The long-awaited decision of the European Court of Justice (ECJ) over the compatibility of Directive 2005/35 with the international law of the sea was handed down on 3 June. It has been almost two years since the case was referred to the ECJ by the English High Court . Many of those waiting for the decision, however, will be highly disappointed, as the ECJ did not get to grips with the interesting questions of international law that were raised in the case. Rather the Court relied on principles of EC law to refuse to decide the questions concerning the compatibility of the Directive with the international law of the sea.
Directive 2005/3, adopted on 7 September 2005, was intended to “incorporate international standards for ship-source pollution into Community law and to ensure that persons responsible for discharges are
subject to adequate penalties.” The challenge to the Directive was brought in the English Courts by the International Association of Independent Tanker Owners (INTERTANKO) and other maritime organizations. The claimants argued inter alia that the Directive departs from international standards on ship-source pollution and it is therefore incompatible with the international law of the sea. Mr Justice Hodge, sitting in Administrative Court of the English High Court, made a preliminary reference to the ECJ on 7 June 2006.
The preliminary reference raised four questions, the first three of which concerned whether or not the Directive was compatible with the jurisdictional framework prescribed under the 1982 Law of the Sea Convention. However, the Court did not address the substantive issues. The ECJ held that it could only examine the question of compatibility where the Community was bound by the treaty, where the nature and broad logic of the international treaty involved did not preclude this, and where the treaty’s provisions were unconditional and sufficiently precise. It was the second of these conditions that prevented the ECJ from assessing the compatibility of the Directive with the Law of the Sea Convention. The Court held “[the Convention] does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights and freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag state … it follows that the nature and broad logic of [the Convention] prevent the Court from being able to assess the validity of a Community measure in the light of that Convention.”
The fourth question submitted to the Court concerned legal certainty. It was argued in particular by the claimants that the test of serious negligence in the Directive was not sufficiently defined and lacked clarity. On this ground, the Court upheld the Directive, finding that it did not infringe the principle of legal certainty.
The failure of the ECJ to address the substantive issues of compatibility will leave many international lawyers who have been following the case disappointed. We are left with the observations of Mr Justice Hodge in the English High Court who ruled that some of the submissions made by the claims were at least arguable. In particular he made clear that he shared the doubt that the EC was able to modify the international regime regulating discharges from third party ships on the high seas or in the EEZ. Hodge LJ also considered that arguments concerning the legality of applying the Directive to the territorial seas were well-founded. On the other hand, the opinion of Advocate General Kokott supports the compatibility of the Directive with the international rules. Nevertheless, the litigation has ultimately been inconclusive on this issue and the compatibility of the Directive must remain in doubt. It appears that the ECJ is not the appropriate forum in which to solve this issue. Of course dispute settlement is available to states under the Law of the Sea Convention. It will be interesting to see whether any states will be willing to challenge the Directive if it applied to their ships.