Opinion of the Advocate General — ECLI:EU:C:2007:689
Date: 2007-11-20
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Transport;Pollution
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary, it must therefore be stated that examination of the second and third questions referred to the Court has disclosed no factor of such a kind as to bring into question the validity of provisions of Directive 2005/35. D – Fourth question – the principle of legal certainty 139. By the fourth question, the High Court wishes to find out whether use of the concept of serious negligence in Article 4 of Directive 2005/35 infringes the principle of legal certainty. In this respect it has particularly in mind the danger that the Member States will not implement and apply this concept in a uniform manner. In its view, further clarifications are necessary to guide the practice of the Member States. 140. None of the parties appears to object to the concept of serious negligence where it is construed – as advocated here in respect of the high seas, the straits and the exclusive economic zone – in conformity with Marpol 73/78 as recklessness in the knowledge that damage will probably result. Nor is it likely that the referring court would have any objections in this regard since the meaning of serious negligence is specified clearly by this interpretation. 141. This position is noteworthy since even the terminology of Marpol 73/78 does not ensure uniform application within the Community. In fact, a survey undertaken by the Research and Documentation Service of the Court shows that the notion of recklessness does not exist in all legal systems of the Community. It is sometimes implemented as serious negligence. The German implementation of Marpol 73/78 uses the standard of simple negligence even though the standard of recklessness does exist in German criminal law. In comparison with this disparate situation Directive 2005/35 contributes to the uniform application of Marpol 73/78 in the Community in accordance with recital (3) in its preamble. 142. However, here the only issue can be whether the concept of serious negligence in relation to events in the territorial sea, where the interpretation of that concept is not restricted to the standard of liability laid down in Marpol 73/78, is compatible with the principle of legal certainty. 143. The principle of legal certainty requires, in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly. (80) In connection with criminal offences and penalties it is given concrete expression by the principle of legality (nullum crimen, nulla poena sine lege) which is laid down in particular in Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). (81) This principle implies that legislation must define clearly offences and the penalties which they attract. That condition is met in the case where the individual concerned is in a position, on the basis of the wording of the relevant provision and with the help of the interpretative assistance given by the courts, to know which acts or omissions will make him criminally liable. (82) 144. However, Directive 2005/35 does not have to meet this criterion since it cannot, as a directive, contain directly effective penal provisions. (83) Such provisions must be adopted by the Member States. Where the provisions of the directive are not sufficiently precise to satisfy the requirements relating to legality, it is for the national legislature to rectify the situation at the time of implementation in the light of the circumstances of the national legal system. (84) It is not the validity of the directive but at most its harmonising effect that is thereby brought into question. 145. However, even if it were desired to apply the principle of legality to provisions of a directive that were not directly applicable, Article 4 of Directive 2005/35 would satisfy the requirements of that principle. It requires that the standard of liability of serious negligence be laid down and applied in the territorial sea. It is not disputed that at least the notion of negligence exists in the various legal systems and can, in different forms, also form a basis for criminal liability. The breach of duties of care, which is also highlighted by the claimants, is the decisive factor. As the Court has ruled with regard to obvious negligence, duties of care must be established on two bases: firstly, on the basis of an objective criterion which applies to all persons of the category concerned and, secondly, on the basis of what can be expected of the person responsible for the action, in particular with regard to his experience. (85) 146. Great prudence certainly has to be exercised when assuming such duties of care in relation to maritime transport and in particular to the transport of dangerous substances. In principle society accepts the risks associated with lawful navigation. Therefore, where duties of care are not expressly laid down in special bodies of rules, they must be accepted as unanimously as possible within the circles concerned (lege artis) before they can have criminal implications. This applies especially in connection with Article 4 of Directive 2005/35 since the standard of liability of serious negligence used therein requires a greater degree of misfeasance than does simple negligence. 147. Therefore, merely reading the directive is not sufficient to identify the duties of care to be met. That is, however, not necessary to satisfy the requirement of foreseeability. This notion depends to a considerable degree on the content of the provisions in issue, the field they are designed to cover and the number and status of those to whom they are addressed. The requirement of foreseeability may still be satisfied even if the person concerned has to take expert advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given activity may entail. This is particularly true in relation to persons carrying on a professional activity, for example those working in professional maritime transport, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to exercise special care in assessing the risks that such an activity entails. (86) 148. Although it must consequently be concluded that ultimately only the courts are able to define precisely duties of care, this is none the less compatible with Article 7 of the ECHR. That provision cannot be read as outlawing the gradual clarification of the rules on criminal liability and the ongoing development of criminal law through judicial interpretation on a case-by-case basis, provided that the resultant development is consistent with the essence of the offence and is sufficiently foreseeable. (87) I know of no case in which the European Court of Human Rights has objected to the application of the terms ‘negligence’ or ‘serious negligence’ in criminal law. 149. Moreover, seamen can be expected not to stretch their conduct to the limits of what is permitted under criminal law but rather to exercise greater care than is required under that law. This is indicated by the risks to body, life, ship and the cargo entrusted to them, which are associated with seafaring and were highlighted at the hearing. Furthermore, in the case of damage caused by oil pollution at least, there are risks as regards largely no-fault civil liability under the International Convention on Civil Liability for Oil Pollution. (88) 150. In so far as the referring court is concerned about non-uniform implementation and application in the Member States, it should first be borne in mind that under Article 1(2) of Directive 2005/35 the Member States are free to adopt more stringent protective measures in conformity with international law. Consequently, the directive does not lay down a definitive, uniform standard but merely minimum requirements which by their nature do not call for uniform transposition in the Member States. 151. Furthermore, the present case helps define more specifically the concept of serious negligence contained in Article 4 of Directive 2005/35. If the Court concurs with my view, it will be made clear in particular that this concept can have a different meaning in the territorial sea to that which it has in other sea areas, in respect of which it must be interpreted in line with Marpol 73/78. 152. Under Article 234 EC, the courts of the Member States may also bring a matter before the Court where they are uncertain in other respects. Under certain circumstances, the courts of last instance are actually required to do so, for example where the case-law of the higher national courts is inconsistent. (89) 153. This judicial safeguarding of the uniform implementation and application of Directive 2005/35 is complemented by the Commission’s duty under Article 211 EC to ensure compliance with secondary law and, where necessary, to bring Treaty-infringement proceedings under Article 226 EC. 154. Finally, the argument put forward by the claimants and Greece that liability for serious negligence in the case of grave accidents could be open to abuse does not demonstrate that the principle of legal certainty or of the legality of criminal law has been infringed. Abuse can never be ruled out with complete certainty. In particular, the more recent examples from France and Spain cited as evidence demonstrate that it does not take Directive 2005/35 to subject seamen to prosecution which they consider to be excessive. 155. In so far as the claimants allege a defective statement of reasons, no examination is necessary since these doubts have already been rejected by the referring court. (90) Since Directive 2005/35 is a measure having general application and the preamble may therefore be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, (91) on the other, a defective statement of reasons would also appear to be rather unlikely in this case. 156. Therefore, examination of the fourth question referred to the Court has also disclosed no factor of such a kind as to bring into question the validity of provisions of Directive 2005/35. V – Conclusion 157. I accordingly propose that the Court give the following answer to the questions referred to it for a preliminary ruling: Examination of the questions referred has disclosed no factor of such a kind as to bring into question the validity 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 for infringements. 1 – Original language: German. 2 – OJ 2005 L 255, p. 11. 3 – Third United Nations Conference on the Law of the Sea, Official Documents, vol. XVII, 1984, Doc. A/Conf.62/122, pp. 157-231. 4 – Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof (OJ 1998 L 179, p. 1). 5 – UN Treaty Series, vol. 1341, No 22484. 6 – According to the information provided by the IMO at http://www.imo.org/Conventions/mainframe.asp?topic_id=248, visited on 2 May 2007. Annex VI has yet to be ratified by Austria, the Czech Republic, Ireland, Hungary, Malta, Portugal and Slovakia, and Malta has also yet to ratify Annex IV. 7 – The annex was supplemented and restructured by Resolution MEPC.117(52) of 15 October 2004, which has been in force since 1 January 2007. Regulations 9, 10 and 11 under consideration in the present case remained substantively unchanged but are now laid down in Regulations 15, 34 and 4. For the sake of simplicity, the previous numbering is used. 8 – The authentic language versions use the following terms: English: recklessly; French: témérairement (foolhardily, rashly); Spanish: imprudencia temeraria (foolhardy imprudence or thoughtlessness); and Russian: самонадеянно (presumptuously, arrogantly, impudently). The official German translation of the Marpol Convention, Annex to Bundesgesetzblatt 1996, II, p. 18, and also the reproduction of the relevant Marpol provisions in the annex to the directive translate this, in my view incorrectly, as ‘fahrlässig’. To me a more correct translation would be ‘leichtfertig’, as in, for example, Article 25 of the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw on 12 October 1929 (First convention for the unification of civil aviation law) (Reichsgesetzblatt 1933, II, p. 1039), as amended by the Protocol to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air, done at The Hague on 28 September 1955 (Bundesgesetzblatt 1958, II, p. 292), and Article 4 of the Convention on Limitation of Liability for Maritime Claims, done in London on 19 November 1976 (Bundesgesetzblatt 1986, II, p. 786), which are couched in identical terms. See also Paragraph 435 of the Handelsgesetzbuch (German Commercial Code). 9 – The annex was supplemented and restructured by Resolution MEPC.118(52) of 15 October 2004, which has been in force since 1 January 2007. Regulation 6 under consideration in the present case is now Regulation 3 and establishes an exception to all the requirements on a discharge of the substances covered by Annex II. For the sake of simplicity, the previous wording and numbering are used. 10 – See footnote 8. 11 – Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I‑11453. 12 – Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 27. 13 – See, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 61, and Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 24. 14 – See Bosman, paragraph 59, and IATA and ELFAA, paragraph 24, both cited in footnote 13. 15 – IATA and ELFAA, cited in footnote 13, paragraph 24. 16 – Cited in footnote 11. 17 – Case C‑459/03 Commission v Ireland (‘MOX plant’)[2006] ECR I‑4635, paragraph 83. 18 – See Case C‑431/05 Merck Genéricos – Produtos Farmacêuticos [2007] ECR I‑0000, paragraph 33. 19 – Commission v Ireland (‘MOX plant’), cited in footnote 17, paragraph 108. 20 – Case C‑379/92 Peralta [1994] ECR I‑3453, paragraph 16. 21 – Case C‑377/98 Netherlands v Parliament and Council [2001] ECR I‑7079, paragraph 52. 22 – Case C‑286/90 Poulsen and Diva Navigation [1992] ECR I‑6019. 23 – Poulsen and Diva Navigation, cited in footnote 22, paragraphs 9 and 10. As regards the binding effect of customary international law, see also Case C‑162/96 Racke [1998] ECR I‑3655, paragraph 45. 24 – Peralta, cited in footnote 20. 25 – Joined Cases 21/72, 22/72, 23/72 and 24/72 International Fruit Company and Others [1972] ECR 1219, paragraph 10 et seq. 26 – See the Opinion delivered by Advocate General Mazák on 28 June 2007 in Case C‑440/05 Commission v Council [2007] ECR I‑0000, point 65. 27 – See Case 22/70 Commission v Council (‘AETR’) [1971] ECR 263, paragraphs 17 and 18, and Opinion 1/03 (Lugano Convention) [2006] ECR I‑1145, paragraph 114 et seq. 28 – Cited in footnote 20. 29 – Netherlands v Parliament and Council, cited in footnote 21, paragraph 52. 30 – Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13). 31 – See recital (9) in the preamble to Directive 98/44. 32 – Commission v Ireland, cited in footnote 17, paragraph 82; see also IATA and ELFAA, cited in footnote 13, paragraph 36, and Merck, cited in footnote 18, paragraph 31. 33 – Case C‑61/94 Commission v Germany [1996] ECR I‑3989, paragraph 52; Case C‑286/02 Bellio F.lli [2004] ECR I‑3465, paragraph 33; and IATA and ELFAA, cited in footnote 13, paragraph 35. 34 – Case 12/86 Demirel [1987] ECR 3719, paragraph 14; Racke, cited in footnote 23, paragraph 31; and IATA and ELFAA, cited in footnote 13, paragraph 39. 35 – Poulsen and Diva Navigation, cited in footnote 22, paragraphs 13 and 15. 36 – Poulsen and Diva Navigation, cited in footnote 22, paragraph 25. 37 – Case C‑410/03 Commission v Italy [2005] ECR I‑3507, paragraphs 53 and 54. 38 – Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 2002/93/EC of 3 December 2002 (OJ 2002 L 331, p. 27). 39 – Case C‑111/05 Aktiebolaget NN [2007] ECR I‑2697, paragraph 57 et seq. 40 – Case 104/81 Kupferberg [1982] ECR 3641, paragraph 18. 41 – See Kupferberg, cited in footnote 40, paragraph 20, on special institutional frameworks for the implementation of an agreement. 42 – Aktiebolaget NN, cited in footnote 39, paragraph 59. 43 – However, this competence appears not yet or rarely to be utilised fully in practice between States and whether it is recognised as international customary law would appear to be a matter of dispute. The argument that it is so recognised is supported by Patricia Birnie and Alan Boyle, International Law & the Environment, 2nd edition, Oxford 2002, 376. For the opposite view, see Farkhanda Zia-Mansoor, ‘International Regime and the EU Developments for Preventing and Controlling Vessel-Source Oil Pollution’, European Environmental Law Review 2005, 165 (170) and Alan Khee-Jin Tan, Vessel-Source Marine Pollution, Cambridge, 2006, p. 221. 44 – See Aktiebolaget NN, cited in footnote 39, paragraph 59. 45 – See, for example, Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 27 et seq., and Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 52 et seq. 46 – Cited in footnote 22, paragraph 25. 47 – Naturally, rules may also be justified by other international standards. In this case, however, Marpol 73/78 alone is relevant. 48 – In the German version this provision is incomplete and also barely comprehensible as the first line of the definition is missing. 49 – In the German version of the directive this is incorrectly designated recital (14) since the actual recital (14) on comitology is missing in the German version. 50 – International Fruit Company, cited in footnote 25, paragraph 21 et seq.; Case 266/81 SIOT [1983] ECR 731, paragraph 28; Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraph 109; Case C‑149/96 Portugal v Council [1999] ECR I‑8395, paragraph 47; Joined Cases C‑27/00 and C‑122/00 Omega Air and Others [2002] ECR I‑2569, paragraph 93; Case C‑76/00 P Petrotub and Republica v Council [2003] ECR I‑79, paragraph 53; Case C‑93/02 P Biret International v Council [2003] ECR I‑10497, paragraph 52; Case C‑377/02 Van Parys [2005] ECR I‑1465, paragraph 39; and Case C‑351/04 Ikea Wholesale [2007] ECR I‑0000, paragraph 29. 51 – Case 70/87 Fediol v Commission [1989] ECR 1781, paragraph 19 et seq.; Case C‑69/89 Nakajima v Council [1991] ECR I‑2069, paragraph 31; and Germany v Council, paragraph 111, Portugal v Council, paragraph 49, Biret International, paragraph 53, and Van Parys, paragraph 40, all cited in footnote 50. 52 – International Fruit Company, cited in footnote 25, paragraphs 10 and 13 et seq. Today this binding effect arises from Article 300(7) EC, since the Community has acceded to the WTO Agreements. 53 – Netherlands v Parliament and Council, cited in footnote 21, paragraphs 61 and 62. 54 – Netherlands v Parliament and Council, cited in footnote 21, paragraphs 51 and 52. 55 – Netherlands v Parliament and Council, cited in footnote 21, paragraphs 55 and 56. See Article 1(2) of Directive 98/44. 56 – Netherlands v Parliament and Council, cited in footnote 21, paragraphs 51 and 52. 57 – Case C‑84/98 Commission v Portugal [2000] ECR I‑5215, paragraph 58. 58 – Case C‑466/98 Commission v United Kingdom (‘open skies’) [2002] ECR I‑9427, paragraphs 26 and 27. This applies at least where the relevant Community powers already existed at the time the agreement was concluded. 59 – German version in the German Bundesgesetzblatt 1975, II, p. 305. 60 – The Protocol is printed in OJ 2004 L 78, p. 32. A complete version of the convention is to be found at, for example, http://www.iopcfunds.org/npdf/Conventions%20English.pdf. 61 – See point 60 et seq. above. 62 – Greek: αμέλεια, Maltese: b’mod imprudenti, Portuguese: com mera culpa. 63 – See, for example, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Case C‑300/05 ZVK [2006] ECR I‑11169, paragraph 16; and Case C‑56/06 Euro Tex [2007] ECR I‑0000, paragraph 27. 64 – Commission v Germany, cited in footnote 33, paragraph 52; Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 20; Bellio F.lli, cited in footnote 33, paragraph 33; and Case C‑306/05 SGAE [2006] I‑11519, paragraph 35. 65 – However, this does not rule out the possibility of deducing the perpetrator’s knowledge from objective circumstances indicating that he was aware of the risk. 66 – Opinion of Advocate General Léger in Case C‑173/03 Traghetti del Mediterraneo [2006] ECR I‑5177, point 100. 67 – Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1). 68 – Case C‑48/98 Söhl & Söhlke [1999] ECR I‑7877, paragraph 56. 69 – See the application in Case C‑156/00 Netherlands v Commission [2003] ECR I‑2527, paragraph 99. 70 – As regards the territorial sea, this is evident from the preamble to Common position (EC) No 3/2005 adopted by the Council on 7 October 2004 with a view to the adoption of Directive 2005/…./EC of the European Parliament and of the Council of ... on ship-source pollution and on the introduction of sanctions for infringements, OJ 2005 C 25 E, p. 29 (at p. 39). 71 – Commission v Germany, cited in footnote 33, paragraph 52, and Bellio F.lli, cited in footnote 33, paragraph 33. 72 – See Case C‑105/03 Pupino [2005] ECR I‑5285, paragraphs 44 and 47, on interpretation in conformity with framework decisions, and Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 110, on interpretation in conformity with a directive. 73 – As regards restrictive interpretation in conformity with fundamental rights, see Case C‑540/03 Parliament v Council (‘family reunification’) [2006] ECR I‑5769, in particular paragraph 97 et seq. 74 – Wolfram Gass, in: Ebenroth/Boujong/Joost, Handelsgesetzbuch, 1st edition 2001, § 435, paragraph 5. 75 – See point 103 et seq. above. 76 – See point 37 et seq. above. 77 – See point 71 et seq. above. 78 – See also Tan, cited in footnote 43 above, p. 184 et seq. 79 – Moreover, a joint statement by various Member States in respect of a case before the US Supreme Court, to which the claimants refer, related to stricter requirements on ships and their crew but not to a stricter standard of liability (Annex 16 to the claimants’ written observations). This case concerned stricter rules of the State of Washington (see the Petition for a Writ of Certiorari of the United States in Case No 98-1701, United States of America v Gary Locke and Others, http://www.usdoj.gov/osg/briefs/1998/2pet/7pet/98-1701.pet.aa.pdf, p. 9). However, highlighting the need for uniform standards for ships and crews in that statement is not inconsistent with advocating stricter standards of liability. 80 – Case 169/80 Gondrand Frères and Garancini [1981] ECR 1931, paragraph 17; Case C‑143/93 Van Es Douane Agenten [1996] ECR I‑431, paragraph 27; Case C‑110/03 Belgium v Commission [2005] ECR I‑2801, paragraph 30; and IATA and ELFAA, cited in footnote 13, paragraph 68. 81 – See also Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑0000, paragraph 49, with reference to the judgments in Joined Cases C‑74/95 and C‑129/95 X [1996] ECR I‑6609, paragraph 25, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 215 to 219. 82 – Advocaten voor de Wereld, cited in footnote 81, paragraph 50, with reference to the European Court of Human Rights judgment of 22 June 2000 in Coëme and Others v Belgium, Reports 2000‑VII, p. 1, § 145. See also the European Court of Human Rights judgments of 29 March 2006 in Achour v France, § 41, and of 15 November 1996 in Cantoni v France, Reports 1996‑V, p. 1627, § 29. 83 – See in that regard the judgment of the Court of Justice in X, cited above in footnote 81, paragraphs 24 and 25, with reference to the judgments of the European Court of Human Rights of 25 May 1993 in Kokkinakis v Greece, Series A No 260-A, § 52, and of 22 November 1995 in S.W. v United Kingdom and C.R. v United Kingdom, Series A No 335‑B, § 35, and No 335‑C, § 33. See also the judgments of the Court of Justice in Case 63/83 Kirk [1984] ECR 2689, paragraph 22, Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 13, Case C‑168/95 Arcaro [1996] ECR I‑4705, paragraph 42, Case C‑60/02 Criminal proceedings against X [2004] ECR I‑651, paragraph 61 et seq.; and Dansk Rørindustri and Others v Commission, cited in footnote 81, paragraph 221. See also in detail in that regard my Opinions in Case C‑457/02 Niselli [2004] ECR I‑10853, point 53 et seq., and in Joined Cases C‑387/02, C-391/02 and C‑403/02 Berlusconi [2004] ECR I‑3565, point 140 et seq. 84 – The obvious course of action with regard to liability outside the territorial sea would be to make direct use of the wording in Marpol 73/78 rather than of the unclear wording of Article 4 of Directive 2005/35. 85 – See point 103 above. 86 – Dansk Rørindustri and Others v Commission, cited in footnote 81, paragraph 219, with reference to the European Court of Human Rights judgment in Cantoni, cited in footnote 82, § 35. 87 – Judgments of the European Court of Human Rights in S.W., cited in footnote 83, § 36, and C.R., cited in footnote 83, § 34, Streletz, Keßler and Krenz v Germany, 22 March 2001, Reports 2001‑II, § 50, and Radio France and Others v France, 30 March 2004, Reports 2004-II, § 20. 88 – See point 91 above. 89 – Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraphs 38 and 39, with further references. 90 – Case C‑408/95 Eurotunnel and Others [1997] ECR I‑6315, paragraphs 33 and 34. 91 – IATA and ELFAA, cited in footnote 13, paragraph 67.