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Gard News 192, November 2008/January 2009

 

France has implemented a new revised Environmental Code, in line with EU directives 2004/35/CE and 2005/35/CE. The polluter is now undisputedly responsible for cleanup and restoration after a pollution incident and may be subject to fines and imprisonment proportional to the level of fault and impact of the pollution. 

Amended Environmental Code
On 2nd August 2008 amendments to the French Environmental Code1 came into force that give effect to EU directives of 2004 and 2005 concerning prevention of environmental damage and repair of same, as well as ship-source pollution and penalties. The code applies to all sources of pollution and all environments including soils, waters and air as well as to a certain number of protected species and habitats.

Penalties
The penalty regime has been subject to important changes, and deliberate pollution will now be severely punished in France with maximum fines up to EUR 15 million, as opposed to EUR 1 million before (or value of the vessel ÷ 4x value of the cargo), and up to 10 years’ imprisonment for masters or person responsible for a ship guilty of discharge of pollutants as defined in Marpol Annexes I and II (oil and noxious substances). A principle of higher penalties for pollution with severe ecological consequences has been maintained and is now definitely established.

The legislators’ intention was to stimulate sound shipping practices.  Negligent or intentional ship-source pollution will be severely penalised now, and a wider range of individuals can be held responsible, including master, owner, manager and persons with delegated responsibility, if their role is seen as contributory, even if indirectly, to the polluting event. Indirect negligence in the sense of neglect of security measures or ignorance of laws and regulations that lead to pollution are also subject to fines of up to EUR 10.5 million if the environmental damage caused is severe or irreversible. Accidental pollution due to imprudence, negligence or ignorance of the laws and regulations that do not cause irreversible or severe damage to the environment are subject to fines of up to EUR 800,000, and in the case of severe damage up to EUR 7.5 million for the largest category ships.

There has been discussion about the terms used in the EU directives to determine the particular level of negligence to be regarded as a criminal offence. The EU directives introduce the term “serious negligence”2 that has no legal definition in international law, as opposed to “negligence” or “gross negligence”. Under the amended code accidents caused by a responsible person’s negligence or imprudence are sufficient for criminal penalisation.

Calculation of fines
The previous law in France provided a formula for calculating fines based on vessel and cargo value. There has been strong criticism from the industry against this principle, as it is unfavourable to newer ships with high-value cargoes.  In that respect, the amendments have been welcomed by the French shipowners’ association. Now there is a distinct difference between penalties for purely accidental pollution and intentional or grossly negligent pollution.

Polluter pays
In addition to the penal sanctions for ship-source pollution,  a new Title VI has been introduced, defining the obligation to prevent pollution and repair damage after pollution. The responsible party is re-defined and the “polluter pays” principle has been further developed. The polluter has an obligation both to prevent pollution and to repair damage resulting from pollution he has caused. In the event that the polluter can not be identified, fails to comply with the obligation to organise the cleanup, or in matters of urgency, the amended code gives rights to other parties, such as environmentalist organisations and public establishments, to take necessary action under supervision of the administrative authority in charge. The polluter will be charged for these costs once he can be identified.

The amended code contains an exception to the “polluter pays” principle for environmental damage caused in an unforeseeable way by the regular use of products or equipment in a way that at present is unknown by scientists to cause damage to the environment. In such cases, the polluter, if he can prove absence of negligence, will not be held liable for cleanup costs and restoration.

A separate police unit has been established, with particular competence in these matters, to supervise and authorise the polluter’s activities upon cleanup and restoration.

Limits
The amended code is applicable to measurable damage to the environment, and the competent authority needs to carry out an assessment of the damage before ordering the polluter to repair it. This should avoid unfounded claims for environmental damage. Title VI incorporates the Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC 96), so shipowners’ exposure for cleanup costs should be limited. However, France has reserved the right to exclude certain terms of the LLMC 96 and as a result shipowners are not able to limit claims by the French state. This implies that cleanups performed by the state will be fully recoverable from the polluter. 

Conclusion
The amendments to the French Environmental Code are not unexpected, as they reflect EU directives.  The penalty level, however, is determined at each EU country’s discretion and France has chosen to impose penalties at a very high level in the hope that this will discourage operational practices that put the marine environment at risk.

We thank Xavier McDonald of Holman Fenwick & Willan, Paris, for his assistance in the preparation of this article.

Footnotes
1 Law 2008/757. Text available at www.legifrance.gouv.fr/affichCode.do;jsessionid=C02A013CA7A9416BAD6603D120746742.tpdjo08v_2?cidTexte=LEGITEXT000006074220&dateTexte=20080905 2  See the discussion about the term ”serious negligence” in the article ”Seafarers beware – European Court of Justice upholds the Ship-source Pollution Directive” in Gard News issue No. 191.

 

Gard News 192, November 2008/January 2009

Any comments to this article can be e-mailed to the Gard News Editor.

 


Gard News is published quarterly by Gard AS, Arendal, Norway.