Legal Framework

At a national level a procedure was established in 2011 by the Environmental Public Prosecutor to determine whether the enforcement process concerning a ship-source oil pollution should follow the criminal justice or the administrative system. A general criterion was defined considering the sea polluted (Mediterranean or Atlantic), the distance to coast and the area detected, taking into account the particular circumstances of each case:

  • In the Mediterranean Sea, polluted areas over 2 km2 within 12 miles from coast and polluted areas over 3 km2 beyond 12 miles from coast may follow the criminal justice system.
  • In the Atlantic Ocean, polluted areas over 5 km2 within 12 miles from coast and polluted areas over 10 km2 beyond 12 miles from coast may follow the criminal justice system.

1. Ship-source pollution crimes following the criminal justice system

  • These crimes are classified as offences against natural resources or the environment and covered in the Organic Law 10/1995, of November 23, Chapter III, articles 325-331 of the Spanish Criminal Code.

2. Ship-source pollution offences following the administrative system

  • MARPOL offences as well as their administrative procedures are covered in the Consolidated Text of the Spanish Law for State Ports and the Merchant Marine, approved by Royal Decree 2/2011 of September 5, Title IV, sanctioning procedure, Third Book, Merchant Marine, articles 305-320.
  • This Law establishes the following penalties:
    • Up to 60,000 € for minor offences.
    • Up to 601,000 € for serious offences, for instance neglect discharges.
    • Up to 3,005,000 € for very serious offences, for instance intentional discharges.
    • Additional penalties can be imposed concerning the necessary measures to return things to its original state and to claim for damage compensation.
  • Nevertheless the common rules of administrative sanctioning processes are covered in Law 30/1992 on the Legal Regime of Public Administrations and Common Administrative of November 26, Title IX. This Law has been amended by Law 39/2015 of October 1 and will entry in force in October 2 of 2016.
  • The regulatory standards in the administrative system are the following:
    • Concerning the procedures:
      • Standard Procedures related to the power to impose a penalty approved by Royal Decree 1398/1993 of August 4, amended by Law 39/2015 October 1.
      • Sanction Procedure for offences in marine in civil navy approved by Royal Decree 1772/1994 of August 5.
    • Concerning vessel’s inspections in case a national o foreign vessel is the source of a pollution:
      • Procedure for inspection and certification of civil vessels approved by Royal Decree 1837/2000 November 10.
      • Procedure for inspection of foreign vessels in Spanish ports approved by Royal Decree 1737/2010 December 23.
    • Concerning oil and noxious liquid substances pollutions:
      • Royal Decree 394/2007 of March 31 on ship-source pollution in Spanish Waters, which implements the Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, particularly criminal penalties, for infringements, modified by the Directive 2009/123/EC of the European Parliament and of the Council of October 21.