Case C-308/06
The Queen on the application of:
International Association of Independent Tanker Owners (Intertanko) and Others
v
Secretary of State for Transport
(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court))
(Maritime transport – Ship-source pollution – Directive 2005/35/EC – Validity – United Nations Convention on the Law of the Sea – Marpol 73/78 Convention– Legal effects of the Conventions – Ability to rely on them – Serious negligence – Principle of legal certainty)
Summary of the Judgment
1.Preliminary rulings – Jurisdiction of the Court – Limits
(European Parliament and Council Directive 2005/35)
2.Preliminary rulings – Jurisdiction of the Court – Limits
3.Transport – Maritime transport – Ship-source pollution and introduction of penalties for infringements – Directive 2005/35
(Art. 249 EC; European Parliament and Council Directive 2005/35, Arts 4 and 8)
1.Given that international agreements concluded by the Community have primacy over secondary Community legislation, the validity of a measure of secondary Community legislation may be affected by the fact that it is incompatible with such rules of international law. Where that invalidity is pleaded before a national court, the Court of Justice will thus review, pursuant to Article 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 can examine the validity of Community legislation in the light of an international treaty only where the nature and the broad logic of the latter do not preclude this and, in addition, the treaty’s provisions appear, as regards their content, to be unconditional and sufficiently precise.
Since the Community is not bound by the International Convention for the Prevention of Pollution from Ships (Marpol 73/78), the mere fact that Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements has the objective of incorporating certain rules set out in that convention into Community law is not sufficient for it to be incumbent upon the Court to review the directive’s legality in the light of the convention. Admittedly, the powers of the Community must be exercised in observance of international law, including provisions of international agreements in so far as they codify customary rules of general international law. However, as Regulations 9 and 11(b) of Annex I, and Regulations 5 and 6(b) of Annex II, to Marpol 73/78 are not the expression of customary rules of general international law, the validity of Directive 2005/35 cannot be assessed in the light of that convention even though it binds the Member States.
(see paras 42-45, 50-52, operative part 1)
2.The United Nations Convention on the Law of the Sea, signed in Montego Bay on 10 December 1982 (UNCLOS), has been signed by the Community and approved by Decision 98/392, thereby binding the Community, and the provisions of that Convention accordingly form an integral part of the Community legal order. However, UNCLOS does 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. It follows that the nature and the broad logic of UNCLOS prevent the Court from being able to assess the validity of a Community measure in the light of that convention.
(see paras 53, 64-65, operative part 1)
3.Article 4 of Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements, read in conjunction with Article 8 thereof, obliges the Member States to punish ship-source discharges of polluting substances if committed ‘with intent, recklessly or by serious negligence’, without defining those concepts. However, those various concepts, in particular that of ‘serious negligence’, correspond to tests for the incurring of liability which are to apply to an indeterminate number of situations that it is impossible to envisage in advance and not to specific conduct capable of being set out in detail in a legislative measure, of Community or of national law. Furthermore, those concepts are fully integrated into, and used in, the Member States’ respective legal systems. In that regard, ‘serious negligence’ within the meaning of Article 4 of the directive must be understood as entailing an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation. Finally, in accordance with Article 249 EC, Directive 2005/35 must be transposed by each of the Member States into national law. Thus, the actual definition of the infringements referred to in Article 4 of the directive and the applicable penalties are those which result from the rules laid down by the Member States.
It follows that Article 4 of Directive 2005/35, read in conjunction with Article 8 thereof, does not infringe the general principle of legal certainty in so far as it requires the Member States to punish ship-source discharges of polluting substances committed by ‘serious negligence’, without defining that concept.
(see paras 72-74, 77-79, operative part 2)