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Commodore (H.C.G) GEORGIOS GIANNIMARAS Director General

Ministry of Mercantile Marine General Directorate for Shipping Policy & Development. Commodore (H.C.G) GEORGIOS GIANNIMARAS Director General. “DEVELOPMENTS IN THE NATIONAL & EUROPEAN UNION CONTEXT”. a. Directive on ship source pollution   

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Commodore (H.C.G) GEORGIOS GIANNIMARAS Director General

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  1. Ministry of Mercantile Marine General Directorate for Shipping Policy & Development Commodore (H.C.G)GEORGIOS GIANNIMARAS Director General

  2. “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

  3. 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)

  4. 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.

  5. 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.

  6. 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 Community’s powers on the environment. - In accordance with Court’s delivered judgment, the European community has the power to require the Member States to lay down criminal penalties. - The Court of Justice annuls the Council’s 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.

  7. Institutional arrangements in the EU context (cont.) Implications -The Commission has already brought legal proceedings to the European Court of Justice against the Council’s 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.

  8. EU Directive - Legal concerns Coalition of Shipping Industry Organization’s 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.

  9. 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 Greece’s 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.

  10. TheResponsiblePersons 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

  11. MARPOL LiabilityTest 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

  12. 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.

  13. Scope II) beyond territorial sea all other operators  recklessness or serious negligence I) beyond territorial sea master, ship owner and crew MARPOL test III) within territorial sea  all operators  recklessness or serious negligence

  14. Directive’s 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.

  15. 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

  16. Conclusion - Criminal liability can be imposed only by Court’s of law, after a proper judicial process - It is up to national Court’s 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.

  17. PART IIMARITIME SAFETY PACKAGE - ERIKA III

  18. 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

  19. 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.

  20. THANK YOU FOR YOUR KIND ATTENTION

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