May: CIRCULAR 2A/2011

Update in Spain’s actions against maritime pollution.

LEGISLATION: Following the Directives 2008/99/CE and 2009/123/CE, -which purpose was to increase the effectiveness of environmental protection by including criminal sanctions and extending these to “Legal persons”-, Spain adopted Organic Law 5/2010 – applicable since 23.12.10 – which increased legal sanctions to the environmental crimes as well as added new criminal behaviours.

In this sense, article 325 of Spanish Criminal Code now states that pollution of the environment is now punished with two (2) to five (5) years of prison. The pollution of water is considered as such in terrestrial, subterranean or maritime water; and – what is important – deep sea pollution is now also expressively punished.

Besides, as pollution is an offense applicable not only to persons but also to legal persons, these can be submitted to fines of two (2) to five (5) years, with a daily quota from 30 € up to 5.000 €.

GOVERMENT’S IMPLEMENTATION: With the aim of developing the application of this legislation and within the National Plan of Safety 2010-2018, the General Directorate of Merchant Marine, Spanish Maritime Safety and Rescue Agency and the Spanish Environmental Prosecutors had meetings in January 2011; with the finality to promote the sanction of the responsible of pollution by Administrative Procedures and also by the Criminal Jurisdiction.

Maritime pollution is now being fought in three fronts: – First, the surveillance work carried out by the Spanish Maritime Safety and Rescue

Agency (part of the Spanish Ministry of Development) done by means of five (5) aircrafts fully equipped for the detection of spills and the recovery of evidence. According to the Spanish Ministry of Development, in the last two trimesters of 2010, evidence against six vessels was “captured” by these aircrafts.

  • Second front of action is in the Harbour Master and General Directorate of Merchant Marine offices (also part of the Spanish Ministry of Development), which are the entities that begin the Administrative Sanctioning Procedures and request the corresponding deposits to cover the cleaning procedures costs and orders the detention of the vessel, detention that can be lift by the deposit of a guarantee.
  • And finally, the Spanish Environmental Prosecutors that would begin criminal procedure if the actions were constitutive of a crime according to the Spanish Criminal Code.

We highly recommend Owners / insurers to take the necessary actions to fulfil the applicable legislation.