6.5 Assessment
UNCLOS, MARPOL and international law more generally leave significant discretion for states to establish their own system of penalties for violations of the MARPOL Annex VI standards in a way that best suits their internal legal system. This discretion is not without limits, however. In particular, the safeguards of UNCLOS provide that only monetary sanctions may be imposed for most violations and provides for a flag state pre-emption in certain situations for violations that have been committed beyond the territorial sea of the state instituting the proceedings. Apart from that, limits are posed by more general principles of international law such as non-discrimination and proportionality requirements.
While international law does not take a stance on the nature of the penalty imposed, EU law specifically requires criminal sanctions to be in place for cases of intentional or seriously negligent infringements. The availability of criminal sanctions does not, however, amount to an obligation to impose such sanctions in individual cases of violations, nor does it rule out the parallel existence of sanctions of an administrative character. The most tangible obligations relating to penalties are the requirements laid down in article 11(2) of the Sulphur Directive, which apply irrespective of the nature of the penalty concerned.
The key criteria guiding sanctions, independently of their nature, are accordingly that they shall be effective, proportionate and dissuasive.(1) Case 68/88 Commission v Greece [1989] ECR 2965, at para. 24. While vague, these criteria place some outer limits for the sanctions to be applied in the EU member states. Those limits are primarily be taken into account by member states at the legislative level, but could also be of relevance for national judges or authorities when deciding concrete cases.(2) See e.g. P. Asp, 'Harmonisation of Penalties and Sentencing within the EU', Bergen Journal of Criminal Law and Criminal Justice, Volume 1, Issue 1, 2013, p. 57.
The experience in some of the Northern European SECA countries suggests that traditional criminal penalties may not satisfy those effectiveness criteria. It has been shown above that administrative penalties could provide a complement to enhance effectiveness. A different type of penalties do not do away with the duties of states to ensure a fair trial and ensure rights of the accused, but experience from other areas of marine pollution law indicates that concerns related to European human rights law can be accommodated through a careful design of the sanction regime.(3) For more details, see the CompMon report referred to in the first footnote, section 4.3.5.
The effectiveness of the sanctions is closely related their dissuasiveness or deterrent effect. Both criteria have implications on the choice of liable party, as the penalty fails to promote compliance if it does not target the persons who are involved in the decisions relating to non-compliance and who benefit from it.(4) See also Case C-501/14, EL-EM 2001, paras 45-49, where the deterrent effect of the enforcement measure (immobilisation of the vehicle) was questioned as it targeted the vehicle as such, and thereby the operating company, while it was only the driver who was been charged with committing the infringement. Unlike the 'standard' provision of penalties for violations of EU law, article 11(2) of the Sulphur Directive specifically refers to calculation of fines in a way that deprive those responsible of the economic benefits derived from their infringement. That, in turn, suggests that it is more relevant to target the companies operating the ship and responsible for the choice of fuel it uses than to address individual crew members.
Dissuasion and effectiveness also call for penalties to be of a certain level. The ceiling on how far penalties can go in this respect is placed by the principle of proportionality. In EU case law, proportionality considerations have, for example, ruled out a penalty system imposing a flat-rate fine for all offences, whatever their nature and gravity(5) Joined Cases C‑497/15 and C‑498/15 Euro-Team & Spirál-Gép (EU:C:2017:229), para. 42. or too weak a link between the person who has committed the infraction and the person who bears the effect of the penalty.(6) See note 129 below.
As to the level of penalty, the principle of proportionality includes several elements. First, "measures imposing penalties must not ... exceed the limits of what is necessary in order to attain the objectives legitimately pursued by the legislation in question or be disproportionate to those aims."(7)Ibid., p. 58. In this regard, it seems obvious that a penalty that matches the financial benefits involved is required to attain the objective of the Directive as quoted above. The more difficult question is how far the sanction can extend beyond that and on what basis. Drawing the line between what is necessary for attaining the purpose and what is disproportionate appears excessively difficult in an individual case, which favours prior establishment of the levels. Since the benefits are more or less the same irrespective of which of the SECA states the ship will use, establishment of those levels in the whole area, or at EU-level seems justified. Proportionality would also seem to require that the severity of the infringement (in terms of sulphur content in the fuel and in terms of duration) is taken into account when setting the penalty level.(8) See note 107 above.
Second, the Court has considered that "when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued".(9) C‑210/10 Urbán, (EU:C:2012:64), para. 24. As will be discussed below, there is a limited range of measures that could serve as alternatives to fines for penalizing violations of the air emission standards. Among those discussed in section 7 below, some seem too soft for being effective while others are too broad-brushed for creating the necessary link between the infringement and the penalty. Yet this aspect of proportionality might be relevant where other measures are introduced to complement sanctions in terms of punitive effect.
Finally, it follows from the EU's own Charter on Fundamental Rights that there must be proportionality between the level of the penalty and the offence in question, to exclude penalties which do not stand in any reasonable relation to the committed violation.(10) See also the general proportionality requirement in Article 49(3) of the Charter of Fundamental Rights of the European Union: "The severity of penalties must not be disproportionate to the criminal offence." Air emissions may pose a particular challenge in this regard for judges and other authorities deciding on penalties, given that the individual offence may not be particularly significant in environmental or health terms. Rather, there are particularly strong arguments in this case to relate the penalty to the economic benefits of non-compliance, but such a preference does not follow automatically existing requirements, despite the acceptance of this method in principle in article 11(2) of the Sulphur Directive. The absence of harmful environmental or health impacts of the individual infringement of the air emissions requirements represent another argument in favour of closer ex ante harmonisation of the penalty levels at national or EU level.
In summary, existing international and EU laws do not entail significant restraints for states in the SECA region to develop a sufficiently stronger sanctions regime than what is currently in place. Rather to the contrary, while leaving important discretion for states to design their sanction system according to their own needs, the existing rules require effective and dissuasive penalties to support the objectives of the material rules. There is little to suggest that those requirements, however generic, are currently met when it comes to violations of the sulphur in fuel requirements in the Northern European SECA.