Doc. 8760 revised

11 September 2000

Accidents causing damage to the environment

Revised report
Committee on the Environment, Regional Planning and Local Authorities
Rapporteur : Sir Sydney Chapman, United Kingdom, European Democratic Group

Summary

Four disastrous accidents occurred within the three-month period mid-December 1999 to mid-March 2000. The first and most spectacular was the break-up of the Erika oil tanker off the coast of France. But equally menacing in their implications for the environment were the grounding of another tanker in the Sea of Marmara and cyanide and sludge discharges in north-west Romania.

The report calls for coherent national and European Union policies which take account of the needs of the “Greater Europe”.

I.       Draft resolution

1. The Assembly re-affirms the need for policies of prevention and remediation of accidents to the environment, based on a coherent set of objectives for the “Greater Europe”. This need was dramatically illustrated by four disastrous accidents which occurred within the three-month period mid-December 1999 to mid-March 2000:

i. on 12 December 1999 the 25-year-old Maltese-registered single-hull oil tanker “Erika”, chartered by Total-Fina, broke in two off the coast of Brittany, spilling between 10 and 15 000 tonnes of heavy fuel oil, thereby polluting about 400 kilometres of Europe’s coastline in France, and causing severe damage to fauna, flora, fisheries and tourism - with implications also for public health;

ii. on 29 December 1999 the 25-year-old Russian tanker “Volgoneft 248”, also carrying heavy fuel oil and restricted in principle to fair weather seasonal trading, ran aground in bad weather and broke up off Istanbul, spilling 1300 tonnes of its cargo in the already seriously polluted Sea of Marmara;

iii. on 30 January 2000 in north-west Romania a dam burst, releasing 100 000 cubic metres of waste water contaminated with cyanide from the Baia Mare Aurul gold mine into the Lapus and Somes tributaries of the river Tisza, a tributary of the Danube;

iv. on 10 March 2000 in north-west Romania sludge with high concentrations of heavy metals (in particular lead and zinc) was discharged from the sedimentation pond of a non-operating mine in Baia Borse into the river Visheu, also a tributary of the Danube.

2. The Assembly applauds the immediate and spontaneous mobilisation of public opinion and voluntary efforts which followed the “Erika” accident, together with the report of the inquiry commission of the French National Assembly and takes note of the proposals quickly brought forward by the European Commission (European Union) for the introduction of -

i. directives and a regulation on enforcement of existing international standards by port authorities and classification societies, and on the accelerated phasing-in of double-hull oil tankers;

ii. greater transparency in the shipping industry in order that no charterer, insurer, financier etc. of a sub-standard ship will in future be able to claim not to have known about its poor condition;

iii. improved surveillance of potentially dangerous ships;

iv. measures to ensure that the volume of sub-standard shipping under the flags of states of the European Union should not augment with the accession of any state, especially Malta and Cyprus, which have at the moment the fourth and fifth largest fleets in the world;

v. the establishment of a European maritime safety agency, or “coastguard”, with the mission of enforcing effective safety inspections;

vi. the raising of ceilings for levels of compensation under the existing international oil pollution liability and compensation regime, which has hitherto functioned satisfactorily, but which now needs to be made to respond more promptly to the needs of victims whilst incorporating stronger incentives against the use of sub-standard ships.

3. The Assembly welcomes the good cooperation between the public authorities and Governments of Romania and Hungary, which was established immediately after the accidents in north-west Romania and which has since been pursued on specific issues. It agrees with the White Paper on Environmental Liability of the European Commission (European Union), issued on 9 February 2000, in which accession by the European Community to the Council of Europe’s Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (Lugano 1993) is presented as a possible move in the interests of the “Greater Europe” which would be complementary to the drawing-up of a “framework directive”, yet notes that Romania is among the many states which have still not signed the Council of Europe’s Convention.

4. The Assembly re-affirms its view (Recommendation 1431 (1999)) that liability under law, financially guaranteed, for damage to the environment - to property, persons, their economic livelihoods and to the shared public assets represented by natural resources and bio-diversity - will provide incentives for safer and cleaner industrial operations and transportation and is thus among the essential means of preventing future accidents.

5. The Assembly re-affirms its view (Recommendation 1330 (1997)) that rehabilitation of the ecological systems of the Black Sea and the Danube basin remains a matter of vital common European interest, especially as -

i. the Black Sea - of which the six littoral states are members of the Council of Europe, with three applying to join the European Union - is assessed as 90% biologically dead, the Danube being the source of 80% of its pollution;

ii. the future of the Mediterranean, linked through the Sea of Marmara, is at risk;

iii. an effective response will have positive implications for the remediation of intensely polluted marine environments in the far north of Europe.

6. Recalling its long-established position on “North-South relations” and its vocation to protect everyone’s rights in the “Greater Europe”, the Assembly considers that regions and areas where higher environmental standards prevail must not be under pressure to lower them:

i. accordingly, in regard to moves for enforcing international standards in shipping and for the phasing-in of double-hull oil tankers, care must be taken not to drive sub-standard ships to the oceans of the poorest and most vulnerable countries, a fortiori to the waters of countries which are recognized as candidates for accession to the European Union and their neighbours;

ii. the International Maritime Organisation (IMO), being the natural forum in which all Member states of the Council of Europe participate, should voice a common interest in raising international shipping safety and pollution prevention standards, and for reaching agreement on specific measures and on time-tables for introducing them;

iii. further, the Assembly rejects the view of the Oil Companies International Marine Forum (OCIMF) that an additional European “third tier” of funding for prompt compensation of victims of oil pollution in European waters would de-stabilize the current international oil pollution liability and compensation regime. This is a proposal which it strongly endorses.

7. Accordingly, the Assembly:

i. calls on the governments of member states of the Council of Europe to express within the frame of the International Maritime Organisation (IMO) a concerted position on the European Union’s proposals for improving the safety of oil shipping;

ii. calls on the European Union

a. to exhaust all possible means of seeking consensus within the frame of the International Maritime Organisation (IMO) before pressing ahead with its own proposals for an accelerated timetable for the phasing-in of double-hull oil tankers and limitation of access to European waters; and

b. to develop, in the interests of the “Greater Europe”, the option of its accession to the Council of Europe’s Lugano Convention on civil liability for environmental damage;

iii.       calls on all the governments of member states of the Council of Europe which are candidates for accession to the European Union to sign and ratify the Council of Europe’s Lugano Convention on civil liability for environmental damage, with a view to preparing their alignment on the acquis communautaire of the European Union;

iv.        invites the Government and Parliament of Romania, having regard also to the reply of the Committee of Ministers to Assembly Recommendation 1330 (1997), to re-activate under the Stability Pact for South-East Europe discussions between riparian states on the draft European Charter for the Danube Basin.

II.       Addition to the explanatory memorandum - 5 September 2000

1.        The report in Document 8760 was adopted on 7 April 2000 with a view to a debate under urgent procedure at the Assembly’s April part-session. The Bureau and a majority of the Assembly were in favour of this debate. But the two-thirds majority was not reached. Nor was time available at the subsequent part-session in June, by which time it was evident that the report should be revised.

2.       Because of its timing and the circumstances of its preparation, the report as it stands could not reflect a number of significant initiatives and events:

3.       These initiatives are referred to and commented upon in the new Draft Resolution. The references and comments seem to the Rapporteur to be sufficiently justified by the Annexes to this short Additional Explanatory Memorandum in conjunction with the well-established positions and perspectives of our Committee and of positions already taken by the Assembly (“North-South relations”, Stability Pact for South-East Europe etc.). Because of the sense of consternation and urgency which it projects, the Rapporteur does not wish to change the Explanatory Memorandum drafted for the Committee’s meeting on 7 April, but simply to add the date of its approval after its title.

4.       The Draft Resolution adopted on 7 April consisted of 27 elements, all of which are reflected in some way or other in the new Draft Resolution (if only, for a very small number, implicitly). There is no change of philosophy or perspective on the part of the Rapporteur. However, there has been a great richness and variety of developments and proposals since 7 April 2000. The Assembly should be invited to take position on these developments and proposals. It has seemed simpler and more convenient to propose a new Resolution than to devise a set of amendments to the old one.

III.       Explanatory Memorandum by the Rapporteur - 7 April 2000

Table of contents

1. Introduction

2. Marine pollution by hydrocarbons : ERIKA oil spillage

3. Accidents of industrial pollution and effects on the Danube river basin

4. Lessions for the future

5. Conclusions

1.       Introduction

The Committee is strongly concerned with recent pollution accidents seriously affecting marine and river eco-systems and causing a threat to human health. Lack of adequate preventive measures, low environmental standards and economic interests prevailing over public interest to protect the environment and human health are at the core of the problem.

This report therefore aims to draw lessons from the recent events and point out to possible actions to be undertaken by the Council of Europe, other international and European organisations and most importantly by the individual member states and their national Parliaments.

2.       Marine pollution by hydrocarbons : ERIKA oil spillage

The Maltese registered oil tanker, Erika sunk off the north-west coast of France in December 1999. The monocoque tanker at the end of its lifespan with minimum safety standards was reported to be carrying 30 000 tonnes of viscous fuel oil supplied by the French company Total Fina. Belle-Ile-en-Mer, Ile d'Yeu, the Golf of Morbihan and other south coastal areas in Brittany, renowned for their natural beauty and important tourism activity, have suffered the effects of the spill.

Three months after the accident, last Saturday's protests confirmed that the public in France remains very preoccupied by the consequences of the spill. The wreck of Amoco Cadiz is still a vivid memory and its impact on eco-system remains.

Although the accident does not amount to the level of preceding catastrophes of "Amoco Cadiz" and "Exxon-Valdez", it nevertheless caused severe pollution of the marine environment, devastation of coastlines and significant damage to local economies affecting in particular fishing industry, oyster-farming and tourism.

Damage to populations of Guillemots, Razorbills, extremely rare species of Great Northern Divers and a very small colony of eiders living in the Loire estuary and islands of Houat et Belle-Ile, has been significant. More than 35 000 birds have been collected off the coasts attained by the spill only three weeks after the accident. According to biologists specialised in marine fauna, number of birds affected at sea could be easily multiplied by five.

Potential threat to human health for those involved in the clean-up operations is also of particular concern. A number of recent studies indicate that the viscous fuel oil released by Erika is indeed carcinogenic.

The Erika incident brought to the fore the inefficiencies of the current mechanisms regulating maritime freight transport. "Erika" tanker was a typical example - owned by an Italian company, registered in Malta, with an Indian crew and French cargo. Such arrangements aim to reduce the freight transport costs by as much as 30% by means of avoiding strict security norms using monocoque vessels, applying low maintenance costs and minimising social costs of its often less skilled crew. All elements contributing to high shipwreck risks.

After the oil crisis of 1973, the oil price increased and consumption dropped significantly, inducing the oil companies to minimise transportation costs and sell off their fleet. Since, the freight transportation had been systematically sub-contracted to various off-shore enterprises applying minimum standards in order to remain competitive on the market.

Moreover, the Erika incident is only the "visible" aspect of a wider phenomena as clandestine discharges of oil and release of other polluting residues in open sea account for even more significant proportion of oil pollution affecting the marine environment. The Assembly adopted two Recommendations 1079 (1988) and 1227 (1993) to this regard in the past.

Rapporteur deplores continued negligence on behalf of all parties involved, systematically lacking commitment to effectively deal with the problem in order to prevent similar hazards occurring in the future.

3. Accidents of industrial pollution and effects on the Danube river basin

More recently, on 30 January 2000, another type of ecological catastrophe occurred in the Danube basin. Dam containing toxic waste material from the Baia Mare Aurul gold mine in north western Romania burst and released 378,500 litres of waste water, heavily contaminated with cyanide, into the Lapus and Somes tributaries of the river Tisza, being in turn tributary of Danube, and hence provoked what the European Environmental Agency described as the “worst case scenario for the region’s rivers” and potentially the worst ecological catastrophe since Chernobyl.

Reports from the area indicate that there has been extensive damage to the river ecosystem and its fauna. The Hungarian Environment Ministry has stated that, in the area of Tiszafuered and Szolnok, between 80 and 100 per cent of fish stock were killed. Other wildlife has also been affected, including Mute Swans, Black Cormorants, foxes and other carnivores. More than 400 000 migratory birds are also threatened.

In February, The Hungarian Environment Ministry reported that Lake Tisza in the Hortobágy National Park, that has recently become a World Heritage site, has been affected as well as areas that are protected under the Ramsar Convention.

Besides the ecological damage, the cyanide pollution in the river Tisza meant also significant threat to the human health, because in the upper part of the Tisza the cyanide concentration was 100 times more than the limit value for drinking water. Over 2.5 million people in the regions affected were threatened by drinking water contamination.

A very similar type of accident occurred in Romania soon after on 10 March 2000, in the mining area close to Baia Mare, caused by the discharge of sludge from the sedimentation pond of a non-operating mine in Baia Borse. As a result, the river Visheu, another Tisza tributary, was seriously polluted by heavy metals in particular large concentrations of plumb and zinc.

To date, little is known about the long term environmental impacts of the incidents. The ecologists warn of a long-term contamination of food chains through use of underground water aquifers and surface water for irrigation and also draw attention to dangerous metal concentrations persisting in the biotopes.

As 80% of Black Sea pollution comes from the Danube waters, the two catastrophes cause a serious threat to the marine eco-systems of the Black Sea, Sea of Marmara and ultimately the Mediterranean.

4.       Lessons for the future : possible action

The two types of accidents illustrate the lack of adequate preventive measures, low environmental standards applied in practice as well as lack of enforcement of the international legal provisions due to high importance given to economic interests which prevail over public interest to protect the environment and human health.

The industry and the economic operators concerned repeatedly try to avoid liability for these types of incidents expecting the society to cover environmental, social and economic costs induced.

While the amplitude of pollution accidents such as Erika oil spill and cyanide pollution from Baia Mare draw attention of the media and generate a strong public concern, regular releases of chemical and other harmful substances caused by industrial, agricultural or domestic activities are a frequent feature with equally disastrous impacts on the environment.

The Rapporteur is therefore of the opinion that a series of coherent measures ought to be introduced and enforced throughout Europe in order to both prevent pollution accidents and minimise negative effects on the environment and human health caused by regular industrial, agricultural and domestic activities.

National Parliaments have a crucial role to play in adopting the legislation, which introduces the obligation to apply stricter environmental norms.

Furthermore, the international environmental law has been rapidly evolving over the past decades aiming to provide a coherent framework for dealing with pollution prevention and other environmental issues, which transgress national frontiers.

For example, the question of civil and corporate liability for environmental damage has been the subject of two Conventions of the Council of Europe - the Convention on Civil Liability for Damage resulting from Activities dangerous to the Environment (Lugano, 1992) and the Convention on the protection of the environment through criminal law (Strasbourg, 1998).

The Governments and national Parliaments ought to enforce the “polluter pays” principle by signing, ratifying and implementing the these conventions in order to dissuade economic operators from applying inadequate safety measures and thus minimise risks of similar pollution accidents in the future.

The Rapporteur is aware of the economic, administrative and other constraints in the member states, which hinder the adoption, and in some cases the enforcement, of stricter environmental norms. The Council of Europe could therefore facilitate a platform for discussion in order to resolve some of the difficulties through exchange of experiences and international co-operation.

5.       Conclusions

The examples of recent ecological disasters point out to the inadequacy of legislative, regulatory and technical prevention measures resulting from the fact that the society is not ready to pay the cost of strict measures guaranteeing environmental safety.

The improvement of the current situation deserves the full attention of governments, national parliaments and international organisations such as the Council of Europe.

The lack of adequate implementation and enforcement of existing legal instruments with regard to environmental protection has been an ongoing issue of debate within the Committee. The Recommendation 1431 (1999) on "Future action to be taken by the Council of Europe in the field of environment protection" provides a good overview of the current situation and gives a wider context for future work of the Committee.

In the light of the recent events affecting the Danube basin, the Committee decided to give a follow up to Recommendation 1330 (1997) on draft European Charter of the Danube basin.

ANNEXES to the Additional Explanatory Memorandum

A. The Erika disaster

Communication of the European Commission (European Union) 21 March 2000 [extract]

B. Cyanide pollution of the Danube and the Tisza

Declaration of the Committee 21 February 2000

C. International Maritime Organisation

D.       “Safety of the Seaborne Oil Trade”Co

E.        Single- and double-hull oil tankers

F.       Implications of accession to EU of Malta and Cyprus

G.       The international oil pollution liability and compensation regime

H.       European Charter for the Danube Basin

I.       Environmental Liability

J.       The Precautionary Principle

2 February 2000 - press release       [extracts]

Annex A

The Erika disaster

Communication of the European Commission (European Union) 21 March 2000
[extract]

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Erika sailed from Dunkerque on 10 December 1999 loaded with approximately 30 000 tonnes of heavy fuel oil, bound for Livorno in Italy. The ship was chartered by the Total-Fina oil company. On the afternoon of 11 December, when approaching the Ushant traffic Separation Scheme, the ship developed a large starboard list, thought to be because of leakage of cargo into a ballast tank. The Captain transmitted a distress message, which was subsequently cancelled after transferring ballast to correct the list. The ship altered course for the oil port of Donges (France), as a port of refuge.

By the evening of 11 December cracks had begun to appear on the main deck above no.2 ballast tank, and the list had worsened. In deteriorating weather attempts were once again made by the crew to correct the list by transferring ballast and cargo.

In the early hours of 12 December a second distress message was sent informing that some hull plating had washed away. The French authorities immediately initiated a search and rescue operation. By 0645 the helicopter evacuation of the crew had begun. Shortly after 0800 the hull fractured in the way of No. 2 ballast tank and broke in two in a position 40 nautical miles south of Pointe de Penmarc’h. The whole crew was safely rescued.

Salvage tugs began the operation of towing the two hull sections further away from the coast. However both sections sank on 13 December.

Details of the ship:

Erika was a 37 000 tonne deadweight single-hulled tanker built in Japan in 1975, registered in Malta since 1993 and classed with the Italian Classification Society RINA, having transferred from Bureau Veritas in June 1998. The ship was owned by the Tevere Shipping Company of Malta. The tanker was converted in 1997 by designating Segregated Ballast tanks.

During her 25-year life the ship had changed name seven times and had been classed by four different Classification societies. She had flown the flags of Liberia and Japan before becoming registered in Malta.

The SIRENAC database of the Paris Memorandum of Understanding on port State control shows that Erika was subjected to four inspections since November 1997. Although revealing certain deficiencies no major structural problems were noted.

In 1998 the ship underwent a special survey by RINA in Montenegro, where 100 tonnes of steel was renewed in the ship’s tanks. In November 1999 (just before the accident,) a RINA surveyor recommended that thickness measurements be carried out on longitudinal stiffeners in the ballast tanks. The ship was permitted to sail on condition that the checks were completed in January 2000.

Preliminary conclusions

The preliminary report of the French accident investigation1 concluded that the ship suffered major structural failure, initially causing cargo to leak between cargo and ballast tanks requiring transfer of weight on board to correct the resulting list. Later, in deteriorating weather conditions, the hull completely fractured in the way on no.2 ballast tank resulting in the ship breaking in two.

Consequences of the accident

On being informed of the break-up and sinking of Erika and the ensuing pollution threat, the European Commission immediately activated its emergency team and offered the French authorities the services of the Community Oil Pollution Task Force experts, costs being borne by the Commission. The Commission provided a liaison officer between the French authorities and assisting foreign vessels. The estimated initial spill was 10000 tonnes of heavy fuel situated about 60 km off the French coast (South Brittany).

The two halves of the vessel lie in about 120 metres of water and are thought to contain about 15 000 tonnes of oil. Since the sinking more oil has been reported as leaking from the wreck. Since the accident Total Fina SA, the owner of the cargo, has entered into an agreement with the French Government to take action to prevent further escape of oil from the two halves and directly finance all related inspections and, if feasible, oil removal operations from the wreck.

The cost of the total damage caused by the accident is not yet known, however a number of claims have already been received by the Claims Handling Office established in Lorient by the vessel underwriters (Steamship Mutual Underwriting Association (Bermuda) Ltd.) and the IOPC 1992 Fund. 2

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Annex B

Cyanide pollution of the Danube and the Tisza

Declaration of the Committee 21 February 2000

DECLARATION

Cyanide pollution of the Danube and the Tisza - a warning to governments of the need for environmental awareness

The Committee is deeply concerned at the ecological disaster which has overtaken the Danube and some of its tributaries, including the Tisza.

It welcomes the good co-operation between Hungary and Romania and supports interventions in the region on behalf of the international community.

The inadequacy both of environmental standards and of those standards’ application in the countries of Central and Eastern Europe are the probable cause of this major accident, which has shown yet again how half-hearted the various parties concerned are in their commitment to the environmental cause.

These are the factors which probably made possible the discharge into the Tisza of 100,000 cubic metres of water polluted with cyanide and heavy metals, killing over 100 tonnes of fish so far, and seriously threatening the very existence of certain endangered species of river flora and fauna.

When it flowed into the Danube on 13 February, the contaminated water from the Tisza caused serious pollution of Europe’s second-longest river which, although its own pollution level is high, remains one of the continent’s richest in fauna.

The full scale of the disaster can be measured when one remembers that, having traversed the various countries on its course, the Danube enters the Black Sea, causing 80% of the pollution which has led to its already being considered 90% biologically dead.

In view of what has just happened, the Committee thinks it vital to survey, assess and up-grade industrial plants which are a source of serious ecological dangers.

As for managing the consequences of such disasters, one can only deplore the negligence of governments and their lack of any real determination to give themselves the means of preventing them - or at least minimising their impact.

The Committee thinks it important that governments should enforce the “polluter pays” principle and make an effort to sign and ratify the “Convention on Civil Liability for Damage resulting from Activities dangerous to the Environment”, which they themselves asked the Council of Europe to prepare, which they adopted in Lugano in 1992, and which has still not come into force, owing to the parties’ lack of any real commitment.

This disaster, and the damage resulting from the war in the former Yugoslavia, also show the relevance and value of the “European Charter of the Danube Basin”, which the Assembly was already proposing in 1997, with a view to organising concerted co-operation in the Danube Basin region by linking the various existing co-operation instruments (Recommendation 1330(1997)).

The Danube Basin is an obvious theme and focus for the local and regional partnerships and the transfrontier co-operation which the Council of Europe seeks to catalyse throughout South-Eastern Europe through its leadership of the “Good Governance” Task Force of the Stability Pact (Working Table 1 on Democratisation and Human Rights).

Accordingly, the Committee transmits the Draft Charter and accompanying Recommendation as its contribution to the South-Eastern Europe FORUM ON DECENTRALISATION, DEMOCRACY AND STABILITY (Bucharest, 23-24 February 2000), organised by the Council of Europe on the initiative of the Government of Romania.

Annex C

International Maritime Organisation

Statements by IMO Secretary-General to the Marine Environment Protection Committee (6-13 March) and the Maritime Safety Committee (17-26 May 2000)

CONSIDERATION OF THE REPORT OF THE MARITIME SAFETY COMMITTEE

Note by the Secretary-General

SEVENTY-SECOND SESSION OF THE MARITIME SAFETY COMMITTEE

Introduction

1       The report of the seventy-second session of the Maritime Safety Committee (MSC 72/23 and Adds.1 and 2) is submitted to the eighty-fourth session of the Council in accordance with the provisions of Article 29 of the IMO Convention.

2       The seventy-second session of the Committee was held from 17 to 26 May 2000 under the chairmanship of Mr. T. Allan (United Kingdom) and was attended by eighty-three Member States, one Associate Member, two United Nations specialized agencies and forty-one international organizations.

The ERIKA accident

3       In his opening remarks, the Secretary-General referred to the repercussions from the sinking of the tanker Erika, off the West Coast of France in December 1999. While all concerned were relieved to learn that all the crew members of the ill-fated tanker had been safely evacuated, the impact the accident had had on the marine environment and the affected French communities and industries was sincerely regretted.

He informed the Committee that he had addressed the issue publicly at the first possible opportunity in January 2000 and since then he had repeated his remarks at almost all the meetings of the sub-committees and the MEPC which had taken place since, suggesting that it would be wise to refrain from acting hastily. Prudence would suggest that the investigation into the cause of the accident should be accelerated and the results made known as soon as possible so that, if any action was needed to be taken at the regulatory level, it could be introduced into IMO where decisions could be made rapidly after all aspects had been carefully considered. In the meantime, he had appreciated receiving the preliminary report on the casualty prepared by the French authorities.

The Secretary-General reiterated the firm position he had expressed on various occasions in the past and most recently during A 21, namely that IMO should always and without exception, be regarded as the only forum where safety and pollution prevention standards affecting international shipping should be considered and adopted. He added that he was convinced that regional, let alone unilateral, application to foreign flag ships of national requirements which went beyond IMO standards would be detrimental to international shipping and to the functioning of the Organization itself and should, therefore, be avoided. He was hopeful that the Governments concerned, and indeed the entire Membership of the Organization, would realize the benefits of bringing all safety and environmental issues to IMO. He reiterated his pledge that IMO’s reaction to any proposals to improve the situation would, within the procedures laid down in the relevant IMO instruments, be decisive and rapid. With his associates he had worked out a timeframe in which the matter could be taken forward in the most expeditious manner, including advancing the date of MEPC 46 to bring it as close as possible to MEPC 45.

4.       In his summing up, the Chairman stressed the overwhelming support for the policies and general statement of the Secretary-General as to the manner in which the Organization should deal with issues which came to light in the aftermath of the Erika casualty. Those issues should be addressed as a matter of urgency and utmost importance. Any relevant initiatives to enhance tanker safety would therefore be welcomed.

He added that there was unanimous support for the view that IMO should be regarded as the natural and only forum where safety and pollution prevention standards affecting international shipping should be considered and adopted.

It appeared to be the Committee’s unanimous wish that a clear message should be sent to MEPC underlining that they would have MSC’s full support in dealing with all proposals raised in the most urgent and expeditious manner.

At the Secretary-General’s initiative, arrangements for next year’s programme of meetings had been discussed with the MEPC Chairman and himself and a revised timetable had been agreed within which to take the matter forward; and, if agreement could be reached on proposals that France or any other Member Government might submit, then MEPC might approve any possible new measures at its next session in October 2000 for adoption at the rescheduled MEPC 46 scheduled to take place in April 2001.

The Chairman, having sought and received the Committee’s approval of his summing-up, instructed the Secretariat to convey the outcome of the debate to other IMO bodies, in particular the Council and MEPC. He would personally advise the Chairman of MEPC accordingly.

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CONSIDERATION OF THE REPORT OF THE

MARINE ENVIRONMENT PROTECTION COMMITTEE

Note by the Secretary-General

GENERAL

1       The forty-fourth session of the Marine Environment Protection Committee was held from 6 to 8, 10 and 13 March 2000 under the Chairmanship of Mr. M. Julian (Australia). Eighty-one Member States, one Associate Member, four United Nations bodies, six intergovernmental and thirty-four non-governmental organizations participated.

2       The report of the session (MEPC 44/20) is herewith submitted to the Council in accordance with article 39 of the IMO Convention. The principal matters, which may be of interest to the Council, are summarized in the following paragraphs.

STATEMENTS ON THE ERIKA INCIDENT

3       In the Secretary-General’s opening address, he commented on the sinking of Erika off the western coast of France last December. He stated that prudence would suggest that the investigation into the cause of the incident should be accelerated and the results made known as soon as possible so that, if any action needed to be taken at the regulatory level, it could be introduced into IMO where decisions could be made rapidly after all aspects had been carefully considered. He emphasized that regional, let alone unilateral, application to foreign flag ships of national requirements which go beyond IMO standards would be detrimental to international shipping and to the functioning of IMO itself and should, therefore, be avoided.

4       A large number of delegations spoke on the sinking of Erika and the subsequent pollution. All supported the Secretary-General’s view that any proposal for the improvement of maritime safety or environmental protection at the regulatory level, resulting from the investigation into the casualty, must be discussed and agreed internationally within the framework of the Organization rather than regionally or unilaterally.

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Annex D

Safety of the Seaborne Oil Trade

Communication of the European Commission (European Union) 21 March 2000

[extracts from the introductory chapter]

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1.       On 12 December 1999 the 25-year old, Maltese-registered, single hull oil tanker Erika chartered by Total-Fina broke in two some 40 nautical miles off the southern tip of Brittany. More than 10 000 tonnes of the 30 000 tonnes of heavy fuel oil it was carrying were spilt. About 400 kilometres of coastline were polluted by the oil, causing serious damage to fauna, flora, fisheries and tourism, as well as potential public health consequences.

2.       It has become clear that the normal framework for international action on maritime safety under the auspices of the International Maritime Organisation (IMO) falls short of what is needed to tackle the causes of such disasters effectively. The IMO suffers from a major handicap: the lack of proper means to verify how its regulations are applied throughout the world. As a result, IMO regulations are not applied everywhere with the same rigour. The evolution of maritime transport over the last few decades and in particular the emergence of "flags of convenience", some of which fail to live up to their obligations under the international conventions, is tending to aggravate this phenomenon.

3.       It was not until the middle of the 1990s and the advent of qualified majority voting that the Council adopted the first building blocks of a common maritime safety policy including:

4.       With regard to the short-term regulatory measures, the Commission is presenting three sets of measures to the Parliament and the Council of Ministers with this communication:

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Annex E

Single- and double-hull oil tankers

Source: Communication of the European Commission (European Union)
21 March 2000

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a)       Current situation and problem

b)       Proposed Community response

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Appendix F

Implications of accession to EU of Malta and Cyprus

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The Luxembourg European Council decided in December 1997 to start negotiations with six candidate countries for accession to the European Union: Cyprus, Hungary, Poland, Estonia, Czech Republic and Slovenia. The Helsinki European Council increased in December 1999 this number by deciding to start negotiations with Romania, Slovakia, Lithuania, Bulgaria and Malta. In addition the Helsinki European Council recognised the application of Turkey.

From the point of view of maritime safety, the accession negotiations present a challenge. If the 13 candidate countries were to join the European Union today, the average number of ships detained flying the European flag would increase to 13.26% compared with 5.73% in 1998. This high percentage is due to the very sub-standard performance of ships flying the flag of certain applicant countries, notably Malta and Cyprus, which have the fourth and fifth largest fleets in the world.

Such a fall in the level of safety of EU shipping is unacceptable and cannot be justified by enlargement. It is therefore essential that the candidate countries undertake to apply the international and European maritime safety standards scrupulously as soon as possible but not later than by the date of their accession.

The Commission has already notified them of its serious concerns in this area and has entered into specific discussions to help them remedy this situation. More particularly, the Commission has focussed on the transposition by Cyprus of the existing Community legislation. In its consolidated report on enlargement to the Helsinki European Council, the Commission stated that Cyprus and Malta will have to make substantial efforts to reach the level of the other Member States. Specific measures to this effect have already been adopted by the Cypriot authorities, and the Commission is currently verifying their application. Other measures will have to follow.

In view of the insufficient safety standards of the fleets of most candidate countries and the particular need to strengthen both their flag State Administrations and their port State control systems, the EU has identified alignment of legislation on "maritime safety" as a short-term priority in the revised 1999 Accession Partnerships for most acceding countries, including Cyprus and Malta.

Improving the performance of the candidate countries as flag States is of crucial importance to the Commission in the context of the accession negotiations. The Commission will provide these countries with all the necessary aid and expertise, but will not cease to insist that they must apply all the relevant Community legislation at the date of their accession.

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Annex G. 1

The international oil pollution liability and compensation regime

Guides presented by the Oil Companies International Maritime Forum (OCIMF)
June 2000

A GUIDE TO THE INTERNATIONAL OIL POLLUTION COMPENSATION REGIMES

Introduction:

Governments of Maritime Nations have agreed to put in place an international oil pollution compensation regime to ensure the prompt and reasonable settlement of pollution damage claims. These place strict liability on the owners of oil tanker vessels up to a limit. On the rare occasions this limit is exhausted, oil receivers (which are mainly oil companies) globally contribute to a second tier fund up to a higher limit.

How do compensation schemes work?

The international oil pollution compensation regime is based on two International Conventions:

♦ The Convention on Civil Liability for Oil Pollution Damage (CLC) and,

♦ The Convention on the Establishment of an International Fund for Oil Pollution Damage (Fund Convention)

These compensation schemes cover all sea-going vessels constructed or adapted to carry persistent oil in bulk as cargo, on loaded and unloaded movements. They apply to pollution damage within the waters of countries subscribing to the Conventions, regardless of where the casualty occurs, the flag of the tanker or the ownership of the oil.

• The schemes are designed to compensate any person who suffers loss or damage caused by contamination resulting from a spill including immediate clean-up action, preventive measures, reinstatement of impaired environments and reasonable compensation for subsequent economic losses such as loss of tourism, fishing etc.

• These Conventions are funded in the first instance, under CLC, by the ship-owner up to a limit determined by the size of the vessel and up to a maximum of 59.7m Special Drawing Rights (about US$84m); supplemented when necessary under the Fund Convention by oil receivers in contracting States up to a combined maximum of 135m SDR (US$185m).

• The individual ship-owner insures his strict liability with a “Protection & Indemnity Club” or other specialist insurer. For ships carrying more than 2000 tons of persistent oil in bulk as cargo, this coverage is compulsory under CLC. It is a usual practice for charterers to require the ship-owner to be a member of the International Tanker Owners Pollution Federation Limited (ITOPF) giving access to its expertise and capability for prompt advice on handling oil spill response.

• A second tier of the compensation regime is provided under the Fund Convention through the IOPC Fund and is financed by oil receivers and therefore mainly oil companies. The IOPC Fund is governed by an international regime elaborated under the auspices of the International Maritime Organisation (IMO).

• Where the ship-owner’s limit of liability under CLC is exhausted or where, because of specific exoneration, CLC does not apply, the Funds financed by oil companies and other oil receivers in participating countries have always met claims and other expenses that had to be covered after an oil spill. In this context, it is important to note that the IOPC Fund limit is constant for all vessels regardless of vessel size.

Why should compensation regimes be international?

• These international oil pollution compensation regimes have been in place in one form or another for over twenty-five years. They have served the international community, particularly pollution victims, well over these years. They ensure that the responsibility for handling the spill is directed to the individual ship owner (at fault or not) and that the financial burden is shared by the global oil receivers whose product has been carried by sea.

• The current regime also provides for a mechanism whereby the limits of compensation can easily be raised under the auspices of IMO.

• This regime provides for a well ordered international system of fair compensation which ensures a balanced spread of responsibilities between the different operators as well as equal compensation in case of damage in all regions of the world.

• It is precisely the international nature of these Conventions that has allowed a balanced and fair system of compensation to be achieved. Introducing regional schemes will automatically undermine the effectiveness and ultimately the existence of the international regime and will risk introducing significant inequalities in the way pollution victims receive compensation from one region of the world to the other.

• The introduction on a regional basis of a third tier to the Fund would not only undermine the current international regime but it would also put at risk the established principle of shared responsibility between ship-owners and oil interests. The Commission’s proposed third tier would apparently be based on funding entirely by the oil industry who already fund, in total, the contributions to the IOPC Fund; and who, in addition, fund pollution compensation from “Dollar one” when ship owner’s insurance fails to respond. (See diagram below).

• Breaking the existing balance in the spread of responsibility which was progressively achieved over the years, could ultimately lead to a dilution of ship-owners’ responsibility and a disincentive for insurers to take a pro-active interest in the condition and operational standards of the vessels insured.

A SHORT GUIDE TO THE INTERNATIONAL OIL POLLUTION COMPENSATION REGIMES

This short Paper is intended to provide an overview of the International Conventions on Liability and Compensation for Oil Pollution Damage.

Ĝ The international oil pollution compensation regime is based on two International Conventions:

Ĝ The CLC governs the liability of shipowners for oil pollution damage and provides for:

Ĝ The Fund Convention or IOPC Fund is:

Ĝ Main elements of IOPC Fund are:

• Oil receivers in Fund States, which are mainly oil companies, contribute to the Fund

Ĝ Conventions apply :

Ĝ Claims:

• Since the Conventions came into force in 1978, there has never been a case where the admissible claims have exceeded the total amount of compensation available under the Conventions.

• In cases where there is initial doubt as to whether total amounts available under the Conventions will be exceeded by the total number of claims, each claimant is paid a pro rata percentage of the total amount claimed until final settlement can be made.

• In Europe (and some other areas), Governments are responsible for oil spill clean-up. Costs incurred by Government are then reimbursed under the Conventions provided they are admissible and reasonable.

• Claimants must submit claims against the Fund within 3 years of the date on which damage occurred and within 6 years from date of the incident that caused the damage.

• In a major spill, a claims office is usually established at the spill site manned by both Shipowners’ Liability Insurers and the Fund staff to assist in preparing and submitting claims.

Annex G. 2

The international oil pollution liability and compensation regime

Analysis of the European Commission (European Union)

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a)       The civil liability system in force for damage caused by oil pollution

The existing maritime liability regime has developed over centuries and is consequently a complex one. It consists of a patchwork of international conventions relating to specific types of liability and a variety of rules on limitation of liability, insurance and jurisdiction, often governed by national laws which depend on whether - and if so, what version of - the conventions have been ratified by the States concerned. Generally speaking, the regime emphasises the responsibility of the shipowner, as opposed to that of the other players involved (such as the ship operator, manager, cargo owner, charterer, intermediaries or the classification society). On the other hand, shipowners have a right to limit their financial liability at a maximum amount, which normally is relatively low.

In the case of oil pollution, however, the international liability system is tailor-made for the purpose and comparatively straightforward. All EU coastal States are either parties to, or in the process of ratifying, the 1992 Protocols to the International Convention on Civil Liability for Oil Pollution (CLC) and the International Convention setting up the Oil Pollution Compensation Fund (Fund Convention). These two conventions establish a two-tier liability system, which cover pollution damage, including preventive measures and to a limited extent environmental damage per se for accidents occurring in the coastal waters (up to 200 miles) of the States.

The first tier consists of the liability of the shipowner, which is governed by the CLC. The shipowner’s liability is strict and thus not depending on fault or negligence on his part. The owner is normally allowed to limit his liability to an amount which is linked to the tonnage of the ship, presently maximum EUR 80 million for the biggest ships, in the case of Erika only around EUR 13 million. The shipowner loses the right to limit his liability only if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause damage, or recklessly and with knowledge that such damage would probably result. The CLC also requires shipowners to have liability insurance and gives claimants the right of direct action against the insurer.

The CLC regime is supplemented by the International Oil Pollution Compensation Fund (IOPC Fund), which was established through the Fund Convention in order to compensate victims when the shipowner’s liability is insufficient to cover the damage. The Fund is financed by contributions from companies receiving oil and recourse to the Fund may take place in three cases. The most common is where the damage exceeds the shipowner’s maximum liability. The second case is where the shipowner can invoke any of the (few) defences allowed in the CLC. The last case is where the shipowner is financially incapable of meeting his obligations. The maximum compensation by the Fund is around EUR 185 million.

Victims of oil spills may present their claims directly against the Fund and, to the extent claims are justified and meet the relevant criteria, the Fund will compensate the claimant directly. If the total of approved claims exceeds the maximum limit of the Fund all claims will be reduced proportionately. If the claimant and the Fund cannot reach agreement, the claimant can pursue his claim against the Fund before the courts of the State where the damage occurred. Since it was first established in 1978, the Oil Pollution Compensation Fund has dealt with some 90 cases, most of which have been settled directly with the Fund, outside courts.

Generally speaking, this dual regime has proved to be workable. Particularly when compared to other areas of pollution liability which are currently unregulated (such as accidents involving hazardous and noxious substances other than oil, or bunker oil from ships other than oil tankers), the regime is very advanced. Therefore the Commission believes that the existing oil pollution compensation regime should provide the basis for future measures. A general environmental liability regime, as outlined in the recent Commission White Paper on environmental liability,6 is the appropriate tool for developing areas of liability which are not yet harmonised at a European level. However, liability and compensation for oil pollution from ships is already subject to a uniform world-wide regime. The existing system provides the legislative framework and the internationally recognised concepts upon which European measures could and should build.

b)       Measures proposed to improve the existing regime

At least the following three criteria have to be examined when considering whether a liability and compensation system is fully satisfactory:

(1)       It should provide prompt compensation to victims without having to rely on extensive and lengthy judicial procedures.

(2)       The maximum compensation limit should be set at a sufficiently high level to cover admissible claims from any potential disaster occurring as a result of an oil tanker accident.

(3)       The regime should discourage tanker operators and cargo interests from transporting oil in anything other than tankers of an impeccable quality.

The Commission considers that on the first point the mechanism provided by the CLC and Fund Convention is satisfactory. Generally speaking, claims have been handled promptly and without lengthy legal battles.

On the second point action is needed. As long as the maximum limits are not high enough to cover any potential disaster, victims of an oil disaster with very extensive damage will receive less compensation than victims of a smaller-scale accident. This is questionable from a point of view of principle and some recent oil spills have indicated that even comparatively small amounts of oil may raise doubts as to the sufficiency of the current limit.

On the third point, the existing system also fails. The right of the shipowner to limit his liability is at present practically unbreakable. Cargo interests, on their part, have no individual responsibility at all. The fact that ships of an appalling condition continue to be employed for transportation of oil shows that charterers do not have sufficient disincentives to give up their intolerable practice of deliberately selecting low-quality tonnage.

For these reasons the Commission proposes the following actions.

i) Strengthening the international regime

As a first step, the immediate raising of the limits of both the CLC and the Fund conventions is important. Provided that the necessary majority is achieved, the limits can be increased through the simplified tacit acceptance procedure which was introduced in the 1992 Protocols.7 This measure would considerably raise (by some 50%) the compensation available and would share the financial burden between shipowners and oil receivers.

In the meantime, the need for a more fundamental revision of the CLC and Fund conventions shall be examined. In particular, it has to be questioned whether the current threshold for loss of limitation right for the shipowner is acceptable. Another question that needs to be given serious consideration is whether the current definition of pollution damage should be extended.

The Commission urges the Member States to do their utmost to support any effort to improve the existing oil pollution liability regime at an international level.

ii) A European third tier Fund

The Commission is aware that the international procedures that have to be followed to achieve concrete results are lengthy and that there is no guarantee of success. Therefore, it takes the view that complementary action at a European level is needed in order to ensure adequate compensation for victims of an oil spill occurring in European waters.

Adequate compensation of victims of a European oil spill can be ensured through the creation of a European third liability tier, which would compensate internationally eligible claims relating to oil spills in European waters exceeding the maximum limitation limits. Liability under such a European third tier could be based on the same principles and rules as the current IOPC Fund system, but subject to a ceiling which is deemed to be sufficient for any potential disaster and financed by European oil importers, in the same way as they contribute to the IOPC Fund. It is considered that an overall ceiling of EUR 1 billion would provide the necessary safeguard of coverage for any potential disaster. This limit corresponds both to the ceiling of the oil spill compensation fund established under federal laws in the United States and to existing insurance practices as regards shipowners’ third party liability cover for oil pollution.

An international agreement between the EU/EEA Member States on the additional contributions for the European Fund would seem the appropriate way forward.

iii) Liability for damage

The Commission will also consider the introduction of rules, at EU level, under which any party who has caused or contributed to oil pollution damage, should be made strictly liable for the damage caused; this can concern parties both on the carriers and the chartering side, to the extent that they are exercising control of the shipment concerned. This would enhance the implementation of the polluter pays principle and thus be in line with the Commission’s White Paper on Environmental Liability of 9 February 2000 (COM(2000) 66 final).

iv) Sanctions for gross negligence

The Commission finally considers that any party who has caused or contributed to the oil pollution incident by grossly negligent behaviour should be subject to a deterrent sanction.

Such a fault-based sanction could apply to shipowners as well as charterers and other cargo interests. Making the sanctions payable to the State where the pollution occurred would seem appropriate in this context, as the national government normally is the party responsible for clean-up and rescue operations. Such sanctions could further be subject to a number of common principles, depending on, inter alia, the response and co-operation by the responsible party after the accident, and could thus contribute to significant preventive effects.

The Commission accordingly considers that it should be examined, having regard to the principles of the Treaty, how such a fault-based sanction regime could be put in place in the Community. A Community legal instrument laying down the common principles for the implementation of appropriate sanction mechanisms at Member State level would seem to be a way forward.

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Annex H. 1

European Charter for the Danube Basin

Reply to Recommendation 1330 (1997) on the draft European Charter of the Danube Basin

from the Committee of Ministers adopted on 12 May 1998 at the 631st meeting of the Ministers’ Deputies

The Committee of Ministers studied Parliamentary Assembly Recommendation 1330 (1997) on the draft European charter of the Danube basin with interest.

The Committee of Ministers is aware of the new opportunities for co-operation and development in the Danube Basin, particularly in the fields of economy and environment since as early as 1989.

Many Council of Europe member States are attached to sub-regional co-operation which contributes to Europe’s stability. The Committee of Ministers expresses its satisfaction that co-operation is developing under the umbrella of the Council of Europe.

In this connection, a general legal problem arises whether the whole Organisation should play a prominent role in finding solutions to problems which concern a part of Europe, or only the implicated countries. In the case of the Danube Basin there is an evident European dimension, but, it is for the relevant States in the region, in the first instance, to take action themselves.

The Committee of Ministers is also aware that there is already a number of international legal texts on the Danube Region, e.g. the Budapest based Danube Commission set up in accordance with the Belgrade Convention of 1948. The structure proposed in the draft Charter might overlap with the regional co-operation of the States of the Danube area (the ARGE DONAULAENDER).

A cooperation framework for the implementation of all legal instruments applicable to the Danube region might be useful, but it is for the contracting Parties to the different instruments to create such a framework.

Annex H. 2

European Charter for the Danube Basin

Motion for a Recommendation presented by Mr Zierer and others (Doc. 8684)
31 March 2000

European Charter of the Danube basin

Implementation of Recommendation 1330 (1997) of the Parliamentary Assembly

Motion for a recommendation

presented by Mr Zierer and others

1.       The Assembly is extremely concerned by the recent accidental cyanide and heavy metal pollution which has seriously affected the Danube basin.

2.       These accidents, the result of inadequate safety measures and insufficient monitoring of dangerous industrial plant in Romania, have further damaged the environmental situation in the Danube basin, which is already subject to continuing industrial, agricultural and domestic pollution and has been seriously affected by the armed conflicts in the region.

3.       Setting aside the immediate consequences, the contamination of the waters of the Danube and its tributaries poses a lasting threat to the survival of the river's and river bank's ecosystems, which could have serious repercussions on the ecological balance and the economic activities of the regions concerned.

4.       The health and well-being of the local population are also threatened by an accumulation of dangerous substances in underground water sources and the food chain.

5.       Moreover, the waters of the Danube are responsible for 80% of the pollution of the Black Sea and make a substantial contribution to environmental damage in the eastern Mediterranean.

6.       Having regard to the Danube basin's importance for central and south-east Europe and with a view to contributing to the region's sustainable and balanced development, the Assembly adopted Recommendation 1330 (1997), in which it advocated the adoption of a European charter of the Danube basin, which could serve as a framework for a comprehensive and integrated approach to all the problems of the Danube region and for practical co-operation at all levels.

7.       The Assembly regrets that its Recommendation 1330 has not been given practical effect. It is convinced that its proposal remains valid today and that it would provide an instrument for drawing the attention of the Danube basin's political authorities to the relevant environmental challenges and their responsibilities in this field, which could help to reduce the risk of accidents in the future.

8.       The Assembly also believes that the charter would help to develop a spirit of shared responsibility, partnership and co-operation at the national, regional and local levels, thus reflecting the objectives of the Stability Pact for South-Eastern Europe.

9.       The Assembly therefore recommends that the Committee of Ministers reconsider the draft European charter of the Danube basin, with a view to its early adoption.

Signed : 8

Zierer, Germany, EPP/CD

Adamczyk, Poland, EPP/CD

Akçalı, Turkey, EDG

Akgönenç, Turkey, EDG

Bal, Turkey, EDG

Barsony, Hungary, SOC

Besostri, Italy, SOC

Briane, France, EPP/CD

Diana, Italy, EPP/CD

Dromberg, Finland, EDG

Gülek, Turkey, SOC

Gürkan, Turkey, SOC

Ivanov, Bulgaria, EPP/CD

Kalkan, Turkey, EDG

Luczak, Poland, EPP/CD

Mutman, Turkey, SOC

Prokes, Slovakia, NR

Rakhansky, Ukraine, UEL

Sağlam, Turkey, EPP/CD

Telek, Turkey, EDG

Tiuri, Finland, EDG

Toshev, Bulgaria, EPP/CD

Yürür, Turkey, EDG

Annex I. 1

Environmental Liability

White Paper of European Commission (European Union)

9 February 2000 - press release       [extracts]

WHITE PAPER ON ENVIRONMENTAL LIABILITY

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So far, the Member States of the European Union have established national environmental liability regimes that cover damage to persons and goods, and they have introduced laws to deal with liability for, and clean up of, contaminated sites. However, until now, these national regimes have not really addressed the issue of liability for damage to nature. This is one reason why economic actors have focused on their responsibilities to other people's health or property, but have not tended to consider their responsibilities for damage to the wider environment. This has traditionally been seen as a 'public good' for which society as a whole should be responsible, rather than something the individual actor who actually caused the damage should bear. The introduction of liability for damage to nature as proposed in the White Paper, is expected to bring about a change of attitude that should result in an increased level of prevention and precaution.

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Possible main features of an EC environmental liability regime

The White Paper sets out the structure for a future EC environmental liability regime that aims at implementing the polluter pays principle. It describes the key elements needed for making such a regime effective and practicable.

Since the protection of health is also an important environmental objective, and for reasons of coherence, an EC regime should cover both 'traditional damage' (damage to persons and goods) and environmental damage. The latter type of damage should include both contamination of sites and damage to nature and biological diversity in the Community. Therefore, it is proposed that the liability regime should apply to areas and species covered by the Natura 2000 Network. These protected areas are or have to be designated by the Member States under the Wild Birds Directive of 1979 and the Habitats Directive of 1992. Since many habitats and waterways straddle frontiers between Member States, an EC regime can also provide solutions for transboundary damage.

Like nearly all national environmental liability regimes, the EC regime should be based on strict liability (this means that no fault by the polluter is required), when damage is caused by a hazardous activity. Damage to biodiversity in the protected Natura 2000 areas should also be covered if it is caused by a non-hazardous activity. In this case, however, the liability should be fault-based. The liable party should be the operator in control of the activity that caused the damage.

In case of environmental damage, the compensation to be paid by the polluter should be spent on the effective restoration of the damage. Furthermore, for cases concerning environmental damage, public interest groups should have a right to step into the shoes of public authorities, where these are responsible for tackling environmental damage, but have not acted. Such groups may also be allowed to take action in urgent cases if there is a need to prevent damage. This is in line with the 1998 Ċrhus Convention on access to information, public participation in decision-making and access to justice, a UN/ECE Convention that has been signed by the Community and all the EU Member States, as well as by other states.

Expected effects on competitiveness

Most OECD countries which are the main trade partners of the EU already have environmental liability legislation of some kind. An EC environmental liability regime will not amount to the adoption by the EU of a unilateral standard of environmental protection. Available evidence on existing environmental liability regimes suggests that industry competitiveness has not been disproportionately affected. Nor have the environmental liability regimes existing in some Member States been associated with significant competitiveness problems.

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Annex I. 2

Environmental Liability

Options for the European Community (European Union): accession to the Council of Europe’s Lugano Convention and/or a Directive ?

Source: White Paper of 9 February 2000

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5.1.       Community accession to the Lugano Convention

The Council of Europe Convention on civil liability for damage resulting from activities dangerous for the environment was established in 1993. The Commission and all Member States participated in the negotiations. The Convention contains a regime for environmental liability that covers all types of damage (both traditional damage such as personal injury and property damage and impairment of the environment as such), when caused by a dangerous activity. Dangerous activities in the field of dangerous substances, biotechnology and waste are further defined. The scope is open in the sense that other activities than the ones explicitly referred to may also be classified as dangerous. A summary on the history, contents and signatories of this Convention is available to the public.

Community accession to this Convention would have the advantage of being in accordance with the subsidiarity principle at international level (new EC legislation should not be established insofar as the matter concerned can be dealt with by Community accession to an existing international convention). Moreover, the Convention has a comprehensive coverage (all types of damage resulting from dangerous activities) and a wide and open scope, which has the merit of presenting a coherent system and of treating operators of all dangerous activities in the same way. Six Member States9 have signed the Convention whereas some others may be considering doing so. Several Member States10 have already prepared legislation to implement the Convention, or are in the process of preparing ratification. However, some other Member States11 do not intend to sign or ratify it. The Convention is also open to accession by Central and Eastern European countries, even by countries which are not members of the Council of Europe, so that it could have an important international spread. Accession by the Community could encourage other countries to accede.

Comparing the regime of the Lugano Convention with the environmental liability regimes of the Member States, a general impression is that the Convention goes further than most Member States in some respects (namely in that it explicitly covers environmental damage as such). Its open scope of dangerous activities also goes further than several Member States which have regimes with a closed and more limited scope. These Member States, and most of industry, feel that the scope of Lugano is too wide and gives too little legal certainty and that its definitions, especially in the field of environmental damage, are too vague. The Convention does cover such damage, but in a rather unspecific way. For instance, it does not require restoration nor does it give criteria for restoration or economic valuation of such damage. Thus, if accession to the Convention was envisaged, an EC act would be needed to supplement the Lugano regime in order to bring more clarity and precision to this new area where liability is concerned.

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5.4.       A Community directive

The main differences between a Community directive and Community accession to the Lugano Convention are that the scope of Community action can be better delimited and the regime for biodiversity damage can be better elaborated, in accordance with the relevant Community legislation. Both differences result in more legal certainty than provided by Lugano. It should be noted that, even if the Community does not accede to the Lugano Convention, the latter can provide an important source of inspiration for a future Community directive. As far as the application of a liability regime to non-EU Member States is concerned, it is clear that a Community directive on environmental liability would be taken into account in the enlargementprocess of the applicant countries, whereas the situation in these countries with respect to environmental liability would also be examined.

Comparing this type of Community action with the more limited and non-binding options described in 5.2 and 5.3, the former is the option with higher added value in terms of a better implementation of the EU environmental principles and law, and of effective restoration of the environment.

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Annex J

The Precautionary Principle

Communication of the European Commission (European Union)

2 February 2000 - press release       [extracts]

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The European Commission has today adopted a Communication on the use of the precautionary principle. The objective of the Communication is to inform all interested parties how the Commission intends to apply the principle and to establish guidelines for its application. The aim is also to provide input to the on-going debate on this issue both at EU and international level. The Communication underlines that the precautionary principle forms part of a structured approach to the analysis of risk, as well as being relevant to risk management. It covers cases where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen by the EU. Today's Communication complements the recently adopted White Paper on Food Safety and the agreement reached in Montreal this week-end on the Cartagena Protocol on Bio-safety.

The Communication also qualifies the measures that may be taken under the precautionary principle. Where action is deemed necessary, measures should be proportionate to the chosen level of protection, non-discriminatory in their application and consistent with similar measures already taken. They should also be based on an examination of the potential benefits and costs of action or lack of action and subject to review in the light of new scientific data and should thus be maintained as long as the scientific data remain incomplete, imprecise or inconclusive and as long as the risk is considered too high to be imposed on society. Finally, they may assign responsibility or the burden of proof - for producing the scientific evidence necessary for a comprehensive risk assessment. These guidelines guard against unwarranted recourse to the precautionary principle as a disguised form of protectionism.

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The Commission has consistently striven to achieve a high level of protection, inter alia in the environmental and human, animal and plant health fields. It is the Commission's policy to take decisions aimed to achieve this high level of protection on a sound and sufficient scientific basis. However, where there are reasonable grounds for concern that potential hazards may affect the environment or human, animal or plant health, and when at the same time the lack of scientific information precludes a detailed scientific evaluation, the precautionary principle has been the politically accepted risk management strategy in several fields. Although the precautionary principle is not explicitly mentioned in the EC Treaty except in the environment field, the Commission considers that this principle has a scope far wider than the environment field and that it also covers the protection of human, animal and plant health.

The Communication makes it clear that the precautionary principle is neither a politicisation of science or the acceptance of zero-risk but that it provides a basis for action when science is unable to give a clear answer. The Communication also makes it clear that determining what is an acceptable level of risk for the EU is a political responsibility. It provides a reasoned and structured framework for action in the face of scientific uncertainty and shows that the precautionary principle is not a justification for ignoring scientific evidence and taking protectionist decisions.

The horizontal guidelines established in this Communication will provide a useful tool in the future for taking political decisions in this regard and will contribute to legitimate decisions taken when science is unable to assess completely the risk rather than decisions based on irrational fears or perceptions. Thus, one of the objectives of the Communication is to clearly describe the situations in which the precautionary principle could be applied and determining the scope of measures taken in this respect. It will therefore help ensuring the proper functioning of the Internal Market as well as a high level of protection and predictability for consumers and economic operators located in the EU and elsewhere.

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Reporting committee : Committee on the Environment, Regional Planning and Local Authorities.

Budgetary implications for the Assembly : none

Reference to committee: Doc. 8609 and Reference N° 2475 of 28 January 2000; Doc. 8684 and Reference N° 2496 of 7 April 2000.

Draft resolution adopted by the committee on 5 September 2000.

Members of the committee : MM Akçali (Chairman), Besostri, Haraldsson, Hoeffel (Vice-Chairmen), Andreoli, Angourakis, Bianchi (alternate : Pinggero), Bockel, Briane, Browne, Budisa, Mrs Burataeva, Sir Sydney Chapman, MM Ciupaila, Cox, Diana (alternate : Risari), Mrs Dromberg, MM Duivesteijn, Frunda, Graas, Mrs Granlund, Mr Guardans, Mrs Herczog, Mrs Hornikova, MM Hren-Vencelj, Kalkan, Mrs Kesteliun-Sierens, MM Kieres, Kittis, Kurykin, Kurucsai, Lachat, Linzer, Luczak, Martinez-Casan, Melo, Mezeckis, Mrs Mikaelsson, MM Minkov (alternate : Ivanov), Monteiro, Mota Amaral, Müller, Mrs Nagy, MM Pollozhani, Prokes (alternate : Duka-Zolyomi), Prosser (alternate : O’Hara), Rakhansky (alternate: Strizhko), Reimann, Rise, Salaridze, Mrs Schicker, M. Schutz, Mrs Sehnalova, MrsSeverinsen, MM Skoularikis, Sobyanin, Steolea, Stepaniuc, Mrs Terpstra, MM Toshev, Truu, Vella, Zierer, ZZ... (Russia) (alternate: Grachev)

N.B. The names of those members present at the meeting are printed in italics..

Secretaries of the Committee : Mrs Cagnolati, Mr Chevtchenko, Mrs Karanjac.

1        NAUFRAGE DU PETROLIER “ERIKA” published by Ministère de l’Equipement des Transports et du Logement, 13.01.2000

2        See chapter 2 paragraph 5 for details of liability and compensation regimes.

3        European Parliament resolutions of 20 January 2000 and 2 March 2000.

4        Council meeting on General Affairs, 24 January 2000.

5        The objective of segregated ballast tanks is to reduce the risks of operational pollution by ensuring that ballast water never comes into contact with oil. In addition, they are sited in a protective location to minimise the impact of grounding or collision.

6        COM(2000) 66 final, 9 February 2000

7        Article 15 of the 1992 Protocol to the CLC and Article 33 of the 1992 Protocol to the Fund Convention. Any amendment made under these articles will enter into force at the earliest 36 months after its adoption by the IMO Legal Committee.

8        SOC: Socialist Group

9        Finland, Greece, Italy, Luxembourg, the Netherlands and Portugal.

10        Austria, Finland, Greece, the Netherlands, Portugal.

11        Denmark, Germany, UK.