R (Intertanko) v Transport Secretary [Court of Justice of the European Communities, Grand Chamber Judgment.]

JurisdictionEuropean Union
Docket Number(Case C-308/06)
CourtEuropean Court of Justice
Date03 June 2008

Court of Justice of the European Communities, Grand Chamber Judgment.

(Skouris, President; Jann, Timmermans, Rosas, Lenaerts and Bay Larsen, Presidents of Chambers; Schiemann, Makarczyk, Kūris, Malenovský(Rapporteur), Ó Caoimh, Lindh and Bonichot, Judges; Kokott, Advocate-General)

(Case C-308/06)

The Queen (on the Application of the International Association of Independent Tanker Owners (Intertanko) and Others)
Secretary of State for Transport1

Sea — Maritime zones — High seas — Exclusive economic zone — Territorial sea — Rights of coastal State and flag States — Pollution — United Nations Convention on the Law of the Sea, 1982 — International Convention on Maritime Pollution, 1973 and Protocol (MARPOL 73/78) — Whether coastal State entitled to impose standards higher than those of MARPOL 73/78 on ships of other flag States — Powers of European Community

Treaties — Parties — Effect of treaties upon non-parties — European Community — Treaties concluded by European Community — Treaties to which European Community not a party but which are binding on all Member States — Effect in Community law

Treaties — Interpretation — Principles of interpretation — Object and purpose of the treaty — Treaty as aid to interpretation of national law

Relationship of international law and municipal law — European Community law — Treaties concluded by Community — Whether part of Community legal order — Whether possessing primacy over Community legislation — Treaties binding Member States but not the Community — Whether validity of Community legislation can be assessed in light of treaty — Whether treaty confers rights upon individuals — Whether treaty precise and unconditional

International organizations — European Community — Nature of Community as a subject of international law — Whether Community obliged to act in accordance with international law — Whether Community's powers to legislate limited by international treaty obligations of the Member States — The law of the European Community

Summary: The facts:—Directive 2005/35/EC of the European Parliament and of the Council (‘the Directive’) required all Member States of the European Communities to introduce new criminal penalties regarding ship-source pollution. The International Association of Independent Tanker Owners (‘Inter-tanko’) and a group of other organizations involved in the shipping industry (‘the coalition’) commenced proceedings in the English courts for judicial review of the proposals for implementation of the Directive. The coalition maintained that, in accordance with the relevant provisions of the United Nations Convention on the Law of the Sea, 1982, (‘UNCLOS’),2 the International Maritime Organization (‘IMO’) had adopted international standards for ship-source pollution in the International Convention for the Prevention of Pollution from Ships, 1973, supplemented by a Protocol of 1978 (collectively referred to as ‘MARPOL 73/78’).3 The coalition contended that MARPOL 73/78 laid down standards from which States parties were not permitted to deviate and not merely minimum standards.

According to the coalition, the standards in the Directive went significantly further than those in MARPOL 73/78.4 The coalition referred, in particular, to the fact that the Directive required the imposition of penalties for acts committed with ‘serious negligence’,whereas the standard in MARPOL 73/78

was one of ‘recklessness’, that the Directive required that penalties be imposed on a wider range of potential defendants than those envisaged in MARPOL 73/78 and that the Directive required that the measures taken to implement it be applied to the actions of ships flying the flags of States which were not EC Members, even though those acts took place outside the waters of any EC Member.

The Community was a party to UNCLOS but not to MARPOL 73/78. All EC Members were parties to MARPOL 73/78. The coalition therefore maintained that the validity of the Directive had to be determined by reference to the relevant provisions of UNCLOS and MARPOL 73/78.

The High Court of England and Wales referred to the Court of Justice, in accordance with Article 234 of the EC Treaty, the following questions:

  • (1) In relation to straits used for international navigation, the exclusive economic zone or equivalent zone of a Member State and the high seas, is Article 5(2) of Directive 2005/35/EC invalid in so far as it limits the exceptions in Annex I Regulation 11(b) of [Marpol] 73/78 and in Annex II Regulation (6)(b) of [Marpol] 73/78 to the owners, masters and crew?

  • (2) In relation to the territorial sea of a Member State:

    • (a) Is Article 4 of the Directive invalid in so far as it requires Member States to treat serious negligence as a test of liability for discharge of polluting substances; and/or

    • (b) Is Article 5(1) of the Directive invalid in so far as it excludes the application of the exceptions in Annex I Regulation 11(b) of [Marpol] 73/78 and in Annex II Regulation (6)(b) of [Marpol] 73/78?

  • (3) Does Article 4 of the Directive, requiring Member States to adopt national legislation which includes serious negligence as a standard of liability and which penalizes discharges in territorial sea, breach the right of innocent passage recognized in [UNCLOS], and if so, is Article 4 invalid to that extent?

  • (4) Does the use of the phrase ‘serious negligence’ in Article 4 of the Directive infringe the principle of legal certainty, and if so, is Article 4 invalid to that extent?

Opinion of the Advocate-General

Held:—(1) The Court should find that it possessed jurisdiction and that the reference was admissible (paras. 26–33).

(2) The Community was not bound by MARPOL 73/78, to which it was not a party and which did not state rules forming part of customary international law. UNCLOS, however, was part of the Community legal order and constituted the criterion for the legality of the actions of Community institutions. The degree to which individuals could rely on it could be determined solely on the basis of each respective relevant provision. Such provisions must, as regards their content, be unconditional and sufficiently precise (paras. 36–60).

(3) Through the reference in UNCLOS to internationally recognized standards, MARPOL 73/78 was the test standard applicable to the Directive outside the territorial sea. Under UNCLOS only rules which complied with MARPOL 73/78, that is to say, rules which implemented the standard of protection laid down therein, were permitted. By contrast, rules which went beyond MARPOL 73/78 were not permitted in these sea areas (paras. 61–9).

(4) The provisions of MARPOL 73/78 had to be interpreted in the light of the object and purpose of MARPOL. It would be illogical to limit liability on the basis of whether the master and owner alone had acted intentionally or with recklessness and the extension of liability based upon the actions of others in the Directive was thus in accordance with MARPOL. However, the use of serious negligence as a standard of liability appeared to go beyond MARPOL. Since the Directive had to be interpreted in accordance with the Community's international legal obligations, it followed that, in so far as the Directive applied to conduct on the high seas and in the Exclusive Economic Zone, ‘serious negligence’ had to be given an interpretation which ensured it did not go beyond the standard of recklessness laid down by MARPOL 73/78 (paras. 80–112).

(5) That consideration was not applicable in the territorial sea where the coastal State was not limited to measures which implemented MARPOL 73/78. Accordingly, in so far as the Directive applied to acts in the territorial sea, the term ‘serious negligence’ should be given its normal interpretation and treated as imposing a standard stricter than that of recklessness (paras. 113–38).

(6) The Directive did not infringe the principle of legal certainty (paras. 139–59).

Judgment of the Court of Justice

Held:—(1) The reference was admissible. Where the validity of a Community law was raised in proceedings before a national court and that court considered that a ruling on the issue of validity was necessary in order to enable it to give a decision in the main proceedings, then it was required to make a reference. Although the proceedings in the English courts were commenced before the United Kingdom had implemented the Directive, it appeared that the coalition intended to challenge any implementing measures on the ground that the Directive was invalid (paras. 30–5).

(2) The first three questions essentially asked the Court to assess the validity of Articles 4 and 5 of the Directive in the light of the relevant provisions of MARPOL and the provisions of UNCLOS which defined the conditions under which coastal States could exercise certain of their rights in the various maritime zones.

(a) The Community institutions were bound by agreements concluded by the Community and these agreements had primacy over Community secondary legislation. However, the Court could examine the validity of Community legislation in the light of a treaty only where the nature and broad logic of the latter do not preclude such review and provided that the treaty's provisions were unconditional and sufficiently precise (paras. 42–5).

(b) The validity of the Directive could not be assessed by reference to MARPOL 73/78. The Community was not a party to MARPOL 73/78 and had not assumed the powers previously exercised by the Member States in the field covered by the Directive. The Community was not circumscribed in the exercise of its legislative powers by the fact that all Member States were parties to MARPOL 73/78. Nevertheless, the provisions of MARPOL 73/78 were relevant to the interpretation of the Directive and of UNCLOS. In accordance with the principle of good faith, which formed part of general international law and was incorporated into Article 10 of the EC Treaty, it was incumbent upon the Court to interpret...

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