Reati ambientali: Il 7 Luglio l’Italia ha recepito le Direttive in tema di tutela penale dell’ambiente
Last year, (19 July 2010) we issued a post on our web site informing that the European Parliament issued the Directive 2009/123/EC and mandated each Member State to bring it into force by December 2010.
The purpose of this Directive is to incorporate international standards for ship-source pollution into Community law and to ensure that persons responsible for discharges of polluting substances are subject to adequate penalties, including criminal penalties, in order to improve maritime safety and to enhance protection of the marine environment from pollution by ships.
A consistent set of legislative measures has already been adopted at EU level to reinforce maritime safety and help prevent ship-source pollution. The legislation in question is addressed to flag States, ship owners and charterers, classification societies, port States and coastal States.
The Directive explains that experience has shown that the existing systems of penalties have not been sufficient to achieve complete compliance with the laws for the protection of the environment. With this in mind, the European Parliament came to the conclusion that the existing system of sanctions for illicit ship-source discharges of polluting substances, as laid out in the previous legislation, needed to be strengthened by introducing criminal penalties.
Major clauses of this directive are as follows:
- EU Member States shall ensure that ship-source discharges of polluting substances, including minor discharges, into any area specified in Article 3(1) will be formally regarded as infringements, if committed with intent, recklessly or with serious negligence.
- EU Member State shall take the necessary steps to ensure that legal persons can be held liable for criminal offences referred to in Article 5a(1) and (3) and Article 5b, if committed for their advantage by any natural person acting either individually or as part of the legal person entity, or with a leading position within the legal person organization, based on:
- a power of representation for the legal person;
- authority to take decisions on the legal person behalf; or
- authority to exercise control within the legal person organization.
Penalties for ship-source pollution in Europe now effective
The European Parliament and Council Directive states that the European Maritime Safety Agency (EMSA) is working “with the Member States in developing technical solutions and providing technical assistance …in actions such as tracing discharges by satellite monitoring and surveillance”.
This Directive has obliged Member States to provide in their national legislation for criminal penalties in respect of those discharges of polluting substances to which this Directive applies.
Recently, with the legislative decree on the environmental crimes of last 7th July, the Italian Government assolved the duty imposed by Directives 2008/99/CE and 2009/123/EC. So, all the EU Members States have introduced environmental crimes punishable by law, except Greece and Portugal.
Through the two new environmental crimes – regarding the killing of a protected animal and the destruction of a natural habitat – the Italian measure conform to the other European Members and to United States, where environmental crimes are punishable by law for several years.
Voluntary Environmental Management Systems / Compliance Program
During recent years, the United States Coast Guard (USCG) has aggressively been pursuing a program of inspections, targeted towards examining shipboard Oily Water Separator (OWS) usage. As a result, they have identified several operators who have improperly used or even by-passed their OWS units while at sea, to perform illegal discharges under MARPOL and/or its complementary statute under US law, the Act to Prevent Pollution from Ships (APPS). Operators suspected of violations have been pursued to the fullest extent of the law by the United States Department of Justice (DoJ) and on most occasions signed Plea Agreements, which involve substantial fines as well as the implementation of extensive Environmental Compliance Programs (ECPs) under a multiple audit regime, to prevent the recurrence of similar violations.
ECM have been closely involved with ECP implementation from the start and continue to serve as one of the DoJ’s appointed Independent Consultant (IC) auditors, External Audit Groups (EAG), Court Appointed Monitors (CAM) or Third Party Auditors (TPA) under the terms of the relevant Plea Agreement between the United States DoJ and numerous companies, responsible for conducting both office and vessel audits and providing an annual Report of Findings to the US Government, describing the degree to which each company is in compliance with their ECP.
From experiance in US, ECM / ECM Europe have also assisted with the preparation of Environmental Management System/Compliance Program (EMS/CP), consisting of new environmental policies, processes, procedures and manuals for companies requiring such services.
Assistance with Voluntary Environmental Compliance Programm (VEPC) implementation, including ashore and on-board EMS-related training, is also available for companies that wish to take a proactive approach towards Environmental Compliance and implement a program to protect themselves also under the recent European Directive 2009/123/EC.
For further information, please contact Bruno Di Lascio
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