15 Colum. J. Eur. L. 143 (2008 – 2009)

Nicolas Hachez. LL.M., NYU School of Law; Research Fellow and Ph.D. Candidate, Institute for International Law and Leuven Centre for Global Governance Studies, University of Leuven. Special thanks to Tim Corthaut for his insightful remarks on an earlier draft of this paper.

PRESENTATION OF ECJ CASE NO. C-308/06 OF JUNE 3, 2008 – “INTERTANKO”

On July 4, 2006, the High Court of Justice of England and Wales, Queen’s Bench Division (“High Court”), used Article 234 of the EC Treaty to refer for a preliminary ruling to the European Court of Justice (“the Court”) a question relating to the validity of certain provisions of Directive 2005/35/EC of the European Parliament and of the Council of September 7, 2005 on ship-source pollution and on the introduction of penalties for infringement (“the Directive”). The bases for the control of the validity of the Directive were the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) and the International Convention for the Prevention of Pollution from Ships of 1973 and its Protocol of 1978 (“Marpol 73/78”). The reference further questioned the validity of the Directive in respect of the principle of legal certainty.

The main proceedings concerned several associations representing maritime ship transport operators, including the International Association of Independent Tanker Owners (“Intertanko”), which sought to represent the non-oil companies and non-state controlled tanker owners, allegedly operating some eighty percent of the world’s tanker fleet. The original case was directed against the UK Secretary of State for Transport “for judicial review in relation to the implementation” of the Directive, without further elaboration.

Evidencing the stakes associated with this case, no less than ten Member States, in addition to the European Parliament, the Council and the Commission, took the pain of voluntarily submitting observations to the Court. Accordingly, the judgment was rendered by the Court sitting as a Grand Chamber.

According to recital 15 thereof, the objectives of the Directive are “the incorporation of international ship-source pollution standards into Community law and the establishment of penalties—criminal and administrative—for violation of them in order to ensure a high level of safety and environmental protection in maritime transport.” The Directive therefore organizes a regime generally prohibiting the discharge of polluting substances by any ship, irrespective of its flag, into the sea, with limited exceptions. The Directive then enjoins Member States to ensure that infringements “be subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties.”

The alleged grounds of invalidity, as laid out in the four questions asked by the High Court to the Court, are the following.

First, the High Court wonders whether, in relation to straits used for international navigation, Article 5(2) of the Directive conflicts with Regulation 11(b) of Annex I of Marpol 73/78, and with Regulation 6(b) of Marpol 73/78.

Article 5(2) of the Directive provides as follows:A discharge of polluting substances into [straits used for international navigation, the exclusive economic zone of a Member State, or the high seas] shall not be regarded as an infringement [according to Article 4 of the Directive, infra] for the owner, the master or the crew when acting under the master’s responsibility when it satisfies the conditions set out in Annex I, Regulation 11(b) or in Annex II, Regulation 6(b) of Marpol 73/78.

Regulation 11(b) of Annex I of Marpol 73/78 provides that discharges of oil or oily mixtures normally prohibited by the Convention are not considered violations if they result from damage to a ship or its equipment:

(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimising the discharge; and

(ii) except if the owner or master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result.

Regulation 6(b) of Annex II of Marpol 73/78 is similar to the above provision, but applies to the discharge of noxious liquid substances.

The alleged conflict between those provisions would therefore come from the fact that, under the Directive, only the owner, master, and crew acting under the master’s authority can benefit, in the selected zones, from the regime of exceptions to the general prohibition of discharges provided for by the Directive, while under Marpol 73/78, any person a priori can invoke the fact that “all reasonable precautions have been taken” to avoid being charged with a violation of the Marpol Convention. The Directive would therefore be stricter than Marpol 73/78 as it limits the regime of exceptions of the latter to the owner, master, and crew of the ship when the discharge is effectuated in international straits, in the exclusive economic zone of a Member State, and in the high seas.

Second, the High Court raises the question of whether, in relation to the territorial sea of a Member State, Articles 4 and 5(1) of the Directive violate certain provisions of Marpol 73/78.

Article 4 of the Directive reads as follows: “Member States shall ensure that ship-source discharges of polluting substances into any of the areas referred to in Article 3(1) are regarded as infringements if committed with intent, recklessly or by serious negligence . . . .”

Article 5(1) of the Directive provides that a discharge shall not be considered a violation under Article 4 if it satisfies the conditions set out in Annex I, Regulations 9, 10, 11(a) and 11(c), or in Annex II, Regulations 5, 6(a), and 6(c) of Marpol 73/78.

Regulations 9 and 10 of Annex I of Marpol 73/78 lay out a general regime of prohibition of discharges of oil, oily mixtures, and noxious liquid substances into the sea, while Regulation 11(a) and (c) of Marpol 73/78 exclude from that prohibition discharges made for the safety of the ship, for rescuing life at sea, or for combating specific pollution incidents.

Regulation 11(b) of Annex I of Marpol 73/78 is thus explicitly excluded from the regime of exceptions organized by Article 5(1) of the Directive. The High Court therefore asks whether this would not be a violation of Marpol 73/78. Indeed, under Article 4 of the Directive, there is an infringement if a discharge takes place with intent, recklessly, or by serious negligence. This would amount to a breach of Marpol 73/78 insofar as, under Marpol 73/78, discharges of polluting substances into the sea are only regarded as violations if they are committed with intent (other than for securing the safety of the ship, for rescuing life at sea, or for combating pollution incidents), or recklessly and if they do not result from damage to the ship, all reasonable measures having been taken. On the contrary, in the territorial sea of Member States under the Directive, all discharges that are committed with intent (except for securing the safety of the ship, for rescuing life at sea or for combating pollution incidents) and recklessly constitute violations, even if they result from damage to the ship. Discharges resulting from serious negligence also constitute infringements to the Directive, while that liability criterion does not exist in Marpol 73/78. In the territorial sea of Member States, the Directive would thus again be stricter than the regime organized by Marpol 73/78.

Third, the High Court wonders whether the penalization of discharges resulting from serious negligence does not encroach on the universal right of innocent passage through the territorial seas of Member States and, under certain conditions, international straits provided for by Articles 17 and 45 of UNCLOS.

Finally, the High Court asks whether the use of the phrase “serious negligence” as a test of liability, violates the principle of legal certainty, which the Court has long recognized as a general principle of Community law. According to the Court’s settled case law, “the principle of legal certainty requires that rules imposing charges on [individuals] must be clear and precise so that [they] may know without ambiguity what are [their] rights and obligations and may take steps accordingly.” According to the requesting party to the main proceedings, the notion of “serious negligence” is vague and lacks clarity, so that the addressees of the Directive and of its implementing national legislations would have difficulty forming a clear idea of the behavior they ought to adopt in order to comply with those rules.

To sum up, the High Court asks the Court to review, according to Article 234, paragraph 1(b), the validity of the Directive against provisions of Marpol 73/78, against provisions of UNCLOS, and against the general principle of legal certainty. In this note, we shall only focus on the questions relating to the validity of secondary EU legislation with regard to international treaty law, based on the answers of the Court.

After dismissing objections pertaining to the admissibility of the reference for preliminary ruling, the Court immediately addresses the question of the validity of the Directive against instruments of international law, that is, the first three questions above.

In response to those questions, which are examined together, the Court begins by recalling the general principle expressed in Article 300(7) of the EC Treaty: the Community institutions are bound by the international treaties that they have concluded, and such treaties have precedence over secondary Community law. Accordingly, the validity of acts of the institutions can in principle be reviewed, in the framework of a reference for a preliminary ruling, against the rules contained in such treaties. According to prior case law, there are two preliminary conditions in order for the court to perform such judicial review: first, the Community must be bound by the international rules invoked; second, the nature and the broad logic of the international rules invoked must not prevent such review from being carried out, and their content must be sufficiently clear and precise in order to do so. The Court then examines whether Marpol 73/78 and UNCLOS satisfy these conditions.

Regarding Marpol 73/78, the Court notes that the Community is not a party to the Convention. The Court then examines whether the Community could nonetheless be bound by it through other means.

First, the Court considers whether its case law relating to the 1947 GATT agreement, which had become binding on the Community because it assumed obligations previously exercised by the Member States, cannot be applied to this case. Indeed, even if all the EU Member States are parties to Marpol 73/78, as they were to GATT, there has been no transfer of the competences covered by Marpol 73/78 which the Community would be “assuming” in the sense of the International Fruit case law, resulting in Marpol 73/78 being binding on the Community. Lacking such transfer of competences, the mere fact that all Member States are parties to Marpol 73/78 is not sufficient, according to the Court, to bind the Community as such.

Likewise, the Court notes that, if the Community generally has to abide by customary international law in the exercise of its powers, and notably in the adoption by its institutions of legislative or regulatory acts, Marpol 73/78 is not a reflection of customary international law and therefore does not bind the Community.

Because Marpol 73/78 does not bind the Community, either as a treaty or as an expression of customary international law, the first condition stated above is absent. The Court thus concludes that it cannot review the Directive for alleged invalidity in respect of Marpol 73/78, even though all Member States are bound by the latter.

Things are different concerning UNCLOS, which was signed and approved by the Council, thereby binding the Community under Article 300(7) of the EC Treaty. Accordingly, UNCLOS “form[s] an integral part of the Community legal order.” Consequently, and contrary to what the Court had decided in respect of Marpol 73/78, UNCLOS meets the first condition above. The Court then examines whether the second condition is also satisfied before it can start to review the Directive against UNCLOS. The Court therefore assesses whether the nature and broad logic of UNCLOS prevent such review, and whether its relevant provisions are sufficiently clear and unconditional for that purpose.

The Courts starts by noting that UNCLOS aims to establish a common and comprehensive legal regime for the peaceful exploration, use, and exploitation of marine areas, comprising notably the territorial seas, international straits, exclusive economic zones, continental shelves, and the high seas. In so doing, according to the Court, UNCLOS would seek “to strike a balance between the interests of States as coastal States, and the interests of States as flag States, which may conflict. In this connection . . . the Contracting Parties provide for the establishment of the substantive and territorial limits to their respective sovereign rights.” Accordingly, the relations between states with regard to the marine environment would be at the center of UNCLOS, and “individuals are in principle not granted independent rights and freedoms by virtue of UNCLOS.” Ships can enjoy the rights and freedoms contained in UNCLOS only if, because, and to the extent that they are attached to a flag State. In the words of the Court, “a ship’s international legal status is dependent on the flag State and not on the fact that it belongs to certain natural or legal persons.”

Furthermore, it is the flag States that bear the responsibility of taking measures to implement UNCLOS for the benefit of other flag States and their ships, and only they can be held liable under UNCLOS for harm caused by one of their hips if such harm results from a breach of UNCLOS on their part.

Therefore, concludes the Court,

In those circumstances, it must be found that UNCLOS does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State.

It follows that the nature and broad logic of UNCLOS prevent the Court from being able to assess the validity of a Community measure in the light of the Convention.

In sum, the Court plainly refuses to review the validity of the Directive against Marpol 73/78 and UNCLOS for failure of those instruments of international law to meet the conditions laid out for that purpose by the International Fruit
case law, exposed above.

Finally, the Court addresses the last question, and whether the use of the words “serious negligence” as a test of liability under the Directive violates the principle of legal certainty. The Court links the analysis of that principle with that of the principle of the legality of criminal offenses and penalties, as the Directive requires the Member States to attach criminal consequences to infringements.

On this issue, the Court finds that those principles were not breached, as general legislation cannot possibly envisage every specific circumstance or conduct leading to a violation and must inherently retain a degree of indeterminacy, and as the concept of negligence is integrated and used in the Member States’ legal orders in reference to patent breaches of the duty of care. Finally, the Directive having to be transposed by Member States, it is for them to define more precisely infringements to the rules laid out by the Directive and the ensuing penalties.

By way of summary, the operative part of the judgment reads:

1. The validity of 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 for infringements cannot be assessed:

–either in the light of the International Convention for the Prevention of Pollution from Ships, signed in London on 2 November 1973, as supplemented by the Protocol of 17 February 1978,

–or in the light of the United Nations Convention on the Law of the Sea, signed in Montego Bay on 10 December 1982.

2. Examination of the fourth question has revealed nothing capable of affecting the validity of Article 4 of Directive 2005/35 in the light of the general principle of legal certainty.