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Wednesday, November 21, 2018

EU Ship Source Pollution Directive - High Court Ruling

High Court rules the shipping industry’s challenge to the EU Directive on Ship Source Pollution is well founded and has remitted the case to the European Court of Justice.

On 30 June 2006 the judgment of Mr Justice Hodge in the application for judicial review of the EU Ship Source Pollution Directive was handed down. This case was brought by a broad coalition of shipping industry interests comprising INTERTANKO, INTERCARGO, the Greek Shipping Cooperation Committee, Lloyd’s Register and the International Salvage Union against the Secretary of State for Transport. In summary the court granted the application and held that the applicants’ arguments as to the legality of the Directive were well founded and remitted a comprehensive list of issues to the European Court of Justice (ECJ) in Luxembourg for determination. These cover the legality of the Directive within the territorial seas,  exclusive economic zones of members states as well as on the high seas, whether the Directive is contrary to the right of innocent passage and lastly whether the term “serious negligence” is consistent with legal certainty.

The Directive seeks to criminalise accidental pollution and applies within EU Member States territorial waters as well as in their Exclusive Economic Zones and on the high seas. The Directive also provides that it applies irrespective of a vessel’s flag.  The applicants maintained that the Directive was invalid as it conflicted with the international regime for criminal liability for ship source pollution, which EU Member States were already bound by, and also failed to satisfy the European law principle of legal certainty.

The Applicants are not attempting to obstruct the development of the law with respect to combating marine pollution, still less to ensure any kind of “freedom to pollute”.  They are responsible bodies in a major industry, which are committed to the maintenance of proper standards for the prevention of marine pollution.  Their concern is that for an industry which, by its nature, operates throughout the oceans of the world, those standards have to be established on a global, not a unilateral, basis and that international law is upheld.

Clarification in this area of law has also been sought to safeguard the rights of seafarers; criminalising innocent mistakes will be detrimental to the retention and recruitment of  those that man the world’s merchant fleet which is the backbone of the global economy.

In a detailed reserved judgment Mr Justice Hodge has referred four key issues to the ECJ. These are:

  1. Whether it is lawful for the EU to impose criminal liability in  respect of discharges from foreign flag ships on the high seas or in the Exclusive Economic Zone, and to limit MARPOL defences in such cases.
  2. Whether it is lawful for the EU to exclude MARPOL defences for discharges in the territorial sea.
  3. Whether the imposition of criminal liability for discharges caused by "serious negligence" hampers the right of innocent passage.
  4. Whether the standard of liability in the Directive of "serious negligence" satisfies the requirement of legal certainty.

The industry coalition welcomes this decision and the comprehensive reference that has been made to the European Court. As EU member states must implement the Directive by 1 March 2007 the coalition hopes that their case will be determined by the European Court expeditiously.

The questions will now be referred together with the court file to the ECJ. The case is not expected to be heard for some months, during which the documents are officially translated and time is allowed for written observations. Given that implementing legislation has to be in place by March 2007, the coalition hopes for a hearing and decision as early as possible next year.

INTERTANKO Chairman Stephen Van Dyck comments:
“INTERTANKO's members are fully committed to clean seas. Full stop. Their actions, many of which are voluntary and their record in recent years bear testimony to this commitment to safeguard the marine environment . It is imperative that this truly global industry is regulated uniformly and on an international basis. To this end INTERTANKO and its fellow coalition members welcome the High Court’s ruling. This important decision affirms that the legality of the EU Directive is in question. We are pleased that the European Court will now review the legality of this Directive against the existing framework of international law.”

Comments from other coalition members:


“The coalition welcomes this ruling and the opportunity it provides to
clarify the relationship between EU legislation and established
international law laid down in universal conventions.”

Chairman, INTERCARGO, Nicky Pappadakis.



"The Directive was conceived in haste, and there are widely held
concerns that it will be counter-productive. Naturally we are pleased
to have the court's support in challenging its legal validity.”

Chairman, Greek Shipping Co-operation Committee, Epaminondas Embiricos.



“As the industry in the front line in dealing with maritime casualties where there is actual or potential pollution, the ISU is very pleased with the outcome of the action in the English High Court.  ISU hopes that the European Court of Justice will also accept the arguments raised by the coalition in seeking a judicial review of the Ship Source Pollution Directive.”

Secretary General of the International Salvage Union, Mike Lacey.



"The reference to the European Court does not just reflect the
importance of the case. The judge had to be satisfied that there are
well-founded arguments about the validity of the Directive. The
coalition goes to Luxembourg with the backing of a detailed judgment.”

Ince & Co (the coalition's solicitors), Colin de le Rue