Netherlands: European Directive On Safety Of Offshore Oil And Gas Operations

Last Updated: 8 August 2013
Article by Harm Kerstholt and Marinke Israëls

On 10 June 2013 the Council of the European Union adopted a new directive on the safety of offshore oil and gas operations (the "Directive"; 2013/30/EU). The Directive was published in the Official Journal of the European Union on 28 June 2013 and entered into force on the twentieth day following its publication. EU Member States with offshore waters must transpose the provisions of the Directive into national legislation within two years of that date, i.e. by 18 July 2015. However, existing installations will have until 19 July 2018 to comply with the new requirements.

Aim and subject

The Directive is a direct response to the 2010 Gulf of Mexico disaster. The Directive's aim is to reduce the occurrence of major accidents relating to offshore oil and gas operations, and to limit the consequences of such accidents. To achieve this, it sets out the principle that EU Member States must require operators to ensure that all suitable measures are taken to prevent major accidents. It establishes minimum conditions for safe offshore exploration and exploitation, and improves the response mechanisms in the event of such an accident. Consequently, the Directive is expected to increase the protection of the marine environment and coastal economies against pollution.

Scope of applicability

All of the Directive's provisions must be transposed in full by Member States with offshore waters and an existing offshore oil and gas industry. Landlocked Member States, and Member States with offshore waters but no existing oil and gas industry, will only have to transpose a limited number of provisions, in particular those relating to operations outside the EU (see below).

Licensing

At the time of an application for the granting or transfer of a licence to carry out offshore oil and gas operations, the applicant's technical and financial capabilities – in particular, its financial capability to cover liabilities potentially arising from its operations must be assessed. If the applicant cannot show that the required measures to cover potential liabilities have already been or will be taken, it will not be granted a licence. The licensing authority must, where appropriate, consult the competent authority (more on the latter shortly). Operators have to be appointed or approved by the relevant national licensing authority.

Submission of documents

The Directive specifies several documents that must be submitted to the national competent authority by an operator, or by an owner in the case of a non-production installation. For example, an operator must submit an emergency response plan, a report on major hazards, a safety and environmental management system applicable to the relevant installation and a corporate major accident prevention plan. All of these documents together should ensure that operations are conducted in a responsible manner. The details of the requirements regarding the policies and reports that must be submitted to the competent authority are set out in the Directive.

Liability for environmental damage

The Directive requires Member States to ensure that licensees are financially liable for the prevention and remediation of environmental damage, as defined under the Environmental Liability Directive (ELD), caused by offshore oil and gas activities carried out by, or on behalf of, the licensee or the operator. This means that a licensee that is not the operator is still liable under the ELD. The Directive contains an amendment to the ELD under which the ELD provisions dealing with water damage now also apply to the marine waters of Member States. Consequently, liability under the ELD has been extended.

The Directive does not contain any provisions on civil liability on the part of licensees for loss or damage suffered by third parties. However, in 2012 the European Commission ordered a study into issues relating to such liability, so this topic may very well be covered by EU legislation in the near future.

Competent authority

The Directive requires each Member State to appoint a competent authority to be responsible for regulatory functions such as assessing and accepting reports, overseeing compliance by operators with the requirements set out in the Directive, producing reports and making annual plans.

The Directive contains provisions aimed at ensuring the competent authority's independence and objectivity. Member States must at all times prevent conflicts of interest between, on the one hand, the competent authority's regulatory functions relating to offshore safety and the environment and, on the other hand, regulatory functions relating to the economic development of offshore natural resources (including licensing and revenue management). To prevent such conflicts of interest, Member States should ensure a clear separation between the two types of functions.

Transparency and information sharing

Under the Directive, Member States must ensure that operators (or owners) provide the relevant competent authority with the information described in Annex IX to the Directive. This includes information relating to any unintended release of oil or gas, any failure of a safety and environmental critical element, any fatal accident, any evacuation of personnel, helicopter accidents, etc. Member States are also required to make such information publicly available.

When reporting the requisite information, operators and owners must do so using a common data reporting format, to be drawn up by the Commission. Member States must submit annual reports to the Commission on offshore safety and environmental impact based on the information provided by operators.

Cooperation between Member States

The Directive requires Member States to play an active role in planning and information sharing with each other. Each Member State must ensure that its competent authority exchanges knowledge, information and experience with the competent authorities of other Member States.

In addition, the Directive sets out rules on transboundary emergency preparedness and response. Member States are required to prepare external emergency response plans covering all offshore oil and gas installations (or connected infrastructure) and potentially affected areas within their jurisdiction.

Operations outside the European Union

Each Member State must require companies registered in its territory and conducting, themselves or through subsidiaries, offshore oil and gas operations outside the EU as licensees or operators, to report any major accident in which they have been involved to the competent authority in that Member State.

Impact in the Netherlands

We expect that the implementation of the Directive will have an impact on the organisation of the supervision of offshore oil and gas operations in the Netherlands. At present the SodM (Staatstoezicht op de Mijnen) oversees compliance with the statutory regulations applicable to offshore oil and gas operations, focusing on the aspects of health, safety, the environment and effective extraction. As the SodM is a department of the Ministry of Economic Affairs, which is responsible for the economic development of offshore natural resources (including licensing and revenue management), this structure may be inconsistent with the Directive. This is because the latter provides that the competent authority is required to carry out its regulatory functions under the Directive independently of any of the regulatory functions under purely national law relating to the economic development of offshore natural resources, licensing and revenue management.

In addition, licensees in the Netherlands (and elsewhere in the EU) will potentially face greater liability under the ELD.

Finally, the Directive will affect operations outside the EU by Dutch licensees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions