New Criminal Penalties for Ship-Source Pollution

24 November 2009

The 2009 EU Directive on ship-source pollution has come into force and EU Member States have until 16 November 2010 to fully transpose the Directive into national law. The 2009 Directive amends the existing penalty regime under the 2005 Directive on ship-source pollution by introducing a series of new criminal offences. The introduction of these new criminal offences is designed to demonstrate 'social disapproval of a different nature' from the existing administrative penalties that were established under the 2005 Directive regime.

Member States are required to pass national laws making it a criminal offence for ships to discharge oil or noxious liquid substances into territorial waters, internal waters, straits used for navigation, the exclusive economic zone, or the high seas.  Criminal sanctions will apply where the discharge is committed with intent, recklessness or serious negligence and results in a deterioration of the quality of water. Minor discharges that do not individually result in a deterioration of the quality of water will also be subject to criminal penalties where they are committed repeatedly and with intent, recklessness or serious neglect.

A company may be held liable for the commission of an offence where an individual associated with the company commits an offence either for the benefit of the company, or as a result of not exercising a sufficient degree of control or supervision.  Individuals may also be held personally liable for the commission of an offence, with the Directive stating that Member States are to ensure that penalties are effective, proportionate and dissuasive.