European Court of Justice: Directive on ship-source pollution providing for penalties in the event fof accidental discharges remains valid

Organisations representing substantial proportions of the maritime shipping sector brought an action before the High Court of Justice of England and Wales regarding the implementation in the United Kingdom of the directive on ship-source pollution and the introduction of penalties for infringements. They argued that by establishing a stricter liability regime for accidental discharges two provisions of the directive did not comply with the United Nations Convention on the Law of the Sea and the International Convention for the Prevention of Pollution from Ships (the Marpol Convention).The national court requested the Court of Justice to rule on whether the provisions of the directive are compatible with the two international treaties (Case C-308/06 – Intertanko).The Court noted that the Community institutions are bound by international agreements concluded by the Community and that international treaties therefore have primacy over secondary Community legislation. Consequently, the validity of, inter alia, a directive may be affected by a failure to comply with international rules.With regard to the Marpol Convention, the Court observed that the Community is not a party to this Convention. The mere fact that the directive incorporates certain rules set out in it is not sufficient to enable the Court to review the directive’s legality in the light of the Convention.With regard to the Convention on the Law of the Sea, the Court observed that this Convention has been signed by the Community and approved by a Community decision, thereby binding the Community. However, the Convention does not establish rules intended to apply directly and immediately to individuals. It does not confer upon them rights and freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State. Consequently, the nature and broad logic of the Convention on the Law of the Sea prevent the Court from being able to assess the validity of a Community measure in the light of that Convention.Source: ECJ press release 35/08 of 3. June 2008.

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