# C_2018319EN.01000501.xml

| 10.9.2018 | EN | Official Journal of the European Union | C 319/5 |
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10.9.2018

EN

Official Journal of the European Union

C 319/5

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Judgment of the Court (Third Chamber) of 11 July 2018 (request for a preliminary ruling from the Korkein oikeus — Finland) — Bosphorus Queen Shipping Ltd Corp. v Rajavartiolaitos

(Case C-15/17) (1)

((Reference for a preliminary ruling - Montego Bay Convention - Article 220(6) - Powers of the coastal State - Jurisdiction of the Court to interpret provisions of international law - Directive 2005/35/EC - Ship-source pollution - Article 7(2) - Marpol Convention 73/78 - Oil spill in the exclusive economic zone from a foreign vessel in transit - Circumstances in which a coastal State may instigate proceedings against a foreign vessel - Freedom of navigation - Protection of the marine environment - Major damage or threat of major damage to the coastline, related interests or any resources in the territorial sea or exclusive economic zone - Clear objective evidence))

(2018/C 319/06)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: Bosphorus Queen Shipping Ltd Corp.

Defendant: Rajavartiolaitos

Operative part of the judgment

| 1. | Article 220(6) of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, and Article 7(2) of Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences, as amended by Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009, must be interpreted as meaning that the expression ‘clear objective evidence’ within the meaning of those provisions covers not only the commission of a violation, but also evidence of the consequences of that violation. |
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1.

Article 220(6) of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, and Article 7(2) of Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences, as amended by Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009, must be interpreted as meaning that the expression ‘clear objective evidence’ within the meaning of those provisions covers not only the commission of a violation, but also evidence of the consequences of that violation.

| 2. | The expression ‘coastline or related interests’ in Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7(2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that, in principle, it has the same meaning as the expression ‘coastline or related interests’ in Article I(1) and Article II(4) of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, concluded at Brussels on 29 November 1969, it being understood that Article 220(6) of the United Nations Convention on the Law of the Sea also applied to non-living resources of the territorial sea of the coastal State and to any resources in its exclusive economic zone. |
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2.

The expression ‘coastline or related interests’ in Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7(2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that, in principle, it has the same meaning as the expression ‘coastline or related interests’ in Article I(1) and Article II(4) of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, concluded at Brussels on 29 November 1969, it being understood that Article 220(6) of the United Nations Convention on the Law of the Sea also applied to non-living resources of the territorial sea of the coastal State and to any resources in its exclusive economic zone.

| 3. | Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7(2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that the resources of the territorial sea and the exclusive economic zone of a coastal State, within the meaning of those provisions, cover both harvested species and also species associated with them and which are dependent on them, such as animal and plant species which feed on the harvested species. |
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3.

Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7(2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that the resources of the territorial sea and the exclusive economic zone of a coastal State, within the meaning of those provisions, cover both harvested species and also species associated with them and which are dependent on them, such as animal and plant species which feed on the harvested species.

| 4. | It is unnecessary, in principle, to take account of the concept of ‘significant pollution’ referred to in Article 220(5) of the United Nations Convention on the Law of the Sea when applying Article 220(6) of that convention and Article 7(2) of Directive 2005/35, as amended by Directive 2009/123, and, in particular, when assessing the consequences of a violation, such as those defined in those provisions. |
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4.

It is unnecessary, in principle, to take account of the concept of ‘significant pollution’ referred to in Article 220(5) of the United Nations Convention on the Law of the Sea when applying Article 220(6) of that convention and Article 7(2) of Directive 2005/35, as amended by Directive 2009/123, and, in particular, when assessing the consequences of a violation, such as those defined in those provisions.

| 5. | In order to assess the consequences of a violation, as defined in Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7(2) of Directive 2005/35, as amended by Directive 2009/123, all the evidence to establish that damage has been caused or that there is a threat of damage to the resources and related interests of the coastal State and to evaluate the extent of the damage caused or threatened to those resources or related interests, taking account inter alia of






  — | the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests; |
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5.

In order to assess the consequences of a violation, as defined in Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7(2) of Directive 2005/35, as amended by Directive 2009/123, all the evidence to establish that damage has been caused or that there is a threat of damage to the resources and related interests of the coastal State and to evaluate the extent of the damage caused or threatened to those resources or related interests, taking account inter alia of

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the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests;

| — | the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads |
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the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads

| 6. | The specific geographical and ecological characteristics and sensitivity of the Baltic Sea area have an effect on the conditions of applicability of Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7(2) of the Directive 2005/35, as amended by Directive 2009/123, as regards the definition and classification of the violation and, although not automatically, on the assessment of the extent of the damage that that violation has caused to the resources and related interests of the coastal State. |
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6.

The specific geographical and ecological characteristics and sensitivity of the Baltic Sea area have an effect on the conditions of applicability of Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7(2) of the Directive 2005/35, as amended by Directive 2009/123, as regards the definition and classification of the violation and, although not automatically, on the assessment of the extent of the damage that that violation has caused to the resources and related interests of the coastal State.

| 7. | Article 1(2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that it does not allow the Member States to impose more stringent measures in accordance with international law that those laid down in Article 7(2) thereof, where international law is applicable, given that the coastal States are authorised to take other measures equivalent in scope to those laid down in Article 220(6). |
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7.

Article 1(2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that it does not allow the Member States to impose more stringent measures in accordance with international law that those laid down in Article 7(2) thereof, where international law is applicable, given that the coastal States are authorised to take other measures equivalent in scope to those laid down in Article 220(6).

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(1)  OJ C 86, 20.3.2017.

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