MarIus

3.3.1 Overview

Ship Recycling Regulation 1257/2013 was adopted by the European Parliament and Council in 2013(1) Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC, OJ L 330/1, 2013.with a view of improving the ship recycling conditions and speeding up ratification of the Hong Kong Convention. The Regulation is based on the provisions of the Hong Kong Convention and follows broadly the same logic as this Convention. The overall allocation of the responsibilities between the flag State and the Recycling State is, therefore, preserved by the Regulation. However, the Regulation has also introduced some elements which strengthen the latter’s provisions.

The Ship Recycling Regulation applies to ships flying the flag of an EU Member State or the flag of an EFTA State party to the EEA Agreement (i.e. Norway, Iceland and Liechtenstein). Following the Regulation’s entry in force, the EU- or EEA-flagged ships are no longer subject to the EU law on export of waste.(2) The Regulation was incorporated in the EEA Agreement by the decision of the joint EEA committee nr. 257/2018 of 5 December 2018. In Norway, the Regulation is implemented by a corresponding Regulation nr 1813 (2018), in force as of 6 December 2018.The Waste Shipment Regulation continues to govern recycling ships under the flag of a third State, even if the ship has European owners. However, the Waste Shipment Regulation still keeps some relevance for ships covered by the Ship Recycling Regulation: e.g. definition of “waste” in the Ship Recycling Regulation is connected to the definitions in the Waste Shipment Regulation.(3) Article 3(2).

3.3.2 Allocation of responsibilities for ship recycling under the Regulation

The Ship Recycling Regulation provides for a number of rules and restrictions concerning materials used for building and equipping the vessels covered by the Regulation. For the purposes of this article, the focus is on the final stage of a ship’s life: recycling.(4) For a more detailed discussion of the Regulation, see Puthucherril (n. 64 above) or Engels (n. 8 above).

Shipowners’ obligations and responsibilities during the final stage of the ship’s life are determined in Article 6 of the Regulation. “Ship owner” is broadly defined as “the natural or legal person registered as the owner of the ship, including the natural or legal person owning the ship for a limited period pending its sale or handover to a ship recycling facility, or, in the absence of registration, the natural or legal person owning the ship or any other organisation or person, such as the manager or bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship, and the legal person operating a state-owned ship”.(5) Article 3(1)(14).The definition includes cash buyers and similar intermediaries which take over ownership of the vessel in order to organise or facilitate its moving to a ship recycling yard.

Article 6 requires that the operator of the ship recycling facility is provided by the shipowner with all ship-relevant information which is necessary for the development of the ship Recycling Plan. The intention to recycle the ship in a specified ship recycling facility must also be notified to the flag State administration.

The Regulation also requires that ship operations prior to entering the ship recycling facility are conducted in such a way as to minimise the amount of cargo residues, remaining fuel oil, and ship generated waste remaining on board. Ship owners must ensure that tankers arrive at the ship recycling facility with cargo tanks and pump rooms in a condition ready for certification as safe-for-hot work.(6) Article 6(3).It is unclear whether these provisions are clear enough to ensure that the ship is delivered to the yard entirely free of (toxic and explosive) cargo residues.

3.3.3 EU approval system for ship recycling facilities

A central requirement for shipowners introduced by the Regulation is to send their end-of-life ships to yards which are approved according to the procedure established in the Regulation.(7) Article 6(2).In line with the Hong Kong Convention, the recycling yard must be authorized by the national authorities of the State where the yard is located. In addition, the Regulation requires that the yard is approved by the EU Commission, whether the yard is located in an EU Member State or in a third country. The Regulation requires all eligible yards to be registered on the so-called European list made by the EU Commission according to the requirements laid down in the Regulation.(8) Articles 13 and 15.

The Regulation sets out more detailed requirements to be met by the recycling yards which qualify for the European list.(9) Article 15.The Regulation requires, among others, that a ship recycling facility “operates from built structures” and controls all leakages, “in particular in interidal zones” (not mentioned in the Hong Kong Convention).(10) Article 13(1)(c) and (f).Furthermore, with regard to ship recycling facilities located in third countries, waste management, human health and environmental protection standards must be “broadly equivalent to relevant international and Union standards”.(11) Article 13(5).In this author’s view, the Regulation clearly outlaws typical beaching and similar unsound and hazardous ship scrapping practices.

The additional requirements for the European approval of the ship recycling facilities located in third States are laid down in Article 15. This provision sets out requirements for the applicant facility regarding the documentation of compliance with the standards of the Regulation. Furthermore, Article 15 stipulates that the yard located in a third country must be inspected by an independent verifier with appropriate qualifications (a classification society). In addition, by applying for the European list, the yard accepts the possibility of a site inspection by the representatives of the Commission, both prior to and after its inclusion on the list. Thus, in practice, the Commission has the final word on the question of what acceptable ship recycling standards are for EU-flagged ships within and outside the EU.

At present, the EU Commission has put into effect the Regulation’s approval mechanism by adopting the European list for ship recycling yards in the EU Member States and Turkey.(12) Commission Implementing Decision (EU) 2020/95 of 22 January 2020 amending Implementing Decision (EU) 2016/2323 establishing the European List of ship recycling facilities pursuant to Regulation (EU) No 1257/2013 of the European Parliament and of the Council (Text with EEA relevance), C/2020/200, OJ L 18, 2020, p. 6. Applications from facilities located in third countries (non-OECD) are reportedly under review: <https://ec.europa.eu/environment/waste/ships/list.htm> (last accessed 12 April 2020).

3.3.4 Consequences of non-compliance with the Ship Recycling Regulation

Like the Hong Kong Convention, the Ship Recycling Regulation requires Member States to adopt effective, proportionate and dissuasive penalties for infringements of the Regulation and to take all the necessary measures to ensure that they are applied.(13) Article 22(1). Member States are also required to cooperate in order to facilitate the prevention and detection of potential circumvention and breach of this Regulation.(14) Article 22(2).

By contrast to the sanctions regime applicable to ships covered by the Waste Shipment Regulation, infringements of the Ship Recycling Regulation are not covered by the Environmental Crime Directive.(15) The Environmental Crime Directive (n. 66 above). Article 30 of the Ship Recycling Regulation envisages a procedure to follow when deciding whether infringements of the Regulation should be covered by the Environmental Crime Directive. It means that individual Member States may determine whether or not administrative and similar non-criminal law penalties are sufficient and adequate for the purposes of the Regulation.(16) Article 30 of the Ship Recycling Regulation envisages a procedure to follow when deciding whether infringements of the Regulation should be covered by the Environmental Crime Directive (n. 66 above).

The Regulation envisages the possibility of taking measures against approved recycling yards in EU Member States, which no longer comply with the applicable requirements: the Member State where that yard is located shall suspend or withdraw the authorisation given to it or require corrective actions by the yard, as well as immediately inform the Commission.(17) Article 14(4)The Regulation does not provide for equivalent consequences of non-compliance for recycling yards located in third States, but the yard must keep the Commission updated on changes in the information provided previously on the meeting of standards.(18) Article 15(6). In addition, Article 23 provides environmental organisations with the right to request action, which might start a withdrawal process for the approval of a yard which does not comply with the requirements of the Ship Recycling Regulation.

A significant difference from the Basel regime and the corresponding EU Waste Shipment Regulation, is the absence of a take-back obligation for shipowners in the Ship Recycling Regulation. The latter envisages a similar, but not equivalent provision: a right for the recycling facility to decline to accept the ship for recycling if the conditions of the ship do not correspond substantially with the particulars of the inventory certificate.(19) Article 6(5).In such a case, the shipowner retains the responsibility for the ship and is obliged to inform the flag State administration accordingly.(20) Above.