Judgment — ECLI:EU:C:2014:19
Date: 2014-01-23
Language of the case: Italian
Court formation: Fourth Chamber
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Fourth Chamber), 23 January 2014 1. Environment — Atmospheric pollution — Directive 1999/32 — Reduction of the sulphur content of certain liquid fuels — Scope — Criterion of regular services — Cruise ship — Included — Conditions (Council Directive No 1999/32, Art. 2(3g) and 4a(4)) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — International convention not binding on the European Union — International Convention for the Prevention of Pollution from Ships (Marpol Convention 73/78) — Assessment, in the light of the rule in Annex VI to that convention, of the validity of Article 4a(4) of Directive 1999/32 — Absence in those rules of the customary rules of general international law — Not included — Assessment of the impact of that annex of the scope of that article — Convention not binding on all the Member States — Not included (Art. 4(3), first para, TEU; Council Directive No 1999/32, Art. 4a(4)) 1. A cruise ship falls within the scope of Article 4a(4) of Directive 1999/32 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12, as amended by Directive 2005/33 with regard to the criterion of ‘regular services’, as laid down in Article 2(3g) thereof, provided that it operates cruises, with or without intermediate calls, finishing in the port of departure or another port, provided that those cruises are organised at a particular frequency, on specific dates and, in principle, at specified departure and arrival times, with interested persons being able to choose freely between the various cruises offered, which is a matter for the referring court to ascertain. (see para. 35, operative part 1) 2. The validity of Article 4a(4) of Directive 1999/32 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12, as amended by Directive 2005/33, cannot be examined in the light of the general principle of international law pacta sunt servanda or the principle of cooperation in good faith enshrined in the first subparagraph of Article 4(3) TEU on the ground that that provision of the directive may lead to an infringement of Annex VI to the International Convention for the Prevention of Pollution from Ships (Marpol Convention 73/78). The European Union is not a contracting party to the Marpol 73/78 Convention, including the protocol signed on 26 September 1997 inserting Annex VI into the convention, and is not bound by it. Nor can the validity of Article 4a(4) be examined in the light of the general principle of international law pacta sunt servanda, since that principle applies only to those subject to international law who are contracting parties to a specific international agreement and which, as a result, are bound by it. Furthermore, it does not appear that Annex VI constitutes an expression of the customary rules enshrined by general international law which, as such, are binding upon the institutions of the Union and form part of the legal order of the Union. Moreover, it is not for the Court to rule on the impact of Annex VI on the scope of Article 4a(4) of Directive 1999/32. To interpret the provisions of secondary law in the light of an obligation imposed by an international agreement, such as the 1997 Protocal inserting Annex VI in the convention, which does not bind all the Member States would amount to extending the scope of that obligation to those Member States which are not contracting parties to such an agreement. The latter Member States must however be regarded as ‘third countries’ for the purposes of that agreement. Such an extension would be incompatible with the general international law principle of the relative effect of treaties, according to which treaties must neither harm nor benefit third countries (‘pacta tertiis nec nocent nec prosunt’). (see paras 37-39, 41, 47, 50, 54, operative parts 2, 3)