Opinions nº C-641/18 of Tribunal de Justicia, January 14, 2020

Resolution Date:January 14, 2020
Issuing Organization:Tribunal de Justicia
Decision Number:C-641/18

(References for a preliminary ruling - Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Scope ratione materiae of Regulation (EC) No 44/2001 - Immunity from jurisdiction - Activities of ship classification and certification societies)

  1. Introduction

    1. Regulation (EC) No 44/2001 (2) provides, using the same terms as are used in other instruments of EU private international law, that it applies ‘in civil and commercial matters’. The present request for a preliminary ruling follows upon a line of case-law concerning the determination of the scope of that regulation.

    2. In the present case, it is a plea of immunity from jurisdiction raised by the defendants in the main proceedings that has caused the referring court to entertain doubts about the scope of Regulation No 44/2001. In essence, the referring court asks the Court of Justice to express its position on the relationship between a customary principle of international law and an instrument of EU private international law.

    3. In addition, the referring court particularly seeks to ascertain whether and, if so, to what extent the answer to the question which it has referred may be influenced by the interest in ensuring access to the courts, a right guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Viewed from that perspective, that question brings to mind the current debate about the influence of human rights on private international law.

    4. The present request for a preliminary ruling consequently presents the Court with an opportunity to consider the position of EU private international law within international law in the broader sense. In this Opinion, I shall suggest that the Court interpret both Regulation No 44/2001 and customary international law in such a way that its judgment might contribute to the development of international law in general.

  2. Legal framework

    1. International law

      1. The United Nations Convention on the Law of the Sea, concluded in Montego Bay on 10 December 1982, (3) (‘UNCLOS’), is an essential part of the law of the sea. It entered into force on 16 November 1994 and was approved on behalf of the European Community by Decision 98/392/EC. (4) 6. In accordance with Article 90 of UNCLOS, every State has the right to sail ships flying its flag on the high seas. Pursuant to Article 91(1) and (2) of UNCLOS, every State is to fix the conditions, inter alia, for the right to fly its flag and is to issue to ships to which it has granted the right to fly its flag documents to that effect.

      2. Article 94(1) of UNCLOS provides that every State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. In addition, in accordance with Article 94(3) to (5) of UNCLOS, the State is to take measures for ships flying its flag to ensure safety at sea. Those measures must ensure, in particular, that every ship is surveyed before registration and thereafter at appropriate intervals by a qualified surveyor of ships. In taking these measures, each State is required to conform to generally accepted international regulations, procedures and practices.

      3. In that context, the International Convention for the Safety of Life at Sea, (5) (‘the SOLAS Convention’), to which all the Member States are contracting parties, has as its main objective the specification of minimum standards for the construction, equipment and operation of ships, compatible with their safety.

      4. Under Regulation 3-1 of Part A-1 of Chapter II-1 of the SOLAS Convention, ships are to be designed, constructed and maintained in compliance with the structural, mechanical and electrical requirements of a classification society which is recognised by the Administration - which, according to the convention, is the government of the State whose flag the ship is entitled to fly - in accordance with the provisions of Regulation XI/1, or with applicable national standards of the Administration which provide an equivalent level of safety.

      5. Under Regulation 6 of Chapter I of the SOLAS Convention:

      ‘(a) The inspection and survey of ships, so far as regards the enforcement of the provisions of the present regulations and the granting of exemptions therefrom, shall be carried out by officers of the Administration. The Administration may, however, entrust the inspections and surveys either to surveyors nominated for the purpose or to organisations recognised by it.

      (b) An Administration nominating surveyors or recognising organisations to conduct inspections and surveys as set forth in paragraph (a) shall as a minimum empower any nominated surveyor or recognised organisation to:

      (i) require repairs to a ship;

      (ii) carry out inspections and surveys if requested by the appropriate authorities of a port State.

      The Administration shall notify the Organisation of the specific responsibilities and conditions of the authority delegated to nominated surveyors or recognised organisations.

      (c) When a nominated surveyor or recognised organisation determines that the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate or is such that the ship is not fit to proceed to sea without danger to the ship, or persons on board, such surveyor or organisation shall immediately ensure that corrective action is taken and shall in due course notify the Administration. If such corrective action is not taken the relevant certificate should be withdrawn and the Administration shall be notified immediately; …

      (d) In every case, the Administration shall fully guarantee the completeness and efficiency of the inspection and survey, and shall undertake to ensure the necessary arrangements to satisfy this obligation.’

    2. EU law

      1. Article 1(1) of Regulation No 44/2001 provides that that regulation ‘shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters’.

      2. In accordance with Article 2(1) of Regulation No 44/2001, ‘subject to [that] regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’.

  3. The facts of the case in the main proceedings, the procedure before the Court of Justice and the question referred for a preliminary ruling

    1. Relatives of the victims, along with survivors of the sinking of the Al Salam Boccaccio ’98, a ship sailing under the flag of the Republic of Panama, which happened in 2006 on the Red Sea and caused the loss of more than a thousand lives, have brought an action before the referring court, the Tribunale di Genova (District Court, Genoa, Italy), against the companies Rina SpA et Ente Registro Italiano Navale.

    2. Before the referring court, the applicants argue that the defendant’s certification and classification activities, the decisions they took and the instructions they gave, are to blame for the ship’s lack of stability and its lack of safety at sea, which are the causes of its sinking. The applicants claim compensation for the pecuniary and non-pecuniary loss sustained as a result of the ship’s sinking.

    3. The defendants contest the applicants’ claims and, in particular plead immunity from jurisdiction. They state that they are being sued in respect of certification and classification activities which they carried out as delegates of a foreign sovereign State, namely the Republic of Panama. The activities in question were a manifestation of the sovereign power of the foreign State and the defendants carried them out on behalf of and in the interests of that State.

    4. In response to the defendants’ plea of immunity from jurisdiction, the applicants argue that the Italian courts have jurisdiction to hear their claims pursuant to Article 2(1) of Regulation No 44/2001. They submit, first of all, that that regulation is inapplicable solely where the dispute concerns ‘revenue, customs or administrative matters’, as Article 1(1) of the regulation specifies. Secondly, the plea of immunity from jurisdiction does not cover activities that are governed by non-discretionary technical rules which are, in any event, unrelated to the political decisions and prerogatives of a sovereign State. Thirdly, classification and certification activities are not acts performed in the exercise of State authority, having regard to Article 47 of the Charter and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’) and recital 16 of Directive 2009/15/EC. (6) 17. It is under those circumstances that, by decision of 28 September 2018, received at the Court on 12 October 2018, the Tribunale di Genova (District Court, Genoa) decided to stay the proceedings and to refer the following question to the Court:

      ‘Are Articles 1(1) and 2(1) of Regulation [No 44/2001] to be interpreted - including in the light of Article 47 of the [Charter], Article 6(1) [of the] ECHR and recital 16 of Directive [2009/15] - as preventing a court of a Member State, in an action in tort, delict or quasi-delict in which compensation is sought for death and personal injury caused by the sinking of a passenger ferry, from holding that it has no jurisdiction and from recognising the jurisdictional immunity of private entities and legal persons established in that Member State which carry out classification and/or certification activities in so far as they carry out those activities on behalf of a non-EU State?’

    5. Written observations have been submitted by the parties to the main proceedings, the French Government and the European Commission. The same parties were represented at the hearing on 18 September 2019.

  4. Analysis

    1. By its question, the referring court seeks to establish, in essence, whether it must decline to...

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