiality and dissemination of information 1. In applying this Directive, the Commission shall take, in accordance with Decision 2001/844/EC, ECSC, Euratom (6), appropriate measures to protect information subject to the requirement of confidentiality to which it has access or which is communicated to it by Member States. Member States shall take equivalent measures in accordance with relevant national legislation. 2. Any personnel carrying out security inspections, or handling confidential information related to this Directive, shall have an appropriate level of security vetting by the Member State of which the person concerned is a national. Article 17 Penalties Member States shall ensure that effective, proportionate and dissuasive penalties are introduced for infringements of the national provisions adopted pursuant to this Directive. Article 18 Implementation 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 15 June 2007. They shall forthwith inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 19 Evaluation report By 15 December 2008 and every five years thereafter, the Commission shall submit an evaluation report to the European Parliament and the Council based, among other things, on the information obtained pursuant to Article 13. In the report, the Commission shall analyse compliance with this Directive by Member States and the effectiveness of the measures taken. If necessary, it shall present proposals for additional measures. Article 20 Entry into force This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 21 Addressees This Directive is addressed to the Member States which have ports as referred to in Article 2(2). Done at Strasbourg, 26 October 2005. For the European Parliament The President J. BORRELL FONTELLES For the Council The President D. ALEXANDER (1) OJ C 120, 20.5.2005, p. 28. (2) OJ C 43, 18.2.2005, p. 26. (3) Opinion of the European Parliament of 10 May 2005 (not yet published in the Official Journal) and Council Decision of 6 October 2005. (4) OJ L 129, 29.4.2004, p. 6. (5) OJ L 184, 17.7.1999, p. 23. (6) OJ L 317, 3.12.2001, p. 1. Decision as last amended by Decision 2005/94/EC, Euratom (OJ L 31, 4.2.2005, p. 66). ANNEX I PORT SECURITY ASSESSMENT The port security assessment is the basis for the port security plan and its implementation. The port security assessment will cover at least: — identification and evaluation of important assets and infrastructure which it is important to protect; — identification of possible threats to the assets and infrastructure and the likelihood of their occurrence, in order to establish and prioritise security measures; — identification, selection and prioritisation of counter-measures and procedural changes and their level of effectiveness in reducing vulnerability; and — identification of weaknesses, including human factors in the infrastructure, policies and procedures. For this purpose the assessment will at least: — identify all areas which are relevant to port security, thus also defining the port boundaries. This includes port facilities which are already covered by Regulation (EC) No 725/2004 and whose risk assessment will serve as a basis; — identify security issues deriving from the interface between port facility and other port security measures; — identify which port personnel will be subject to background checks and/or security vetting because of their involvement in high-risk areas; — subdivide, if useful, the port according to the likelihood of security incidents. Areas will be judged not only upon their direct profile as a potential target, but also upon their potential role of passage when neighbouring areas are targeted; — identify risk variations, e.g. those based on seasonality; — identify the specific characteristics of each sub-area, such as location, accesses, power supply, communication system, ownership and users and other elements considered security-relevant; — identify potential threat scenarios for the port. The entire port or specific parts of its infrastructure, cargo, baggage, people or transport equipment within the port can be a direct target of an identified threat; — identify the specific consequences of a threat scenario. Consequences can impact on one or more sub-areas. Both direct and indirect consequences will be identified. Special attention will be given to the risk of human casualties; — identify the possibility of cluster effects of security incidents; — identify the vulnerabilities of each sub-area; — identify all organisational aspects relevant to overall port security, including the division of all security-related authorities, existing rules and procedures; — identify vulnerabilities of the overarching port security related to organisational, legislative and procedural aspects; — identify measures, procedures and actions aimed at reducing critical vulnerabilities. Specific attention will be paid to the need for, and the means of, access control or restrictions to the entire port or to specific parts of a port, including identification of passengers, port employees or other workers, visitors and ship crews, area or activity monitoring requirements, cargo and luggage control. Measures, procedures and actions will be consistent with the perceived risk, which may vary between port areas; — identify how measures, procedures and actions will be reinforced in the event of an increase of security level; — identify specific requirements for dealing with established security concerns, such as ‘suspect’ cargo, luggage, bunker, provisions or persons, unknown parcels, known dangers (e.g. bomb). These requirements will analyse desirability conditions for either clearing the risk where it is encountered or after moving it to a secure area; — identify measures, procedures and actions aimed at limiting and mitigating consequences; — identify task divisions allowing for the appropriate and correct implementation of the measures, procedures and actions identified; — pay specific attention, where appropriate, to the relationship with other security plans (e.g. port facility security plans) and other existing security measures. Attention will also be paid to the relationship with other response plans (e.g. oil spill response plan, port contingency plan, medical intervention plan, nuclear disaster plan, etc.); — identify communication requirements for implementation of the measures and procedures; — pay specific attention to measures to protect security-sensitive information from disclosure; — identify the need-to-know requirements of all those directly involved as well as, where appropriate, the general public. ANNEX II PORT SECURITY PLAN The port security plan sets out the port's security arrangements. It will be based on the findings of the port security assessment. It will clearly set out detailed measures. It will contain a control mechanism allowing, where necessary, for appropriate corrective measures to be taken. The port security plan will be based on the following general aspects: — defining all areas relevant to port security. Depending on the port security assessment, measures, procedures and actions may vary from sub-area to sub-area. Indeed, some sub-areas may require stronger preventive measures than others. Special attention will be paid to the interfaces between sub-areas, as identified in the port security assessment; — ensuring coordination between security measures for areas with different security characteristics; — providing, where necessary, for varying measures both with regard to different parts of the port, changing security levels, and specific intelligence; — identifying an organisational structure supporting the enhancement of port security. Based on those general aspects, the port security plan will attribute tasks and specify work plans in the following fields: — access requirements. For some areas, requirements will only enter into force when security levels exceed minimal thresholds. All requirements and thresholds will be comprehensively included in the port security plan; — ID, luggage and cargo control requirements. Requirements may or may not apply to sub-areas; requirements may or may not apply in full to different sub-areas. Persons entering or within a sub-area may be liable to control. The port security plan will appropriately respond to the findings of the port security assessment, which is the tool by which the security requirements of each sub-area and at each security level will be identified. When dedicated identification cards are developed for port security purposes, clear procedures will be established for the issue, the use-control and the return of such documents. Such procedures will take into account the specificities of certain groups of port users allowing for dedicated measures in order to limit the negative impact of access control requirements. Categories will at least include seafarers, authority officials, people regularly working in or visiting the port, residents living in the port and people occasionally working in or visiting the port; — liaison with cargo control, baggage and passenger control authorities. Where necessary, the plan is to provide for the linking up of the information and clearance systems of these authorities, including possible pre-arrival clearance systems; — procedures and measures for dealing with suspect cargo, luggage, bunker, provisions or persons, including identification of a secure area; as well as for other security concerns and breaches of port security; — monitoring requirements for sub-areas or activities within sub-areas. Both the need for technical solutions and the solutions themselves will be derived from the port security assessment; — signposting. Areas with access and/or control requirements will be properly signposted. Control and access requirements will appropriately take into account all relevant existing law and practices. Monitoring of activities will be appropriately indicated if national legislation so requires; — communication and security clearance. All relevant security information will be properly communicated according to security clearance standards included in the plan. In view of the sensitivity of some information, communication will be based on a need-to-know basis, but it will include where necessary procedures for communications addressed to the general public. Security clearance standards will form part of the plan and are aimed at protecting security sensitive information against unauthorised disclosure; — reporting of security incidents. With a view to ensuring a rapid response, the port security plan will set out clear reporting requirements to the port security officer of all security incidents and/or to the port security authority; — integration with other preventive plans or activities. The plan will specifically deal with integration with other preventive and control activities in force in the port; — integration with other response plans and/or inclusion of specific response measures, procedures and actions. The plan will detail interaction and coordination with other response and emergency plans. Where necessary conflicts and shortcomings will be resolved; — training and exercise requirements; — operational port security organisation and working procedures. The port security plan will detail the port security organisation, its task division and working procedures. It will also detail the coordination with port facility and ship security officers, where appropriate. It will delineate the tasks of the port security committee, if this exists; — procedures for adapting and updating the port security plan. ANNEX III BASIC SECURITY TRAINING EXERCISE REQUIREMENTS Various types of training exercises which may involve participation of port facility security officers, in conjunction with the relevant authorities of Member States, company security officers, or ship security officers, if available, will be carried out at least once each calendar year with no more than 18 months elapsing between the training exercises. Requests for the participation of company security officers or ships security officers in joint training exercises will be made bearing in mind the security and work implications for the ship. These training exercises will test communication, coordination, resource availability and response. These training exercises may be: (1) full scale or live; (2) tabletop simulation or seminar; or (3) combined with other exercises held such as emergency response or other port State authority exercises. ANNEX IV CONDITIONS TO BE FULFILLED BY A RECOGNISED SECURITY ORGANISATION A recognised security organisation will be able to demonstrate: (1) expertise in relevant aspects of port security; (2) an appropriate knowledge of port operations, including knowledge of port design and construction; (3) an appropriate knowledge of other security relevant operations potentially affecting port security; (4) the capability to assess the likely port security risks; (5) the ability to maintain and improve the port security expertise of its personnel; (6) the ability to monitor the continuing trustworthiness of its personnel; (7) the ability to maintain appropriate measures to avoid unauthorised disclosure of, or access to, security-sensitive material; (8) knowledge of relevant national and international legislation and security requirements; (9) knowledge of current security threats and patterns; (10) the ability to recognise and detect weapons, dangerous substances and devices; (11) the ability to recognise, on a non-discriminatory basis, characteristics and behavioural patterns of persons who are likely to threaten port security; (12) knowledge of techniques used to circumvent security measures; (13) knowledge of security and surveillance equipment and systems and their operational limitations. A recognised security organisation which has made a port security assessment or review of such an assessment for a port is not allowed to establish or review the port security plan for the same port.

Summary: Port infrastructure: enhancing port security Port infrastructure: enhancing port security SUMMARY OF: Directive 2005/65/EC on enhancing port security WHAT IS THE AIM OF THE DIRECTIVE? The main objective of the directive is to introduce measures to improve security in European Union (EU) ports in the face of threats of security incidents. To achieve this, the directive aims to establish an EU framework to guarantee a high and comparable level of security in all EU ports. This framework shall consist of common basic rules on port security measures, an implementation mechanism for these rules, and appropriate compliance monitoring mechanisms. This directive complements Regulation (EC) No 725/2004 on ship and port facility security and the measures laid out by the Commission in May 2003 (COM(2003) 229 final). Together, these provide the necessary framework to protect the whole chain of maritime transport logistics (from the ship to the port, the interface between the ship and the port and the whole port area) against the risk of unlawful attacks on EU territory. KEY POINTS Scope The directive applies to people, infrastructure and equipment (including means of transport) in ports and adjacent areas. Port security authority and security plans EU countries must designate a port security authority for each port. A port security authority may be designated for more than one port. This authority is responsible for identifying and taking the necessary port security measures in line with port security assessments and plans. EU countries must ensure that port security plans are developed, maintained and updated, with a detailed description of the measures taken to enhance port security (such as the conditions of access to ports or the measures applicable to baggage and cargo). EU countries must also monitor security plans and their implementation, and specify penalties for non-conformity. Security levels Different security levels are set out according to the perceived risk (normal, heightened or imminent threat), namely: security level 1: the level for which minimum protective security measures must be maintained at all times;security level 2: the level for which appropriate additional protective security measures must be maintained for a period of time as a result of heightened risk of security incident;security level 3: the level for which further specific protective security measures must be maintained for a limited period of time when a security incident is probable, although it may not be possible to identify the specific target. EU countries must notify the security level in force for each port and any changes to the security level. Port security officer EU countries must approve a security officer in each port. Where possible each port should have a different port security officer. However, if necessary, several ports may share a security officer. These officers act as the contact point for issues related to port security issues and should have sufficient authority and local knowledge to adequately ensure and coordinate the establishment, updating and follow-up of port security assessments and port security plans. Reviews EU countries must ensure that port security assessments and port security plans are reviewed every time security-relevant changes occur, and at least every 5 years. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 15 December 2005 and it had to become law in the EU countries by 15 June 2007. BACKGROUND Following the COVID-19 outbreak and introducing measures to cope with the impact of the crisis, the European Commission adopted: Communication from the Commission — Guidelines on protection of health, repatriation and travel arrangements for seafarers, passengers and other persons on board ships. MAIN DOCUMENT Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (OJ L 310, 25.11.2005, pp. 28-39) Successive amendments to Directive 2005/65/EC have been incorporated in the original text. This consolidated version is of documentary value only. RELATED DOCUMENTS Report from the Commission to the Council and the European Parliament — Report assessing the implementation of the Directive on enhancing port security (COM(2009)002 final, 20.1.2009) Commission Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures for conducting Commission inspections in the field of maritime security (OJ L 98, 10.4.2008, pp. 5-10) See consolidated version. last update 04.05.2020


30.9.2005 EN Official Journal of the European Union L 255/11 DIRECTIVE 2005/35/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee (1), After consulting the Committee of the Regions, Acting in accordance with the procedure laid down in Article 251 of the Treaty (2), Whereas: (1) The Community's maritime safety policy is aimed at a high level of safety and environmental protection and is based on the understanding that all parties involved in the transport of goods by sea have a responsibility for ensuring that ships used in Community waters comply with applicable rules and standards. (2) The material standards in all Member States for discharges of polluting substances from ships are based upon the Marpol 73/78 Convention; however these rules are being ignored on a daily basis by a very large number of ships sailing in Community waters, without corrective action being taken. (3) The implementation of Marpol 73/78 shows discrepancies among Member States and there is thus a need to harmonise its implementation at Community level; in particular the practices of Member States relating to the imposition of penalties for discharges of polluting substances from ships differ significantly. (4) Measures of a dissuasive nature form an integral part of the Community's maritime safety policy, as they ensure a link between the responsibility of each of the parties involved in the transport of polluting goods by sea and their exposure to penalties; in order to achieve effective protection of the environment there is therefore a need for effective, dissuasive and proportionate penalties. (5) To that end it is essential to approximate, by way of the proper legal instruments, existing legal provisions, in particular on the precise definition of the infringement in question, the cases of exemption and minimum rules for penalties, and on liability and jurisdiction. (6) This Directive is supplemented by detailed rules on criminal offences and penalties as well as other provisions set out in 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 (3). (7) Neither the international regime for the civil liability and compensation of oil pollution nor that relating to pollution by other hazardous or noxious substances provides sufficient dissuasive effects to discourage the parties involved in the transport of hazardous cargoes by sea from engaging in substandard practices; the required dissuasive effects can only be achieved through the introduction of penalties applying to any person who causes or contributes to marine pollution; penalties should be applicable not only to the shipowner or the master of the ship, but also the owner of the cargo, the classification society or any other person involved. (8) Ship-source discharges of polluting substances should be regarded as infringements if committed with intent, recklessly or by serious negligence. These infringements are regarded as criminal offences by, and in the circumstances provided for in, Framework Decision 2005/667/JHA supplementing this Directive. (9) Penalties for discharges of polluting substances from ships are not related to the civil liability of the parties concerned and are thus not subject to any rules relating to the limitation or channelling of civil liabilities, nor do they limit the efficient compensation of victims of pollution incidents. (10) There is a need for further effective cooperation among Member States to ensure that discharges of polluting substances from ships are detected in time and that the offenders are identified. For this reason, the European Maritime Safety Agency set up by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 (4) has a key role to play in working with the Member States in developing technical solutions and providing technical assistance relating to the implementation of this Directive and in assisting the Commission in the performance of any task assigned to it for the effective implementation of this Directive. (11) In order better to prevent and combat marine pollution, synergies should be created between enforcement authorities such as national coastguard services. In this context, the Commission should undertake a feasibility study on a European coastguard dedicated to pollution prevention and response, making clear the costs and benefits. This study should, if appropriate, be followed by a proposal on a European coastguard. (12) Where there is clear, objective evidence of a discharge causing major damage or a threat of major damage, Member States should submit the matter to their competent authorities with a view to instituting proceedings in accordance with Article 220 of the 1982 United Nations Convention on the Law of the Sea. (13) The enforcement of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (5) is, together with this Directive, a key instrument in the set of measures to prevent ship-source pollution. (14) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (6). (15) Since the objectives of this Directive, namely the incorporation of the international ship-source pollution standards into Community law and the establishment of penalties — criminal or administrative — for violation of them in order to ensure a high level of safety and environmental protection in maritime transport, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (16) This Directive fully respects the Charter of fundamental rights of the European Union; any person suspected of having committed an infringement must be guaranteed a fair and impartial hearing and the penalties must be proportional, HAVE ADOPTED THIS DIRECTIVE: Article 1 Purpose 1. The purpose of this Directive is to incorporate international standards for ship-source pollution into Community law and to ensure that persons responsible for discharges are subject to adequate penalties as referred to in Article 8, in order to improve maritime safety and to enhance protection of the marine environment from pollution by ships. 2. This Directive does not prevent Member States from taking more stringent measures against ship-source pollution in conformity with international law. Article 2 Definitions For the purpose of this Directive: 1. ‘Marpol 73/78’ shall mean the International Convention for the Prevention of Pollution from Ships, 1973 and its 1978 Protocol, in its up-to-date version; 2. ‘polluting substances’ shall mean substances covered by Annexes I (oil) and II (noxious liquid substances in bulk) to Marpol 73/78; 3. ‘discharge’ shall mean any release howsoever caused from a ship, as referred to in Article 2 of Marpol 73/78; 4. ‘ship’ shall mean a seagoing vessel, irrespective of its flag, of any type whatsoever operating in the marine environment and shall include hydrofoil boats, air-cushion vehicles, submersibles and floating craft. Article 3 Scope 1. This Directive shall apply, in accordance with international law, to discharges of polluting substances in: (a) the internal waters, including ports, of a Member State, in so far as the Marpol regime is applicable; (b) the territorial sea of a Member State; (c) straits used for international navigation subject to the regime of transit passage, as laid down in Part III, section 2, of the 1982 United Nations Convention on the Law of the Sea, to the extent that a Member State exercises jurisdiction over such straits; (d) the exclusive economic zone or equivalent zone of a Member State, established in accordance with international law; and (e) the high seas. 2. This Directive shall apply 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. Article 4 Infringements Member States shall ensure that ship-source discharges of polluting substances into any of the areas referred to in Article 3(1) are regarded as infringements if committed with intent, recklessly or by serious negligence. These infringements are regarded as criminal offences by, and in the circumstances provided for in, Framework Decision 2005/667/JHA supplementing this Directive. Article 5 Exceptions 1. A discharge of polluting substances into any of the areas referred to in Article 3(1) shall not be regarded as an infringement if it satisfies the conditions set out in Annex I, Regulations 9, 10, 11(a) or 11(c) or in Annex II, Regulations 5, 6(a) or 6(c) of Marpol 73/78. 2. A discharge of polluting substances into the areas referred to in Article 3(1)(c), (d) and (e) shall not be regarded as an infringement for the owner, the master or the crew when acting under the master's responsibility if it satisfies the conditions set out in Annex I, Regulation 11(b) or in Annex II, Regulation 6(b) of Marpol 73/78. Article 6 Enforcement measures with respect to ships within a port of a Member State 1. If irregularities or information give rise to a suspicion that a ship which is voluntarily within a port or at an off-shore terminal of a Member State has been engaged in or is engaging in a discharge of polluting substances into any of the areas referred to in Article 3(1), that Member State shall ensure that an appropriate inspection, taking into account the relevant guidelines adopted by the International Maritime Organisation (IMO), is undertaken in accordance with its national law. 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 competent authorities of that Member State and of the flag State shall be informed. Article 7 Enforcement measures by coastal States with respect to ships in transit 1. If the suspected discharge of polluting substances takes place in the areas referred to in Article 3(1)(b), (c), (d) or (e) and the ship which is suspected of the discharge does not call at a port of the Member State holding the information relating to the suspected discharge, the following shall apply: (a) If the next port of call of the ship is in another Member State, the Member States concerned shall cooperate closely in the inspection referred to in Article 6(1) and in deciding on the appropriate measures in respect of any such discharge; (b) If the next port of call of the ship is a port of a State outside the Community, the Member State shall take the necessary measures to ensure that the next port of call of the ship is informed about the suspected discharge and shall request the State of the next port of call to take the appropriate measures in respect of any such discharge. 2. Where there is clear, objective evidence that a ship navigating in the areas referred to in Article 3(1)(b) or (d) has, in the area referred to in Article 3(1)(d), committed an infringement resulting in a discharge causing major damage or a threat of major damage to the coastline or related interests of the Member State concerned, or to any resources of the areas referred to in Article 3(1)(b) or (d), that State shall, subject to Part XII, Section 7 of the 1982 United Nations Convention on the Law of the Sea and provided that the evidence so warrants, submit the matter to its competent authorities with a view to instituting proceedings, including detention of the ship, in accordance with its national law. 3. In any event, the authorities of the flag State shall be informed. Article 8 Penalties 1. Member States shall take the necessary measures to ensure that infringements within the meaning of Article 4 are subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties. 2. Each Member State shall take the measures necessary to ensure that the penalties referred to in paragraph 1 apply to any person who is found responsible for an infringement within the meaning of Article 4. Article 9 Compliance with international law Member States shall apply the provisions of this Directive without any discrimination in form or in fact against foreign ships and in accordance with applicable international law, including Section 7 of Part XII of the 1982 United Nations Convention on the Law of the Sea, and they shall promptly notify the flag State of the vessel and any other State concerned of measures taken in accordance with this Directive. Article 10 Accompanying measures 1. For the purposes of this Directive, Member States and the Commission shall cooperate, where appropriate, in close collaboration with the European Maritime Safety Agency and taking account of the action programme to respond to accidental or deliberate marine pollution set up by Decision No 2850/2000/EC (7) and if appropriate, of the implementation of Directive 2000/59/EC in order to: (a) develop the necessary information systems required for the effective implementation of this Directive; (b) establish common practices and guidelines on the basis of those existing at international level, in particular for: — the monitoring and early identification of ships discharging polluting substances in violation of this Directive, including, where appropriate, on-board monitoring equipment, — reliable methods of tracing polluting substances in the sea to a particular ship, and — the effective enforcement of this Directive. 2. In accordance with its tasks as defined in Regulation (EC) No 1406/2002, the European Maritime Safety Agency shall: (a) work with the Member States in developing technical solutions and providing technical assistance in relation to the implementation of this Directive, in actions such as tracing discharges by satellite monitoring and surveillance; (b) assist the Commission in the implementation of this Directive, including, if appropriate, by means of visits to the Member States, in accordance with Article 3 of Regulation (EC) No 1406/2002. Article 11 Feasibility Study The Commission shall, before the end of 2006, submit to the European Parliament and the Council a feasibility study on a European coastguard dedicated to pollution prevention and response, making clear the costs and benefits. Article 12 Reporting Every three years, Member States shall transmit a report to the Commission on the application of this Directive by the competent authorities. On the basis of these reports, the Commission shall submit a Community report to the European Parliament and the Council. In this report, the Commission shall assess, inter alia, the desirability of revising or extending the scope of this Directive. It shall also describe the evolution of relevant case-law in the Member States and shall consider the possibility of creating a public database containing such relevant case-law. Article 13 Committee procedure 1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS), established by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council, of 5 November 2002 (8). 2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month. Article 14 Provision of information The Commission shall regularly inform the Committee set up by Article 4 of Decision No 2850/2000/EC of any proposed measures or other relevant activities concerning the response to marine pollution. Article 15 Amendment procedure In accordance with Article 5 of Regulation (EC) No 2099/2002 and following the procedure referred to in Article 13 of this Directive, the COSS may exclude amendments to Marpol 73/78 from the scope of this Directive. Article 16 Implementation Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 March 2007 and forthwith inform the Commission thereof. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. Article 17 Entry into force This Directive shall enter into force on the day following its publication in the Official Journal of the European Union. Article 18 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 7 September 2005. For the European Parliament The President J. BORRELL FONTELLES For the Council The President C. CLARKE (1) OJ C 220, 16.9.2003, p. 72. (2) Opinion of the European Parliament of 13 January 2004 (OJ C 92 E, 16.4.2004, p. 77), Council Common Position of 7 October 2004 (OJ C 25 E, 1.2.2005, p. 29), Position of the European Parliament of 23 February 2005 (not yet published in the Official Journal) and Council Decision of 12 July 2005. (3) See page 164 of this Official Journal. (4) OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation (EC) No 724/2004 (OJ L 129, 29.4.2004, p. 1). (5) OJ L 332, 28.12.2000, p. 81. Directive as amended by Directive 2002/84/EC (OJ L 324, 29.11.2002, p. 53). (6) OJ L 184, 17.7.1999, p. 23. (7) Decision No 2850/2000/EC of the European Parliament and of the Council of 20 December 2000 setting up a Community framework for cooperation in the field of accidental or deliberate marine pollution (OJ L 332, 28.12.2000, p. 1). Decision as amended by Decision No 787/2004/EC (OJ L 138, 30.4.2004, p. 12). (8) OJ L 324, 29.11.2002, p. 1. Regulation as amended by Commission Regulation (EC) No 415/2004 (OJ L 68, 6.3.2004, p. 10). ANNEX Summary, for reference purposes, of the Marpol 73/78 discharge regulations relating to discharges of oil and noxious liquid substances, as referred to in Article 2.2 Part I: Oil (Marpol 73/78, Annex I) For the purposes of Marpol 73/78 Annex I, ‘oil’ means petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined products (other than petrochemicals which are subject to the provisions of Marpol 73/78 Annex II) and ‘oily mixture’ means a mixture with any oil content. Excerpts of the relevant provisions of Marpol 73/78 Annex I: Regulation 9: Control of discharge of oil 1. Subject to the provisions of Regulations 10 and 11 of this Annex and paragraph 2 of this Regulation, any discharge into the sea of oil or oily mixtures from ships to which this Annex applies shall be prohibited except when all the following conditions are satisfied: (a) for an oil tanker, except as provided for in subparagraph (b) of this paragraph: (i) the tanker is not within a special area; (ii) the tanker is more than 50 nautical miles from the nearest land; (iii) the tanker is proceeding en route; (iv) the instantaneous rate of discharge of oil content does not exceed 30 litres per nautical mile; (v) the total quantity of oil discharged into the sea does not exceed for existing tankers 1/15000 of the total quantity of the particular cargo of which the residue formed a part, and for new tankers 1/30000 of the total quantity of the particular cargo of which the residue formed a part; and (vi) the tanker has in operation an oil discharge monitoring and control system and a slop tank arrangement as required by Regulation 15 of this Annex. (b) from a ship of 400 tons gross tonnage and above other than an oil tanker and from machinery space bilges excluding cargo pump-room bilges of an oil tanker unless mixed with oil cargo residue: (i) the ship is not within a special area; (ii) the ship is proceeding en route; (iii) the oil content of the effluent without dilution does not exceed 15 parts per million; and (iv) the ship has in operation (monitoring, control and filtering equipment) as required by regulation 16 of this Annex. 2. In the case of a ship of less than 400 tons gross tonnage other than an oil tanker whilst outside the special area, the (flag State) Administration shall ensure that it is equipped as far as practicable and reasonable with installations to ensure the storage of oil residues on board and their discharge to reception facilities or into the sea in compliance with the requirements of paragraph (1)(b) of this Regulation. 3. […]. 4. The provisions of paragraph 1 of this Regulation shall not apply to the discharge of clean or segregated ballast or unprocessed oily mixtures which without dilution have an oil content not exceeding 15 parts per million and which do not originate from cargo pump-room bilges and are not mixed with oil cargo residues. 5. No discharge into the sea shall contain chemicals or other substances in quantities or concentrations which are hazardous to the marine environment or chemicals or other substances introduced for the purpose of circumventing the conditions of discharge specified in this regulation. 6. The oil residues which cannot be discharged into the sea in compliance with paragraphs 1, 2 and 4 of this Regulation shall be retained on board or discharged to reception facilities. 7. […]. Regulation 10: Methods for the prevention of oil pollution from ships while operating in special areas 1. For the purpose of this Annex, the special areas are the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area, the ‘Gulfs area’, the Gulf of Aden area, the Antarctic area and the North-West European waters, (as further defined and specified). 2. Subject to the provisions of regulation 11 of this Annex: (a) Any discharge into the sea of oil or oily mixture from any oil tanker and any ship of 400 tons gross tonnage and above other than an oil tanker shall be prohibited while in a special area. […]; (b) […] Any discharge into the sea of oil or oily mixture from a ship of less than 400 tons gross tonnage, other than an oil tanker, shall be prohibited while in a special area, except when the oil content of the effluent without dilution does not exceed 15 parts per million. 3. (a) The provisions of paragraph 2 of this Regulation shall not apply to the discharge of clean or segregated ballast. (b) The provisions of subparagraph (2)(a) of this regulation shall not apply to the discharge of processed bilge water from machinery spaces, provided that all of the following conditions are satisfied: (i) the bilge water does not originate from cargo pump-room bilges; (ii) the bilge water is not mixed with oil cargo residues; (iii) the ship is proceeding en route; (iv) the oil content of the effluent without dilution does not exceed 15 parts per million; (v) the ship has in operation oil filtering equipment complying with Regulation 16(5) of this Annex; and (vi) the filtering system is equipped with a stopping device which will ensure that the discharge is automatically stopped when the oil content of the effluent exceeds 15 parts per million. 4. (a) No discharge into the sea shall contain chemicals or other substances in quantities or concentrations which are hazardous to the marine environment or chemicals or other substances introduced for the purpose of circumventing the conditions of discharge specified in this regulation. (b) The oil residues which cannot be discharged into the sea in compliance with paragraph 2 or 3 of this Regulation shall be retained on board or discharged to reception facilities. 5. Nothing in this Regulation shall prohibit a ship on a voyage only part of which is in a special area from discharging outside the special area in accordance with Regulation 9 of this Annex. 6. […]. 7. […]. 8. […]. Regulation 11: Exceptions Regulations 9 and 10 of this Annex shall not apply to: (a) the discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving life at sea; or (b) the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment: (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 minimising 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; or (c) the discharge into the sea of substances containing oil, approved by the (flag State) administration, when being used for the purpose of combating specific pollution incidents in order to minimise the damage from pollution. Any such discharge shall be subject to the approval of any Government in whose jurisdiction it is contemplated the discharge will occur. Part II: Noxious liquid substances (Marpol 73/78 Annex II) Excerpts of the relevant provisions of Marpol 73/78 Annex II: Regulation 3: Categorisation and listing of noxious liquid substances 1. For the purpose of the Regulations of this Annex, noxious liquid substances shall be divided into four categories as follows: (a) Category A: noxious liquid substances which if discharged into the sea from tank cleaning or deballasting operations would present a major hazard to either marine resources or human health or cause serious harm to amenities or other legitimate uses of the sea and therefore justify the application of stringent anti-pollution measures; (b) Category B: noxious liquid substances which if discharged into the sea from tank cleaning or deballasting operations would present a hazard to either marine resources or human health or cause harm to amenities or other legitimate uses of the sea and therefore justify the application of special anti-pollution measures; (c) Category C: noxious liquid substances which if discharged into the sea from tank cleaning or deballasting operations would present a minor hazard to either marine resources or human health or cause minor harm to amenities or other legitimate uses of the sea and therefore require special operational conditions; (d) Category D: noxious liquid substances which if discharged into the sea from tank cleaning or deballasting operations would present a recognisable hazard to either marine resources or human health or cause minimal harm to amenities or other legitimate uses of the sea and therefore require some attention in operational conditions. 2. [...]. 3. […]. 4. […]. (Further guidelines on the categorisation of substances, including a list of categorised substances are given in Regulation 3(2) to (4) and Regulation 4 and the Appendices to Marpol 73/78 Annex II) Regulation 5: Discharge of noxious liquid substances Category A, B and C substances outside special areas and Category D substances in all areas Subject to the provisions of […] Regulation 6 of this Annex, 1. The discharge into the sea of substances in Category A as defined in Regulation 3(1)(a) of this Annex or of those provisionally assessed as such or ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited. If tanks containing such substances or mixtures are to be washed, the resulting residues shall be discharged to a reception facility until the concentration of the substance in the effluent to such facility is at or below 0,1 % by weight and until the tank is empty, with the exception of phosphorus, yellow or white, for which the residual concentration shall be 0,01 % by weight. Any water subsequently added to the tank may be discharged into the sea when all the following conditions are satisfied: (a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled; (b) the discharge is made below the waterline, taking into account the location of the seawater intakes; and (c) the discharge is made at a distance of not less than 12 nautical miles from the nearest land in a depth of water of not less than 25 m. 2. The discharge into the sea of substances in Category B as defined in Regulation 3(1)(b) of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited except when all the following conditions are satisfied: (a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled; (b) the procedures and arrangements for discharge are approved by the (flag State) administration. Such procedures and arrangements shall be based upon standards developed by the (IMO) and shall ensure that the concentration and rate of discharge of the effluent is such that the concentration of the substance in the wake astern of the ship does not exceed 1 part per million; (c) the maximum quantity of cargo discharged from each tank and its associated piping system does not exceed the maximum quantity approved in accordance with the procedures referred to in subparagraph (b) of this paragraph, which shall in no case exceed the greater of 1 m3 or 1/3000 of the tank capacity in m3; (d) the discharge is made below the waterline, taking into account the location of the seawater intakes; and (e) the discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 m. 3. The discharge into the sea of substances in Category C as defined in Regulation 3(1)(c) of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited except when all the following conditions are satisfied: (a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled; (b) the procedures and arrangements for discharge are approved by the (flag State) administration. Such procedures and arrangements shall be based upon standards developed by the (IMO) and shall ensure that the concentration and rate of discharge of the effluent is such that the concentration of the substance in the wake astern of the ship does not exceed 10 parts per million; (c) the maximum quantity of cargo discharged from each tank and its associated piping system does not exceed the maximum quantity approved in accordance with the procedures referred to in subparagraph (b) of this paragraph, which shall in no case exceed the greater of 3 m3 or 1/1000 of the tank capacity in m3; (d) the discharge is made below the waterline, taking into account the location of the seawater intakes; and (e) the discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 m. 4. The discharge into the sea of substances in Category D as defined in Regulation 3(1)(d) of this Annex, or of those provisionally assessed as such, or ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited except when all the following conditions are satisfied: (a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled; (b) such mixtures are of a concentration not greater than one part of the substance in ten parts of water; and (c) the discharge is made at a distance of not less than 12 nautical miles from the nearest land. 5. Ventilation procedures approved by the (flag State) administration may be used to remove cargo residues from a tank. Such procedures shall be based upon standards developed by the (IMO). Any water subsequently introduced into the tank shall be regarded as clean and shall not be subject to paragraphs 1, 2, 3 or 4 of this Regulation. 6. The discharge into the sea of substances which have not been categorised, provisionally assessed, or evaluated as referred to in Regulation 4(1) of this Annex, or of ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited. Category A, B and C substances within special areas (as defined in Marpol 73/78 Annex II, Regulation 1, including the Baltic Sea) Subject to the provisions of […] Regulation 6 of this Annex, 7. The discharge into the sea of substances in Category A as defined in Regulation 3(1)(a) of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited. If tanks containing such substances or mixtures are to be washed, the resulting residues shall be discharged to a reception facility which the States bordering the special area shall provide in accordance with Regulation 7 of this Annex, until the concentration of the substance in the effluent to such facility is at or below 0,05 % by weight and until the tank is empty, with the exception of phosphorus, yellow or white, for which the residual concentration shall be 0,005 % by weight. Any water subsequently added to the tank may be discharged into the sea when all the following conditions are satisfied: (a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled; (b) the discharge is made below the waterline, taking into account the location of the seawater intakes; and (c) the discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 m. 8. The discharge into the sea of substances in Category B as defined in Regulation (3)(1)(b) of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited except when all the following conditions are satisfied: (a) the tank has been prewashed in accordance with the procedure approved by the (flag State) Administration and based on standards developed by the (IMO) and the resulting tank washings have been discharged to a reception facility; (b) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled; (c) the procedures and arrangements for discharge and washings are approved by the (flag State) Administration. Such procedures and arrangements shall be based upon standards developed by the (IMO) and shall ensure that the concentration and rate of discharge of the effluent is such that the concentration of the substance in the wake astern of the ship does not exceed 1 part per million; (d) the discharge is made below the waterline, taking into account the location of the seawater intakes; and (e) the discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 m. 9. The discharge into the sea of substances in Category C as defined in Regulation 3(1)(c) of this Annex or of those provisionally assessed as such, or ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited except when all the following conditions are satisfied: (a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled; (b) the procedures and arrangements for discharge are approved by the (flag State) administration. Such procedures and arrangements shall be based upon standards developed by the (IMO) and shall ensure that the concentration and rate of discharge of the effluent is such that the concentration of the substance in the wake astern of the ship does not exceed 1 part per million; (c) the maximum quantity of cargo discharged from each tank and its associated piping system does not exceed the maximum quantity approved in accordance with the procedures referred to in subparagraph (b) of this paragraph which shall in no case exceed the greater of 1 m3 or 1/3000 of the tank capacity in m3; (d) the discharge is made below the waterline, taking into account the location of the seawater intakes; and (e) the discharge is made at a distance of not less than 12 nautical miles from the nearest land and in a depth of water of not less than 25 m. 10. Ventilation procedures approved by the (flag State) administration may be used to remove cargo residues from a tank. Such procedures shall be based upon standards developed by the (IMO). Any water subsequently introduced into the tank shall be regarded as clean and shall not be subject to paragraphs 7, 8 or 9 of this Regulation. 11. The discharge into the sea of substances which have not been categorised, provisionally assessed or evaluated as referred to in Regulation 4(1) of this Annex, or of ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited. 12. Nothing in this regulation shall prohibit a ship from retaining on board the residues from a Category B or C cargo and discharging such residues into the sea outside a special area in accordance with paragraphs 2 or 3 of this Regulation, respectively. Regulation 6: Exceptions Regulation 5 of this Annex shall not apply to: (a) the discharge into the sea of noxious liquid substances or mixtures containing such substances necessary for the purpose of securing the safety of a ship or saving life at sea; or (b) the discharge into the sea of noxious liquid substances or mixtures containing such substances resulting from damage to a ship or its equipment: (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 minimising 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; or (c) the discharge into the sea of noxious liquid substances or mixtures containing such substances, approved by the (flag State) administration, when being used for the purpose of combating specific pollution incidents in order to minimise the damage from pollution. Any such discharge shall be subject to the approval of any government in whose jurisdiction it is contemplated the discharge will occur.

Summary: Ship-source pollution and criminal penalties Ship-source pollution and criminal penalties SUMMARY OF: Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements SUMMARY WHAT DOES THIS DIRECTIVE DO? It creates rules that are applicable EU-wide on the imposition of penalties in the event of discharges of oil or other polluting substances from ships sailing in its waters. KEY POINTS The current legislation states that ship-source polluting discharges constitute in principle a criminal offence. According to the directive, this relates to discharges of oil or other polluting substances from vessels. Minor discharges are not automatically considered as offences, except where repeated discharges lead to a deterioration in water quality. The persons responsible for discharging polluting substances may be subject to criminal penalties, if they have acted with intent, recklessly* or with serious negligence. The act of inciting or aiding and abetting a person to discharge a polluting substance may also lead to criminal penalties. The directive applies to all types of vessels, irrespective of their flag. Polluting discharges are forbidden in: the internal waters, including ports, of an EU country; the territorial waters of an EU country; straits used for international navigation subject to the right of transit passage, as laid down in the 1982 United Nations Convention on the Law of the Sea; the exclusive economic zone (EEZ)* of an EU country; the high seas. Exceptions This regime does not apply to discharges from warships or other ships owned or operated by a state and used only on government non-commercial service. Exceptions to the ban on discharges of polluting substances may be applied where human safety or that of the ship is in danger. Legal persons Directive 2009/123/EC amended Directive 2005/35/EC to improve rules on ship-source pollution and to ensure that those responsible for discharges of polluting substances are subject to adequate penalties. It requires EU countries to introduce rules on the liability of legal persons under private law* such as companies. Companies may be subject to criminal penalties if an individual in a leading position within the company has committed a criminal offence for their benefit, whether this person has acted either individually or as part of the company. The company is also responsible for offences committed by an individual through oversight, specifically through a lack of supervision or control. The liability of the company must not exclude criminal proceedings against the individuals involved. Applying penalties Directive 2009/123/EC also requires EU countries’ national authorities to ensure that effective, proportionate and dissuasive penalties are applied, including for minor cases. They must cooperate when a vessel is found guilty of illegal discharging in their area of responsibility before the vessels calls at the port of another EU country. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 1 October 2005. EU countries had to incorporate it into national law by 1 April 2007. BACKGROUND The sinking of the Prestige in November 2002 and of the Erika in December 1999 highlighted the need to tighten the net in relation to ship-source pollution. However, accidents are not the main source of pollution: most of it is the result of deliberate discharges (tank-cleaning operations and waste oil disposal). These rules incorporate into EU law parts of the 1973 International Convention on the Prevention of Pollution from Ships and its 1978 Protocol (known as the Marpol Convention). This makes it possible to harmonise application of the rules of this convention. KEY TERMS * Reckless action: action taken with the knowledge that it is likely to result in damage. * Exclusive economic zone (EEZ): it is generally understood to arise when a country assumes jurisdiction over the exploration and exploitation of marine resources off its coast. This section is normally considered to be a band extending 200 miles from the shore. * Legal persons under private law: all legal entities, such as companies, with the exception of states, public bodies and international public organisations. ACTS Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (OJ L 255, 30.9.2005, pp. 11–21). Successive amendments to Directive 2005/35/CE have been incorporated in the basic text. This consolidated version is of documentary value only. RELATED ACTS Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ L 208, 5.8.2002, pp. 1–9). See consolidated version. Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues – Commission declaration (OJ L 332, 28.12.2000, pp. 81–90). See consolidated version. last update 25.04.2016