Bosphorus v Rajavartiolaitos

• Jurisdiction: European Union
• Judge: Šváby,Vilaras,Safjan,Bay Larsen,Malenovský,Wahl
• Court: Court of Justice of the European Union
• Date: 11 July 2018
• Docket Number: (Case C-15/17)

Court of Justice of the European Union (Third Chamber).

(Bay Larsen, President of Chamber, Malenovský (Rapporteur), Vilaras, Safjan and Šváby, Judges; Wahl, Advocate General)

(Case C-15/17)

Bosphorus Queen Shipping Ltd Corp.

and

Rajavartiolaitos 1

Treaties — Interpretation — Related treaties — Whether provisions of one treaty relevant in interpretation of another — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) — International Convention for the Prevention of Pollution from Ships, 1973 (“Marpol Convention”) — International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (“Intervention Convention”) — UNCLOS concluded by the European Union and all its Member States — Status of these treaties in the EU legal order — Interpretative value of Marpol Convention and Intervention Convention in interpretation of UNCLOS

Environment — Marine environment — Pollution — Ship-borne pollution — Effects in the exclusive economic zone (“EEZ”) and territorial sea — Jurisdiction of the coastal State and the flag State — Limits on jurisdiction — UNCLOS — Marpol Convention — Intervention Convention — Enforcement rights of coastal States in their EEZ — Whether coastal States allowed to impose more stringent measures than those foreseen in UNCLOS Article 220(6)

Relationship of international law and municipal law — Treaties — European Union — Status of treaty as EU law — UNCLOS — Interpretation of Article 7(2) of Directive 2005/35/EC conforming to UNCLOS Article 220(6) — Relevance of treaties to which EU not party but which bind EU Member States

Sea — Environmental protection — Protection and preservation of marine environment — Ship-source pollution in EEZ — Flag State jurisdiction — Enforcement rights of coastal State — Whether and in which circumstances UNCLOS Article 220(6) authorizing a coastal State to instigate proceedings against a foreign vessel — Meaning of “clear and objective evidence” in UNCLOS Article 220(6) — Whether covering not only commission of a violation, but also its consequences — Meaning of “coastline or related interests” in UNCLOS Article 220(6) — Whether having the same meaning as in Article II of Intervention Convention — Whether covering non-living resources of territorial sea of coastal State as well as any resources in its EEZ — The law of the European Union

Summary:2The facts:—On 11 July 2011, the vessel Bosphorus Queen, registered in Panama and owned by Bosphorus Queen Shipping (“the appellant”), discharged oil into the sea while it was transiting through Finland's exclusive economic zone (“EEZ”). By decision of 16 September 2011, the respondent Finnish Rajavartiolaitos (Border Protection Agency) imposed a fine of EUR 17,112 on the appellant for the oil spill, on the ground that that spill had caused major damage or a threat of damage to Finland's coastline or related interests, or to resources of its territorial sea or EEZ. The appellant challenged the fine before the Finnish courts.

On appeal, the Finnish Korkein oikeus (Supreme Court) decided it needed guidance on the circumstances in which a coastal State could instigate proceedings against a foreign vessel that was the source of an oil spill in its EEZ. Accordingly, it decided to stay the proceedings and refer to the Court of Justice of the European Union (“the Court of Justice”) several questions regarding European Union law in the context of Article 220(6) of the United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”). Article 220(6) provided that “[w]here there is clear objective evidence that a vessel navigating in the [EEZ] or the territorial sea of a State has, in the [EEZ], committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or [EEZ], that State may, … provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws”.3

Opinion of the Advocate General

Held:—(1) Since the European Union had acceded to UNCLOS, that convention formed an integral part of the EU legal order and, hence, the Court of Justice had jurisdiction to interpret its provisions (para. 41).

(2) All Member States of the European Union were bound by the International Convention for the Prevention of Pollution from Ships, 1973, as supplemented by the Protocol of 17 February 1978 (“Marpol Convention”), whereas the European Union was not. Nonetheless, the provisions of the Marpol Convention had to be taken into consideration in interpreting, on the one hand, UNCLOS and, on the other hand, the provisions of EU secondary law which fell within the ambit of the Marpol Convention (para. 42).

(3) As far as the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (“the Intervention Convention”) was concerned, the fact that the European Union was not party to that convention and the Court of Justice lacked jurisdiction to give an authoritative interpretation of it did not mean that the Court of Justice could not take the Intervention Convention provisions into account when necessary in order to interpret relevant UNCLOS provisions (paras. 44–9).

(4) Flag State jurisdiction remained the main rule under UNCLOS. UNCLOS Article 220(3)-(6) conferred enforcement jurisdiction on the coastal State in a clearly defined set of circumstances, which was additional to the jurisdiction of the flag State. It afforded limited jurisdiction to coastal States in order to protect the marine environment in the event of an infringement of applicable international rules and standards regarding ship-source pollution. The substantive rules contained in the Marpol Convention regarding the prevention of oil pollution constituted a set of such rules. However, UNCLOS Article 220(3)-(6) did not impose stricter pollution standards than those that would be otherwise applicable. Nor did those rules confer on coastal States jurisdiction to intervene in ways which would go beyond the powers of the flag State (paras. 59–60 and 63).

(5) Since the rules contained in UNCLOS appeared to be intended to supplement and broaden those contained in the Intervention Convention regarding coastal State jurisdiction to intervene in case of a maritime casualty, the meaning ascribed to “related interests” in the Intervention Convention constituted a helpful benchmark for defining the interests covered by UNCLOS Article 220(6). Taking into account the wording of Article II(4) of the Intervention Convention,4 the expression “coastline or related interests” contained in UNCLOS Article 220(6) had to be interpreted as including all interests of the coastal State in the territorial sea and the EEZ pertaining to the exploitation of the sea and a healthy environment. The use of the term “any” in UNCLOS Article 220(6) to describe the resources of the coastal State in question suggested that a broad interpretation was required. An interpretation of “any resources” according to which species of flora and fauna which were used by exploitable species for nutriment ought to be covered by the notion of “any resources of its territorial sea or the [EEZ]” was in keeping with the ecosystem-based approach in marine environmental policy and the common fisheries policy endorsed by the European Union. Therefore, UNCLOS

Article 220(6) had to be interpreted to the effect that, on the one hand, the notion of “coastline or related interests” included all interests of the coastal State in the territorial sea and the EEZ pertaining to the exploitation of the sea and a healthy environment and, on the other hand, the notion of “any resources of its territorial sea or the [EEZ]” included both living resources—such as species of flora and fauna which were used by exploitable species for nutriment—and non-living resources (paras. 72–4, 77–8 and 80).

(6) UNCLOS Article 220(3) and (5)-(6) was based on a graded approach regarding the rights of intervention granted to the coastal State. UNCLOS Article 220(6) dealt with a situation where the coastal State had clear objective evidence of the infringement. However, clear objective evidence of an infringement by a specific foreign vessel was not in itself sufficient to justify the instigation of proceedings against that vessel in accordance with UNCLOS Article 220(6). That infringement had to have resulted in a discharge causing major damage or threat of major damage (paras. 86, 89 and 92).

(7) The evidence required to impose sanctions on the foreign vessel in the proceedings referred to in UNCLOS Article 220(6) was not governed by that provision but remained a matter of national law of the coastal State. Only in exceptional, clearly defined circumstances did the coastal State, in accordance with the principle of proximity, have the power to take measures against a foreign vessel in its EEZ. A coastal State could exercise enforcement jurisdiction laid down in UNCLOS Article 220(6) in circumstances where, on the one hand, that State had clear and objective evidence that a foreign vessel was the source of a discharge that infringed applicable international rules and standards regarding ship-source pollution and, on the other hand, that discharge could, in the specific circumstances of the case, reasonably be presumed to cause a threat of major damage to the marine environment. In determining whether a threat of major damage existed, particular importance ought to be placed on the vulnerability of the area affected by the spill, the volume, geographical location and extent thereof, as well as the duration of the spill and the prevalent meteorological conditions in the area concerned (paras. 96, 103–4 and 108).

(8) Member States could not take action against a foreign vessel under Article 7(2) of Directive 2005/355 unless such action was allowed under UNCLOS...