Opinion of Advocate General Ćapeta delivered on 16 May 2024.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2024:410
• Date: 16 May 2024

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 16 May 2024 (1)

Case C‑188/23

Land Niedersachsen

v

Conti 11. Container Schiffahrts-GmbH & Co. KG MS ‘MSC Flaminia’

(Request for a preliminary ruling from the Oberlandesgericht München (Higher Regional Court, Munich, Germany))

(Reference for a preliminary ruling - Environment – Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal – Regulation (EC) No 1013/2006 – Scope of application – Waste arising from a chemical fire and explosions on the high seas – Interpretation of judgment of 16 May 2019, Conti 11. Container Schiffahrt (C‑689/17, EU:C:2019:420))

I. Introduction

1. It is 05:42 am on 14 July 2012. The Flaminia, a container ship, is on a voyage from Charleston (United States) to Antwerp (Belgium) when, mid-Atlantic, a chemical fire erupts and explosions ensue. Extensive damage is caused and the ship is contaminated by dangerous and toxic residues. Several crew members die. The fire and explosions continue for days. The closest port is several hundred nautical miles away. After weeks of salvage efforts and denials of entry by several surrounding ports, the ship is ultimately towed into Wilhelmshaven (Germany).

2. The competent German authorities of the Land Niedersachsen (Land of Lower Saxony) (‘the Land’) order that the notification and consent procedure, within the meaning of the Regulation (EC) No 1013/2006, (2) be commenced before the Flaminia could be towed onwards to Mangalia (Romania) for the removal of (some of) the dangerous and toxic waste and repair of the ship.

3. Interpreting the Court’s 2017 judgment in Conti 11. Container Schiffahrt (3) as not requiring that procedure, Conti, the applicant in the main proceedings, is seeking compensation from the Land for the costs linked thereto.

4. For its part, the Land, in essence, claims that it would not have been possible, from the perspective of the protection of the environment, to allow a ship carrying approximately around 30 000 mt of toxic wastewater and other materials to depart from Wilhelmshaven to Mangalia without undergoing the notification and consent procedure in question. It considers that one of the obligations arising from the Basel Convention, (4) to which the European Union and its Member States are parties, is to provide for such a procedure for precisely those movements of such hazardous waste. If the Waste Shipments Regulation did not require notification for that type of movement, as the first instance court understood the judgment in Conti 11. Container Schiffahrt, the Land considers that the European Union would be in breach of its obligations under the Basel Convention.

5. The overarching question before the Court is thus one of interpreting its judgment in Conti 11. Container Schiffahrt: does that judgment expose the Waste Shipments Regulation to a potential incompatibility with the European Union’s obligations under the Basel Convention? And if not, did the Land correctly impose on Conti the notification and consent procedure provided for under the Waste Shipments Regulation?

II. The legal and factual context of the present case and the questions referred for a preliminary ruling

6. Conti is a German company based in Hamburg (Germany). At the material time, that company owned a container ship, organised as a one ship special purpose vehicle, sailing under the name Flaminia.

7. In November 2000, Conti chartered the Flaminia to MSC, a Swiss company based in Geneva (Switzerland).

8. From approximately November 2000 to June 2012, the Flaminia carried thousands of cargo containers to and from ports around the world, including the port of New Orleans (United States).

9. In June 2012, an American chemical manufacturer requested to ship three tank containers of 80% divinylbenzene (‘DVB’) out of New Orleans. DVB is a chemical compound that is used in water purification.

10. DVB must be kept below a certain temperature to prevent a chemical process called ‘auto-polymerisation’, which has the effect of resulting in rapid temperate increases and emission of flammable vapours. (5)

11. On 14 July 2012, while the Flaminia was mid-Atlantic en route from Charleston to Antwerp, an explosion occurred in the containers carrying the DVB, which led to a large fire on board.

12. Three crew members lost their lives. Hundreds of containers were destroyed and extensive damage was caused to the ship.

13. It is unclear what precisely led to the fire and explosions. (6)

14. After the crew and passengers had abandoned ship, the Flaminia was left drifting in the mid-Atlantic. The fires continued. (7) Another explosion ensued. (8)

15. Conti engaged salvors. To bring the fires under control and to salvage the ship and cargo, the salvors sprayed seawater onto the ship. One result of that process was that about 30 000 mt of firefighting water, contaminated with dangerous and toxic residues, remained in the holds of the Flaminia after the fire was brought under control.

16. It would later transpire that even after the discharge of the majority of the firefighting waters, 30 500 mt of waste material remained on board the ship, (9) consisting inter alia of sludge, fire-damaged solid cargo, contaminated water, and steel scrap.

17. At the time of the explosion, the Flaminia found itself between Canada and the United Kingdom, around 650 nm from the nearest port (San Miguel, Azores, Portugal), on an eastward course. (10)

18. After the submission of a passage plan, the salvors towed the Flaminia through the English Channel to Wilhelmshaven, which was the only available port of refuge, (11) as the following map, (12) drawn up by the German Federal Bureau of Maritime Casualty Investigation, shows:

19. The ship arrived in the port of Wilhelmshaven on 9 September 2012. (13)

20. By letter of 30 November 2012, the Niedersächsisches Ministerium für Umwelt, Energie und Klimaschutz (Ministry of Lower Saxony for the Environment, Energy, and Climate Protection, Germany) informed Conti that the water used to extinguish the fire on board and the sludge and scrap metal thereon were to be classified as ‘waste’ within the meaning of the Waste Shipments Regulation. A notification and consent procedure, as provided for in that regulation, therefore had to be completed before the ship could leave for Romania.

21. Despite objections on the part of Conti, on 4 December 2012, the Gewerbeaufsichtsamt Oldenburg (Oldenburg Trade Supervisory Authority, Germany) ordered the completion of the notification and consent procedure for the transportation to Romania. It also issued a prohibition to move the ship prior to the completion of that procedure and the submission of an approved waste disposal strategy.

22. The applicant had to complete two notification procedures.

23. The first notification procedure concerned the transportation of some of the fire-extinguishing water on board the Flaminia from Wilhelmshaven to Odense (Denmark). (14)

24. The second notification procedure concerned the Flaminia’s transport of the rest of the waste from Wilhelmshaven to Mangalia. (15)

25. It is that second procedure that forms the basis of Conti’s claim before the referring court.

26. While it was not apparent from the order for reference, at the hearing, the parties confirmed that not all the remaining waste material was discharged in Mangalia. Instead, a further voyage to Aarhus (Denmark) and then Odense (Denmark) took place, where a total of approximately 28 400 mt of waste material was removed. (16)

27. As confirmed at the hearing, for that journey, Conti completed the notification procedure with the Romanian authorities.

28. After the waste removal in Denmark was completed, the Flaminia left Odense to Mangalia where repairs were carried out.

29. The fire and explosions on board the Flaminia resulted in multiple claims before the courts of different jurisdictions.

30. First, a number of claims were brought before the United States District Court for the Southern District of New York (United States). In July 2018, that court assigned fault for the fire aboard the Flaminia to the manufacturer of the tanks and the manufacturer of the DVB. In June 2023, that ruling was affirmed ‘in all material respects’ by the United States Court of Appeals for the Second Circuit. (17)

31. Second, the charter-party between Conti and MSC contained an arbitration clause which required all disputes arising out of the charter-party to be arbitrated in London (United Kingdom). Accordingly, while litigation progressed in New York (United States), Conti also pursued claims in arbitration under the charter-party. By the award dated 30 July 2021 and corrected on 1 September 2021, the arbitration panel established pursuant to the latter agreement, held that MSC had breached the charter-party and would be liable for approximately 200 million United States dollars (USD) (EUR 184 million) (‘the arbitral award’). An action seeking confirmation of that award pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (18) (also known as ‘the New York Convention’) is pending before the United States District Court for the Eastern District of Louisiana (United States). (19) A separate action by MSC to limit its liability to approximately 28.2 million pounds sterling (GBP) (EUR 32.9 million) was denied before the High Court of Justice (England & Wales) and the Court of Appeal (England & Wales). (20) Permission to appeal before the Supreme Court of the United Kingdom was granted on 19 December 2023, (21) with that case pending at the point of finalisation of my Opinion.

32. Finally, the administrative decision ordering the notification and consent procedure before Conti could move the Flaminia to Romania triggered the present action before German courts. At first instance, the Landgericht München I (Regional Court, Munich I, Germany) requested from...