EU Competition Rules for Maritime transport

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Ministry of Mercantile Marine General
Directorate for Shipping Policy Development
Commodore (H.C.G)GEORGIOS GIANNIMARAS Director
General
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DEVELOPMENTS IN THE NATIONAL EUROPEAN UNION
CONTEXT

• a. Directive on ship source pollution   
• b. Framework decision on the strengthening of
  the criminal law framework  
• c. Maritime Safety Package ERIKA III 

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European Union Regime

• Legal Framework
• -   Directive on ship-source pollution and on the
  introduction of sanctions for infringements
  (Official Journal of the European Union L 255/30
  September 2005)
• -   Framework decision on the strengthening of
  the criminal law framework for the enforcement of
  the law against ship-source pollution (Official
  Journal of the European Union L 255/30 September
  2005)

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European Union Regime (cont.)
Implementation date -   Directive on ship-source
pollution 1st March 2007 -   Framework decision
12th January 2007 Implications In case of
failure to transpose the above EU legislative
acts into national law, until the fixed deadline,
the Commission can launch infringement
proceedings.
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Existing National Legislation

• Legal Framework
• Presidential Decree 55/1998 Codification of the
  relative provisions on the prevention of the
  marine environment (Official Gazette 58 A
  1998)
• Law 1269/1982 89 A 1982 Ratification of the
  International Convention for the Prevention of
  Pollution from Ships, 1973
• Implications
• In the aftermath of the adoption of the
  aforementioned EU legislative acts and in the
  context of transposition of them into national
  law, arises the necessity for re-examination of
  the existing national regime for the purpose to
  bring it in conformity with European legislation.
  

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Institutional arrangements in the EU context

• Judgment of the Court of Justice in Case C-176/03
  
• - The Framework Decision on the protection of
  the environment through criminal law was adopted
  by virtue of the treaty on European Union.
• - The Commission claimed that the aim and
  content of the Framework Decision are within the
  scope of the European Communitys powers on the
  environment.
• - In accordance with Courts delivered judgment,
  the European community has the power to require
  the Member States to lay down criminal penalties.
• - The Court of Justice annuls the Councils
  Framework Decision on the protection of the
  environment through criminal law, since that
  Decision infringes the Treaty on European Union,
  which gives priority to the powers of the
  European Community Treaty.

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Institutional arrangements in the EU context
(cont.)

• Implications
• - The Commission has already brought legal
  proceedings to the European Court of Justice
  against the Councils Framework Decision on the
  strengthening of the criminal law for the
  enforcement of the law against ship-source
  pollution.
• - The Commission will possibly proceed towards
  the modification of the European Community
  Directive with the purpose to include in the text
  of the Directive the relative provisions of the
  Framework Decision.

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EU Directive - Legal concerns

• Coalition of Shipping Industry Organizations
  initiative
• - Application to the High Court in London for
  judicial review of the EU Directive on Criminal
  Sanctions for Ship-Source Pollution
• Referral of the matter to the European Court of
  Justice for a ruling.
• Implications
• - The Commission will probably proceed towards
  the modifications of this Directive in case the
  European Court of Justice upholds the supremacy
  of the international law vis a vis European Union
  legislation.

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Statement by Greece

• -Greece endorsed the aim of the Directive, namely
  to protect the marine environment, and is
  particularly interested in seeing it promoted in
  view of Greeces special geographical situation
  (extensive coastline and numerous islands) and
  the particular importance of tourism for its
  national economy.
• Nevertheless, Greece is unable to accept the text
  of the Directive since its provisions go beyond
  those in force at international level, which is
  likely to have an adverse effect on shipping in
  general.
• In particular, Greece considers that the
  provisions of the Directive making maritime
  activity and the maritime profession liable to
  criminal sanctions go further that the provisions
  of the international MARPOL Convention and are
  contrary to the international nature of merchant
  shipping where uniform international rules must
  apply.
• - Greece also believes that the legal
  uncertainty which would arise from implementation
  of the Directive would lower the level of legal
  protection afforded to Community seafarers and
  people engaged in maritime transport generally,
  and would ultimately create disincentives for
  young people to take up maritime professions and
  for young entrepreneurs in the maritime sector of
  the European Union.

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The Responsible Persons

MARPOL Annex I Regulation 11 (b) and Annex II
Regulation 6 (b) () except if the owner or the
master acted EC Directive Article 8 The
sanctions () apply to any person who is found
responsible for an infringement
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MARPOL Liability Test

• Annex I Regulation 11 (b) and Annex II Regulation
  6 (b)
• - The discharge into the sea of oil or oily
  mixture resulting from damage to a ship or its
  equipment (is not illegal)
• - Provided that all reasonable precautions have
  taken after the occurrence of the damage or
  discovery of the discharge for the purpose of
  preventing or minimizing the discharge and
• -  Except if the owner or the master acted either
  with intent to cause damage, or recklessly and
  with knowledge that damage would probably result

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UNCLOS Article 230(2)
Monetary penalties only may be imposed with
respect to violations of national laws and
regulations or applicable international rules and
standards for the prevention, reduction and
control of pollution of the marine environment,
committed by foreign vessels in the territorial
sea, except in the case of a willful and serious
act of pollution in the territorial sea.
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Scope

• I) beyond territorial sea
• master, ship owner
• and crew
• MARPOL test

II) beyond territorial sea all other
operators  recklessness or serious negligence
III) within territorial sea  all
operators  recklessness or serious negligence
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Directives Liability Test

• Article 4
• () ship-source discharges of polluting
  substances into any of the area referred to in
  Article 3 (1) are regarded as infringements if
  committed with intent, recklessly or by serious
  negligence.

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Main Implications

• EU Directive departs from MARPOL in territorial
  waters
• Test of serious negligence is imprecise and
  subjective
• EU Directive challenges international legal order
• EU Directive infringes the treaty obligations of
  the MARPOL contracting states

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Conclusion

• - Criminal liability can be imposed only by
  Courts of law, after a proper judicial process
• - It is up to national Courts to consider the
  implementation and enforcement of the EU
  Directive vis a vis the MARPOL Convention and the
  existing national environmental legislation
• - The observance to the international maritime
  regime remains the fundamental goal.

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PART IIMARITIME SAFETY PACKAGE - ERIKA III
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MARITIME SAFETY PACKAGE - ERIKA III

• 1. Proposal for a Directive on compliance with
  flag state requirements
• 2. Proposal for a Directive on Port State
  Control
• 3 .Proposal for a Directive amending Directive
  2002/59/EC establishing Community vessel
  traffic monitoring and information system
• 4.  Proposal for a Directive on common rules and
  standards for ship inspection and survey
  organizations and for the relevant activities of
  maritime administrations
• 5.  Proposal for a Directive establishing the
  fundamental principles governing the
  investigation of accidents in the maritime
  transport
• 6.  Proposal for a Directive on the liability of
  carriers of passengers by sea and inland waterway
  in the event of accidents
• 7.  Proposal for a Directive on the civil
  liability and financial securities of shipowners

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MAIN ASPECTS OF THE PROPOSED DIRECTIVE ON THE
CIVIL LIABILITY AND FINANCIAL SECURITY OF
SHIPOWNERS

• Member States will have to ratify all the
  relevant IMO Conventions, including the LLMC
  1996.
• The LLMC 1996 will be incorporated into Community
  law.
• The Commission will seek a mandate for
  negotiation within IMO to review the LLMC1996
  Protocol with an aim to review the level at which
  shipowners loose their right to limit their
  liability.
• Ships flying the flag of a state that is NOT
  party to the LLMC 1996 will be subject to a more
  severe liability regime with gross negligence.
• Member States have to ensure that shipowners,
  irrespective of flag, have a financial security
  for civil liability up to the double of the
  ceiling of the LLMC 1996.
• Shipowners must also have a financial security
  for abandonment of seafarers.
• Financial security must be evidenced on the basis
  of certificates.
• Directive action be introduces, allowing claims
  for third party damage to be addressed directly
  to the P I Club.

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THANK YOU FOR YOUR KIND ATTENTION