Joint Press Release Issued by Industry Coalition on EU Ship Source Pollution Directive

Court of Justice of the European Communities

Case C-308/06
The Queen on the application of
INTERTANKO
INTERCARGO
The Greek Shipping Cooperation Committee
Lloyd’s Register
The International Salvage Union
v.
The Secretary of State for Transport

Joint press release issued on 20 November 2007 by the industry coalition following publication of the Advocate General’s opinion in the proceedings before the European Court of Justice reviewing of the validity of EU Ship Source Pollution Directive 2005/35/EC

On 20 November 2007 the Opinion of Advocate General Kokott was delivered in the reference for a preliminary ruling sought by the English High Court of Justice in the proceedings brought by a coalition of shipping industry interests to review the validity of the EU Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on Ship Source Pollution .

The claimants in the case are a coalition comprising INTERTANKO, INTERCARGO, the Greek Shipping Cooperation Committee, Lloyd’s Register and the International Salvage Union.

The Directive seeks to criminalise accidental pollution and applies within EU Member States territorial waters as well as in their Exclusive Economic Zones and on the high seas. The Directive also provides that it applies irrespective of a vessel’s flag.

The claimants view is that community law should march in step with international law as laid down in the United Nations Law of the Sea Convention 1982 (UNCLOS) and the 1973 International Convention for the Prevention of Pollution from Ships and the 1978 Protocol thereto (MARPOL 73/78). Therefore it was necessary for the European Court to examine whether the Directive took this approach.

The Court heard oral argument in this case on 25 September; it will be recalled that the case was heard before the Grand Chamber of the European Court, comprising thirteen judges together with the Advocate General. Today the Advocate General’s Opinion was delivered to the Court. This opinion examines the arguments presented by the parties and makes a series of recommendations as to how the complex issues raised in the case might be addressed. The opinion is not binding on the Court, it is the judgment of the Grand Chamber that will be decisive, this is expected early in 2008. Therefore, the case is still sub judice.

In her detailed Opinion Advocate General Kokott has supported the Coalition's argument that outside territorial seas the Community has no power to apply laws of its own which go beyond MARPOL. She has also agreed that the Directive was clearly intended to do this, as it prescribes "serious negligence" as an additional test of liability. However she has suggested that the Directive would not be invalid if the term "serious negligence" is interpreted restrictively, to mean no more than the MARPOL test of recklessness. She has also proposed that this narrow interpretation should not apply in the territorial sea, where she considers that the Community is not bound by MARPOL, and where she recommends that "serious negligence" should be given a broader meaning.

The Coalition now awaits hearing in due course whether the Court will follow the Advocate General’s Opinion.

The Directive in question will have to be reviewed in any event in the light of the Grand Chamber’s earlier decision in the ship-source pollution framework decision case, C-440/05 -- Commission v. Council. This was an application brought by the EU Commission to annul EU Framework Decision 2005/667/JHA on the enforcement of the law against ship-source pollution. This was adopted in conjunction with the EU Directive. The application had been necessary following an earlier ECJ ruling. As was expected the Court in following the opinion of the Advocate General ruled that the Framework Decision be annulled. Furthermore the Court ruled that the EU does not have competency to legislate as to the type and level of any penal sanctions for breach of criminal offences under EU law.

It is important to emphasise that the coalition claimants are not attempting to obstruct the development of the law with respect to combating marine pollution, still less to ensure any kind of “freedom to pollute”. They are responsible bodies in a major industry, which are committed to the maintenance of proper standards for the prevention of marine pollution. Their concern is that for an industry which, by its nature, operates throughout the oceans of the world, those standards have to be established on a global, not a unilateral or regional, basis and that international law is upheld.

Clarification in this area of law has also been sought to safeguard the rights of seafarers, salvors and classification society surveyors; criminalising innocent mistakes will be detrimental to the retention and recruitment of those that man and support the world’s merchant fleet which is the backbone of the global economy.

Comment

“These proceedings have been brought to uphold the principle of the shipping industry being regulated on a global basis with regulations that are legally certain and capable of uniform application. Furthermore, they have been brought to ensure the fair treatment of seafarers and others engaged in the shipping industry. We await the European Court’s final determination of the issues raised before commenting further.” Peter Swift, Managing Director, INTERTANKO

Enquiries relating to legal aspects of the matter may be addressed to:

Colin de la Rue of the coalition’s solicitors, Messrs Ince & Co - [email protected], tel. + 44 20 7623 2011

John Fawcett-Ellis, General Counsel, INTERTANKO -- [email protected], tel. + 47 92095999