Opinion of the Advocate General — ECLI:EU:C:2022:104
Date: 2022-02-22
Language of the case: Italian
Subject matter: Asylum policy;External relations;Immigration and asylum policy;Provisions governing the Institutions;Transport;Humanitarian aid;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Italy

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 8 January 2021 – Sea Watch E.V. v Ministero delle Infrastrutture e dei Trasporti, Capitaneria di Porto di Palermo (Case C-14/21) Language of the case: Italian Referring court Tribunale Amministrativo Regionale per la Sicilia Parties to the main proceedings Applicant: Sea Watch E.V. Defendants: Ministero delle Infrastrutture e dei Trasporti, Capitaneria di Porto di Palermo Questions referred (A) Does the scope of Directive 2009/16/EC 1 include – and if so, can port State control (PSC) be exercised against – a ship which has been classified as a cargo ship by the classification society of the flag State but which in practice routinely engages only in non-commercial activities such as search and rescue (SAR) (as in the case of [Sea Watch E.V.] and SW4 [the vessel Sea Watch 4] on the basis of its statute)? If the Court … should find … that the scope of Directive 2009/16/EC also includes ships [that are not actually engaged in trade], does the national legislation enshrined in Article 3 of [Legislative Decree] No 53/2011, which transposed Article 3 of Directive 2009/16/EC but in Article [3(1) of that legislative decree] instead expressly limits the scope of PSC to ships used for commercial purposes, excluding not only pleasure craft but also cargo ships that are not actually engaged in – and so are not used for – trade, represent an obstacle to the directive interpreted thus? Lastly, can the Court reasonably consider that cargo ships which routinely carry out SAR activities for persons in distress at sea fall within the scope of the directive, in so far as it includes passenger ships, following the amendments made in 2017, thereby equating the carriage of persons rescued at sea because their lives are in danger with passenger transport? (B) Does the fact that the ship transported a far greater number of people than the number indicated in the safety equipment certificate, albeit as a result of SAR activities, or otherwise holds a safety equipment certificate covering far fewer persons than the number actually carried, mean that the overriding factors listed in Annex I, Part II 2A or the unexpected factors listed in Annex I, Part II 2B, as referred to in Article 11 of Directive 2009/16/EC, can duly apply to it? (C) Can and/or should the power to conduct a more detailed PSC inspection under Article 13 of Directive 2009/16/EC of ships flying the flag of Member States also include the power to ascertain which activities are carried out in practice by the ship, irrespective of those for which the class certificate and the consequent safety certificates were issued by the flag State and the relevant classification society, and therefore the power to ascertain that the ship is in possession of the certificates and, in general, fulfils the criteria and/or requirements laid down in international standards on safety, pollution prevention and on-board living and working conditions and, if so, may that power also be exercised against a ship which in practice routinely engages in SAR activities? (D) How is Regulation 1(b) [rectius Article 1(b)] of the SOLAS Convention – which is specifically referred to in Article 2 of Directive 2009/16/EC and for which a consistent EU interpretation is, therefore, necessary for the purposes of and in the context of PSC – to be interpreted in so far as it provides that ‘(b) The Contracting Governments undertake to promulgate all laws, decrees, orders and regulations and to take all other steps which may be necessary to give the present Convention full and complete effect, so as to ensure that, from the point of view of safety of life, a ship is fit for the service for which it is intended’? More specifically, regarding the ship’s fitness for the service for which it is intended, which the port States are required to assess by means of PSC inspections, are the requirements imposed in the light of the classification and the relevant safety certificates held, which were obtained on the basis of the theoretical activity declared, to be used as the sole assessment criterion, or may regard also be had to the service that the ship actually provides? Accordingly, with regard to the abovementioned international criterion, do the administrative authorities of port States have the power not only to ascertain the compliance of the equipment and appliances on board with the requirements of the certificates issued by the flag State, based on the theoretical classification of the ship, but also to assess the conformity of the ship’s certificates and the related equipment and appliances on board in the light of the activity carried out in practice, which is different from the one stated in the classification certificate? The same points must be made for paragraph 1.3.1 of International Maritime Organisation (IMO) Resolution A.1138(31) – Procedures for Port State Control, 2019, adopted on 4 December 2019, in so far as it provides that ‘Under the provisions of the relevant conventions set out in section 1.2 above, the Administration (i.e. the Government of the flag State) is responsible for promulgating laws and regulations and for taking all other steps which may be necessary to give the relevant conventions full and complete effect so as to ensure that, from the point of view of safety of life and pollution prevention, a ship is fit for the service for which it is intended and seafarers are qualified and fit for their duties.’ (E) Lastly, were it to be confirmed that the port State has the power to ascertain the possession of the certificates and the fulfilment of the criteria and/or requirements on the basis of the activity for which the ship is specifically intended: (1) can the port State that carried out the PSC inspection require the possession of certificates and the fulfilment of criteria and/or requirements for safety and the prevention of marine pollution other than those already held and fulfilled, in relation to the activities carried out in practice, particularly in the event that SAR activities are as in the present case carried out, so as to avoid the detention of the ship? (2) if point 1 is answered in the affirmative, can the requirement for certificates to be held and criteria and/or requirements to be fulfilled other than those already held and fulfilled, in relation to the activities carried out in practice, particularly in the event that SAR activities are as in the present case carried out, be imposed, so as to avoid the detention of the ship, only if there is a clear and reliable international and/or [EU] legal framework regarding the classification of SAR activities and related certificates and criteria and/or requirements for safety and the prevention of marine pollution? (3) if point 2 is answered in the negative, is the requirement for the possession of certificates and the fulfilment of criteria and/or requirements other than those already held and fulfilled, in relation to the activities carried out in practice, particularly in the event that SAR activities are as in present case carried out, to be imposed on the basis of the national legislation of the flag State and/or that of the port State, and to that end, is primary legislation necessary, or is secondary legislation or even only a general administrative measure sufficient? (4) if point 3 is answered in the affirmative, is it the responsibility of the port State to indicate during the PSC inspection, in a precise and specific manner, on the basis of which national legislation, regulation or general administrative measure (identified pursuant to point (3)) the criteria and/or technical requirements for safety and the prevention of marine pollution are to be identified – which the ship undergoing the PSC inspection must meet in order to carry out SAR activities – and exactly which corrective/remedial actions are required to ensure compliance with such legislation, regulation or administrative measures? (5) in the absence of any legislation, regulation or general administrative measure of the port State and/or of the flag State, can the port State authority indicate, for the case at issue, the criteria and/or technical requirements for safety, the prevention of marine pollution and the protection of life and work on board, which the ship undergoing the PSC inspection must comply with in order to carry out SAR activities? (6) if questions 4 and 5 are answered in the negative, can SAR activities, in the absence of specific guidance from the flag State to that effect, be considered authorised in the meantime and thus unable to be hindered by a detention order if the ship undergoing the PSC inspection fulfils the above criteria and/or requirements for a different category (particularly cargo ships), which the flag State has confirmed actually exist? ____________ 1 Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (OJ 2009 L 131, p. 57).