>> Not possible to rely on Marpol 73/78 or UNCLOS
The European Community acceded to the United Nations Convention on the Law of the Sea (“UNCLOS”) in 1998. The Community has not (yet) acceded to the Marpol 73/78 agreement which established rules to combat pollution of the marine environment. The Community has, however, adopted Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements. The claimants in this case, a group of organisations within the maritime shipping industry representing substantial proportions of that industry, argued that Articles 4 and 5 of this Directive, which laid down criminal liability for discharge violations, were incompatible with UNCLOS and Marpol 73/78. They argued in particular that by laying down that liability was to be incurred for serious negligence, since, under the directive, serious negligence was sufficient, whereas Marpol 73/78 provided for at least recklessness and knowledge that damage would probably result. Claimants also argued that the standard of liability of serious negligence was incompatible with the principle of legal certainty.
The Court of Justice disagreed. It pointed out that Art. 300(7) EC stated that agreements concluded by the Community had primacy over secondary Community legislation. (see Case C-61/94 Commission v Germany  and Case C-311/04 Algemene Scheeps Agentuur Dordrecht ).
It followed that where the invalidity of secondary Community legislation was pleaded before a national court, the Court of Justice reviewed, pursuant to Art. 234 EC, the validity of the Community measure concerned in the light of all the rules of international law, subject to two conditions. First, the Community must be bound by those rules. Second, the Court could examine the validity of Community legislation in the light of an international treaty only where the nature and the broad logic of the latter did not preclude this and, in addition, the treaty’s provisions appeared, as regards their content, to be unconditional and sufficiently precise.
The Community had not assumed, under the EC Treaty, the powers previously exercised by the Member States in the field to which Marpol 73/78 applied, nor that, consequently, its provisions had the effect of binding the Community. Although all the Member States of the Community were parties to Marpol 73/78, in the absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter could not, simply because all those States were parties to Marpol 73/78, be bound by the rules set out therein, which it had not itself approved.
The Court argued that the fact that all Member States were parties to Marpol 73/78 was, however, liable to have consequences for the interpretation of, first, UNCLOS and, second, the provisions of secondary law which fell within the field of application of Marpol 73/78. However, UNCLOS did not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State. The Court argued that the nature and the broad logic of UNCLOS prevented the Court from being able to assess the validity of a Community measure in the light of that Convention. Consequently, the validity of Directive 2005/35 could not be assessed either in the light of Marpol 73/78 or in the light of UNCLOS.
Reiterating its judgment in Advocaten voor de Wereld (see this post), the Court furthermore held that in obliging the Member States to regard certain conduct as infringements and to punish it, Art. 4 of Directive 2005/35, read in conjunction with Art. 8 thereof, must also observe the principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege), which was one of the general legal principles underlying the constitutional traditions common to the Member States and was a specific expression of the general principle of legal certainty.
The Court held that the principle of the legality of criminal offences and penalties implied that Community rules must define clearly offences and the penalties which they attracted. This requirement was satisfied where the individual could know from the wording of the relevant provision and, if needed be, with the assistance of the courts’ interpretation of it, what acts and omissions would make him criminally liable.
The Court concluded that Art. 4 of Directive 2005/35, read in conjunction with Art. 8 thereof, did not infringe the general principle of legal certainty in so far as it required the Member States to punish ship-source discharges of polluting substances committed by “serious negligence’, without defining that concept. Examination had revealed nothing capable of affecting the validity of Art. 4 of Directive 2005/35 in the light of the general principle of legal certainty.
Text of judgment
See Intertanko's website for an official statement on the ruling.
>> Not possible to rely on Marpol 73/78 or UNCLOS