Opinion of the Advocate General — ECLI:EU:C:2024:410
Date: 2024-05-16
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of agreed facts, the High Court of Justice (England & Wales) (United Kingdom) explains that ‘the fire on the ship burned unchecked for four days and caused such extensive damage that there were serious concerns regarding the integrity of what remained of the ship; the heat and smoke generated created a risk of explosion and a toxic smoke hazard on the ship, which greatly impaired the work of [the salvors]. Indeed, flare-ups were still detected even after the ship arrived at its port of refuge (over a month later)’. See judgment of 2 November 2022, MSC Mediterranean Shipping Company SA v Stolt Tank Containers BV & Ors [2022] EWHC 2746 (Admlty), Appendix, point A.8. 8 See ‘Neue Explosionen auf deutschem Frachter’, Rheinische Post, 18 July 2012, available at: https://rp-online.de/panorama/ausland/neue-explosionen-auf-deutschem-frachter_aid-14108635. 9 I have taken this data from the judgment of the Court of Appeal (England & Wales) (United Kingdom) in MSC Mediterranean Shipping Company S.A. v Stolt Tank Containers BV & Others (Re ‘MSC Flaminia’ (No. 2)) [2023] EWCA Civ 1007, paragraph 7. 10 See Bundesstelle für Seeunfalluntersuchung (Federal Bureau of Maritime Casualty Investigation, Germany), ‘Untersuchungsbericht 255/12 – Sehr schwerer Seeunfall – Brand und Explosion an Bord der MSC Flaminia am 14. Juli 2012 auf dem Atlantik und die sich daran anschließenden Ereignisse’, 28 February 2012, p. 122 (‘the BSU Investigation Report’). According to that report, the Flaminia found itself approximately 740 nm from the port of Bantry Bay (Ireland), 890 nm from the port of Vigo (Spain), 900 nm from the port of Falmouth (United Kingdom), 930 nm from the port of Brest (France), 970 nm from the port of Gijon (Spain), and 1000 nm from the port of St Johns (Canada). 11 That is, despite a number of ports in other States being geographically closer. See BSU Investigation Report, pp. 134 and 135, and judgment of 2 November 2022, MSC Mediterranean Shipping Company SA v Stolt Tank Containers BV & Ors [2022] EWHC 2746 (Admlty), Appendix, points A.9, A.11 and A.12 (explaining that the salvors were in contact with ports and authorities in the United Kingdom, Ireland, France, Belgium, the Netherlands, Portugal and Spain). 12 See BSU Investigation Report, p. 12. 13 The Court of Appeal (England & Wales) explains that that passage required Conti to make payments totalling about EUR 1.9 million to public authorities in the United Kingdom, France, Belgium, and Germany in order to be given permission to sail through the waters of the English Channel and southern North Sea to reach Wilhelmshaven. See Court of Appeal (England & Wales), MSC Mediterranean Shipping Company S.A. v Stolt Tank Containers BV & Others (Re ‘MSC Flaminia’ (No. 2)) [2023] EWCA Civ 1007, paragraph 5. 14 According to the Court of Appeal (England & Wales), this involved the ‘decontaminat[ion] and remov[al of] the firefighting water from the ship’s hold. By 28th February 2013 about 30 000 mt had been removed into barges, from where it was taken to Denmark and destroyed’. See Court of Appeal (England & Wales), MSC Mediterranean Shipping Company S.A. v Stolt Tank Containers BV & Others (Re ‘MSC Flaminia’ (No. 2)) [2023] EWCA Civ 1007, paragraph 6. 15 According to the referring court, the Romanian authorities initially refused the vessel entry due to the waste that was still on board (approximately 24 000 mt) (see order for reference, p. 3). That number deviates slightly from that contained in the judgment of the Court of Appeal (England & Wales), which explains that ‘after the discharge of the majority of the firefighting water, there remained on board the ship approximately 30 500 mt of waste material, consisting of approximately 14 800 mt of fire-damaged solid cargo (i.e. the contents of the containers), 7 800 mt of contaminated water, and 5 400 mt of steel scrap. Most of this steel scrap consisted of damaged cargo containers, but there was also fire-damaged structural steel from the ship. All of this waste material was contaminated by dangerous and toxic residues which needed to be removed before repairs to the ship could be carried out. Conti arranged for this waste to be removed at facilities in Romania’. Court of Appeal (England & Wales), MSC Mediterranean Shipping Company S.A. v Stolt Tank Containers BV & Others (Re ‘MSC Flaminia’ (No. 2)) [2023] EWCA Civ 1007, paragraph 7. 16 That is also confirmed by the factual circumstances set out in the judgment of the Court of Appeal (England & Wales), MSC Mediterranean Shipping Company S.A. v Stolt Tank Containers BV & Others (Re ‘MSC Flaminia’ (No. 2)) [2023] EWCA Civ 1007, paragraph 7. 17 See order of 30 June 2023 of the US Court of Appeals for the Second Circuit in In Re: M/V MSC Flaminia (No 18-2974), p. 48 (finding that ‘Stolt [the manufacturer of the tanks] and Deltech [the manufacturer of DVB] were liable under a failure-to-warn theory … MSC was not negligent in its stowage and handling of the [DVB] shipment … NSB and Conti were not negligent in hiring or training the crew on the Flaminia, and the crew acted reasonably … New Orleans Terminal was not negligent in its handling of the shipment … The Sea Waybills require Stolt and Deltech to indemnify MSC, Conti, and NSB for their losses’). 18 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3. 19 See, for the latest element of that procedure, United States Court of Appeals for the Fifth Circuit, Conti 11 Container Schiffahrts-GmbH & Co KG MS – MSC FLAMINIA – v MSC Mediterranean Shipping Company SA (No 22-30808, judgment of 29 January 2024) (reversing the decision of the United States District Court for the Eastern District of Louisiana). 20 See judgment of 2 November 2022, MSC Mediterranean Shipping Company SA v Stolt Tank Containers BV & Ors [2022] EWHC 2746 (Admlty) (separately, that same court also found that MSC was not entitled to an anti-suit injunction to prevent Conti from seeking to enforce its arbitration award elsewhere; see judgment of 12 April 2022, MSC Mediterranean Shipping Company SA v Stolt Tank Containers BV & Ors [2022] EWHC 835 (Admlty), paragraph 104), and judgment of 1 September 2023, MSC Mediterranean Shipping Company SA v Stolt Tank Containers BV & Ors (Re ‘MSC Flaminia’ (No. 2)) [2023] EWCA Civ 1007. 21 See Supreme Court of the United Kingdom, ‘Permission to Appeal’, December 2023, available at: https://www.supremecourt.uk/pta/permission-to-appeal-2023-12.html. 22 See the judgment in Conti 11. Container Schiffahrt, paragraphs 52, 53 and the operative part. 23 See the judgment in Conti 11. Container Schiffahrt, paragraph 53 and the operative part. 24 It transpires from Conti’s application before the national court of 30 December 2015, which forms part of the national file in this case, that the Oldenburg Trade Supervisory Authority definitively characterised the scrap metal and fire extinguishing water mixed with sludge and cargo residues on board the Flaminia as requiring the commencement of an authorisation and notification procedure under the Waste Shipments Regulation. According to Conti’s application, that decision is registered as Annex K.10 in the national file. However, that document does not form part of the file sent to the Court, such that I am not able to verify whether that this finding was appealed before the referring court. 25 See Council Directive 84/631/EEC of 6 December 1984 on the supervision and control within the European Community of the transfrontier shipment of hazardous waste (OJ 1984 L 326, p. 31). That directive is, in part, based on another directive from 1978, which approximated national provisions on disposal of toxic and dangerous waste already applicable or in preparation in the Member States; see Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43). 26 However, the Basel Convention was not concluded until 1993; see Decision 93/98. It was then also amended in 1997; see Council Decision 97/640/EC of 22 September 1997 on the approval, on behalf of the Community, of the amendment to the Convention on the control of transboundary movements of hazardous wastes and their disposal (Basle Convention), as laid down in Decision III/1 of the Conference of the Parties (OJ 1997 L 272, p. 45). 27 Council Regulation (EEC) of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1); see in particular, recitals 1 and 4 and Article 12(b), Article 14(1), Article 16(1) and (2) and Article 19(1) thereof. See also the third recital of Proposal for a Council Regulation (EEC) on the supervision and control of shipments of waste within, into and out of the European Community (COM(90) 415 final), and the fourth recital of Decision 93/98. 28 See Article 61(1) of the Waste Shipments Regulation, which states that Regulation No 259/93 is repealed from 12 July 2007 onwards. 29 See also, in that regard, Proposal for a regulation of the European Parliament and of the Council on Shipments of Waste (COM(2003) 379 final), p. 5 (explaining that ‘implementing the provisions and principles of the Basel Convention is therefore also a priority in the proposal.’) 30 See recitals 3, 4, and 5 of the Waste Shipments Regulation. 31 See recital 8 of the Waste Shipments Regulation. 32 See recital 9 of the Waste Shipments Regulation. 33 See also recital 7 of the Waste Shipments Regulation (which lays down that ‘it is important to organise and regulate the supervision and control of shipments of waste in a way which takes account of the need to preserve, protect and improve the quality of the environment and human health and which promotes a more uniform application of the Regulation throughout the Community’). See also recitals 18, 22 and 42 thereof. 34 See, also the second recital to the preamble of the Basel Convention, which similarly explains the reason for adopting that convention: ‘Mindful of the growing threat to human health and the environment posed by the increased generation and complexity, and transboundary movement of hazardous wastes and other wastes’. See, similarly, the eighth to tenth and twenty-third and twenty-fourth recitals of the Basel Convention. 35 See Kuplewatzky, N., ‘Trade in dangerous substances (chemicals/waste)’, in Delimatsis, P. and Reins, L., Trade and Environmental Law, Edward Elgar, Cheltenham, 2021, p. 263. 36 See, generally, Müller, S.M., The Toxic Ship: The Voyage of the Khian Sea and the Global Waste Trade, University of Washington Press, Washington D.C., 2023, and in particular pp. 2 to 3 and 34 et seq. The journey of the Khian Sea also gave rise to litigation in the US courts; see, inter alia, US Court of Appeals for the Third Circuit, United States of America v William P. Reilly and John Patrick Dowd, 33 F.3d 1396 (3rd Circuit, 1994). 37 To remedy the problem of deciding on a uniform definition for the concept of ‘hazardous waste’ that is both acceptable by all signatory States and open for enlargement, the Basel Convention follows a dual-pronged approach to determine what types of waste fall within its material scope of application. Thus, waste is considered to fall within that category if it is either (i) listed in Annex I to the Basel Convention and possessing a characteristic provided for in Annex III thereto (see Article 1(1)(a) of the Basel Convention) or (ii) ‘defined as, or [is] considered to be, hazardous waste by the domestic legislation of the Party of export, import or transit’ (see Article 1(1)(b) thereof). Any waste belonging to any category in Annex II to the convention and which are subject to transboundary movement is classified as ‘other wastes’ (see Article 1(2) of the same convention). See, in that regard, the preamble to the Basel Convention and Article 1, Article 4A and Article 6 thereof. 38 Emphasis added. For its part, the concept of ‘area under the national jurisdiction of a State’ is defined as ‘any land, marine area or airspace within which a State exercises administrative and regulatory responsibility in accordance with international law in regard to the protection of human health or the environment’. See Article 2(9) of the Basel Convention. 39 That is to say in line with the requirements of Article 31(1) of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331). 40 See Article 1(3) and Article 1(4), respectively, of the Basel Convention. 41 I consider that the only way to give meaning to the adjective ‘normal’ is to distinguish between ‘normal’ and ‘abnormal’ uses of a ship. To my mind, an unforeseen and accidental chemical fire accompanied by damaging explosions aboard a container ship is not a ‘normal’ operation of that ship. The Basel Convention Secretariat, however, appears to have taken the view that a distinction between ‘normal’ and ‘abnormal’ uses of a ship is not relevant for the purposes of the application of the Basel Convention; see, Basel Convention Secretariat, ‘Legal analysis of the application of the Basel Convention to hazardous and other wastes generated on board ships’ (UNEP/CHW.11/INF/22, 18 February 2023, paragraphs 28 to 29, 31 to 32 and 40). 42 As all the parties to the present case have explained, the EU Treaties and the Waste Shipments Regulation are just two of the instruments that were notified to the Basel Secretariat under Article 11 of the Basel Convention. 43 See, to that effect, Article 1(2) of the Waste Shipments Regulation. 44 See Article 1(1) of the Waste Shipments Regulation. 45 A definition of this concept is included in Article 2(15) of the Waste Shipments Regulation. It covers ‘in the case of a shipment originating from a Member State, any natural or legal person under the jurisdiction of that Member State who intends to carry out a shipment of waste or intends to have a shipment of waste carried out and to whom the duty to notify is assigned’ and, ‘in the case of import into, or transit through, the Community of waste that does not originate in a Member State, any of the following natural or legal persons under the jurisdiction of the country of destination who intends to carry out a shipment of waste or intends to have, or who has had, a shipment of waste carried out, being either: (i) the person designated by the law of the country of destination; or, in the absence of any such designation, (ii) the holder at the time the export took place’. 46 Article 2(10) of the Waste Shipments Regulation explains that the ‘holder’ is ‘the producer of the waste or the natural or legal person who is in possession of it (and as defined in Article 1(1)(c) of Directive 2006/12/EC [of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9)]).’ 47 See Article 7(1) of the Waste Shipments Regulation. For a definition of a competent authority, see Article 2(18) thereof. 48 See Article 9(1) of the Waste Shipments Regulation. 49 See, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube (C‑891/19 P, EU:C:2022:38, paragraphs 31 and 32). 50 Thus, the situation at issue in the present case differs from that in the judgment of 16 July 2015, Commission v Rusal Armenal (C‑21/14 P, EU:C:2015:494, paragraph 48). See also my Opinion in Changmao Biochemical Engineering v Commission (C‑123/21 P, EU:C:2022:890, point 101). 51 See judgment of 27 February 2024, EUIPO v The KaiKai Company Jaeger Wichmann (C‑382/21 P, EU:C:2024:172, paragraphs 70 and 74). On the notion of conform interpretation of EU law in the relation to international law, see my Opinion in EUIPO v The KaiKai Company Jaeger Wichmann (C‑382/21 P, EU:C:2023:576, points 48 to 93). 52 See the judgment in Conti 11. Container Schiffahrt, paragraph 53. 53 See, in particular, paragraphs 48 to 50 of the judgment in Conti 11. Container Schiffahrt. 54 The judgment in Conti 11. Container Schiffahrt, paragraph 49. Emphasis added. 55 The judgment in Conti 11. Container Schiffahrt, paragraph 50. Emphasis added. 56 See Opinion of Advocate General Saugmandsgaard Øe in Conti 11. Container Schiffahrt (C‑689/17, EU:C:2019:62, point 30, emphasis added). In point 75 of his Opinion, the Advocate General explained further: ‘As regards, first, the shipment to Denmark of the fire-extinguishing water pumped out and, secondly, the shipment to Romania of waste not unloaded in Germany, I note that the referring court excluded that part of the problem raised by the facts in the main proceedings from the scope of the reference for a preliminary ruling.’ Moreover, in point 77, he noted that ‘it is questionable whether, in the present case, it would be really useful to the referring court for the Court to interpret Article 1(3)(b) of [the Waste Shipments Regulation] in order to determine whether that provision applies to the shipments of waste in question after the vessel left the German port’. 57 See recitals 4 and 10 of the Basel Convention. See also, to that effect, Article 11 of the Basel Convention. 58 Indeed, in my view, a teleological reading of the Waste Shipments Regulation, which the Court resorted to in the judgment in Conti 11. Container Schiffahrt to mitigate the risk to marine pollution, and therefore to reduce to a minimum the delay of that ship’s arrival in a safe port, would have led to the same conclusion if the Court had had before it a journey between two EU ports, given the primary and overarching environmental objective of the Waste Shipments Regulation. 59 See point 75 of this Opinion. 60 See, by analogy, judgment of 26 November 2015, Total Waste Recycling (C‑487/14, EU:C:2015:780, paragraphs 35 and 36) (explaining that a change of route of a shipment of hazardous waste in the course of an existing journey must be subjected to a new notification procedure given that, as a result of that change, ‘the details of the shipment … no longer correspond to reality and therefore can no longer be considered to have been consented to’). 61 The judgment in Conti 11. Container Schiffahrt, paragraphs 40 and 43. 62 Emphasis added. 63 See Proposal for a regulation of the European Parliament and of the Council on Shipments of Waste (COM(2003) 379 final), p. 49. Emphasis added. 64 Recommendation for Second Reading on the Council common position for adopting a regulation of the European Parliament and of the Council on shipments of waste (A6-0287/2005), Amendment 6, ultimately adopted as European Parliament legislative resolution on the Council common position for adopting a regulation of the European Parliament and of the Council on shipments of waste (P6_TA(2005)0393). Emphasis added. 65 Recommendation for Second Reading on the Council common position for adopting a regulation of the European Parliament and of the Council on shipments of waste (A6-0287/2005), Amendment 6, ultimately adopted as European Parliament legislative resolution on the Council common position for adopting a regulation of the European Parliament and of the Council on shipments of waste (P6_TA(2005)0393), Justification to Amendment 6. 66 Opinion of the Commission pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the European Parliament’s amendments to the Council’s common position regarding the proposal for a Regulation of the European Parliament and of the Council on shipments of waste amending the proposal of the Commission pursuant to Article 250(2) of the EC Treaty (COM(2005) 641 final), p. 3. 67 See, to that effect, the judgment in Conti 11. Container Schiffahrt, paragraph 49. 68 See, in that regard, point 74 of this Opinion. 69 See, by analogy, regarding the strict interpretation of derogations from a general rule, judgment of 28 May 2020, Interseroh (C‑654/18, EU:C:2020:398, paragraph 69). 70 See, in that regard, point 57 of this Opinion. 71 That type of reading also constitutes the only way to ensure the full effectiveness of the notification and consent framework laid down in the Waste Shipments Regulation, since it is perfectly plausible that linking the suspension of the notification procedure to the physical act of offloading may lead to further and protracted litigation surrounding the precise scope of that concept, and thus conduct designed to circumvent the high level of protection of the environment and human health that is necessary where a shipment of hazardous waste passes along the European Union’s waterways.