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The EU regulatory framework on criminal sanctions for ship-source pollution -

A consumer law perspective in accordance with international law

GWENDOLINE GONSAELES 1

I. - Setting the scene

At first sight, it seems odd to look upon oceans and seas from a consumer law perspective. It gives the impression oceans and seas can be considered as goods, ready for

use or consumption. Or, according to a classical concept of continental law, which found its roots in Roman law, the oceans and seas are either being considered as res

communes, goods that serve the use of all and which cannot be appropriated, or - when looking at the individual components of the oceans and seas, such as living or nonliving natural resources - as a res nullius, goods that belong to no one before being appropriated 2•

It is then to be examined whether such classification can be embedded in a peaceful and balanced exercise of all use functions of the sea - or should that be "consumption"? - and a general concern for the protection of the marine environment.

2

Prof. Dr. G. Gonsaeles is lecturer "Law of the sea" and "General introduction to law" at the Antwerp Maritime Academy; lecturer "Environmental Legal Problems in transport and maritime Law" at the Antwerp University and Sr. Scientific Researcher (voluntarily) at the Public International Law Dept. I Maritime Institute of the Ghent University. Besides she holds a position as legal advisor to the Maritime and Coastal Services Agency of the Flemish Government. The author can be contacted at [email protected]. All viewpoints expressed throughout this chapter arc solely the responsibility of the individual author and should not be construed as necessarily reflecting the views or official attitudes or policies of any of the institutions with which the author is affiliated. See, for instance, J.-F. CALMETIE (2004), La rarete en droit public, Paris, L'Harmattan, 63-65,

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A. - RES NULL/US AND RES COMMUNES

IN A LAW OF THE SEA PERSPECTIVE

The law of the sea, as laid down in the 198 2 Law of the Sea Convention 3, seems to make application of this classical concept, in that only a limited portion of the maritime area can be subjected to national sovereignty (i.e. the internal waters and the territorial sea) or the exercise of sovereign rights (i.e. the contiguous zone, the continental shelf and the exclusive economic zone (EEZ)). The remaining parts are being excluded from national occupation (i.e. the high seas) or are even being considered as common heritage of mankind (i.e. the deep seabed). As such, the res communes concept is being heralded. On the other hand, the 1982 Law of the Sea Convention extensively deals with the conditions under which the seas and oceans are open for exploration and exploitation or other use functions, thus confirming that some distinct elements of the oceans

and seas may be considered as res nullius.

To a growing extent, oceans and seas form the playground for a wide range of maritime activities, going from exploration and exploitation of living (e.9. fisheries and farming of fish or other aquaculture products) or non-living marine resources (e.g.

ocean mining 4) and of other natural resources at sea (e.9. wind and wave energy) to using the sea or seabed for disposal (e.g. waste disposal, disposal of disused or disabled

off-shore platforms, ... ) or deposit (e.g. submarine pipelines and cables). With the instauration of artificial islands and land reclamation the sea may equally have a spatial function. Besides, the oceans and seas attract a lot of activities in the recreational

sphere, such as diving, pleasure craft, cruising, beach activities, etc. and serve both scientific and military purposes 5•

Above all, the oceans and seas constitute a major res communicationes, serving a maritime communication network for the commercial and non-commercial conveyance of

goods and persons between various regions in the world.

B. - SUSTAINABLE USE OF OCEANS AND SEAS

In the interest of all parties concerned, maritime activities arc de le9e ferenda 6 to be developed in a sustainable way. Sustainable development is based on the idea that every

+

s 6

The Convention on the Lall' ~f the Sea, <lone in Montego Bay on 12 December 1982 (1833 UNTS 3) entered into force on 16 November 1994. Ocean mining may be divided into three components : in-solution mining, on-bottom mining and sub-bottom mining: see farther the analysis made by A. PARDO in UN General Assembly, "Resolution A/C.l/PV.1515 on Ocean Affairs", 1November1967, 2-5. For an overview of maritime activities worldwide, see www.unga-regular-process.org. Relating to the law as it should be if the rules were changed to accord with good policy (I. BROWNLIE

( 1998), Principles if Public International La"' (S'h ed.), Oxford, Oxford University Press, xlvii).

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THE EU REGULATORY FRAMEWORK ON CRIMINAL SANCTIONS FOR SHIP-SOURCE POLLUTION

modern society is carried by an economic, a social and an environmental pillar. As

such, sustainable development is the balance-seeking between these three pillars. Since

its first appearance in the 1987 report Our Common Futur by the World Commission on

Environment and Development (WCED) 7 and the approval of the concept by the RIO

declaration at the 1992 Coeference on Environment and Development (UNCED) 8, sustaina

ble development has become a central concept in nearly all matters on development

and environment. As such, sustainable development can be seen as the development

that meets the needs of the present without compromising the ability of future genera

tions to meet their own needs (the BRUNDTLAND definition).

Since one of the main conditions for executing activities at sea relates to the preven

tion, control and reduction of marine pollution, the environmental pillar is thoroughly

embedded in the 1982 Law of the Sea Convention. However, the Law of the Sea Con

vention also heralds the equitable and sustainable use of oceans and seas in a broader

context. As such, one could conclude that the Law of the Sea Convention includes a

thorough interpretation avant la lettre of the concept of sustainable development,

whereby the economic and the social pillar are equally given attention. This permits

the establishment of a sustainable maritime industry that is based on economic, social

and ecological considerations alike, or - using the credo of the International Maritime

Organisation (IMO) as concerns the shipping industry - "Sefe, secure and rjficient ship-. I " ping on c ean oceans .

C. - THE LAW OF THE SEA CONVENTION

AS A "CONSTITUTION FOR THE OCEANS"

The fundamental obligation to prevent, control and reduce marine pollution, as laid

clown in the Law of the Sea Convention, is being implemented through the MAH.POL

73/78 Convention 9 , which introduces a whole set of technical, administrative and dis

charge standards. In order to operate these provisions, Article 4 et seq. of the MAR

POL 73/78 Convention, call upon the Contracting Parties - whether flag States or

coastal States - to prohibit any violation of the requirements of the MARPOL Conven

tion "wherever the violation occurs" and to enable proceedings in respect of the alleged

7

8

9

World Commission on Environment and Development (1987), Our Common Futur, Oxford, Oxford University Press, 400 p. Text at www.iisd.ca/vol02/0213000e.html. See also www.un.org/ esa/sustdev/index.html. The 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocols of 1978 and 1997 (Rat!Jication ef Maritime Conventions, 11.7.160), replaced the 1954 International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL). The MARPOL 73/78 Convention has been amended on numerous occasions through the tacit acceptance procedure.

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violation "if s1-!fficient evidence is available" 10. Therefore, sanctions must be established which are "adequate in severity to discoura9e violations" of the Convention and are to be

"equally severe irrespective ef where the violations occur''.

The aforementioned is a good exemple of the fact that the implementation and enforcement of international measures still rest upon the States which are member of the international community. Therefore, over the last decades the - then, still - European Community has taken a growing number of harmonisation measures, which aim at incorporating international measures in the field of maritime transport and the protection of the marine environment into European law. These harmonisation measures

may have a positive effect on the uniform implementation and enforcement of international legislation. It is however being argued by multiple players in the shipping industry that these implementing measures may infringe upon the international regulations and therefore harm the maritime industry.

Or, the EU legislative package, originally consisting of Directive 2005 I 35 I EC ef the

European Parliament and ef the Council on ship-source pollution and on the introduction ef penalties for if!fTin9ements 11 and of Council Framework Decision 2005 I 66 !]HA to stren9then

the criminal-law framework for the eeforcement ef the law against ship-source pollution 12 has been adopted in order to "incorporate international standards for ship-source pollution into

Community law" and to "establish penalties - criminal or administrative - for violation ef them

in order to ensure a high level qf sefety and environmental protection in maritime transport" 1 3•

10 Parties to the MARPOL 73178 Convention must co-operate in the detection of violations and the enforcement of the provisions of the Convention, using all appropriate and practicable measures of detection and environmental monitoring, adequate procedures for reporting and accumulation of evidence. This includes the inspection of a vessel which is in a port or off-shore terminal of a Party by the competent authorities to verify whether the ship has discharged any harmful substances in violation of the provisions of the MARPOL Regulations or, alternatively, when a request for an investigation is received from any Party together with sufficient evidence that the ship has discharged harmful substances or ellluents containing such substances. Subject to compensation for any loss or damage suffered, all possible efforts arc however to be made to avoid a ship being unduly detained or delayed. Whenever a violation occurs, the Contracting Party must either (i) cause proceedings to be taken in accordance with its law; or (ii) furnish such information and evidence as may be in its possession that a violation has occurred to the flag State administration of the ship. The flag State administration must promptly inform the Party, which has furnished the information or evidence, and the IMO of the action taken (Articles 4-7 of the MARPOL 73/78 Convention).

11 Directive 2005/35/EC of the European Parliament and of the Council of 7 December 2005 on ship· source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences, OJ. L 255, 30 September 2005, corr. OJ. L 33, 4 February 2006, corr. OJ L 105, 13 April 2006, as amended by Directive 2009/123/EC of21October2009, OJ L 280, 27 October 2009.

12 Council Framework Decision 2005/66/JHA to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, OJ. L 255, 30 September 2005, as annulled by the European Court of Justice (ECJ, Case C-440-05, Commission v. Council, 23 October 2007, www.curia.eu).

13 Preamble & Article 1(1) Directive 2005/35/EC, as amended.

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This legislative package was based on the assumption that the implementation of Article 4 of the MARPOL 73/78 Convention significantly differed throughout the EU Member States and that effective, dissuasive and proportionate penalties for shipsource discharges of polluting substances were to be harmonised in order to achieve effective protection of the marine environment.

The European Commission's justification of the legislative proposal therefore started from the assumption that the main part of deliberate discharges of waste and cargo residues are illegal in nature, that is, in contravention of the international rules as laid down in the MARPOL 73/78 Convention 14• A number of reasons were given for this : "First, the occurrence ef ille9al discharaes is promoted by lack qf adequate waste reception

facilities in ports. Second, the eriforcement ef the Marpol 73178 rules is not consistent in the

world, or even within the EU. Third, dischar9es are not always detected in time. Fourth, eyen if the discharae is detected and traced to a particular ship, the effence is rarely brought to justice and

if it is, there is frequently lack ef st!fficient eYidence for conYictin9 the <?[fender. Finally, even

where an effender is convicted, many States implement rather liaht penalties for this kind ef effences, sometimes on!J' imposed on the master ef the ships, rather than the shipowning company,

whose instructions the master may follow" 15 • The problem with the frequent occurrence of illegal discharges was - given the strictness and general acceptance of the standards laid down in the MARPOL 73/78 Convention -summarised by the European Commission as being related to "the lack ef implementation and eriforcement ef the applicable rules, rather

than inst!fficient standards as such" 16 , Therefore, the European Commission proposed a harmonising measure on the basis of the variation, both in practice and in law, of the

implementation of the MARPOL 73/78 Convention by the Member States: "The keen

ness ef Member States to inspect and prosecute potential qffenders varies largely. In addition, the

t+ This justification was based on data from the Baltic Marine Environment Protection Commission (commonly referred to as the "Helsinki Commission"), the Bonn Agreement Secretariat and own research (EC DG - Environment I EC DG - Joint Research Centre (JRC, ISPRA), "On the Monitoring of Illicit Vessel Discharges-A Reconnaissance Study in the Mediterranean Sea", Brussels, European Communities, 2001, 21 p., available at http://ec.europa.eu/echo/civil/marin/ reports_publica ti ons/ jrc_illici t_study. pelf).

15 European Commission, "Proposal for a Directive of the European Parliament and of the Council on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences", 5 March 2003, COM(2003) 92; OJ C 76, 25 March 2004, 3.

16 Sec also the earlier acknowledgement of the discrepancy between existing rules and prevalent practice in this area in the 1993 Commission Communication A Common Policy on Sefe Seas which stated that compliance with the requirements of the Marpol 73/78 Convention, to which all EU Member States are Contracting Parties, could be improved and that forther initiatives were required to improve implementation of international rules and standards (European Commission, "Communication from the Commission-A Common Policy on Safe Seas", 24 February 1993, COM(1993) 66; OJ C 91, 28 March 1994).

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imposition ef penalties for efjenders varies between Member States, both as regards the persons to

be penalised and as regards the size and nature ef penalties awarded" 17 .

When introducing criminal sanctions to deter marine pollution offences, account should nevertheless be taken of the equilibrium that has been developed between the various users and use functions of oceans and seas, whether that be seafarers and the shipping community, or people depending on a clean coastal and marine environment for their economic and social activities.

D. - THE EU REGULATORY FRAMEWORK

FOR MARINE POLLUTION OFFENCES

It is important to note that the introduction of an EU regulatory framework for marine pollution offences is to be shed against two realms of the EU integration process. First, the adoption of specific measures in the field of marine pollution offences was part of the introduction of a whole series of legislative proposals put forward by the European Commission, which sought to enhance the effectiveness of Community provisions by having recourse to criminal law. Secondly, the oil pollution incidents with the Erika (1999) en the Prestige (2002) put a major focus on the civil and criminal liability for deliberate or accidental pollution of the marine environment and the alleged need for action at the European level.

Whilst there was definitively a political willingness to take concrete action at the E\.iropean level against the actors of marine pollution in the aftermath of the aforementioned incident~, it is not to be underestimated to what extent legislative action for the protection of the marine environment served the European integration process and the "communitisation" of- then still existing - third pillar matters. In order to understand certain decisions taken during the development of the European regulatory framework for marine pollution offences, it is thus necessary to first take a deeper look into the establishment of the Community acql1is for the protection of the environment through criminal law in general.


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II. - The establishment of a Community acquis for the protection of the environment through criminal law

A. - TOWARDS COMMUNITY ACTION

IN THE FIELD OF CRIMINAL LAW

The process for Community action in the field of criminal law was set in motion by the amendments to the third pillar, as introduced by the 1997 Treaty of Amsterdam 18• 19 . The 1998 Vienna Action Plan of the Commission and the Council on how to best implement the provisions of the Amsterdam Treaty on an Area of Freedom, Secu-

18 It is to be noted that the Treaty of Amsterdam amending the Treaty on the European Union (OJ C 340, 10 November 1997) was signed on 2 October 1997 and entered into force on 1 May 1999, few months before the incident with the Erika which occurred on 12 December 1999.

19 One of the main features of the Amsterdam Treaty related to the Area ef Freedom, Securit;y and Justice (AFSJ), which was a commitment to establish - within five years of the entry into force of the Treaty of Amsterdam or before 1 May 2004 - an area without internal border controls and with common external borders. Therefore, not only the acquis of the 1985 Schengen Treaty on the gradual abolition of common border checks has been integrated into the EU framework (see Protocol integrating the Schengen acquis into the framework of the European Union, as attached to the Treaty of Amsterdam), Also a large part of the former third pillar on "Justice and Home Affairs" (JHA) was incorporated in Title IV of the EC Treaty on the free movement of persons, covering visas, asylum, immigration and judicial cooperation in civil matters (P, CRAIG and G. DE BuRCA (2003), EU l.aw - Text, Cases, and Materials (3"1 ed.), Oxford, Oxford University Press, 30-32, 39-41; D. CMALMERS, C. HADJIEMMANUIL, G. MONTI and A. TOMKINS (2006), European Union Law - Text and materials, Cambridge, Cambridge University Press, 32). It is therefore a classic example of"communitisation", a concept describing the transfer of a matter which is ustially dealt with using the intergovernmental method to the Community method. As the only policies under the intergovernmental procedures of the third pillar were now Police and judicial cooperation in criminal matters, the eroded third pillar was renamed accordingly. Under the PJCC pillar, the overall aim was the creation of the AFSJ by developing common action in three areas, i.e. police and judicial cooperation in criminal matters, and the prevention and combating of racism and xenophobia. Three methods of addressing these aims have been set up : (i) closer cooperation between police forces and customs and other Member States authorities; (ii) closer cooperation between judicial and other relevant Member States autl10rities; and (iii) approximation of certain criminal laws in the Member States. Prior to the entry into force of the Lisbon Treaty, Article 34(2) of the EU Treaty defined the range of legal instruments which the Council - acting unanimously and upon initiative of the Commission or one of the Member States -could adopt as follows: common positions, which defined the Ell's approach to a given matter;

framework decisions on harmonisation (which were in character like Hrst pillar directives which lack direct effect); decisions on other matters excluding harmonisation (which seemed like Hrst pillar regulations or decisions which lack direct effect); and conventions, which were to be adopted by Member States in accordance with their constitutional requirements (P. CRAIG and G. DE B(IRCA (2003), o.c., 30-32, 39-41). The three pillar structure of the European Union - whereby Community action was part of the supranational first pillar - came to an encl with the entry into force of the Treaty of 13 December 2001 amending the Treaty on European Union and the Treaty establishing the European Community (OJ C SO, 17 December 2007), better known as the Lisbon Treaty, on 1 December 2009.

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rity and Justice 20 and the conclusions of the special European Council in Tampere in 1999 21 , implemented the calls for a stronger judicial cooperation in criminal matters.

It was, in particular, being stipulated that all criminal behaviour should be approached

in an equally efficient way throughout the European Union 22. Therefore, the 1998

Vienna Action Plan provided that "!f serious criminal conduct receives an equivalent response

and procedural guarantees are comparable throughout the Union, the possibilities qj' improving

coordination ef prosecution, whenever greater efficiency can be reconciled with respect for individ

ual rights, must be examined. This goes in particular for policy areas where the Union has already

developed common policies and for policy areas with strong cross-border implications such as envi

ronmental crime, [ ... J, etc" 23 • This approach was endorsed by the Tampere European

Council in 1999 : "Without prejudice to the broader areas envisaged in the Treaty if Amsterdam

and in the Vienna Action Plan, the European Council considers that, with regard to national

criminal law, efforts to agree on common definitions, incriminations and sanctions should be

facused in the first instance on a limited number ef sectors qj' particular relevance, such as [ ... ], and environmental crime)" 24•

Part II of the Vienna Action Plan lists the actions, which have been identified by the

Council and the Commission for prior implementation 25 • Next to the identification of

some urgent measures in the field of organised crime, terrorism and drug trafficking,

offences committed against the environment were ranked among the prime candidates

for forthcr examination. In that respect, reference was made to parallel work in inter

national organisations, like the Council of Europe (CoE), which was "to be taken into

consideration" 26• Or, the Convention on the Protection of the Environment through

Criminal Law, which was thus implicitly being referred to, revealed to be most inspiring for the European Union.

2° Council (Justice and Home Affairs), "Action Plan of the Commission and the Council on how best to implement the provisions of the Amsterdam Treaty on an Area of Freedom, Security And Justice'', OJ C 19, 23 January 1999, 15 p. The Vienna Action Plan was adopted by the Justice and Home Affairs Council of 3 December 1998 and endorsed by the Vienna European Council of 11 and 12 December 1998 (European Council, "Vienna European Council (11 and 12 December 1998): Presidency Condusions", www.consilium.europa.eu).

21 European Council, "Tampere European Council ( 15 and 16 October 1999) : Presidency Conclusions", www.consilium.europa.eu.

22 For an overview of the criminal enforcement of environmental law throughout the EU Member States, see M. FAURE and G. HEINE (2005), Criminal Eriforcement ef Environmental Law in the European Union, The Hague, Kluwer Law International, 187 p.

21 Vienna Action Plan, § 18 (emphasis added), 24 Presidency Conclusions of the Tampere European Council, §48. 25 Vienna Action Plan, §24. 26 ibidem, §46.

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B. - THE CONVENTION ON THE PROTECTION

OF THE ENVIRONMENT THROUGH CRIMINAL LAW (COE)

The process for the adoption of European legislation in the field of environmental protection through criminal law was initiated in 2000 by Denmark, who introduced a Proposaljor a Council Framework Decision on combatin9 serious environmental crime under the third pillar, more specitlcally Article 31 and 34(2) of the EU Treaty 27 . The Danish initiative especially aimed at the collective ratification by the EU Member States of the 1998 Convention on the Protection of the Environment through Criminal Law so as to improve the judicial cooperation in criminal matters among the EU Member States. It therefore largely referred to that Convention and supplemented it with some additional provisions. This initiative was also largely supported by the European Parliament, subject to the introduction of some amendments in order to reinforce the definition of "serious environmental crime". Furthermore, the European Parliament underlined the importance of complementing measures to prevent environmental damage, such as

effective legislation in the field of environmental liability, and the publication of information on finalised cases 28 .

The Convention on the Protection ef the Environment through Criminal Law - adopted on 4 November 1998 in Strasbourg under the aegis of the Council of Europe, but not entered into force 29 - purports the establishment of a common criminal policy for the protection of the environment. In order to ensure that the perpetrators of environmental violations do not escape prosecution and punishment, criminal offences - subject to appropriate sanctions - were to be established 30• It was however also being

27 Initiative of the Kingdom of Denmark with a view to adopting a Council Framework Decision on combating serious environmental crime, OJ C 39, 11 February 2000.

28 See European Parliament (Committee on Citizen's Freedom and Rights, Justice and Home AlTairs), "Report on the initiative of the Kingdom of Denmark with a view to adopting a Council Framework Decision on combating serious environmental crime" (AS-0178/2000, 21 June 2000) and Eurnpean Parliament, "European Parliament legislative resolution of 7 July 2000 on the initiative of the Kingdom of Denmark with a view to adopting a Council Framework Decision on combating serious environmental crime" (OJ C 121, 24 April 2001 ).

29 Convention on the Protection of the Environment through Criminal Law, done in Strasbourg on 4 November 1998, 38 ILM 259; http: I /conventions.coe.int/Treaty/en/Treaties/Html/ 172.htm.

30 Preamble of the 1998 Convention on the protection of the environment through criminal law. The Convention obliges the Contracting Parties to take the appropriate measures to ensure that a wide range of unlawful activities -that is, violations of"a law, an administrative regulation or a decision taken by a competent authority, aiming at the protection ef the environment" - are characterised as a criminal olTence under their domestic law (Article 1 (a)). These measures relate to intentional qffences, negligent l!ffences and other criminal l!ffences or administrative qffences. The criminal sanctions, which must be provided for in respect of the offences listed in Articles 2 and 3 of the Convention, must take into account the serious nature of these offences. They include imprisonment and pecuniary sanctions and may include reinstatement of the environment (Article 8). The Convention also provides the posibility of intro-

217


emphasised that, whilst criminal law has an important part to play in protecting the environment, the prevention of the impairment of the environment must be achieved primarily through other measures and that the rights and undertakings derived from other international multilateral conventions concerning special matters are not to be affected by the 1998 Convention 31 • The specific provisions of, for instance, the Law of the Sea Convention and the MARPOL 73/78 Convention, were therefore to take precedence over the 1998 Convention.

C. - THE ECJ's RULING ON THE ACQUIS COMMUNAUTA!RE

IN RESPECT OF CRIMINAL LAW

The European Commission found that both the 1998 Convention on the Protection of the Environment through Criminal Law and the related proposal for a Council Framework Decision were not sufficient to attain the objective of discouraging potential environment offenders 32 • It was more in favour of an instrument adopted under the supranational first pillar of the European Community, instead of a less effective instrument adopted under the intergovernmental third pillar of the European Union.

However, although the possibilities of the European Union to act in the field of PJCC were clearly delimitated under the third pillar provisions of the EU Treaty and despite the introduction of some dispersed provisions on appropriate penalties in Community measures, uncertainty persisted in respect of the establishment of a Community acquis

in respect of criminal law. The Commission therefore laid down an analysis of the legal situation under European law in its Workin9 paper on the Establishment ef an acquis on

criminal sanctions a9ainst em1ironmental effences 33• While starting its search for an appropriate legal basis by referring to Articles 29 and 4-7 of the EU Treaty - which stated the

<ludng measures, so as to enable to confiscate instrumentalities and proceeds, or property the value of which corresponds to such proceeds, in respect of these offences (Article 7). Furthermore, the Convention also makes an attempt to harmonise the divergent national provisions with respect to the possibility of prosecuting legal persons under criminal law (Article 9). Similar to the Corwentian qi 25 June 1998 on Access to lr!formation, Public Participation in Decision-Makin9 and Access to Justice in

Environmental Matters, which has been developed by the United Nations Economic Commission for Europe (the UN-ECE Aarhus Convention), the Convention on the protection of the environment through criminal law also includes a right of judicial access to criminal proceedings for environmental organisations (Article 11). Finally, the Convention provides for the establishment of the widest measure of cooperation in investigations and judicial proceedings relating to criminal offences established in accordance with the Convention (Articles 5, 10 and 12).

31 Article 16 of the 1998 Convention on the protection of the environment through criminal law. l2 European Commission, "Commission Staff Working paper - Establishment of an acquis on criminal

sanctions against environmental offences", 7 February 2001, SEC(2001) 227, 2-3. ll Ibidem, 7 p.

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primacy of the EC Treaty towards the EU Treaty 34 - the Commission found legal arguments in favour of both the EC Treaty and the EU Treaty 35 •

Whilst the legislative process for the adoption of a Directive in the field of the protection of the environment through criminal law was proceeding, the Council

Framework Decision 2003180 I ]HA ef 27 January 2003 on the protection ef the environment

through criminal law was adopted 36 , to a large extent incorporating the provisions of the 1998 Convention on the Protection C?f the Environment through Criminal Law. However, the adoption of Council Framework Decision 2003/80/JHA was immediately followed by the introduction of an action for annulment of the said Framework Decision in front of the ECJ by the European Commission, supported by the European Parliament.

The ECJ introduced its judgement of 13 September 2005 37 by underlining Article 4 7 of the EU Treaty 38 and considering that "[i]t is the task ef the Caurt to ensure

that acts which, according to the Council, fall within the scope if Title VI ef the Treaty on Euro

pean Union da not encroach upon the powers co~ferred by the EC Treaty on the Community" 39•

The Court nevertheless acknowledged that the Framework Decision "entail[s] partial

34 Article 4 7 of the EU Treaty ; "[.,.] nothing in this Treaty shall ~ffect the Treaties establishing the European Communities [ .. , ]''. An instrument under Title VI of the EU Treaty cannot, therefore, be adopted as far as the relevant acquis can be established by Community law (European Commission, "Commission Staff Working paper - Establishment of an acquis on criminal sanctions against environmental offences", 7 February 2001, SEC(2001) 227, 2).

15 As such, Community action in the field was to have two realms. The first realm, followed In respect of the proposal for a Council Framework Decision and aiming at the improvement of judicial cooperation in criminal matters, could be called the criminal law approach, whilst the protection of the environment through the enforcement of environmental Community law was more an emironmental law approach. Although those two objectives are basically not conflicting and can be interrelated, it nevertheless seemed that they had to be adopted under two different legal instruments, one on the basis of the EU Treaty and one on the basis of the EC Treaty. The Council reached a preliminary agreement on the objectives and substance of a Dreft Framework Decision on the Protection ef the Environment through Criminal Law on 16 March 2001 (Council (Justice, Home Affairs and Civil Protection), Minutes of the 2,337'h meeting, Brussels, 15 and 16 March 2001, 6,757/01(Presse98), 8). In the light of its 2001 analysis, the Commission decided to equally introduce a draft proposal for a Community Directive in the .field ef the protection ef the environment through criminal law so as to complement the Framework Decision (European Commission, "Proposal for a Directive of the European Parliament and of the Council on the Protection of the Environment through Criminal Law", 13 March 2001, COM(2001) 139, 16 p., as replaced by European Commission, "Amended Proposal for a Directive of the European Parliament and of the Council on the Protection of the Environment through Criminal Law (presented by the Commission pursuant to Article 250(2) of the

EC-Treaty)", 30 September 2002, COM('.2001) 139, 7 p.). 36 Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environ-

ment through criminal law, OJ L 29, 5 February 2003. 37 ECJ, Case C-176/03, Commission v. Council, 13 September 2005, [2005] ECR, 1-7,879. 38 qr. supra, footnote No, 34. 39

ECJ, Case C-176/03, §39.

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harmonisation ef the criminal laws <?f the Member States" 40 and that "as a general rule, neither

criminal law nor the rules ef criminal procedure fall within the Community's competence" 41 .

However, the Court observed, "the last-mentioned.finding does not prevent the Commtmity

legislature, when the application <!f' effective, proportionate and dissuasive criminal penalties by

the competent national authorities is an essential measure for combating serious environmental

<?fJences, from taking measures which relate to the criminal law ef the Member States which it

considers necessary in order to ensure that the rules which it lays down on environmental protec

tion arejiilly effective" 42 • The Court thus concluded that the Framework Decision had as its main purpose the protection of the environment (and not harmonising criminal law

as such) and that measures therefore should have been adopted on the basis of

Article 175 of the EC Treaty 43 •

As a consequence of the annulment of Framework Decision 2003 / 80 I JHA by the

ECJ, it appeared clear that the Community disposes of an implied competence in criminal

matters and - as the Commission purported - that "the harmonisation ef national criminal

laws, in particular <?f the constituent elements '?f'environmental <dfences to which criminal pen

alties attach, is designed to be an aid to the Community policy in question" 44 . Several acts

adopted and proposals pending thus became entirely or partly incorrect, since all or some of their provisions were adopted on the wrong legal basis 45 . Consequently, the

Commission also had tot re-introduce a legislative proposal for a Directive ef the Europe

an Parliament and ef the Council on the protection ef the environment through criminal law 46,

which resulted in the adoption of Directive 20081991 EC ef the European Parliament and

40 Ibidem, §47. 41 lbi<lcm, §47. 42 Ibidem, §48. 41 J. JANS, "Environmental Spill-overs into General Community Law", 31 (2007-2008) Fordham lnterna

tiomil Law Journal, 1, 366-1, 367. 44 EC], Case C-176/03, § 55. Further reading, see M.-0. BERTELLA-GEFFROY, "Un an de droit penal de

l'environnement", 2 (2008) Em•ironnement, chron. 1; V. JAWORSKI, "L'Union europeenne et la protection penale de l'environncment: la directive du 19 novembre 200811

1 4 (2009) Environnement,

comm. 49, Sel~ also A. CllllENNcC, "La Communaute europcenne est competente pour agir au plan p&nal -- Observations sous C.J.C.E., C-440/05, 23 octobre 200711

1 690(2008) Droit Maritime Franfais,

224-232.

·fS Following the judgement of the ECJ, the Commission published a Communication on the implications ef the Court's judgmcnt <?f 13 September 2005 (Case C-176103 Commission v. Council). The Commission summarised its conclusions so as to set out guidance principles for futme work. A list of texts affected by the Court's judgement in Case C-176/03 was attached to this Communication, See European Commission, "Communication from the Commission to the European Parliament and the Council on the implications of the Court's judgment of 13 September 2005 (Case C-176/03 Commission v. Council)", 24 November 2005, COM(2005) 583, 8 p.

46 European Commission, "Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law", 9 February 2007, COM(2007) 51, 17 P·

220 iii! 2011/l

THE EU REGULATORY FRAMEWORK ON CIUMINAL SANCTIONS FOR SHIP-SOURCE POLLUTION

ef the Council ef 19 November 2008 on the protection ef the environment through criminal law 47 .

III. - Specific measures on the protection of the marine environment

through harmonised (criminal) sanctions

A. - THE INITIAL PROVISION ON A FINANCIAL PENALTY

FOR MARINE ENVIRONMENT OFFENCES IN THE COPE FUND PROPOSAL

Simultaneously with the aforementioned evolutions on the adoption of a more gen

eral regime on the protection of the environment through criminal law, specific provi

sions on criminal sanctions for marine environment offenders have been introduced.

They have first been proposed in the COPE Fund Proposal, as part of the Erika ll

Package 48• Next to aiming at ensuring adequate compensation for oil pollution damage

in European waters by complementing the existing international liability and compen

sation regime, a separate objective of the proposal was the introduction of aj1nancial

penalty to be imposed on "any person who has been found to have contributed to an oil pollu

tion incident by his wrongful intentional or grossly negligent acts or omissions" 49•

47 For an extensive analysis of Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (OJ L 328, 6 December 2008), sec the contribution, elsewhere in this issue.

•fH European Commission, "Communication from the Commission to the European Parliament and the Council on a second set of' commtmity measures on maritime safety following the sinking of the oil tanker Erika", COM(2000) 802, 6 December 2000, (Erika ll-Packa9e), Jnclucling - inter alia - a Proposal for a Re9ulation ef the European Parliament and qf' the Council on the establishment ef a Fundjor the compensation ef oil pollution dama9e in European waters and related measures [the 'COPE Fund'], 6 December 2000, COD(2000) 0326. It is nevertheless to be recalled that a similar objective already appeared in the Proposal for a Etiropean Marine StrateaY (sec European Commission, "Commtmication from the Commission to the Council and the European Parliament - Towards a strategy to protect and conserve the marine environment", 2 October 2002, COM(2002) 539, in particular paragraphs 39 & 45).

49 Article l 0 of the COPE Fund proposal provided for financial penalties or sanctions for established grossly negligent conduct on behalf of any person involved in the transport of oil at sea. The explanatory memorandum highlighted that the measure was to be of a penal nature and hence not related to the compensation of damage. The exact nature of the sanctions to be employed for this purpose (criminal, administrative, "punitive damo9es" etc.) was left unspecified in order to allow Member States to apply the type of sanctions which best fitted their legal system. The motivation for this separate provision was as follows : "the adequate compensation ef victims ef oil spills does not necessari!r provide s'!fflcient disincentives far individual operators in the seaborne oil trade to act Jili9ent!r"· This ·- noninsurable -· penalty would be imposed by Member States outside the scope of liability and compensation and would thus not be affected by any limitation of liability (COM(2000) 802 (Erika llPacka9e), 60, 66, See also Recital (11) of the Preamble of the COPE Fund Proposal).

221


The COPE Fund proposal was justified by reference to the EC Treaty: "The Treaty

provides jar the establishment ef a common transport policy and the measures envisaged to imple

ment such a policy include measures to improve sefety and environmental protection in maritime

transport. The adeczuate compensation ef victims ef maritime oil spills and the introduction ef sanctions for gross negligence in the transport ef oil at sea form an integral part ef such meas

ures" so.

As a consequence of the adoption and the entry into force of the 2003 Supplementary Fund Protocol at the international level 51 , no further action has been undertaken at Community level for the adoption of the COPE Fund Proposal. However, since the Supplementary Fund Protocol does not contain any provisions on sanctions for marine environment offenders, the "rapid adoption ef Community legislation introducing penal

sanctions against any person (including legal persons) who has caused a pollution incident

through grossly negligent behaviour" was reintroduced by the European Commission in its Communication on improving sc!fety at sea in response to the Prestige Accident 52 .

Following the positive reactions on this Communication by the Transport and Telecommunications Council of 6 December 2002 53 and the Environment Council of 9 December 2002 54, the European Council of 13 December 2002 decided that the

so European Commission, "Proposal for a Regulation oJ' the European Parliament and of the Council on the establishment of a fund for the compensation of oil pollution damage in European waters and related measures", COM(2000) 802, 62.

51

52

Sec extensively, G. GoNSAEU!S (2005), "The impact of EC decision-making on the international regime for oil pollution damage: the Supplementary Fund example", in F. MAES (Eel.), Marine Resource Dama9c Assessment, Liability and Compensation for Environmental Dama9e, Dordrecht, Springer, 85- 131. Originally, the European Commission secmt!cl to consider that the introduction of penal sanctions into Community legislation woul<l take place in two consecutive steps : as an immediate step, the Commission seemed to consider the rapid adoption of Community legislation introducing penal sanctions against any person (including legal persons) who has caused a pollution incident through grossly negligent behaviour, so as to ensure the Community-wide application of deterrent sanctions for those involved in the transport of oil by sea. Given the explicit reference to Article 10 of the COPE Fund proposal, these measures seemed to act on deterring both accidental and operational marine pollution, Furthermore, the Commission seemed to announce the introduction of a separate proposal for a directive on illegal discharges from ships. This proposal should then relate to operational (deliberate) discharges from ships and would be coupled with provisions on the gathering of evidence and the prosecution of offenders (European Commission, "Communication from the Commission to the European Parliament and to the Council on improving safety at sea in response to the Prestige Accident", 3 December 2002, COM(2002) 681, 11).

53 Paragraph 14 of the Council's Conclusions on Ship Safety and Pollution Prevention of 6 December 2002, quoted in European Commission, "Proposal for a Directive of the European Parliament and of the Council on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences", 5 March 2003, COM(2003) 92; OJ C 76, 25 March 2004, 2,

54 Council (Environment), "Draft Minutes of the 2,473"1 meeting held in Brussels on 9 December 2002", 8 January 2003, 15378/02, § 11.

222 Ii» 2011/1


need for further specific measures was to be examined, including questions relating to liability and the corresponding sanctions, on the basis of a Commission report 55 • The

Report to the European Council on action to deal with the effects ef the Presti9e disaster 56 was presented at the Brussels European Council of 20-21 March 2003 and resulted in the

explicit conclusion to adopt "before the end qf 2003, [ ... J a system ef sanctions, includin9

criminal sanctions, for pollution ef[ences on the appropriate le9al basis" 57• Furthermore, also the Justice, Home Affairs and Civil Protection Council (JAI) - which was then discuss

ing the Drcifi: Framework Decision on the protection ef the environment throu9h criminal law -

agreed "to consider complementary measures to stren9then the protection ef the environment, in

particular the seas, throu9h criminal law" 58 •

This resulted in the introduction of the "Proposal for a Directive ef the European Parlia

ment and ef the Council on ship-source pollution and on the introduction ef sanctions, includin9

criminal sanctions, for pollution effences" 59 on 5 March 2003. As with the Community action on the protection of the environment through criminal law, the proposal for a directive was supplemented by a "Proposal for a Council Framework Decision to stren9then

the criminal-law framework for the eriforcement ef the law a9ainst ship-source pollution" on 2 May 2003 60 •

B. - THE DIFFICULT ESTABLISHMENT OF A EU REGULATORY FRAMEWORK


The introduction of the abovementioned proposals launched a marifold oflegislative and judiciary action which was to lead to one of the most complicated and debated

legislative acts under EU law. As been indicated above, the Commission advocated the harmonised implementation of the international standards for ship-source pollution in all Member States by incorporating them into EU law, on the assumption that their implementation showed considerable discrepancies among the Member States.

ss European Council, "Copenhaguen European Council (12/13 December 2002): Presidency conclusions", 15917/02, 9, §34.

s6 European Commission, "Communication from the Commission -- Report to the European Council on action to deal with the effects of the Prestige disaster", 5 March 2003, COM(2003) 105, 9.

57 European Council, "Brussels European Council (20/21 March December 2003) : Presidency conclusions", 5 May 2003, 8410/03, 5, §§ 13, 26 & 56.

58 Council (Justice, Home Affairs and Civil Protection}, "Draft Minutes of the 2,477'h meeting held in Brussels on 19 December 2002", 12 February 2003, 15807/02, § 10.


60 European Commission, "Proposal for a Council Framework Decision to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution", 2 May 2003, COM(2003) 227.

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EUROPEAN JOURNAL OF CONSUMER LAW - REVUE EUROPEENNE DE DRO!T DE LA CONSOMMATION

However, the way in which these laudable objective has been dealt with, led to a nearly illegible act, which was - and still is - greeted with scorn by distinct actors in

the maritime industry.

To start with, the distinction in two types of legislative instruments - whereby the (proposal for a) Directive aimed at incorporating the intended international standards, as laid down in MARPOL 73/78 Convention 61 , and the (proposal for a) Framework Decision especially aimed at introducing the correlated rules on criminal offences and

penalties, including provisions on the liability of legal persons and further provisions to facilitate criminal investigations - impelled the need for a coordinated reading and

interpretation.

More important, the initial proposals for a Directive and for a Framework Decision at a number of occasions considerably departed from the legal provisions of the MARPO L 73/78 Convention. First, the scope of application of the proposal was not free from legal obscurity, in that it extended to discharges of polluting substances (i.e. substances covered by annexes I (oil) and II (noxious liquid substances in bulk) of the MARPOL 73/78 Convention) of any ship, irrespective of its flag, in all maritime areas,

61 In ordt'r to strengthen compliance with the discharge rules and thus protecting the marine environment from vessel-source pollution, the proposed directive therefore aimed at ensuring that marine pollution offenders were subject to adequate sanctions, including criminal sanctions. In that respect the Commission proposed three set of actions. First, the EU Member States were to ensure that the illegal discharge of polluting substances, the participation in and instigation of such discharge were regarded as criminal offences, "when committed intentional!Jt or by 9ross ne9ligence". Moreover, any person -- "i.e. not on{y the shipowner but also the owner~/' the cargo, the class!flcation socieo/ or G'!J' other person im•olmf' --- who had been found responsible of such a criminal offence had to be subject to "tjfective, proportionate and dissuasil'e sanctions, including, where appropriate, criminal sanctions". As regards legal persons, "non-insurable Jines'' were inter alia to be provided, in appropriate cases extended with the conflst·ation of' the proceeds gained by the criminal offences; a permanent or temporary ban on engaging in commercial activities; the placing under judicial supervision; judicial winding-up; and/ or a ban on access to public assistance or subsidies. As concerns natural persons, criminal penalties were to be provi<k1d, including "the deprivation ef libero/, haPin9 regard to applicable international law" in the most serious cases. Secondly, the Member States, acting as a port State, were to take the necessary enforcement measures with respect to ships within a port or at an off-shore terminal of that Member State. Thirdly, the Member States, acting as a coastal State, were to take action in respect of"ships in transit", that is - for the purposes of the Community proposal - a ship which is suspected of an illegal discharge taking place in a maritime zone outside the internal waters of a Member State and which does not call at a port of the Member State holding the information relating to the suspected discharge. Member States' obligations however differed according to whether the next port of call of the ship lied inside or outside the European Community. The proposal also contained provisions on the procedure for implementing powers by the Commission ("comitolo9y'), especially with respect to the amendment or Annex I of the proposal and the exclusion of MA RPO L amendments, if there was a manifest risk that the international amendment would lower the standard or be incompatible with maritime Community legislation. Finally, some accompanying measures were proposed regarding the cooperation amongst Member States, the Commission and the European Maritime Safety Agency (EMSA).

224 1$ 2011/l

THE EU REGU!ATORY FRAMEWORK ON CRIMINAL SANCTIONS FOR SHIP·SOURCE POLLUTION

including the high seas. Or, it is not clear whether this provision related to flag State jurisdiction alone or also to coastal State jurisdiction. In the latter case, such would

imply a major infringement on the exercise of flag State jurisdiction, which - at least at the high seas - prevails in both conventional and customary law. Secondly, the definition of illegal discharges also included discharges resulting from damage to a ship or its equipment, the "participation in" and "instigation ef'' such discharges, when they had been committed "intentionally" or 'by gross negligence" 62 • Or, accidental discharges resulting

from damage to a ship or its equipment may be exempted under Regulation 4-.2 (ex ll(b)) of Annex I and Regulation3.1.2 (ex 6(b)) of Annex II of the Convention. Thirdly, no reference was made to Annexes III-VI of the Convention. Since a considerable source of marine pollution consists in marine litter, in this author's opinion at least violations of Annex V on Garbage are eligible for a repressive approach. The narrow approach of the Commission can thus only be explained in the light of the process that has been set in motion by the Erika incident and the omnipresent willingness to nail the culprits of highly mediatised oil pollution incidents 63 . Fourthly, it was arguably whether the port State investigations were compatible with international law 64. A final consideration on the proposal for a directive consisted in the non-insurability of fines

under the Commission proposal 65 •

62 It had thus extensively been proclaimed on all kinds of shipping fora that the reference to "9rass negli9ence" - contrary to the usual reference to "committed with intent to cause dam'1ge" or "reckles.i!J' ancl with knowledge that such damage would probably result" - bore the risk of divergent interpretations of the national legislators or in the national law courts which would have to Implement and apply the said provisions. It must be added that the harsh reactions from the shipping industry were further accentuated by the devious way of erasing the said exemptions in the Annex of the proposal for a

63 Directive. Exact data on the amount and distribution of sources of marine pollution are either not available or not reliable, since they have to be interpreted in view of the specific purpose of data collection and dissemination. However, two types of marine pollution -- next to operational oil pollution - are repeteaclly being pinpointed, that is landbased sources of pollution and marine litter, including plastics. Sec, for instance, M. WALDICI-IUK, "The State of pollution in the marine environment", 20 (1989) Marine Pollution Bulletin, 598 et seq. cited by M. KENNISH (1996), Practical Handbook ef Estuarine and Marine Pollution, s.J., CRC Press Inc., 2.

64 Save when the flag State was to be included in the "competent authorities in criminal matters" - which seemed rather improbable - also the proposed enforcement measures with respect to ships within a port of' a Member State did not respect the relevant provisions of the Law of the Sea Convention. The situation would have been slightly different if reference would have been macle to ensuring that an appropriate examination is undertaken "in accordance with [international] law".

65 It is common knowledge that the shipping industry largely relies on insurance coverage, in particular the type of indemnity insurance cover provided by P&I Clubs. There are two principal forms of insurance in respect of third party liability. One form is known as liability insurance, which places an obligation on the insurer to pay any damages which the insured is likely to pay as a result of occurrences which are defined in its insurance cover. The insurer's duty to indemnify arises on the occurrence of the insurance event. The other form of third party insurance is indemnity insurance which places an obligation upon the insurer to reimburse or indemnify an ins\ired only to the extent

225

EUROPEAN JOURNAL OF CONSUMER JAW - REVUE EUROPEENNE DE DRO!T DE LA CONSOMMATION

With regard to the correlated proposal for a framework decision under the third pillar, one of the critics made related to the possible infringement of Article 230 of the Law of the Sea Convention. According to Article 230, only monetary penalties may be imposed with respect to marine pollution offences, committed by foreign vessels beyond the territorial sea. Deprivation of liberty for marine pollution offences, committed by foreign vessels in the territorial sea, is only accepted in the case of a wilful and serious act of pollution. However, Article 6( 4) of the proposal for a directive stipulated that "the deprivation ef liberty" was to have "re9ard to applicable international law" As such, no infringement of international law is present when joining the relevant provisions of the proposal for a Framework decision with the one of the proposal for a directive. But the lack oflegal clarity seems obvious.

The numerous deviations of the MARPOL Convention in the Commission proposal unlaunched a storm of massive protest within the international and European shipping community, and especially among the seafarers. In the months that followed the introduction of the proposals, reference to the "criminalisation ef secifarers" was abundantly made. Following these harsh criticisms, major discussions were taking place during the legislative process for adoption of the regulatory framework 66 . As a consequence, the regulatory framework, which had finally been adopted, provided for some major improvements in that respect, but still lacked a lot of legal clarity. Therefore, the international shipping community decided not to await a possible negative ruling of a national judge and introduced legal action in front of the European Court of Justice. Furthermore, also the European Commission introduced a legal action so as to determine the correct legal basis under European law for the introduction of criminal sanctions.

that the insured has incurred and discharged his liability. The insurer's duty to indemnify does not arise until the insured has paid damages to the third party ("pay to be paicr') (S. HAZEi.WOOD (2000), P anJ I clubs: law anJ practice (3'd eJ.), London, Lloyd's of London Press, 141). Club rules thus provide the possibility of reimbursement of fines. It is exactly this practice that seems to have incited the Commission's approach of non-insurability of fines. At first sight, this approach seems to be evident: to allow a wrong-doer to insure against the financial consequences of his wrong-doing seems to largely offend public conscience and liability insurance seems to remove the deterrent effect of making the guilty pay. This theoretical possibility is however to be shed against the P&I practice, according to which Clubs show a conscious attitude when deciding upon the reimbursement of such fines (see extensively S. HAZE!LWOOD (2000), o.c., 141-152, 214-215).

66 For an extensive analysis, see G. GoNSAELES (2009), EU Competence in clecision-makin9, implementation ancl eeforccment ef international maritime regulations (Ph. Thesis), Ghent, Ghent University, 419-422.

226 m 2011/1


C. - COURT ACTION REGARDING THE INITIAL EU REGULATORY FRAMEWORK


1. - Case 440/05 - Commission v. Council

By its application in Case 440/05, the European Commission, supported by the European Parliament, sought the annulment of Council Framework Decision 2005 I 667 !]HA, since they considered that "the Framework Decision is not the appropriate legal

instrument with which to impose on Member States on obli9ation to criminalise the illicit dis

char9e ef pollutin9 substances ot sea and to establish correspondin9 criminal penalties at national

level" 67 • While recognising that criminal law does not constitute an independent Community policy area, they pointed out at the fact that the Community has an ancillary criminal-law competence, which it may exercise if necessary 68

. Similar to the appeal against the Framework Decision on the protection of the environment through criminal law, they therefore raised the argument that "the Community is empowered to require

Member States to provide for penalties - includin9, !f appropriate, criminal penalties - at

national level, where this proves necessary in order to achieve a Community objective, as is the case

with re9ord to questions ef ship-source pollution,for which Article 80(2) ~f the EC Treaty consti

tutes the le9al basis" and that "re9ard must be had to the aim and content ef a measure in order

to determine the appropriate legal basis for its adoption" 69• Finaily, they added that the

Framework Decision does not harmonise the type and level of the applicable criminal penalty, as the Member States retain a certain latitude in that regard and the national courts have discretion to adjust the penalties to suit the individual case 70

•

The Council, by contrast, put forth as its principal argument that "in adopting Directive

2005 I 35 together with the European Parliament under the co-decision procedure, it decided - in

accordance with Article 80(2) qf the EC Treaty- the question 'whether' and, !fso, 'to what extent'

the Community legislature must exercise its competence to adopt provisions on ship-source pollution,

in particular provisions introducing penalties far iryringement ef the relevant rules" and that, through the adoption of that directive, "the Community legislature wished to demarcate the

limits ef its own power to take action in matters involving maritime transport policy" 71 • As such,

it was highlighted that they could have decided to go further on the basis of Article 80(2)

(now Article 100(2)) of the EC Treaty, but chose not to do so 72 • The conditional nature of the competence in matters of (maritime) transport policy, conferred by that Article of

67 ECJ, Case C-440-05, Commission v. Council, 23 October 2007, www.curia.eu, §24. 68 Ibidem, §36. 69 Ibidem, §24. 70 Ibidem, § 35. 71 Ibidem, §42. 72 Ibidem, §43.

227


the EC Treaty, was forwarded as an argument on the basis that "transport policy, unlike

environmental policy which was the policy area at issue in Case C-176103 Commission v. Council,

does not pursue an objective that is essential, transversal and fundamental' 73.

In its judgment of 23 October 2007, the Court nevertheless came to the conclusion

that "the common transport policy is one ef the foundations ef the Community" 74 and that the requirements relating to environmental protection - which, according to Article 6 of the EC Treaty, "must be inte9rated into the definition and implementation ef ... Community

policies and activities" - must be regarded "as an objective which alsoforms part ef the common

transport policy 75 . Although the Court thus recognised that under ( ex-)Article 80(2) of the EC Treaty, the Council may decide whether, to what extent and by what procedure appropriate provisions may be laid down for maritime transport, they recalled former case-law so as to state that ( ex-)Article 80(2) "merely provides that the specific rules ef the

Treaty relatin9 to the common transport policy, which are set out in Title V thereef, will not auto

matically apply to that sphere ef activity". Since the Court found that the European Community has broad legislative powers under (ex-)Article 80(2) of the EC Treaty and "is competent to lay down, inter alia, 'measures to improve transport sefety' and 'any other appropri

ate provisions' in the jleld ef maritime transport" 76 , the Community legislature could therefore, on the basis of ( ex-)Article 80(2) of the EC Treaty and in the exercise of the pow

ers conferred on it by that provision, decide to promote environmental protection 77•

Following the annulment of the Framework Decision, an amending Directive has been adopted on 27 October 2009 78 . Directive 2009I12 3 /EC thus introduced some - but not all - of the former provisions of the annulled Framework Decision into the first pillar instrument. This amendment procedure was also seized to include the modified numbering of the Regulations of the Annexes to the MARPOL 73 /78 Convention in the Directive. This - again - did not contribute a lot to improve the lack of legal clarity.

2. - Case C-308106 - The Intertanko Case

The ruling of the Court in Case C-308 I 06 - the lntertanko Case 79 - followed from a reference for a preliminary ruling from the UK ~1een's Bench Division (Administrative

73 Ibidem, §44. 74 Ibidem, §55. 75 Ibidem, §60. 76 Ibidem, § 58. 77 Ibidem, § 60. 78 Directive 2009/123/EC of21October2009, OJL 280, 27 October 2009. 79

ECJ, Case C-308 /06, International Association ef Independent Tanker Owners and Others v. Secretary ef State, 3 June 2008, www.curia.eu.

228 II 2011/l


Court), concerning the legality of Articles 4 and 5 of Directive 2005 /35/EC of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements 80

. The application was introduced by an association of major parties in the shipping industry, i.e. the International Association if Independent Tanker Owners (Intertanko), the International Association C?fDry Cargo Shipowners (Intercargo), the Greek Shipping Co-operation Committee, the classification society Lloyd's Re9ister, and the International Salvage Union.

By its first questions, the national court essentially requested the ECJ to assess the validity of Articles 4 and 5 of Directive 2005/35/EC in the light of the relevant provisions of the MARPOL 73/78 Convention and the Law of the Sea Convention. In secundary order, the Court was requested to opinion on the lack of legal certainty in Article 4 of the Directive 81 •

The claimants in the main proceedings submitted that Articles 4 and 5 of Directive 2005/35/EC do not comply with the MARPOL 73/78 Convention or the Law of the

Sea Convention in several respects. First, it seemed that by laying down criminal liability for serious negligence, those articles establish a stricter liability regime for accidental discharges than that laid down in Article 4 of the MARPOL Convention juncto the said Regulations of Annex I and II to that Convention. It was also proceeded that the legality of Directive 2005 I 35 /EC is to be assessed in the light of the Law of the Sea Convention, which defines the extent of the coastal state jurisdiction of the Contracting Parties, including the European Community, in the EEZ, in straits used for international navigation and at the high seas. Or, it has been argued that the EC was not grant

ed the right to adopt more stringent legislation on discharge requirements from ships flying the flag of third party States. It was further argued that, given the EC 's accession

80 The following questions were referred to the ECJ: (i) 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 ll Regulation (6)(b) of [MARPOL] 73/78 to the owners, masters and crew 1 (ii) In relation to the territorial sea of a Member State: (a) 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 {b) Is Article 5(1) of' the Directive invalid in so far as It excludes the application of the exceptions in Annex I Regulation 1 l(b) of[MARPOL] 73/78 and in Annex II Regulation (6)(b) of[MARPOL] 73/ 78? (iii) 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 [UN CLOS], and if so, is Article 4 invalid to that extent? (iv) Does the use of the phrase "serious ne9li9ence" in Article 4 of the Directive infringe the principle of legal certainty, and if so, is Article 4 invalid to that extent?

81 ECJ, Case C-308/06, § 36.

229


to the Law of the Sea Convention, the Convention forms an integral part of the Community legal order 82 •

The Court, while admitting that the Community must be bound by rules contained in agreements concluded by the Community, nevertheless decided to dismiss the ease in that respect. Therefore, the ECJ put forth the principle that it can "examine the valid

ity '!f'Community leaislation in the liaht '!fan international treaty only where the nature and the

broad Josic ef the latter do not preclude this and, in addition, the treaty's provisions appear, as

reaards their content, to be unconditional and siifflciently precise". As with the Peralta case, several years ago, the Court declined to examine the compatibility of the directive with the MARPOL Convention, on the grounds that the Community is not a party to that Convention. It has furthermore been recalled that it did not appear that the Community has assumed, under the EC Treaty, the powers previously exercised by the Member States in the field to which the MARPOL 73/78 Convention applies, nor that, consequently, its provisions have the effect of binding the Community 83 . Finally, the Court declared that powers of the Community must surely observe international law, including provisions of international agreements in so far as they codify customary rules of general international law, hut nevertheless declined to examine the MARPOL Convention in that respect 84• The applicability of the Law of the Sea Convention was declined

on the basis of an examination of "the nature and the broad loaic ef UN CLOS, as disclosed in

particular by its aim, preamble and terms, preclude examination ef the validity ef Community

measures in the liaht <?f' its provisions". In that respect, the Court established that the Convention does not establish rules intended to apply directly and immediately to individ

uals 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 85 • Consequently, the answer

82 Ibidem, § 37-41. 81 This could have been a valuable argument at the time of the Peralta case, but it is certainly not to be

accepted today, given the fact that it was prccise!J through the contested Directive that the Community acquired powers in that respect. It must also be recalled that the Community already took implementing meusurcs in respect of port reception facilities through Directive 2000/59/EC. Or, it seems that the Court set aside the ERl/I doctrine, developed by itself. Hence, the Court stated that "in the absence ~f' a full tranefer ~{ t/ie powers pmious!J e.<ercised by the Member States to the Communi9', the latter cannot, simply because all those States are parties to MARPOL 73/78, be bound by the rules set out therein, which it has not itself approved (emphasis added). It might be doubted when the ERiil doctrine will only be applicable when the Community acquired the complete competence in respect of a certain subject matter, since it is precisely the ERl/I doctrine who permitted to the Community to gain certain competences and accession to the Law of the Sea Convention.

84 ECJ, Case C-308/06, §43-52. 85

Ibidem, § 54-64. From that viewpoint, it is even more surprising that the Court also refused to take account of the Law of the Sea Convention, which - it might be remembered - not only forms a major codification of customary law, but has also been signed by the European Community as a Contracting Party to it (see Council Decision 94/ 562/EC of 25 July 1994 concerning the signing by the European Community of the Agreement relating to the implementation of Part XI of the 1982 United Nations

230 !ll'. 2011/l


to the first three questions of the Court revealed that the validity of Directive 2005/ 35/EC could neither be assessed in the light of the MARPOL 73/78 Convention or the Law of the Sea Convention.

The Court finally ruled out that the term "serious negligence" infringes upon the general principle of legal certainty, which requires, in particular, that rules should be clear and precise, so that individuals may unequivocally ascertain their rights and obligations and may take steps accordingly. The principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege) thus seems to imply that Community rules must clearly define offences and the penalties which they attract : "this requirement is satiified where the individual can know from the wording ef the relevant

provision and, if need be, with the assistance ef the courts' interpretation ef it, what acts and

omissions will make him criminally liable". Or, the Court argued, such clarification can sufficiently be found in the various concepts of "serious negligence" as fully integrated into, and used in, the Member States' respective legal systems. As such, the concept of "serious negli9ence" was interpreted 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 and no breach of the principle of legal certainty had been established 86 •

D. - THE SEARCH FOR CONFORMITY WITH INTERNATIONAL LAW

IN THE CURRENT VERSION OF THE DIRECTIVE

The Directive and Framework Decision, which finally had been adopted, provided for some serious improvements towards conformity with international law. Nevertheless, some of these improvements have been reversed with the integration of the provisions of the annulled Framework Decision into Directive 2005/35/EC.

To start with, Article 9 of the Directive, as amended, now contains an additional clause to ensure the conformity with international law. It has notably been stipulated that "Member States shall apply the provisions ef this Directive without ao/ discrimination in

form or in fact againstforei9n ships and in accordance with applicable international law, includ-

ing Section 7 if Part Xll if the 1982 United Nations Convention on the Law ef the Sea, and thi;y

Convention on the Law of the Sea and the provisional application by the Community of that Agreement and of Part XI of the Convention, OJ L 215, 20 August 1994 and Council Decision 98/ 392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of l 0 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part Xl thereof, OJ L 179, 23 June 1998; OJ L 215, 20 August 1994).

86 ECJ, Case C-308/06, § 69-80.

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shall prompt!J' notify the JlaB State ef the vessel and any other State concerned ef measures taken in accordance with this Directive". As such, the safeguard clauses from Section 7 of

Part XII of the Law of the Sea Convention, in particular in respect of the prohibition of

custodial sanctions for infringements committed in the EEZ, might be complied with 87. At several other occasions, the Directive further refers to the situation under

international law. As such, Article 3(1) sets out that the Directive shall apply, "in

accordance with international law", to discharges of polluting substances in (a) the inter

nal waters, including ports, of a Member State, "in so far as the Marpol reaime is

applicable"; (b) the territorial sea of a Member State 88 ; ( c) straits used for international

navigation subject to the regime of transit passage, "as laid down in Part III, section 2, ef the 1982 United Nations Convention on the Law ef the Sea, to the extent that a Member State

exercises jurisdiction over such straits"; (cl) the exclusive economic zone or equivalent zone

of a Member State, established in accordance with international law 89 ; and (e) the high 90 seas .

87 A special safeguard was introduced in Article 1 (2) of the Framework Decision, according to which no criminal sanctions were to apply to crew members "in respect ef iefrin9ements that occur in straits used far international navi9ation, exclusive economic zones and on the high seas where the conditions set out in Annex I, Re9ulatian [4.2. (ex 11 (b )] or in Annex II, Re9ulation [3. 1. 2 (ex 6(b )], ef the Marpol 7317 8 Convention are satiefleJ'. Another major improvement was the introduction of a specific clause, referring to Article 230 of the Law of the Sea Convention. However, the Framework Decision has been annulled and the explicit reference to Article 230 is now being implied in the general reference to Part XII, Section 7 of the Law of the Sea Convention.

88 In the tet·ritorial st~a, criminal jurisdiction on board a foreign ship passing through the territorial sea may be exercised if the consequences of the crime extend to the coastal State or if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea (Article 27 ( 1 )( a)(b) of the Law of the Sea Convention), which may obviously be the case for illegal discharges. In this author's opinion, th,~ provision in the Directive on the territorial sea is nevertheless to be read in conjunction with Articles 19, 21, 2'~ and 230(2) of the Law of the Sea Convention. Coastal States may adopt laws and regulations in respect of the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof' (Article 21 (1 )(!)), on the condition not to hamper the innocent passage of foreign ships through the territorial sea (Article 24). Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State and as long as it takes place in conformity with the Convention and with other rules of international law (Article 19( I)). Passage of a foreign ship is considered to be prejudicial if it engages in "any act ef wi!ful and serious pollution contrai:y to this Convention" (Article 19(2)(h)).

8'1 In the EEZ or straits used for international navigation, the coastal State may prescribe laws and

regulations for the prevention, reduction and control of pollution from vessels, on the condition that such laws and regulations are "coeform to and 9ivin9 effect to 9eneral!r accepted international rules and standards established throu9h the competent International or9anisation or 9eneral diplomatic coeference (Article 211(5) of the Law of the Sea Convention). Hence, no derogations from the MARPOL Convention are permitted. The latter reference to international law is not being highlighted, since such addition only refers to the maritime delimitation of the EEZ or equivalent zone.

90 At the high seas, the provisions of Directive 2005/35/EC, as amended, can thus only be applied by the EU flag State of the vessel.

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Furthermore, the exemptions under international law have partly been re-intro

duced in Community legislation in that it has been added that a discharge of polluting substances into the maritime areas referred to shall not be regarded as an infringement

"if it satiifies the conditions set out in Annex I, Regulations 15, 34, 4, 1 or 4,3 or in Annex II,

Regulations 13, 3.1.1 or 3.1.3 ef Marpol 73178". In other words, a discharge is not being

regarded as an infringement if it respects the discharge standards regarding oil or noxious liquid substances, as set out in the MARPOL 73/78 Convention, or if the

discharge was necessary (i) for the purpose of securing the safety of the ship or saving

life at sea or (ii) for the purpose of combating specific pollution incidents. However, the MARPOL Convention also provides for an exception in respect of discharges

resulting from damage to a ship or its equipment, "except if the owner or the master acted

either with intent to cause damage, or recklessly and with knowledge that damage would probably

result" 91. This exemption has only been reintroduced in respect of discharges into

straits used for international navigation, the EEZ or the high seas, committed in favour

of the owner, the master or the crew when acting under the master's responsibility 92 .

Another step in the right direction is that the Member States are now to ensure that

ship-source discharges of polluting substances into any of the areas covered by the

Directive are regarded as iefringements if committed with intent, recklessly or by serious

negligence. As such, no further reference is being made to gross negligence. In respect of

the enforcement measures with respect to ships within a port, an addition has been

made so as to include the obligation to advert the flag State, in respect of the infringements which have been "committed with intent, recklessly or by serious negligence" 93

• In

order to ensure conformity with the MARPOL 73/78 Convention, the degree of fault is nevertheless to be interpreted as "with intent to cause damage" or "recklessly and with

knowledge that damage would probably result".

91 On the condition that "all reasonable precautions have been taken C!fier the occurrence ef the damage or discovery ef the dischar9e.for the purpose r!f'preventin9 or minimisln9 the dischar9e" (see Annex I, Regulation 4.2 [ex 11 (b)] and Annex II, Regulation 3.1.2. [ex 6(b)J of the MARPOL 73/78 Convention).

92 According to Directive 2005/35/EC, as amended, also persons responsible for discharges of polluting substances, other than the ship owner, the master or the crew members, are subject to adequate penalties. To the extent that these persons might take advantage of the exceptions laid clown in the MARPOL 73/78 Convention, such seems to be excluded under the Directive. According to Article 9, the Directive is however to be interpreted "in accordance with international law". See - as concerns such discharges in the territorial sea - also the remark made supra, footnote nr. 88.

93 It is to be noted that Article 4 of Directive 2005/35/EC, as amended by Article 1(4) of Directive 2009I123/EC, stipulates that also minor discharges are regarded as infringements if committed with intent, recklessly or by serious negligence. The newly inserted Article Sa(2)(3) however specifies that minor cases, where the act committed does not cause deterioration in the quality of water, arc not to be regarded as criminal offences, save when one deals with repeated minor cases that do not individually but in conjunction result in deterioration in the quality of water, if committed with intent, recklessly or with serious negligence.

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An interpretation conform international law is thus not being excluded. This interpretation will however depend on the national legislator's or judge's knowledge of the Law of the Sea Convention and of the MARPOL 73/78 Convention. It remains puz

zling why the European Union chose to depart to such extent from the original phrasing in the MARPOL 73/78 Convention. In that respect, it is also regrettable that the annex to the Directive is not legally binding (given its title 'Jor reference purposes" and the lack of a clause of referral in the legal body of the Directive), since this would have been a major opportunity to herald the higher hierarchical position of the MARPOL 73/78 Convention. A regulatory framework introducing criminal sanctions must be clear and specific. Referring to the terms of international law - in particular, given "the nature and broad logic" of the Law of the Sea Convention - does not seem to respond to these criteria and the regulatory framework at least lacks legal clarity. The amendment procedure, impelled by the judiciary action resulting in the annulment of the Framework Decision, would therefore have been a step in the search for bigger legal clarity and certainty.

IV. - Conclusions

Both the break-up of the Maltese oil tanker m/ s Erika and of the Bahamas-flagged ml s Prestige - the first on 12 December 1999 at approximately 45 nautical miles off the Brittany coast in the Bay of Biscay, the second on 13 November 2002 at about 130 nautical miles of the Galician coast - considerably affected the European coastlines of France, Spain and the UK. From the perspective of protection of the marine environment, including the economic and social consequences within the affected coastal areas, the outcry of protest and opposition in the aftermath of these incidents has a legitimate cause. Public and political support for any concrete legislative action serving a better protection of the coastlines against the consequences of such major oil pollution incidents thus definitely merits a positive evaluation. The same can be stipulated as regards any action against deliberate marine pollution, which consists in the operation· al discharge of polluting substances, the so-called "magic pipe" offences, where a vessel's oily water separator is being deliberately tampered and/ or false logbook entries are being made.

The prompt arrest of the Masters of these two ill-fated vessels immediately after several hours of desperate attempts to safeguard vessel and crew from the elements, however, seriously affected the morale of seafarers around the world 94. Soon after, on

94 It seems that also the recent judgment of the European Court of Human Right (ECHR) is not going to uplift the morale of seafarers, since the Court considered that "[i]n view ef the particular conte.tt ef the case and the disastrous environmental and economic consequences ef the oil spilI'', the amount of bail set

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27 July 2003, the Greek Afromax tanker m/s Tasman Spirit, laden with over

67 ,OOO tonnes of Iranian Light Crude Oil, ran aground whilst entering the port of

Karachi (Pakistan) under pilotage. The Pakistani authorities not only detained the Mas

ter of the vessel and several crew members, but also the salvage master, thus inviting

the world to opinion on the uncertain fate of the "Karachi eight" 95. Unfortunately, these

arc no isolated cases, which incited E. MITROPOULOS, Secretary-General of the Inter

national Maritime Organisation, to qualify these seafarers as "human pawns in political

and legal games" 96 • It must be admitted that these cases do not involve deliberate pollu

tion but people trying to do their job to the utmost. It is thus comprehensible that the

badly phrased legislative action which has been taken by the European Union in the

aftermath of the incidents is being interpreted by maritime actors as a "criminalisation ef seefarers".

A. - EFFECTS OF CRIMINALISATION ON SEAFARERS

AND OTHER ACTORS IN THE MARITIME CHAIN

In 2006, BIMCO - an international shipping association with a membership com

posed of ship owners, managers, brokers, agents and many other stakeholders with

vested interests in the shipping industry - carried out a study of recent cases involving

the international practice of using criminal sanctions towards seafarers 97• It was origi

nally presented to the joint ILO I IMO ad hoe expert working group on the fair treatment <?f

seqfarers in conjunction with their work on the joint JLO I !MO Gt1idelines for the Fair Treat

ment ef Seefarers in the Event '?fa Maritime Accident. Following an update of the study in

for the release of the Presti9es Master MANGOUl\AS was not excessive. While the amount of' bail has to be assessed principally by reference to the accused and his assets, the Court found it not unreasonable, in certain circumstances, to take into account also the amount of the loss imputed to him. Mr. MANGOUl\AS had been deprived of his liberty for 83 clays and had been released following the lodging of a bank guarantee of 3,000,000 EUR. In flxing bail, the Spanish courts had taken into consideration the risk that the applicant might abscond, taking the view that it was essential to Lmsure his appearance in court. In addition to the applicant's personal circumstances, they had also had regard to the seriousness of the offence of which he stood accused, the impact of the disaster on public opinion and the applicant's "prefessional environment", namely the maritime transport of petrochemicals (ECHR, No. 12050/04, Mangouras v. Spain, 28 September 2010, www.echr.coe.int).

95 For an extensive overview of the aforementioned cases, see O.G. ANIHONY, "Criminalisation of Seafarers for Accidental Discharge of Oil ; Is there Justification in International Law for Criminal Sanction for Negligent or Accidental Pollution of the Sea?", 37 (2006) journal ef Maritime Law&.. Commerce, 219-242.

96 E. MllROPOULOS, Seventh Cadwallader Annual Memorial Lecture "Criminalization in Shippin9 : Human Pawns in Political and Le9al Games - K<;rnote speech, London, 6 October 2004, www.imo.org/Newsroom/ mainframe. asp ?topic_icl=84 7 &cloc_icl=43 5 8.

97 See BIMCO, Sttit!J ef recent cases involvin9 the International Practice ef Usin9 Criminal Sanctions towards Seefarers, adopted by the BIMCO Board of Directors, Singapore, 2 March 2006, rev. 10 March 2006, 54p.

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2009 98 , it has been revealed that the number of incidents remains relatively low, amounting to a total of 47 cases since 1996, of which 14 are cases where sanctions were taken against seafarers involved brjore any deliberate act or negligence had been admitted or proven in court and 33 are cases where sanctions were taken against seafarers involved efter any deliberate act or negligence had been admitted or proven in court 99 .

BIMCO nevertheless took a deeper look into the implications for the individual seafarers involved, regardless of whether the seafarers have been convicted or not. They determined consequences ranging from long periods of detention, as well as the severe psychological impact resulting therefrom to a variety of"side-effects" of a more practical nature. Or, it has been seen in some incidents that seafarers, even after having been acquitted, have experienced difficulties obtaining a new job and, if they have managed to do so, have had difficulties obtaining visas for entry into foreign countries, thus in practice preventing them from carrying out their duties and, at worst, continuing their seafaring career. One example is the Hebei Spirit in South Korea in December 2007, where the Master and Chief Officer had their reputations tarnished by the guilty verdict of criminal negligence and have had to endure difficulties in relation to obtaining employment and visas in order to enter foreign countries. Another case is the Coral Sea in July 2007, where the Master, Chief Officer and Bosun were acquitted of charges of smuggling cocaine following detentions of 17 and 12 months respectively. The Coral Sea case led to the tragic suicide in January 2009 of the Chief Officer, who had suffered severe psychiatric problems following his detainment. Another incident involves the container vessel Cosco Busan, which struck the Oakland Bay Bridge in San Francisco in November 2007 while navigating under direction of a pilot during thick fog resulting in approximately 167 tons of fuel spilt and significant damage to the vessel and the bridge. Although the operator of the ship pleaded guilty in federal court to criminal violation of the US Oil Pollution Act of 1990, obstruction of justice and falsifying documents in connection with the collision, and the pilot, who was serving on the container ship, was sentenced to 10 months in prison, the entire crew was detained by the US authorities and, of these, six Chinese nationals including the ship's Master were held as material witnesses for as long as a year after the incident 100 .

98 See BIMCO, "Study of the Treatment of Seafarers", 23 March 2009, 61 p. 99

https:/ /www.bimco.org/Members/News/2009/2009/03/25_Treatment_of_seafarers.aspx. too https://www.bimco.org/Members/News/2010/2010/03/04_Unfair_treatment_of_seafarers.aspx.

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B. - TOWARDS BETTER IMPLEMENTATION

AND ENFORCEMENT OF INTERNATIONAL LAW

International law does have an eye for the difficult balancing of user interests and use functions of the oceans and seas, including seafarers' rights, economic and social interests of coastal areas, liability of ship owners and the like. However, three principal shortcomings can be identified in the establishment of maritime legislation at the inter

national level. First, difficulties may be encountered when trying to establish international rules with respect to a certain maritime issue. Secondly, implementation of international rules at the domestic level - through prescriptive jurisdiction - entails the risk of divergent interpretation among the various Contracting States. Furthermore, in most circumstances, the rules established at the international level will need further specification at the national level. Although the classical system of international law-making thus permits to adapt the international rule to the implementing State's particularities so as to become fully integrated in the domestic system, it is to be clear

ly established whether these international rules aim at instauring minimum rules of harmonisation, leaving room for a more stringent application by the individual Contracting States, or whether they rather tend to put a substantive limit on the rules developed at the national level. Whatever the degree of loyalty of a State towards international law, both the State's internal institutional organisation and divergent views and interpretations as to the extent of the rules established at the international level, can thus entail difficulties as to what may be called "first level compliance" or "implementation".

A third difficulty consists in that the implementing State also has the responsibility to enforce those rules upon the various actors in the maritime chain, which may be referred to as "second level compliance" or "eriforcement" tot.

As such, any initiative - such as the harmonisation of international provisions - is to be lauded. l~rom a maritime and international law perspective, it is however not comprehensible why the European Union - including a judiciary authority such as the ECJ - chases to depart from the measures that have been developed at the international level and does not defend the uniform interpretation of international law. Such attitude bears the risk of exporting the problem of marine pollution to other, less armed

regions in the world, which to an equal extent depend on the oceans and seas for satis

fying their living, use and consumption patterns.

101 This also explains why the flag State jurisdiction, as a primary means of implementing and enforcing international maritime legislation, was complemented by alternative means of jurisdiction ... i.e. coastal State jurisdiction and port State jurisdiction - in the Law of the Sea Convention, as a means of remedying certain shortcomings at the flag State level. See also, A. VtALARD, "Sisyphe et l'uniformisation internationale du droit maritime", 591 (1999) Droit maritimejranrais, s.p.

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C. - THE DIFFICULT RELATIONSHIP

BETWEEN UNION LAW AND INTERNATIONAL LAW

A ruling similar to the lntertanko case has taken place in 1994 when the ECJ was asked to rule in the Peralta case. Herewith, the Court was asked to rule on the conformity of an Italian law on the protection of the marine environment and several provisions of the EC Treaty. Since the contested law also included criminal sanctions for marine environment offences, the Court was implicitly asked to opinion on the compatibility of the alleged law and the MARPOL 73/78 Convention 102

• In both respects, the criminal sanctions which had been introduced touched upon the non-discrimination principle, as established in EC law and the MARPOL Convention alike. The Court however decided that it : "In so jar as the Italian court raises the question ef the compatibility

qf' the Italian le9islation with the Marpol Convention, it is stifflcient to find that the Community

is not a party to that convention. Moreover, it does not appear that the Community has assumed,

under the EEC Treaty, the powers previously exercised by the Member States in the field to which

that Convention applies, nor, consequently, that its provisions have the effect ef bindin9 the Community" 103'

It however seems that the ECJ neglected the fact that the Community became a Party to the Law of the Sea Convention since the time of its former judgement. As such, it

also set aside the necessity to consider the MARPOL 73/78 Convention as an incorporating "9enerally accepted international rules and standards". While it has not been accepted by this author that those rules and standards equate rules of customary law, they may still bear aspects of customary law. Even when accepting the most restrictive viewpoints on "9enerally accepted international rules and standards'', according to which technical standards could not be lifted to the status of customary law, the approach of the Court is to be declined from a double perspective. First, the provisions at hand in the MARPOL Convention can hardly be considered as technical standards, since they stipulate a clear rule on criminal liability and its correlated exemption from liability. Secondly, no examination has been undertaken of the degree of "9eneral acceptance" of the rules and standards referred to. Or, it seems that the relevant provisions acquired a widespread acceptance and that they meet the necessary prerequisites of certain uniformity, consistency in State practice and generality of the practice.

With a refusal to examine the Community's participation in the Law of the Sea Convention, the Court also set aside that these rules and standards are binding upon all Contracting Parties to the Law of the Sea Convention, including the Community, by

IOl ECJ, Case C-379/92, Matteo Peralta, 14 July 1994, [1994] ECR, I-03453, § 16. Further reading, see F. MAES, "Over MARPOL en het gemeenschapsrecht - noot bij de zaak Peralta", 2 (1995) Tijdschr!fi voorMilieurecht, 104-125.

101 ECJ, Case C-379/92, § 16.

238 ii• 201111


reason of their consent to be bound by the provisions of the Law of the Sea Convention. It seems that also the international community is starting to accept the thesis that the Community may be bound by the provisions of the regulatory IMO Conventions 104

• This change of views is the result of a longstanding search for confirmation by the Community of its rights as a competent authority in certain aspects of the law of the sea. However, when favouring such recognition of its external competence, one

should also accept the corresponding obligations. It thus seems that the Court is not going in the same recognition of international rights and obligations pending upon the European Union.

D. - FINAL CONSIDERATIONS

Criminal law aims at the protection of social values and use functions and therefore intends to correct non-accepted behaviour. Shipowners or other maritime actors are not to be placed above the law when doing business. Also the seafarers have a legal

obligation to respect the marine environment. It is however questionable whether such criminalisation is to expand to accidental pollution. It therefore seems that the EU regulatory framework creates a disbalance between coastal State protection and that other

legitimate users of the sea,

The recent evolutions also seem to by-pass the huge underlying interest of the maritime transport chain towards all economic and social groups, which depend for 90% on maritime transportation for the conveyance of goods and tend to forget that maritime law, from its inception and its entire development throughout the centuries, takes

account of that single specific aspect of the maritime adventure, the fortune de mer.

104 Such change of attitude may be witnessed by the Conference Resolution upon the 2002 Protocol to the Athens Convention according to which the IMO has been requested to st11dy the possibilities of accession of the EU to the IMO Conventions.

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