Validity of ship pollution law questioned

A number of shipping companies are questioning the legality of an EU directive which makes polluting the seas within union territory a criminal offence.

Intertanko & Others v The Secretary of State for the Department of Transport

In the case of Intertank & Others v the Secretary of State for the Department of Transport, the High Court in London has referred a case concerning ship source pollution to the European Court of Justice (ECJ).

The case, which raises questions over the legality of the EU Directive (Directive 2005/35/EC) on ship source pollution and on the introduction of penalties for infringements, was brought by a number of shipping interests, including Intertanko, Intercargo, the Greek Shipping Cooperation Committee, Lloyd’s Register and the International Salvage Union.

The Directive seeks to criminalise accidental pollution and applies within EU Member States territorial waters as well as in their Exclusive Economic Zones and on the high seas, irrespective of a vessel’s flag.

In the case, brought against the Secretary of State for Transport, the applicants sought judicial review of the EU Ship Dest Pollution Directive, claiming the Directive was invalid due to it conflicting with the international regime for criminal liability for ship source pollution, which EU Member States were already bound by.

The applicants also argued that the Directive failed to satisfy the principle of legal certainty. While the Court granted the application, finding the arguments as to the legality of the Directive to be well founded, a number of questions are to be referred to the ECJ.

These cover the legality of the Directive within the territorial seas, exclusive economic zones of members states as well as on the high seas, whether it is lawful for the EU to exclude MARPOL (International Convention for the Prevention of Pollution from Ships) defences for discharges in the territorial sea, whether the Directive is contrary to the right of innocent passage and lastly whether the term “serious negligence” is consistent with legal certainty.

As Member States are required to have transposed the Directive within their national legislation by March 2007, it is hoped that the ECJ will rule on the above issues prior to expiry of the implementation deadline.

Details of the case can be found here, here or here.

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