European Court Upholds Existing Ship-Source Pollution Penalties

June 6, 2008 // Published as a news service by IHS

According to the ECJ, the validity of certain provisions of this directive cannot be assessed in light of two international shipping treaties - the United Nations Convention on the Law of the Sea or the International Convention for the Prevention of Pollution from Ships (the MARPOL Convention).

Organizations representing substantial interests in the maritime shipping sector had brought an action before the High Court of Justice of England and Wales regarding the implementation in the United Kingdom of this directive and the introduction of penalties for infringements.

In their view, two provisions of the directive do not always comply with these two international shipping treaties, which define conditions under which coastal states may exercise sovereign rights in the various marine zones.

According to the plaintiff Organizations, provisions of the directive establish a stricter liability regime for accidental discharges.

The national court requested the ECJ to rule on whether the provisions of the directive are compatible with the two international treaties (Case C-308/06 - Intertanko).

First, the ECJ noted that European Community institutions are bound by international agreements concluded by the community; therefore, international treaties have primacy over secondary community legislation. Consequently, the validity of a directive, inter alia, may be affected by a failure to comply with international rules.

The ECJ then set out the conditions under which it may review the validity of a European Community provision in the light of an international treaty. First, the community must be bound by the treaty and, second, examination by the ECJ of the provision's validity must not be precluded in particular by the treaty's nature and broad logic.

After recalling these rules, the ECJ analyzed both international treaties in detail.

With regard to the MARPOL Convention, the ECJ observed that the community is not a party to this convention. The mere fact that the directive incorporates certain rules set out in it is not sufficient to enable the ECJ to review the directive's legality in the light of the convention.

With regard to the Convention on the Law of the Sea, the ECJ observed that this convention has been signed by the European Community and approved by a community decision, thereby binding the community. However, the convention does not establish rules intended to apply directly and immediately to individuals. It does not confer upon them rights and freedoms capable of being relied upon against states, irrespective of the attitude of the ship's flag state.

Consequently, the nature and broad logic of the Convention on the Law of the Sea prevent the ECJ from being able to assess the validity of a European Community measure in the light of that convention.

Source: European Commission.