On 20.11.07 the Advocate General’s opinion in The International Association of Independent Tanker Owners and others – Case C-308/06 was delivered.

Intertanko, dry cargo shipowners group Intercargo, the Greek Shipping Co-operation Committee, Lloyd’s Register and the International Salvage Union were hoping the ECJ would declare Directive 2005/35/EC on ship source pollution and on the introduction of penalties for infringement invalid on the grounds that it contravened international law, in particular the Law of the Sea. The Directive implements international standards for ship-source pollution into Community law and defines ship-source discharges of polluting substances at sea as infringements when committed with intent, recklessness or so-called "serious negligence". It also calls for penalties to be imposed on all persons responsible for such discharges. The following questions were referred to the European Court of Justice by the English High Court of Justice:-

  1. In relation to straits used for international navigation, the exclusive economic zone or equivalent zone of a Member State and the high seas, is Article 5(2) of Directive 2005/35/EC invalid in so far as it limits the exceptions in Annex I Regulation 11(b) of MARPOL 73/78 and in Annex II Regulation 6(b) of MARPOL 73/78 to the owners, masters and crew?
  2. In relation to the territorial sea of a Member State: 
    1. Is Article 4 of the Directive invalid in so far as it requires Member States to treat serious negligence as a test of liability for discharge of polluting substances; and/or 
    2. Is Article 5(1) of the Directive invalid in so far as it excludes the application of the exceptions in Annex I Regulation 11(b) of MARPOL 73/78 and in Annex II Regulation 6(b) of MARPOL 73/78?
  3. Does Article 4 of the Directive, requiring Member States to adopt national legislation which includes serious negligence as a standard of liability and which penalises discharges in territorial sea, breach the right of innocent passage recognised in the Convention on the Law of the Sea and, if so, is Article 4 invalid to that extent?
  4. Does the use of the phrase ‘serious negligence’ in Article 4 of the Directive infringe the principle of legal certainty and, if so, is Article 4 invalid to that extent?

In her opinion, the advocate general ruled that there was no ground for questioning the validity of what industry called the ‘criminalisation’ directive because of its harsh definition of seafarer liability.

She said there was “no factor of such a kind as to bring into question the validity of Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship source pollution and on the introduction of penalties for infringements.”

She stated that criminalising “serious pollution” in non-European waters was beyond the authority of the EU and that the EU had no power to go beyond Marpol outside its members’ territorial seas, but that “serious negligence” could be applied strictly in territorial waters, where the EU is not bound by Marpol.

While not definitive, the ruling is nevertheless a blow for the coalition led by tanker owners’ association Intertanko because the full court usually follows the advocate general’s advice.