Articles
21/03/2022
Marine, Transport & Logistics

Less waste in the sea, more in port facilities: from Directive (EU) 2019/883 to Legislative Decree No. 197 of 8 November 2021

In the previous issue of this newsletter[1] we provided a preview of the contents of Directive (EU) 2019/883 “on port reception facilities for the delivery of waste from ships, amending Directive 2010/65/EU and repealing Directive 2000/59/EC” (the “Directive”).

Italy has now transposed the Directive, by Legislative Decree No. 197 of 8 November 2021 (the “Decree”), and it becomes important to understand the main changes provided for by the legislator and the aspects of greater interest to users compared to the past.

Moreover, besides the Decree, the European Commission adopted four implementing regulations[2], which came into force on 14 February 2022, concerning the application of the Directive with respect to the issues set out below (the “Regulations”).

In particular, the Regulations provide for the introduction of:

  • a mathematical method to be used for calculating the sufficient dedicated storage capacity required for applying the derogation from the general obligation to deliver the waste accumulated during the voyage until the next port of call (Regulation (EU) 2022/89);
  • a Union risk-based targeting mechanism for selecting ships for inspection based on the risk that they do not comply with the obligations of the Directive (Regulation (EU) 2022/90);
  • criteria for determining that a ship produces reduced quantities of waste and manages its waste in a sustainable and environmentally sound manner in accordance with Directive (Regulation (EU) 2022/91);
  • a mechanism for monitoring data methodologies and for reporting passively fished waste (Regulation (EU) 2022/92).

We must certainly not forget that the above-mentioned Regulations are binding in their entirety and directly applicable in all Member States, with no transposition into national law being required. Indeed, they pursue the aim of ensuring a uniform implementation of the Directive’s implementing measures across the European Union.

Without claiming to be exhaustive, let us now go into detail.

As regards the involvement of user trade associations, the Decree has specified for the first time that it is necessary to hear the opinion of the parties concerned in all preliminary and subsequent phases of the preparation of waste collection and management plans in the port area[3].

The Decree states that parties concerned include port users or their representatives (including trade associations), and, where appropriate, local competent authorities, port reception facility operators, organisations implementing extended producer responsibility obligations and civil society representatives.

The preventive consultation of such a wide range of parties can be a “precious” opportunity for a more efficient management – also at local level – of the environmental sustainability in the port area.

As regards the entrustment of the waste collection service to multiple operators, Article 4, paragraph 7, of the Decree provides that the waste collection service must be provided in accordance with applicable national and European legislation on procurement, contracts and concessions and, particularly, Regulation (EU) 352/2017[4].

In this regard, in accordance with the reasoning followed in the previous issue of this newsletter, we believe that the aim of this provision is to avoid:

  • an exclusive or monopoly regime of the collection of ship-generated waste and cargo residues by a single provider; and
  • an upstream obligation for shipowners to assign the service to a single provider.

Otherwise, the possible direct consequence of entrusting the service to a single operator would be to reduce the number of operators concerned and to limit supply, which will be in conflict – inter alia – with the principle of freedom of competition laid down in EU legislation.

The rule, therefore, would be plurality of providers and freedom to provide those services in ports.

As regards the cost recovery system, Article 8 of the Decree, fully transposing the provisions of the Directive, provides – inter alia – for the introduction of an indirect fee that is independent of delivery of waste to the collection facilities, which is to be determined at local level when drafting waste collection and management plans, in accordance with the principles of transparency, proportionality and accountability set out in Regulation (EU) 2017/352.

In this respect, the hoped-for involvement of users and their national representatives in the adoption and/or updating of fees would ensure them to comply as far as possible with the aforementioned EU principles.

In such a context, it would seem evident that the Directive intends to promote the most “virtuous” ships in terms of waste production and management – also by means of an incentive to deliver that may result in reduction of the relevant fees applied at local level.[5].

Regulation (EU) 2022/91 provides for specific criteria to be followed by individual national authorities (and therefore by individual collection service providers) in order to determine when a ship is eligible for certain benefits (e.g., the above-mentioned reduction in fees).

The reward mechanism is simple: the more “eco-friendly” your behavior is, the more you can benefit.

In order to assess the risk of a ship not complying with the obligations laid down in the Directive, Regulation (EU) 2022/90 provides for a Union risk-based targeting mechanism for selecting ships for inspection based on various parameters.

Said parameters include, without limitation, non-compliance or indications of non-compliance with the requirements for the delivery of waste; the period of time elapsed since the last inspection; the existence of previous reports of non-compliance by competent Port Authorities.

The inspection mechanism is – also in this case – very simple: any non “eco-friendly” behaviour shall constitute an alert for competent Port Authorities, aiming at ensuring the effective enforcement of the waste delivery obligation to port facilities.

As regards derogation from the general obligation to deliver all waste carried on board to the port of call, Article 7 of the Decree provides for the possibility to derogate from such obligation for ships that have sufficient dedicated storage capacity for all waste that has been accumulated and will be accumulated during their intended voyage until the next port of call.

But how should such sufficient storage capacity be calculated?

Regulation (EU) 2022/89 determines – by means of a mathematical formula based on the estimated quantities of waste stored on board in relation to the maximum dedicated storage capacity – whether a ship has sufficient storage capacity to be able to benefit from the delivery derogation.

Therefore, compared to the past, the possibility of accurately calculating the maximum storage capacity of a ship should give greater certainty of “success” in asking competent authorities for a derogation regarding the delivery of waste in a given port.

The Decree has also updated the definition of “scheduled traffic to mean “traffic based on a published or planned list of times of departures and arrivals between identified ports or recurring crossings, according to a schedule recognised by the relevant Competent Authority[6].

Such definition will in fact allow greater harmonisation of the exemption regime for liner ships with regular and frequent calls under Article 9 of the Decree[7], being in accordance with the EU case law on the subject[8].

In conclusion: in the hope that the system provided for by the Decree will be applied locally in a harmonised manner, it may be appropriate to enter as soon as possible into a dialogue with individual Port System Authorities (including through trade associations) aimed at defining common guidelines to be implemented locally in compliance with national legislation for the purposes of drafting waste collection and management plans and set the relevant tariffs.

All the above will always be in full compliance with the principles of transparency and proportionality set out in Regulation (EU) 352/2017.

 

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Luca Cavagnaro and Emanuele Rinaldi.

 

 

[1] In the previous issue of this newsletter we examined the most important aspects which the legislator should have taken into account in transposing the Directive.
[2] The Commission’s implementing regulations are:

[3] Please see Article 5(1) of the Decree.
[4] Please note that Regulation EU 2017/352 established a framework for the provision of port services and common rules on financial transparency of ports.
[5] Indeed, Article 8(2) of the Decree expressly provides that “the fees shall be proportionate and appropriate so that the cost recovery systems established do not constitute an incentive for ships to discharge their waste into the sea”.
[6] Please see Article 2(1)(n) of the Decree.
[7] A ship shall be exempted if the following conditions are met:

  • the ship is engaged in scheduled traffic with frequent and regular port calls;
  • there is an arrangement to ensure the delivery of the waste and payment of the fees in a port along the ship’s route. This condition must be proven by a contract signed with a port or a waste contractor, which has been notified to all ports on the ship’s route and accepted by the port where the delivery and payment take place.
  • the exemption does not pose a negative impact on maritime safety, health, shipboard living or working conditions or on the marine environment.

[8] On this issue, please see, for example, the CJEU’s (Fourth Chamber) judgment of 23 January 2014 in Case C-537/11, according to which a cruise ship could fall within the definition of “scheduled service”, in the context of a Union directive no longer in force, has provided that such cruise ship “operates cruises, with or without intermediate calls, finishing in the port of departure or another port, provided that those cruises are organised at a particular frequency, on specific dates and, in principle, at specified departure and arrival times, with interested persons being able to choose freely between the various cruises offered, which is a matter for the referring court to ascertain”.

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