EU DIRECTIVE (2005/35/EU) CHALLENGE FAILS

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Source: MGN

THE legal challenge by an Intertanko-led group of shipping industry bodies to the European directive on criminal sanctions for ship source pollution has failed.

The European Court of Justice ruled today that the validity of the EU Directive 2005/35/EU on ship source pollution cannot be assessed by reference to the international conventions MARPOL 73/78 and UNCLOS 1982. But Intertanko and its consortium partners say this leaves open the door for other legal fora to rule on how the Directive is to be interpreted consistently with these conventions

The coalition of applicants challenged the Directive in the English High Court as being inconsistent with, and contrary to, the internationally harmonised rules on the same issue contained in MARPOL 73/78 and UNCLOS 1982.

The English High Court agreed that the coalition’s arguments were well founded and requested the ECJ to make a preliminary ruling on the following issues:

(1) Whether the EU can impose criminal liability for discharges from foreign flag ships on the high seas or in the Exclusive Economic Zone independently of MARPOL, thereby limiting MARPOL defences.

(2) Whether the EU can legislate for discharges in territorial seas otherwise than in accordance with MARPOL, again limiting MARPOL defences and expanding parties who may be liable.

(3) Whether the standard of criminal liability for discharges resulting from “serious negligence" breaches the right of innocent passage.

(4) Whether the standard of liability in the Directive of "serious negligence" satisfies the requirement of legal certainty.

The Grand Chamber of the ECJ, comprising thirteen judges, heard oral argument on 25 September 2007.

In its judgement issued today it has ruled that the validity of the Directive cannot be assessed by reference to MARPOL or the Law of the Sea Convention (UNCLOS). It has upheld the Commission’s argument that as the Community itself (unlike its member States) is not a party to MARPOL, it is not bound by the Convention. The Court has taken the view that although the Community is a party to UNCLOS, that Convention does not give individuals rights or freedoms on which they can rely against States.

The Court has also held that the use of the term "serious negligence" does not infringe the requirement of certainty in Community legislation. In reaching this conclusion it gave guidance on the interpretation of the phrase, holding that it can refer only to a patent breach of a duty of care.

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The parties mounting the challenge say the effect of the judgement can be summarised as being:

1. The main provisions of the Directive remain valid;

2. The criminal liability regime for pollution remains undecided because the Court expressly held that the provisions had to be interpreted taking account of MARPOL 73/78. No guidance was given by the Court to national courts quite how this is to be done. Potentially the effect of the judgement is that the scope of criminal liability for accidental pollution may be broader than the international regime.

3. What is also significant is the general approach taken by the Court to the broader principle raised, namely, the relationship between international law laid down in treaties and community law. The Court has taken the view that UNCLOS regulates issues between states and not individuals and therefore cannot be applied to test the validity of the Directive.

4. The restrictive view of the status of UNCLOS as limited to States is unfortunate given the universal recognition of UNCLOS as relevant to determine not only the rights but also the obligations of users of the seas.

5.On the issue of validity of the Directive no effect is given to the fact that the Directive was specifically designed to harmonise implementation of MARPOL within the EU. 6.Intertanko and the other challengers to the directive make the following comments: “In making this judgement the Court has departed from the detailed opinion of Advocate General Kokott, who had concluded that the validity of the Directive could and should be tested by reference to UNCLOS and MARPOL, and that the Directive exceeded the Community's powers in international law unless "serious negligence" was construed to have different meanings inside and outside territorial waters. This would have entailed treating "serious negligence" as adding nothing to the MARPOL test of intent or recklessness, contrary to what the framers of Directive clearly intended.

“Observers of the proceedings have waited with interest to see whether the Court would accept this novel way of rescuing the Directive from the conclusion that it was contrary to international law. In the event it has not done so, but the Court has concluded that UNCLOS does not confer rights capable of being relied upon by parties other than States.

“The Court’s judgement is relatively short and leaves open the question of whether the approach taken by Advocate General Kokott can or should be followed.

“The ruling will add to existing concerns about the relationship between Community legislation and international maritime regulations. EU Member States continue to enjoy the benefits of being parties to MARPOL but the judgement also permits them to act unilaterally, provided that they act collectively. It remains to be seen how tolerant the rest of the international community will be of such a stance.

“The judgement confirms the coalition’s anxieties as to the implications of the Directive for the maritime industry. Furthermore, the judgement has not given effect to the significant common ground between the coalition, the EU Commission, the United Kingdom and many other Member States that the validity of the Directive was to be assessed by reference to UNCLOS.

“In any event significant questions remain as to how the High Court in London will react to this judgement in the light of the lack guidance as to how to interpret the Directive in accordance with international law. “

The consortium members appear to leave open the possibility of further le4gal action, saying: “Although there is no possibility of an appeal there are the options for States to commence proceedings before International Tribunal for the Law of the Sea or indeed the International Court of Justice.”

Global container shipping lines are taking the opportunity of World Environment Day, held every year on June 5, to emphasise their commitment to environmental protection and reducing their impact on the environment.

Speaking through the new industry organisation, the Container Shipping Information Service (CSIS), container shipping lines have asserted that, despite carrying most of the world's manufactured goods and products, the industry is making great strides in its efforts to reduce greenhouse gas and other harmful emissions.

According to Philip Chow, CEO of OOCL and acting as CSIS spokesman, the container shipping industry is not resting on its laurels with regards to environmental care and lowering greenhouse gas emissions. "CSIS fully supports World Environment Day and we hope that it will help to stimulate public awareness of environmental issues," said Mr Chow.