The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport.

• Jurisdiction: European Union
• Celex Number: 62006CC0308
• ECLI: ECLI:EU:C:2007:689
• Date: 20 November 2007
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-308/06

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 20 November 2007 (1)

Case C‑308/06

The International Association of Independent Tanker Owners and Others

(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom))

(Directive 2005/35/EC – Ship-source pollution – Serious negligence – United Nations Convention on the Law of the Sea – International Convention for the Prevention of Pollution from Ships (Marpol))

I – Introduction

1. The issue to be examined in this case is whether provisions 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 (2) are compatible with higher-ranking law.

2. The International Association of Independent Tanker Owners (Intertanko), the International Association of Dry Cargo Shipowners (Intercargo), the Greek Shipping Co-operation Committee, Lloyd’s Register and the International Salvage Union (‘the claimants’) have brought before the High Court of Justice a joint action against the United Kingdom’s Secretary of State for Transport in connection with the planned implementation of the directive. The abovementioned organisations are major associations within the international maritime transport industry. Intertanko, for instance, represents almost 80% of the world’s tanker fleet.

3. The issue in dispute is whether Articles 4 and 5 of Directive 2005/35 are compatible with the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982 (3) (‘the Convention on the Law of the Sea’), to which the Community acceded in 1998, (4) and the 1973 International Convention for the Prevention of Pollution from Ships and the 1978 Protocol thereto (5) (‘Marpol 73/78’). These provisions lay down criminal liability for discharge violations. Uncertainty arises particularly because the directive appears to provide for a stricter standard of liability than does Marpol 73/78. Under the directive, serious negligence in particular is sufficient, whereas Marpol 73/78 provides for at least recklessness and knowledge that damage will probably result.

4. Furthermore, the question arises as to whether the standard of liability of serious negligence is compatible with the principle of legal certainty.

II – Legal context

A – Community law

5. Directive 2005/35 was based on Article 80(2) EC, which forms the legal basis for measures relating to maritime transport.

6. The reasons for the adoption of the directive are clear in particular from recitals (2) and (3) in the preamble thereto:

‘(2) The material standards in all Member States for discharges of polluting substances from ships are based upon the Marpol 73/78 Convention; however, these rules are being ignored on a daily basis by a very large number of ships sailing in Community waters, without corrective action being taken.

(3) The implementation of Marpol 73/78 shows discrepancies among Member States and there is thus a need to harmonise its implementation at Community level; in particular, the practices of Member States relating to the imposition of penalties for discharges of polluting substances from ships differ significantly.’

7. Article 3 lays down the scope of the directive:

‘1. This Directive shall apply, in accordance with international law, to discharges of polluting substances in:

(a) the internal waters, including ports, of a Member State, in so far as the Marpol regime is applicable;

(b) the territorial sea of a Member State;

(c) straits used for international navigation subject to the regime of transit passage, as laid down in Part III, section 2, of the 1982 United Nations Convention on the Law of the Sea, to the extent that a Member State exercises jurisdiction over such straits;

(d) the exclusive economic zone or equivalent zone of a Member State, established in accordance with international law; and

(e) the high seas.

2. This Directive shall apply to discharges of polluting substances from any ship, irrespective of its flag, with the exception of any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service.’

8. In this case doubt is cast on the validity of Articles 4 and 5, which are worded as follows:

‘Article 4

Infringements

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. These infringements are regarded as criminal offences by, and in the circumstances provided for in, Framework Decision 2005/667/JHA supplementing this Directive.

Article 5

Exceptions

1. A discharge of polluting substances into any of the areas referred to in Article 3(1) shall not be regarded as an infringement if it satisfies the conditions set out in Annex I, Regulations 9, 10, 11(a) or 11(c) or in Annex II, Regulations 5, 6(a) or 6(c) of Marpol 73/78.

2. A discharge of polluting substances into the areas referred to in Article 3(1)(c), (d) and (e) shall not be regarded as an infringement for the owner, the master or the crew when acting under the master’s responsibility if it satisfies the conditions set out in Annex I, Regulation 11(b) or in Annex II, Regulation 6(b) of Marpol 73/78.’

B – International law

1. Convention on the Law of the Sea

9. The Convention on the Law of the Sea contains rules on the prosecution of environmental pollution at sea.

10. The first sentence of Article 211(1) provides for the development of international environmental protection standards:

‘States, acting through the competent international organisation or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimise the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States.’

11. The powers of coastal States to make rules with regard to exclusive economic zones are set out in Article 211(5):

‘Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organisation or general diplomatic conference.’

12. Under Article 42(1)(b), provisions similar to those applicable to the exclusive economic zone apply to straits:

‘(1) Subject to the provisions of this section, States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following:

…;

(b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait;

…’

13. Individual States’ powers to make rules regarding the high seas are in principle excluded by Article 89:

‘No State may validly purport to subject any part of the high seas to its sovereignty.’

14. Article 218(1), however, provides for the prosecution of discharge offences:

‘When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organisation or general diplomatic conference.’

15. Different provisions apply in the territorial sea. Article 2 governs the sovereignty of a coastal State in this area.

‘1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.’

16. Article 211(4) contains general rules on environmental protection provisions concerning the territorial sea:

‘Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels.’

17. Article 21 lays down which laws and regulations of the coastal State relating to innocent passage are permitted:

‘1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:

…

(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;

…

2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.

3. …

4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and...