7.6 Conclusion
The review of potential alternatives to sanctions for enforcing the sulphur in fuel requirements indicates that there is no obvious alternative to monetary penalties. None of the measures addressed above is as precise as a fine and none of them is as open to accommodating the circumstances of the individual case.
All alternatives reviewed include shortcomings in terms of being either too ineffective for constituting a genuine deterrent or disproportionately punitive. Moreover, all alternatives represent broad-brushed measures that affect the whole range of players involved in the operation of the ship, for an extended but unspecified period of time, rather than only the one party responsible for the infringement at the time.
Non-legal measures such as flag state notification or 'naming and shaming’ of non-complying ships are unlikely to meet the requirements of dissuasiveness and effectiveness. PSC detentions, in turn, are not suitable once the ship has refuelled. Prohibiting the access of, or ‘banning’, ships from ports in the state or region is a very powerful measure that avoids several of the complexities linked to sanctions, but is imprecise and raises questions of proportionality.
Yet, even if they may not be appropriate as an alternative to sanctions, such measures, which could well be applied cumulatively, may nevertheless provide a useful complement to sanctions which fail to meet the required standards of effectiveness, dissuasiveness and proportionality.(1) As was noted in note 129 above, complementing sanctions with measures of an administrative nature has been accepted by the Court of Justice of the EU as being "in principle, appropriate and effective" to achieve the objectives of the underlying regulation. However, such measures must not go beyond what is necessary to achieve those objectives. At least in an interim period, such alternatives offer a reinforcement of the sanction regime which is procedurally light and easy to implement in practice.
In the longer run, the option of linking the departure of the ship to provision of a financial security for a potential fine would seem to be the most promising option, irrespective of the nature of the underlying sanction. This, however, requires that at least the initial procedure for imposing the sanctions is reasonably swift.