The European Commission says it has decided to send reasoned opinions to Cyprus, Estonia, Finland, France, Luxembourg, Malta, Portugal and the United Kingdom for failure to adopt national legislation on penalties against those responsible for polluting discharges at sea.
The move is in support of a controversial directive requiring EU member states to impose criminal sanctions for allowing “polluting substances” into the when committed with “intent, recklessness or serious negligence”. Brussels has come under considerable criticism, particularity for its use of the term “serious negligence”.
Brussels has taken the action days after the EU's Advocate General Kokott gave an opinion at European Court of Justice reviewing of the validity of EU Ship Source Pollution Directive 2005/35/EC which broadly supported the EC's position. The case was brought by a coalition of shipping organisations including Intertanko.
In her detailed Opinion Advocate General Kokott has supported the coalition's argument that outside territorial seas the Community has no power to apply laws of its own which go beyond MARPOL. She has also agreed that the Directive was clearly intended to do this, as it prescribes "serious negligence" as an additional test of liability. However she has suggested that the Directive would not be invalid if the term "serious negligence" is interpreted restrictively, to mean no more than the MARPOL test of recklessness. She has also proposed that this narrow interpretation should not apply in the territorial sea, where she considers that the Community is not bound by MARPOL, and where she recommends that "serious negligence" should be given a broader meaning.