New Royal Decree implements EU ship-source pollution directive
23/05/2007 International Law Office (Shipping/Transport - Spain )
Royal Decree 394/2007,(1) which entered into force on April 5 2007, implements the EU Ship-Source Pollution Directive (2005/35//EC) into Spanish domestic law.
Certain duties imposed on member states by the directive already existed under Spanish law. For example, ship-source discharges of polluting substances committed intentionally, recklessly or through gross negligence are considered as a breach of the law. Such infringements are regarded as criminal offences under Framework Decision 2005/667/JHA, which supplements the directive (such infringements were already considered as criminal offences under Spanish law before the EU regulations came into force).
The decree applies to all civil ships, irrespective of their flag.
The approval of the decree reinforces the framework of penalties for ship-source pollution; it aims to ensure that adequate penalties are imposed on every person or entity that causes or contributes to cause maritime pollution either intentionally or through gross negligence. The creation of a European legal area is one of the most important measures, as all ship-source discharges of polluting substances will be penalized within this area. The Spanish maritime authorities are entitled to detain ships which are in transit or which navigate the Spanish territorial sea or exclusive economic zone (even where their port of call is not a Spanish port), provided that there is conclusive evidence of the existence of a discharge that may damage the sea, the coastline or related interests. The authorities can initiate proceedings and inform the public prosecutor in order to ascertain whether a criminal offence has been committed.
The decree provides that the policing measures adopted by the authorities must be consistent with Part XII, Section 7 of the United Nations Convention on the Law of the Sea 1982. Similarly, the decree strengthens the coordination and cooperation between EU member states by contributing to the implementation of technical solutions to trace discharges through inspection, satellite surveillance or other reliable methods of monitoring.
The objective of the decree (in addition to those of the directive) is to establish penalties for the violation of its provisions in order to ensure a high level of safety and environmental protection in maritime transport. In light of these objectives, the decree provides for a cooperation procedure between member states. If an offending ship is in transit in Spain and its next port of call is in another member state, both the Spanish authorities and the authorities of that member state will cooperate in order to take the appropriate measures. If the next port of call is not a member state, the Spanish authorities will ask the foreign authorities to take the required measures. In both cases the Spanish authorities must report to the flag state.
(1) Royal Decree 394/2007 (RCL 2007/701) on the measures applicable to ships in transit which commit pollution offences in Spanish maritime waters (Boletín Oficial del Estado, April 4 2007, 81).