A legal challenge launched by a group of industry organisations questioning the validity of certain provisions of EU Directive 2005/35 has failed.
Directive 2005/35 provides for penalties to be imposed on any party found to have caused or contributed to illegal pollution deliberately or as a result of gross negligence. This applies to any ship, regardless of Flag, and to discharges either in European waters or on the high seas, although certain exceptions are provided for. The directive goes much further than MARPOL in not distinguishing between operational and accidental discharges, and extending potential liability for “serious negligence” to any party connected to the ship, including master, owner, charterer, classification society and even salvors. It allows the same exceptions as MARPOL where the discharge is necessary for the purpose of securing the safety of the ship or saving life at sea or where the discharge has been approved for purposes such as combating specific pollution incidents. Where discharge results from damage to the vessel or its equipment, however, the exception applies only if occurs outside European territorial waters. In other words, if a vessel is damaged in the territorial waters of an EU member state, any resulting pollution could be considered an infringement, which in turn could lead to criminal penalties.
The questions posed to the European Court of Justice centred firstly on the validity of Articles 4 and 5 of the Directive (dealing with infringements and exceptions) inasmuch as they impinge on the United Nations Convention on the Law of the Sea (UNCLOS) and the MARPOL Convention, and secondly on whether the use of the phrase "with intent, recklessly or by serious negligence" in relation to alleged infringements violated the principle of legal certainty in not being properly defined.
On 3 June 2008 the judgement of the Court was published. The Court found that although individual member states are part to MARPOL, the European Community is not, and the validity of the directive cannot therefore be assessed in the light of MARPOL. While the European Community is bound by the provisions of UNCLOS, the rules established by UNCLOS do not apply directly to individuals and the validity of the directive can therefore not be assessed in the light of that convention either. The Court further found that while the phrase "with intent, recklessly or by serious negligence", is not defined within the Directive, these concepts are fully integrated into and used in the Member States' respective legal systems and the actual definition of the infringements referred to and the applicable penalties are those which result from the rules laid down by Member States.
In the meantime, on 11 March the European Commission presented a proposal for a directive to amend 2005/35, aimed at further strengthening the legislation. The new directive will focus on two main issues: firstly, the clarification that infringements contained in Directive 2005/35/EC have to be considered as criminal offences and are to be sanctioned by criminal penalties; and secondly the obligation for Member States to ensure that companies can be held liable for criminal offences committed for their benefit and that these companies are subject to penalties of an administrative or criminal nature.