Marine Pollution

A recent ECJ case on the Ship-source Pollution Directive has highlighted the interface between international and EC law.

The ECJ has considered a number of questions relating to Directive 2005/35/EC on ship source pollution, which were referred to it by the High Court in the course of judicial review proceedings. The claimants in the case contended that certain provisions of the Directive were invalid because they did not comply with certain international conventions relating to the law of the sea.

In particular, they argued that Articles 4 and 5 of the Directive set out a stricter liability regime than that under international law, by stating that liability would be incurred for the discharge of polluting substances from ships where this resulted from serious negligence.

A separate argument advanced was that the use of the phrase “serious negligence” in the Directive did not provide legal certainty for those subject to the provision.

In relation to the validity of Articles 4 and 5, the ECJ ultimately decided that it did not have authority to consider the question because the European Community was not a party to one of the international conventions and because the ‘broad nature and logic’ of the other convention, in terms of granting rights and obligations not to individuals but to states, meant that examination of the Directive’s validity in light of it was precluded.

However, the Court did give useful guidance on the extent to which the Community may be bound by international conventions in the context of legislating for the bloc.

It confirmed that the EC institutions are bound by agreements that are concluded by the European Community, and that such agreements have precedence over Community legislation.

It stated that the validity of EC legislation could therefore be affected if it was incompatible with such international agreements, and pointed to settled case-law detailing that the powers of the EC must be exercised in observance of international law.

On the question of legal certainty, the ECJ noted that the fact that there were criminal penalties for breaching Article 4 meant that the principle that offences must be clearly defined, in accordance with human rights law. However, it ultimately determined that Article 4 did not infringe this principle since the concept of negligence was fully integrated into the legal systems of the Member States.

The case is a useful reminder of the interplay between international law and EC legislation, an issue that may become more prevalent as the international community seeks to address various environmental issues at a supra-governmental level.

The case can be accessed at the following link.

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