Still unresolved is the issue of whether a cruise ship falls within the scope of Article 4a(4) of Directive 1999/32, having regard to the criterion of “regular services”, in order to ascertain the applicability of the 1.5% m/m sulphur limit on marine fuels imposed by said provision.
In this regard, the content of Directive 1999/32 appeared to be unclear since its enactment, and in spite a series of amendments.
With reference to the maximum sulphur content of marine fuels used in SOx emission Control Areas and by passenger ships operating on regular services to or from Community ports, Article 4a(4) of Directive 1999/32 provides that “Member States shall take all necessary measures to ensure that marine fuels are not used in the areas of their territorial seas, exclusive economic zones and pollution control zones falling within SOx Emission Control Areas if the sulphur content of those fuels exceeds 1,5% by mass”.
According to Directive 2005/33, “regular service means a series of passenger ship crossing operated so as to serve traffic between the same two or more ports, or a series of voyages from and to the same port without intermediate calls, either (i) according to a published timetable, or (ii) with crossings so regular or frequent that they constitute a recognisable schedule”.
In light of the above, it is not clear whether a cruise ship may be regarded as a ship operating on regular services and – accordingly – falling within the scope of Article 4a(4) of Directive 1999/32.
It should be noted that – since the enactment of Directive 1999/32 – the Italian authorities involved in the enforcement of such rule (e.g. the Harbour Offices of Genoa and Venice, RAM –Reparto Ambientale Marino del Corpo delle Capitaneria di Porto – and the Italian General Command of the Coast Guard) found themselves in doubt. At first, however, their position was clearly against the applicability of the 1.5% m/m sulphur limit on marine fuels to cruise ships.
In the silence of the European Commission, which took no position on the issue, despite being asked to provide clarification, the European Court of Justice – after being asked by the Court of Genoa to make a preliminary ruling under Article 267 TFEU – delivered judgment in case C-537 of 23 November 2014.
However, the Court of Justice itself did not solve the issue, limiting itself to providing the Court of Genoa with certain interpretative criteria to be followed in order to ascertain – on a case-by-case basis - whether a given cruise ship can be regarded as ship operating on regular services and - accordingly - falling within the scope of Article 4a(4) of Directive 1999/32.
In this scenario of complete uncertainty, France and Spain – bearing in mind the judgment of the Court of Justice - noted that Directive 1999/32 is interpreted and implemented differently in different Member States, while the uniform interpretation and implementation of such provisions across the European Union should be imperative.
This led France and Spain (while waiting for clarification from the European Commission) to suspend the applicability of 1.5% m/m sulphur limit on marine fuels to cruise ships.
Italy, for its part, is still applying the limit to cruise ships.
The above is confirmed by recent circular No. 2/2016 issued by RAM on 20 June 2016, whereby Italian Harbour Offices are expressly invited to regard cruise ships as ships operating on regular services for the purpose of the legislation on sulphur content of marine fuels.
According to such circular, based on a judgment delivered by the Court of Genoa in a case relating to the issue under examination (though different from the case referred to the Court of Justice for a preliminary ruling), all cruise ships can be considered as ships operating on regular services for the purpose of the legislation on sulphur content of marine fuels.
It is certain, however, that a judgment relating to a specific cruise ship cannot be the basis for considering all cruise ships as ships operating on regular services. The Court of Justice itself in its judgment clarified that a "case by case" assessment is needed in this regard.
Furthermore, the question of whether a cruise ship falls within the scope of Article 4a(4) of Directive 1999/32 cannot always be the subject of court assessment, and, therefore, of legal proceedings that can even last for several years.
Captains and shipping companies need to be immediately enlightened – by means of a clear rule –, without having to wait for the outcome of lengthy proceedings, as to whether Article 4a(4) of Directive 1999/32 applies or not, so as to be able to gear their action.
In light of this, the recent initiatives undertaken by France and Spain appear to be adequate.