62006CC0308_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. The issue to be examined in this case is whether provisions 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  (2) are compatible with higher-ranking law.
2. The International Association of Independent Tanker Owners (Intertanko), the International Association of Dry Cargo Shipowners (Intercargo), the Greek Shipping Co-operation Committee, Lloyd’s Register and the International Salvage Union (‘the claimants’) have brought before the High Court of Justice a joint action against the United Kingdom’s Secretary of State for Transport in connection with the planned implementation of the directive. The abovementioned organisations are major associations within the international maritime transport industry. Intertanko, for instance, represents almost 80% of the world’s tanker fleet.
3. The issue in dispute is whether Articles 4 and 5 of Directive 2005/35 are compatible with the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982 (3) (‘the Convention on the Law of the Sea’), to which the Community acceded in 1998, (4) and the 1973 International Convention for the Prevention of Pollution from Ships and the 1978 Protocol thereto (5) (‘Marpol 73/78’). These provisions lay down criminal liability for discharge violations. Uncertainty arises particularly because the directive appears to provide for a stricter standard of liability than does Marpol 73/78. Under the directive, serious negligence in particular is sufficient, whereas Marpol 73/78 provides for at least recklessness and knowledge that damage will probably result.
4. Furthermore, the question arises as to whether the standard of liability of serious negligence is compatible with the principle of legal certainty.
II – Legal context
A – Community law
5. Directive 2005/35 was based on Article 80(2) EC, which forms the legal basis for measures relating to maritime transport.
6. The reasons for the adoption of the directive are clear in particular from recitals (2) and (3) in the preamble thereto:
‘(2) The material standards in all Member States for discharges of polluting substances from ships are based upon the Marpol 73/78 Convention; however, these rules are being ignored on a daily basis by a very large number of ships sailing in Community waters, without corrective action being taken.
(3) The implementation of Marpol 73/78 shows discrepancies among Member States and there is thus a need to harmonise its implementation at Community level; in particular, the practices of Member States relating to the imposition of penalties for discharges of polluting substances from ships differ significantly.’
7. Article 3 lays down the scope of the directive:
‘1. This Directive shall apply, in accordance with international law, to discharges of polluting substances in:
(a) the internal waters, including ports, of a Member State, in so far as the Marpol regime is applicable;
(b) the territorial sea of a Member State;
(c) straits used for international navigation subject to the regime of transit passage, as laid down in Part III, section 2, of the 1982 United Nations Convention on the Law of the Sea, to the extent that a Member State exercises jurisdiction over such straits;
(d) the exclusive economic zone or equivalent zone of a Member State, established in accordance with international law; and
(e) the high seas.
2. This Directive shall apply to discharges of polluting substances from any ship, irrespective of its flag, with the exception of any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service.’
8. In this case doubt is cast on the validity of Articles 4 and 5, which are worded as follows:
‘Article 4
Infringements
Member States shall ensure that ship-source discharges of polluting substances into any of the areas referred to in Article 3(1) are regarded as infringements if committed with intent, recklessly or by serious negligence. These infringements are regarded as criminal offences by, and in the circumstances provided for in, Framework Decision 2005/667/JHA supplementing this Directive.
Article 5
Exceptions
1. A discharge of polluting substances into any of the areas referred to in Article 3(1) shall not be regarded as an infringement if it satisfies the conditions set out in Annex I, Regulations 9, 10, 11(a) or 11(c) or in Annex II, Regulations 5, 6(a) or 6(c) of Marpol 73/78.
2. A discharge of polluting substances into the areas referred to in Article 3(1)(c), (d) and (e) shall not be regarded as an infringement for the owner, the master or the crew when acting under the master’s responsibility if it satisfies the conditions set out in Annex I, Regulation 11(b) or in Annex II, Regulation 6(b) of Marpol 73/78.’
B – International law
1. Convention on the Law of the Sea
9. The Convention on the Law of the Sea contains rules on the prosecution of environmental pollution at sea.
10. The first sentence of Article 211(1) provides for the development of international environmental protection standards:
‘States, acting through the competent international organisation or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimise the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States.’
11. The powers of coastal States to make rules with regard to exclusive economic zones are set out in Article 211(5):
‘Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organisation or general diplomatic conference.’
12. Under Article 42(1)(b), provisions similar to those applicable to the exclusive economic zone apply to straits:
‘(1) Subject to the provisions of this section, States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following:
…;
(b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait;
…’
13. Individual States’ powers to make rules regarding the high seas are in principle excluded by Article 89:
‘No State may validly purport to subject any part of the high seas to its sovereignty.’
14. Article 218(1), however, provides for the prosecution of discharge offences:
‘When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organisation or general diplomatic conference.’
15. Different provisions apply in the territorial sea. Article 2 governs the sovereignty of a coastal State in this area.
‘1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.’
16. Article 211(4) contains general rules on environmental protection provisions concerning the territorial sea:
‘Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels.’
17. Article 21 lays down which laws and regulations of the coastal State relating to innocent passage are permitted:
‘1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:
…
(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
…
2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.
3. …
4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.’
2. Marpol 73/78
18. Marpol 73/78 was agreed within the framework of the International Maritime Organisation (‘the IMO’). While all of the Member States – in so far as is relevant in this case – have acceded to it, (6) there is no provision for the Community to do so (Article 13).
19. Article 4 of Marpol 73/78 provides as follows:
‘(1) Any violation of the requirements of the present Convention shall be prohibited and sanctions shall be established therefor under the law of the Administration of the ship concerned wherever the violation occurs. If the Administration is informed of such a violation and is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, it shall cause such proceedings to be taken as soon as possible, in accordance with its law.
(2) Any violation of the requirements of the present Convention within the jurisdiction of any Party to the Convention shall be prohibited and sanctions shall be established therefor under the law of that Party. Whenever such a violation occurs, that Party shall either:
(a) cause proceedings to be taken in accordance with its law; or
(b) furnish to the Administration of the ship such information and evidence as may be in its possession that a violation has occurred.
(3) Where information or evidence with respect to any violation of the present Convention by a ship is furnished to the Administration of that ship, the Administration shall promptly inform the Party which has furnished the information or evidence, and the Organisation, of the action taken.
(4) …’
20. Article 9 contains rules on the relationship with other international agreements and on the interpretation of the term ‘jurisdiction’.
‘Article 9
(1) ...
(2) Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to Resolution 2750 C(XXV) of the General Assembly of the United Nations nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.
(3) The term “jurisdiction” in the present Convention shall be construed in the light of international law in force at the time of application or interpretation of the present Convention.’
21. The provisions on oil pollution by shipping are laid down in Annex I to Marpol 73/78. (7) Regulations 9 and 10 contain restrictions prohibiting discharges in special areas within a minimum distance from land or of more than a specific quantity (as a rate of discharge per nautical mile, as a total quantity or as the oil content of the discharge). The discharge from vessels of oil or oily mixtures into the sea is thus prohibited unless a number of conditions are satisfied.
22. However, Regulation 11 of Annex I lays down exceptions to the prohibitions on discharge:
‘Regulations 9 and 10 of this Annex shall not apply to:
(a) the discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving life at sea; or
(b) the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment:
(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimising the discharge; and
(ii) except if the owner or the master acted either with intent to cause damage, or recklessly (8) and with knowledge that damage would probably result; or
(c) the discharge into the sea of substances containing oil, approved by the Administration [of the flag State], when being used for the purpose of combating specific pollution incidents in order to minimise the damage from pollution. Any such discharge shall be subject to the approval of any Government in whose jurisdiction it is contemplated the discharge will occur.’ ( Footnote 8 added. )
23. Annex II (9) to Marpol 73/78 contains provisions similar to those in Annex I. However, these provisions do not apply to oil or oily mixtures but to noxious liquid substances in bulk. Regulation 5 of Annex II prohibits the discharge into the sea of specified substances. Regulation 6(b) of Annex II provides:
‘Regulation 5 of this Annex shall not apply to:
…
(b) the discharge into the sea of noxious liquid substances or mixtures containing such substances resulting from damage to a ship or its equipment:
(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimising the discharge; and
(ii) except if the owner or the master acted either with intent to cause damage, or recklessly  (10) and with knowledge that damage would probably result.’ ( Footnote 10 added. )
III – The reference for a preliminary ruling
24. At the request of the claimants the High Court of Justice has referred the following questions to the Court of Justice for a preliminary ruling:
(1) In relation to straits used for international navigation, the exclusive economic zone or equivalent zone of a Member State and the high seas, is Article 5(2) of Directive 2005/35/EC invalid in so far as it limits the exceptions in Annex I Regulation 11(b) of MARPOL 73/78 and in Annex II Regulation 6(b) of MARPOL 73/78 to the owners, masters and crew?
(2) In relation to the territorial sea of a Member State:
(a) Is Article 4 of the Directive invalid in so far as it requires Member States to treat serious negligence as a test of liability for discharge of polluting substances; and/or
(b) Is Article 5(1) of the Directive invalid in so far as it excludes the application of the exceptions in Annex I Regulation 11(b) of MARPOL 73/78 and in Annex II Regulation 6(b) of MARPOL 73/78?
(3) Does Article 4 of the Directive, requiring Member States to adopt national legislation which includes serious negligence as a standard of liability and which penalises discharges in territorial sea, breach the right of innocent passage recognised in the Convention on the Law of the Sea and, if so, is Article 4 invalid to that extent?
(4) Does the use of the phrase ‘serious negligence’ in Article 4 of the Directive infringe the principle of legal certainty and, if so, is Article 4 invalid to that extent?
25. The claimants in the main proceedings, the Kingdom of Denmark, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Malta, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland, the European Parliament, the Council of the European Union and the Commission of the European Communities have submitted observations to the Court. All of the abovementioned parties, other than the Kingdom of Denmark and the Republic of Estonia, made submissions at the hearing on 25 September 2007.
IV – Legal appraisal
26. Below I shall first examine various uncertainties as to the admissibility of the request for a preliminary ruling and the jurisdiction of the Court of Justice (see A below). I shall then deal with the first question concerning the standard of liability in respect of discharge offences outside the territorial sea, that is to say, on the high seas, in straits used for international navigation and in the exclusive economic zone. As will be seen, Marpol 73/78 defines definitively the standard of liability to be applied in these areas of the sea by reason of its interaction with the Convention on the Law of the Sea (see B below). By contrast, in the territorial sea, which is to be considered in the second and third questions, Marpol 73/78 has at most the function of a minimum standard – binding only on the Member States but not on the Community – in particular because the Convention on the Law of the Sea does not restrict rule-making powers in this area, which forms part of the territory of the coastal States, to the same extent as in other areas of the sea (see C below). Finally, it will be necessary to examine whether the standard of liability of serious negligence is compatible with the principle of legal certainty (see D below).
A – Admissibility of the request for a preliminary ruling
27. The French Government has doubts as to the admissibility of the reference. It contends that, unlike in British American Tobacco, (11) the referring court has failed to show that the main action concerns the lawfulness of the intended transposition of the directive at issue. Furthermore, it argues, there is no disagreement between the parties to the main proceedings, at least as regards the first question.
28. These objections are based on the fact that, in exceptional circumstances, it is for the Court to examine the conditions in which a case has been referred to it by the national court, in order to assess whether it has jurisdiction. (12) It is settled case-law that a reference from a national court may be refused only if it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (13) Save for such cases, the Court is, in principle, bound to give a preliminary ruling on questions concerning the interpretation of Community law. (14) In this connection the term ‘interpretation’ also includes the examination of validity. (15)
29. The French Government provides no evidence that the questions referred or the main action are hypothetical. Rather, it is clear that the main action relates to actual facts and that the questions referred are central to the resolution of this dispute. Nor does the Court require further material on the nature of the main action in order to answer the questions referred to it. On the contrary, since the judgment in British American Tobacco (16) the Court has been aware that in the United Kingdom it is possible to bring an action seeking to prevent implementation of a directive which may result in questions on the validity of that directive being referred to the Court. Therefore, in spite of the French Government’s doubts as to its admissibility, the request for a preliminary ruling cannot be refused.
30. Furthermore, Denmark and the Council question whether the Court has jurisdiction to interpret the Convention on the Law of the Sea. The Convention was concluded by the Community and all of its Member States on the basis of shared competence. (17) Therefore, in principle the Court does not have jurisdiction to interpret provisions which fall within the exclusive competence of the Member States. Only in exceptional circumstances may it have the power to interpret such rules in order to establish whether or not they fall within the exclusive competence of the Member States. (18)
31. However, the Court has ruled that, within the specific context of the Convention on the Law of the Sea, a finding that there is shared competence is contingent on the existence of Community rules within the areas covered by the Convention provisions in issue, irrespective of what may otherwise be the scope and nature of those rules. (19) In other words, as regards the Convention on the Law of the Sea the Community at least also has competence for the matters covered by it, if any relevant Community law in fact exists at all, regardless of whether the rules of Community law are definitive or the Member States retain certain margins of discretion.
32. Consequently, the argument put forward by Denmark and the Council that the Court does not have jurisdiction cannot be upheld in this case. It must be assumed that the provisions of the Convention on the Law of the Sea relevant to an examination of Directive 2005/35 at least fall within an area of Community competence shared with the Member States. Were this not the case, the directive would have to be repealed on the ground that it did not have a sufficient legal basis. However, none of the parties disputes the legal basis of the directive.
33. Therefore, the Court of Justice does have jurisdiction to interpret the relevant provisions of the Convention on the Law of the Sea.
B – First question – Liability of persons not referred to in Marpol 73/78
34. The first question concerns the liability of persons not referred to in Marpol 73/78 for discharges outside the territorial sea. The claimants, Greece, Malta and Cyprus consider that the rules in question are incompatible with Marpol 73/78.
35. Consequently, it is necessary to determine, first of all, whether Marpol 73/78 is the criterion for determining the legality of Directive 2005/35 and, if so, whether Marpol 73/78 limits liability for accidental discharges in the manner alleged by the claimants.
1. Marpol 73/78 as the criterion for determining the legality of Directive 2005/35
36. The parties put forward a variety of arguments which may justify use of Marpol 73/78 as the criterion for determining the legality of Directive 2005/35. Firstly, the Community may be bound by Marpol 73/78 under international law (see (a) below). Secondly, Marpol 73/78 could be indirectly binding on the Community in so far as the Convention on the Law of the Sea restricts the Community’s rule‑making powers with reference to the Marpol standards (see (b) below). Thirdly, Marpol 73/78 may be binding by dint of the fact that Directive 2005/35 is intended to harmonise implementation of the Marpol Convention at Community level (see (c) below).
a) Binding effect of Marpol 73/78 on the Community under international law
37. As the Council and the Commission point out, the Court ruled in Peralta
that the Community is not bound by the provisions of Marpol 73/78. (20)
38. As at the time of that judgment, the Community is also at present not a party to Marpol 73/78. As a rule, the lawfulness of a Community instrument cannot depend on its conformity with an international agreement to which the Community is not a party. (21)
39. Contrary to the view taken by Cyprus and the United Kingdom, it also does not follow from the judgment in Poulsen and Diva Navigation (22) that the Community is automatically bound by any international law. Although the Court holds that the Community must respect international law in the exercise of its powers, its subsequent comments show that this statement relates to customary international law. (23) In the present case, however, there is no evidence that the relevant provisions of Marpol 73/78 codified customary international law.
40. By contrast, it is not possible to reject out of hand a second hypothesis put forward in Peralta
concerning the binding effect of Marpol 73/78 on the Community, namely that the latter assumed the powers previously exercised by the Member States in the field to which this convention applies. (24) This argument put forward by the claimants relates to the case-law on the binding effect of GATT before the Community had acceded to it. (25) In that respect the Court took account of a number of factors.
41. GATT is an agreement of the Member States which was already in existence when the Community was established, but at the time of the judgment in International Fruit Company
the relevant trade-policy powers had been transferred in their entirety to the Community. Therefore, the Community alone was able to act within the areas covered by GATT. Accordingly, and with the agreement of both the Member States and the other parties to GATT, the Community acted on behalf of the Member States within the framework of GATT.
42. Unlike in the case of trade policy, in the present case the Community has no exclusive competence under the Treaty to lay down rules on the discharge by ships of pollutants into the sea. This competence – either under Article 80(2) EC concerning transport policy or Article 175 EC concerning policy on the environment (26) – is instead competitive in nature, that is to say, it remains with the Member States so long and in so far as it is not exercised by the Community. (27) Although the Community exercised this competence at the latest when it adopted Directive 2005/35, it should not be concluded that it thereby assumed the relevant areas of competence of the Member States in their entirety since, according to its Article 1(2), the directive merely lays down a minimum standard beyond which the Member States may go, subject to international law.
43. Irrespective of whether or not the Community’s competence is now exclusive, there must also be doubts as to whether such an assumption of powers resulting from the exercise of competence is sufficient as a basis on which to conclude that the Member States’ obligations under international law are binding on the Community. In any event, the assumption of trade-policy powers, to which GATT related, was laid down expressly in the Treaty. Thus, Peralta
refers to assumption ‘under the … Treaty’. (28) Moreover, in a case with similar facts the Court ruled that the Convention on the Grant of European Patents, signed at Munich on 5 October 1973, was not binding, (29) even though Directive 98/44, (30) under examination in that case, had partially harmonised implementation of that convention. (31)
44. Furthermore, it has not been submitted that the Community acted as the successor to the Member States in connection with Marpol 73/78 or that such action was agreed to by the other parties, as in the case of GATT. The Community has merely observer status at the IMO, within the competence of which Marpol 73/78 falls.
45. Therefore, it cannot be validly argued that the Community is bound by Marpol 73/78 on the ground that it has assumed powers of the Member States.
b) Reference by the Convention on the Law of the Sea to Marpol 73/78
46. As most of the parties submitted in the written procedure, Marpol 73/78 may have been incorporated as a test standard into Community law by the Convention on the Law of the Sea.
47. Under Article 300(7) EC, agreements concluded under the conditions set out in that article are to be binding on the institutions of the Community and on Member States. The Convention on the Law of the Sea was signed by the Community and subsequently approved by Decision 98/392. It follows, according to settled case-law, that the provisions of that convention now form an integral part of the Community legal order. (32)
48. International agreements concluded by the Community prevail over provisions of secondary Community legislation. (33) Therefore, the Court reviews the legality of acts of the Community institutions in the light of the provisions of such agreements, subject to the reservation that neither the nature nor the broad logic of the agreement in question precludes such application. In any event, where individuals seek to rely thereon, the provisions in question must, as regards their content, be unconditional and sufficiently precise. (34)
49. In the view of the French Government and the Council, which the Italian, Spanish and Swedish Governments and the Parliament supported at the hearing, both conditions preclude individuals from relying on the Convention on the Law of the Sea.
50. In view of the Court’s previous case-law, this submission is surprising. Particularly worthy of note is the judgment in Poulsen and Diva Navigation, the issue in which was whether a prohibition on fishing laid down in a Community fisheries regulation could be invoked in criminal proceedings as against the Danish master of a Panamanian-registered vessel. In that case the Court referred to the Convention on the Law of the Sea as an expression of international customary law even before its entry into force in order to establish that the vessel concerned could be attributed solely to the flag State (35) and to rule out the application to that vessel of the prohibition on fishing in the exclusive economic zone and in the territorial sea. (36) Therefore, the Court already acknowledged in principle that individuals can rely on rules laid down in the Convention on the Law of the Sea. At the hearing the claimants correctly pointed out that it would be completely incomprehensible if they were to be deprived of this opportunity after the Convention on the Law of the Sea had entered into force.
51. Nor does the case-law since the entry into force of the Convention on the Law of the Sea contain any indications to that effect. Thus, for example, the Court has derived the liability of flag States under international law from Article 94 of the Convention on the Law of the Sea (37) and recently defined the territorial scope of the Sixth VAT Directive (38) on the basis of the rules on States’ sovereign rights in the different sea areas. (39) These rules are also once more of interest in the present case.
52. In those cases, however, the Court did not examine either the nature or the broad logic of the Convention on the Law of the Sea or establish whether the provisions here in question are, as regards their content, unconditional and sufficiently precise. It is therefore necessary to examine the objections to the application of the provisions of the Convention on the Law of the Sea in this case.
53. An important motivating factor for the Council appears to lie in the fact that non-member countries do not, to its knowledge, apply the Convention on the Law of the Sea in their national law. It submits, in particular, that clarification by the courts of matters relating to interpretation of the Convention on the Law of the Sea is generally avoided. Even if this submission were correct, it would not automatically preclude application in Community law. (40) Instead, the Convention on the Law of the Sea must be examined.
54. With regard to the nature and broad logic of the Convention on the Law of the Sea, the Council, in particular, emphasises its focus on global matters to be regulated at international level and in accordance with the principle of reciprocity. It contends that territorial questions and the functions assigned to States per se are also involved. Finally, the Convention on the Law of the Sea provides for a variety of dispute resolution procedures which confer on the contracting States a degree of flexibility.
55. In brief, the submission seeks to apply the case-law on the particular nature of the GATT and WTO Agreements to the Convention on the Law of the Sea. However, the argument concerning reciprocity in particular is at odds with the nature of the Convention on the Law of the Sea as a ‘constitution of the sea’, which was repeatedly put forward at the hearing. According to the fourth recital in its preamble, the Convention seeks to establish an objective
‘legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources …’.
56. The reference to peaceful use is directed precisely also at individuals involved in maritime transport. This is emphasised by the rules on non-military shipping. Traditionally such shipping is operated for the most part by private individuals who have a vital interest in States complying with the rules on maritime transport laid down in the Convention on the Law of the Sea. This is true, for example, of the rules on innocent passage, which will be addressed below, but also more generally of the rules on competence relating to ship-source pollution.
57. The dispute-settlement schemes provided for by the Convention on the Law of the Sea do not prevent the Court from referring to the provisions of the Convention to examine the legality of secondary Community law. These rules do not establish exclusive competence on the part of other institutions to interpret the Convention on the Law of the Sea. On the contrary, the freedom of the contracting States, emphasised by the Council, to agree on dispute-settlement procedure freely amongst themselves pursuant to Article 280 of the Convention on the Law of the Sea rules out any exclusive powers. (41)
58. Contrary to what is argued by some, the ‘flexibility’, or rather the possibility, of choosing the dispute-settlement procedure is by no means an indication of the flexibility of the other provisions of the Convention on the Law of the Sea. Neither the rules on dispute settlement nor any other provision of the Convention on the Law of the Sea provide the contracting States, in general terms, with flexibility or opportunities to derogate from the rules of the Convention.
59. The Convention on the Law of the Sea therefore constitutes the criterion for the legality of the actions of Community institutions. The degree to which individuals can rely on it can consequently be determined solely on the basis of each respective relevant provision. Such provisions must, as regards their content, be unconditional and sufficiently precise.
60. This case does not relate to the powers of Member States to adopt rules on ships flying their respective flags. Rather, the first question concerns the rules which Article 4 and Article 5(2) of Directive 2005/35 lay down concerning all ship-source pollution in straits, in the exclusive economic zone or on the high seas, regardless of whether or not the ships involved are flagged to a Member State. The Court has already held that the power to make rules in these areas, that is to say, outside the sovereign territory of the Member States, must be determined in accordance with the Convention on the Law of the Sea. (42) The rules relevant to the first question are laid down in Articles 87, 89, 218(1), 55, 58, 211(5) and 42(1)(b) of the Convention on the Law of the Sea.
61. Article 87(1)(a) guarantees freedom of navigation on the high seas. Article 89 prohibits States in principle from subjecting any part of the high seas to their sovereignty. However, under Article 218(1), when a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations. Where the evidence so warrants, the harbour State may institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State, on condition that the discharge violates applicable international rules and standards established through the competent international organisation or general diplomatic conference. (43) Such proceedings presuppose that the State concerned is entitled to impose penalties for such discharges on the high seas.
62. Under Article 58(1) of the Convention on the Law of the Sea, the freedom of navigation applies also in the exclusive economic zone. The sovereignty of the coastal State over this zone is functional and under Article 55 of the Convention on the Law of the Sea is limited to the competence conferred on it by that convention. (44) Under Article 211(5), coastal States, for the purpose of enforcement as provided for in Section 6 of the Convention on the Law of the Sea, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels which conform and give effect to generally accepted international rules and standards established through the competent international organisation or general diplomatic conference.
63. By reason of this function, straits used for international navigation are subject to special provisions set out in Part III of the Convention on the Law of the Sea. Under Article 42(1)(b), States bordering straits may adopt laws and regulations relating to transit passage through straits in respect of, inter alia, the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait.
64. Consequently, it is clear from these provisions that the Community, in the exercise of the powers assumed by Member States, may lay down penalties for discharges into the sea areas here in issue where they infringe generally recognised international rules.
65. These provisions are not unconditional in so far as they require the adoption of corresponding international standards. However, the Commission correctly points out that this condition is satisfied by Marpol 73/78. As is clear in particular from recital (2) in the preamble to Directive 2005/35 and from Article 1(1) thereof, the generally recognised international rules are the requirements laid down in Marpol 73/78. None of the parties contends that these requirements are not sufficiently clear and unconditional.
66. Whether or not the provisions in question are directly applicable and – correlatively – whether they confer rights on individuals is not conclusive for the purpose of responding to the request for a preliminary ruling. Even the legal bases of the Treaties are in principle not directly applicable in the sense that individuals can derive from them rights or legal consequences to their benefit. Nevertheless, individuals may question the legality of rules of secondary law by contesting the legal basis thereof. (45) That is precisely the situation in the present case: it is here necessary to examine whether the Community is entitled under the Convention on the Law of the Sea to adopt the contested provisions of Directive 2005/35.
67. However, even if the Court were to regard the rights of individuals as an essential prerequisite for the application of the abovementioned provisions as a test of legality, the situation would be no different. In Poulsen and Diva Navigation (46) it referred to the freedom of navigation under Article 87(1)(a) and Article 58(1) of the Convention on the Law of the Sea. The Community may encroach on these rights outside the territorial sea only in so far as the Convention on the Law of the Sea confers rule-making powers on it.
68. Since, under the Convention on the Law of the Sea, only rules on discharges which implement Marpol 73/78 are permitted outside the territorial sea, the Community may not, for the sea areas in question, adopt more extensive rules. (47)
69. By contrast, Italy’s view that more stringent protective measures could be adopted and applied outside the territorial sea in spite of these provisions is unconvincing. It is true that States must protect the marine environment, as expressed in particular in Article 192 of the Convention on the Law of the Sea. However, this duty is given concrete expression outside the territorial sea by the abovementioned provisions, which give effect to the common
international standards developed pursuant to Article 211(1). This reference to common standards is justified by the fact that unilateral measures could place an unreasonable burden on international shipping. This is particularly true on the high seas, where it is possible to imagine a large number of different standards of protection applying in parallel.
70. Consequently, through the reference in the above provisions of the Convention on the Law of the Sea concluded by the Community Marpol 73/78 is the test standard applicable to Directive 2005/35 outside the territorial sea. In this respect it should be borne in mind that under the Convention on the Law of the Sea only rules which comply with Marpol 73/78, that is to say, rules which implement the standard of protection laid down therein, are permitted. By contrast, rules which go beyond Marpol 73/78 are not permitted in these sea areas.
c) Implementation of Marpol 73/78
71. The claimants in particular relied for the examination of Directive 2005/35 on the basis of Marpol 73/78 also on the fact that the directive is designed to harmonise implementation of that convention in the Member States. I will examine this argument at this juncture in the alternative in case the Court does not apply the Convention on the Law of the Sea as the criterion for the legality of the directive.
72. As the claimants and the Danish, Greek, Maltese, Swedish and Cypriot Governments point out, there are a number of factors which suggest that Directive 2005/35 should not derogate from Marpol 73/78. According to Article 1(1), the purpose of the directive is to incorporate international standards for ship-source pollution into Community law. According to recital (2) in the preamble, these standards are set out in Marpol 73/78, to which Article 2(1) (48) of the directive refers in the form of a dynamic reference. According to recital (3) in the preamble, implementation of this convention by the Member States is to be harmonised by the directive. In particular, according to recital (15), (49) penalties for violations of these international standards are to be established. However, no express indications of an intended derogation from Marpol 73/78 are to be found in the wording of Directive 2005/35.
73. The assumption that the Community is bound through the implementation of obligations under international law is also based on case-law developed in connection with GATT. It is true that, given their nature and structure, GATT and the WTO Agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions. (50) However, where the Community has intended to implement a particular obligation assumed in the context thereof, or where the Community measure refers expressly to the precise provisions of those agreements, it is for the Court to review the legality of the Community measure in question in the light thereof. (51)
74. However, this case-law is based on the fact that GATT and the WTO Agreements form part of Community law and are therefore in principle binding on the Community per se. (52) By contrast, in the case of the implementation of Marpol 73/78 by Directive 2005/35 no obligation has been assumed by the Community.
75. None the less, the Court has at least intimated that Directive 98/44 should be reviewed in the light of the Convention on the Grant of European Patents, (53) even though it was only the Member States, and not the Community, that were parties to it. (54) As grounds for embarking on the examination, the Court stated that it was argued that the directive imposed obligations on the Member States, fulfilment of which would breach their own obligations under international law, even though the directive itself claimed not to affect those obligations. (55)
76. However, there is no discernible legal basis for examining secondary law on the basis of international-law obligations of the Member States which the Community has not itself assumed. Rather, such an examination would run counter to the finding made in the judgment in Netherlands v Parliament and Council that the Community is not
bound by the Member States’ obligations under international law. (56)
77. Accordingly, the Community can in principle require the Member States to take measures which run counter to their obligations under international law. This is already demonstrated by Article 307 EC, which governs inconsistencies between pre-existing international agreements and Community law. Even if the Member States’ obligations under pre-existing agreements are initially unaffected by conflicts with Community law, the Member States must nevertheless take all appropriate measures to put an end to such conflicts. This may even require the denunciation of international agreements. (57) Member States cannot in principle invoke agreements concluded after accession as against Community law. (58)
78. A conflict between Community law and Member States’ obligations under international law will, however, always give rise to problems and is likely to undermine the practical effectiveness of the relevant provisions of Community law and/or of international law. It is therefore sensible and dictated by the principle of cooperation between Community institutions and Member States that efforts be made to avoid conflicts, particularly in the interpretation of the relevant provisions. This applies in particular where the Community measure concerned – as in this case – seeks to achieve the harmonised implementation of Member States’ obligations under international law.
79. Nevertheless, more extensive binding effects on the Community cannot arise from agreements of the Member States which the Community has not adopted. Therefore, the implementation objective of Directive 2005/35 also does not mean that Marpol 73/78 can be used as a criterion for determining the legality of that directive.
2. Compatibility of Article 4 of Directive 2005/35, in conjunction with Article 5(2) thereof, with the Convention on the Law of the Sea, in conjunction with Marpol 73/78
80. The first question concerns the compatibility of Article 5(2) of Directive 2005/35 with Marpol 73/78.
81. Firstly, Article 4 of Directive 2005/35 lays down general standards of liability applicable to all, including, in particular, liability for serious negligence. However, in Article 5 it restricts this standard of liability with express reference to the relevant provisions of the Marpol 73/78 Convention relating to the vessel’s owner, the master or the crew when acting under the master’s responsibility. This restriction applies in specific areas of the sea, namely in straits, in the exclusive economic zone and on the high seas. The first question covers only these areas of the sea and not the territorial sea to be classified as territory of the coastal States, which I will deal with below in connection with the second and third questions. However, this question rightly also extends to the validity of Article 4, since any repeal of Article 5(2) in isolation would not safeguard the effectiveness of the Marpol regulations concerned but rather reduce it further.
82. Regulation 9 of Annex I and Regulation 5 of Annex II to Marpol 73/78 prohibit discharges. However, these prohibitions do not apply where the exceptions laid down respectively in Regulations 11 and 6 of the annexes apply. Under subparagraph (b)(ii) of each of these regulations, the prohibitions are not to apply to discharge resulting from damage to a ship or its equipment except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result .
83. When the wording of these provisions is compared in isolation with Directive 2005/35, two essential differences appear. Firstly, under Marpol 73/78 the acts of persons other than the owner or master appear to be completely irrelevant in the case of discharge resulting from damage. Discharge would appear to be prohibited only where one of these two persons acted with intent or recklessly and with knowledge that damage would probably result. By contrast, under Article 4 of the directive anyone can in principle be liable in respect of a discharge. Secondly, the criterion of personal liability under Article 4 of the directive, namely intent, recklessness or serious negligence, does not, in terms of its wording, correspond with the Marpol 73/78 criterion.
a) Liability of persons other than the master and the owner
84. On the basis of an interpretation founded solely on its wording, the directive goes further than Marpol 73/78 when it provides that, in the event of damage, the acts of persons other than the master or owner are sufficient to activate the prohibition on discharge. It has been argued by some that it is incompatible with the Community’s international obligations to provide for the liability of these other persons in respect of discharges.
85. It may, admittedly, be pointed out, as the Parliament does, that Marpol 73/78 is silent as regards other persons. However, that would merely rule out conflict with Marpol 73/78. The Community would still be bound by the provisions of the Convention on the Law of the Sea, which, in the sea areas under consideration here, permits in respect of all persons only rules which give effect to the standard of protection laid down in Marpol 73/78. Therefore, the Community would not be free to lay down rules on other cases in these areas at its own discretion but would rather be precluded from doing so.
86. However, as Denmark, France, the Council and the Commission in particular correctly point out, basing oneself strictly on the wording of Marpol 73/78 would lead to absurd results. Even discharges resulting from intentional damage to a ship or its equipment would be permitted as long as neither the master nor the owner acted with intent or recklessly.
87. It is thus necessary not only to interpret Marpol 73/78 in isolation on the basis of its wording, but also to take account of its objectives and its function within the framework of the Convention on the Law of the Sea. According to the fourth paragraph of the preamble thereto, the overarching objective of Marpol 73/78 is to achieve the complete elimination of intentional pollution and the minimisation of accidental pollution.
88. The exceptions under Regulation 11(b)(ii) of Annex I and Regulation 6(b)(ii) of Annex II to Marpol 73/78 are intended primarily to establish the standard of care to be met in order to avoid accidental pollution. If each State established its own standard of fault and these standards even applied cumulatively on the high seas, it would be difficult for shipping to assess its respective liability.
89. On the other hand, it is not possible to discern any objective of Marpol 73/78 which would require that, or even merely explain why, the master and owner alone
should avoid accidental pollution. Although both these persons bear responsibility for the vessel as a whole, it cannot be ruled out in general that other persons will also bear responsibility and cause damage resulting in discharge.
90. The relevant provisions of the Convention on the Law of the Sea are also intended to facilitate effective protection of the marine environment. This is to be achieved on the basis of common international standards in order to make the requirements imposed on shipping predictable. It is not necessary to restrict liability to the master and owner in order to do so.
91. Moreover, the exclusion of all liability on the part of other persons would lead to a completely different result to that of the second sentence of Article III(4) of the International Convention of 29 November 1969 on Civil Liability for Oil Pollution Damage, (59) as amended by the 1992 Protocol. (60) Unlike Marpol 73/78, this provision expressly provides that in principle the owner alone bears civil liability and a number of other persons such as, for example, the crew, charterers or servants and agents, do not. These persons are, however, liable if they act with intent or recklessly and with the knowledge that damage would probably result.
92. This is demonstrated in two ways. Firstly, the exclusion of certain persons from liability for oil pollution must be assumed only where such exclusion is expressly laid down and, secondly, liability in the event of intentional or reckless acts in the knowledge that damage will probably occur is not restricted to the owner and the master.
93. Consequently, Regulation 11(b)(ii) of Annex I and Regulation 6(b)(ii) of Annex II must be construed as referring to the master and owner merely by way of example. Where, in exceptional circumstances, other persons also are responsible for discharges resulting from damage, the same conditions apply to them as apply to the master and the owner.
94. Therefore, Directive 2005/35 infringes neither Marpol 73/78 nor the Convention on the Law of the Sea by making persons other than the master and the owner liable for discharges resulting from damage.
b) Criteria relating to personal liability
95. The effect of Article 5(2) of Directive 2005/35, however, appears to be that persons other than the owner, the master or the crew when acting under the master’s responsibility are not
judged by whether they acted with intent to cause damage or recklessly and with knowledge that damage leading to discharge would probably result. Rather, their liability under Article 4 of the directive is determined by whether they caused a discharge with intent, recklessly or by serious negligence. In the view of the claimants and some Member States, this standard of liability is stricter than Marpol 73/78.
96. As has been shown, (61) the Convention on the Law of the Sea prohibits the Community from laying down in the sea areas concerned stricter standards of liability that those provided for in Marpol 73/78. This must apply in particular to persons other than the master and the owner. The latter have a particular responsibility to avoid damage to the vessel which could result in the discharge of polluting substances. If they are liable only for intent and recklessness in the knowledge that damage was probable, other persons could not be subject to stricter liability.
The term ‘recklessly’ in Article 4 of Directive 2005/35
97. Liability for reckless acts under Article 4 of Directive 2005/35 could be stricter than Marpol 73/78, since Article 4 makes no reference to knowledge that damage will probably result. Furthermore, the language versions of the directive do not tally as regards this term. In particular, at least the Greek, Maltese and Portuguese versions seem to speak of simple negligence, (62) that is to say, a lower form of fault than serious negligence. In addition, the terms used for recklessness in the respective legal systems are not always defined precisely. However, in spite of the differences in the language versions, Article 4 of Directive 2005/35 must be interpreted uniformly in all the Member States by reference to the purpose and general scheme of the rules concerned. (63)
98. Since Article 4 of Directive 2005/35 adopts the terminology used in Marpol 73/78, at least in the English, French and Spanish versions, that is to say, in the three Community languages in which Marpol 73/78 is binding, it must be concluded that the term ‘recklessly’ is intended to incorporate the standard of liability in Marpol 73/78 for unintentional acts.
99. This reading is also consistent with the requirement that provisions of secondary law must, so far as is possible, be interpreted in a manner that is consistent with international agreements concluded by the Community. (64) Where the directive uses different terms in other language versions, they must also be construed in this manner.
100. Under Marpol 73/78, liability for unintentional discharge is characterised by two features, that is to say, first, knowledge that damage would probably result and, second, recklessness. The requirement relating to knowledge makes it clear that the perpetrator must have been aware of the risks posed by his actions, as is generally the case where the standard of liability in regard to recklessness is applied in common-law jurisdictions. It is not sufficient that he ought to have been aware of those risks. (65)
101. Consequently, the term ‘recklessly’ in Article 4 of Directive 2005/35 must be construed as meaning that, for recklessness to exist, there must be knowledge that damage would probably result. Interpreted thus, it is not contrary to Marpol 73/78 or to the Convention on the Law of the Sea.
The concept of ‘serious negligence’ in Article 4 of Directive 2005/35
102. There could, however, be conflict with Marpol 73/78 in so far as Article 4 of Directive 2005/35 provides for liability in respect of serious negligence.
103. The concept of ‘serious negligence’ may take on significantly different meanings within the legal systems of the various Member States. (66) I am unaware of a definition in Community law. However, the Court has developed criteria for application of the term ‘obvious negligence’ within the meaning of the second indent of Article 239(1) of the Customs Code. (67) These are the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader. (68)
104. The experience of the trader is a subjective criterion, whilst care describes the criterion that all traders must satisfy. (69) Therefore, serious negligence describes a particularly grave breach of the duties of care. Knowledge that damage will probably result, however, is not essential for there to be serious negligence. Interpreted thus, this standard of liability would be stricter than Marpol 73/78.
105. It must be assumed that this interpretation, in the sense of a strict criterion, is consistent with the legislature’s objectives in adopting Directive 2005/35. Since the legislature introduced serious negligence in addition to the two standards of liability referred to in Marpol 73/78, the intention was therefore to create a further basis for liability. (70)
106. The establishment of a stricter criterion is also suggested by the exception from liability laid down in Article 5(2) of Directive 2005/35, which refers to Marpol 73/78. This exception can have practical effect only if a different and stricter standard of liability than that laid down in Marpol 73/78 applies in principle to the categories of persons covered.
107. However, provisions of secondary Community law must, so far as possible, be interpreted in a manner that is consistent with the international agreements concluded by the Community. Under Article 300(7) EC, those agreements are binding on the institutions. Secondary law may not infringe them. They have primacy over secondary law. (71)
108. Accordingly, interpretation in conformity with international law must be given priority over other methods of interpretation. This requirement is limited only by rules and principles which take precedence over the Community’s obligations under international law. Such rules and principles include, for example, general legal principles and in particular the principle of legal certainty. Therefore, an interpretation contra legem is not possible. (72)
109. In this sense the phrase ‘serious negligence’ can be interpreted restrictively (73) as not going beyond Marpol 73/78. As a survey undertaken by the Research and Documentation Service of the Court shows, recklessness in the knowledge that damage will probably result, as required by Marpol 73/78, is treated in many legal systems as a form of the serious negligence which Directive 2005/35 lays down as a standard of liability. In Germany one would probably speak of ‘ bewusste grobe Fahrlässigkeit ’ (deliberate serious negligence). (74) Therefore, the particularly significant breach of the duty of care necessary for there to be serious negligence can, for the purposes of Regulation 11(b)(ii) of Annex I and Regulation 6(b)(ii) of Annex II to Marpol 73/78, be limited to recklessness in the knowledge that damage will probably result.
110. This interpretation would not fully exhaust the wording of the directive since knowledge that damage will probably result is not normally necessary for serious negligence. However, it would in any event remain within the bounds of the wording. At the same time, the scope of serious negligence would be much more precisely defined since circumstances beyond the control of the person causing the damage would have significantly less relevance in comparison with the subjective circumstance of knowledge.
111. Interpreted thus, as required by the Community’s obligations under international law, Article 4 of Directive 2005/35, in conjunction with Article 5(2) thereof, does not go beyond Marpol 73/78 and is therefore also not contrary to the Convention on the Law of the Sea when applied to acts in straits, in the exclusive economic zone and on the high seas.
112. Consequently, examination of the first question referred to the Court has revealed no factor of such a kind as to bring into question the validity of provisions of Directive 2005/35.
C – Second and third questions – liability in the territorial sea
113. The second and third questions concern the standard of liability of serious negligence in the territorial sea and should therefore be dealt with together.
114. They are based on the fact that, under Articles 4 and 5 of Directive 2005/35, in the territorial sea all
persons, that is to say, also the owner, the master and the crew when acting under the master’s responsibility, are subject to the standard of liability of serious negligence. The exception provided for in Article 5(2) of Directive 2005/35 applies only to the areas referred to in Article 3(1)(c), (d) and (e), that is to say, to straits, the exclusive economic zone and the high seas, but not to the territorial sea, which is referred to in subparagraph (b).
115. These questions would be resolved if the concept of serious negligence had, in respect of events in the territorial sea, the same content as it does in respect of events in straits, in the exclusive economic zone and on the high seas. Were that the case, a discharge resulting from serious negligence would, in accordance with the foregoing considerations, presuppose recklessness in the knowledge that damage was probable. This interpretation would ensure a uniform interpretation of the concept of serious negligence within Directive 2005/35 and at the same time rule out any conflict with Marpol 73/78.
116. However, the narrow interpretation of the concept of serious negligence outside the territorial sea is merely the result of efforts to avoid a breach of the Community’s obligations under international law. Against that, the wording, the legislative context and aspects of the legislative procedure suggest that serious negligence must be construed more broadly, (75) that is to say, as a serious breach of duties of care without, however, any need for knowledge that damage is probable.
117. Consequently, the transposition of this narrow interpretation of the concept of serious negligence to the territorial sea can be justified only if it is required by the Community’s obligations under international law.
118. Article 2 of the Convention on the Law of the Sea states that the sovereignty of a coastal State extends to the territorial sea (paragraph 1) and is to be exercised subject to the convention and to other rules of international law (paragraph 3). Under Article 211(4), coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels. This applies expressly also to vessels exercising the right of innocent passage. Such laws and regulations may not, in accordance with Part II, section 3, of the Convention on the Law of the Sea, hamper innocent passage of foreign vessels. By contrast to the situation outside the territorial sea, there is no reference to generally accepted international standards.
119. The claimants, Malta, Greece and Cyprus take the view that liability for serious negligence infringes the right of innocent passage. They rely in particular on Article 19(2)(h) of the Convention on the Law of the Sea. Under that provision, passage is no longer innocent where a vessel causes wilful
and serious pollution contrary to the convention. They contend that this accordingly rules out liability for serious negligence.
120. However, this argument overlooks the fact that rules on environmental protection are also permitted in connection with innocent passage. As, for example, Denmark and Estonia point out, Article 21(1)(f) of the Convention on the Law of the Sea expressly makes clear that the coastal State may adopt laws and regulations, in conformity with the provisions of the convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof. Under Article 21(4), foreign ships must comply with these laws during innocent passage. Here too no provision is made in principle for the binding effect of generally accepted international standards. Under Article 21(2), such binding effect applies only in regard to the design, construction, manning or equipment of foreign ships.
121. It is not necessary to examine here to what point this rule-making power of the coastal States extends. It is possible that this power does not countenance environmental-protection provisions where they would prevent passage completely. Restrictions on the sovereignty of coastal States could also affect the enforcement of penalties on vessels at sea. Article 4 of Directive 2005/35, however, does not go that far. In particular, passage is not prohibited and no particular enforcement measures against vessels en route are required. Rather, the Member States are merely to prohibit certain acts which are not necessary for passage. In this respect the relatively low standard of care laid down in Marpol 73/78 is raised only slightly. That must be possible as a rule on prevention and reduction of environmental pollution within the meaning of Article 21(1)(f) of the Convention on the Law of the Sea.
122. Contrary to the submissions of Cyprus, the reference to other rules of international law in Article 2(3) and Article 21(1)(f) of the Convention on the Law of the Sea does not mean that the Community is bound by Marpol 73/78 in the territorial sea. Since the Community is not party to that convention and the Convention on the Law of the Sea does not refer to Marpol 73/78 in respect of the territorial sea, it does not contain any separate rule of international law in respect of the Community. (76)
123. Consequently, Estonia, Denmark, Spain, France, Sweden, the United Kingdom, the Parliament, the Council and the Commission are correct in their respective submissions that the Convention on the Law of the Sea does not
restrict the power to make laws on environmental protection within the territorial sea, by contrast to the sea areas examined in the response to the first question, to the implementation of internationally accepted standards, and in particular not to the implementation of Marpol 73/78. This has to be the conclusion reached because the territorial sea is deemed to be part of the territory of the coastal State and the latter therefore does not require to be authorised by the Convention on the Law of the Sea to make rules.
124. The claimants, Malta, Greece and Cyprus further submit that Marpol 73/78 precludes the contracting States from adopting stricter provisions in the territorial sea also. They claim that Marpol 73/78 constitutes a definitive compromise with regard to the prosecution of environmental pollution resulting from discharges from ships. Therefore, these parties to the proceedings clearly conclude that Marpol 73/78 permits discharges that are not prohibited by the convention.
125. In my view, (77) however, this submission cannot bring into question the validity of Directive 2005/35 because under that directive Marpol 73/78 is not binding on the Community unless reference is made to it in the Convention on the Law of the Sea. Only in the alternative, should the Court reach a different conclusion, for example on the basis of the judgment in Netherlands v Parliament and Council, I will therefore examine whether Marpol 73/78 requires that the restrictive interpretation for events outside the territorial sea should also be applied in regard to the territorial sea.
126. The wording of Marpol 73/78 does not indicate that it seeks to establish definitive rules on prohibited discharges from ships also within the territorial sea. Marpol 73/78 requires that certain discharges be prohibited, investigated and prosecuted. The relevant provisions are to be found in Articles 1, 4, and 6 of the Convention and in Annex I, Regulation 9, and Annex II, Regulation 5. As is submitted in the order for reference and also by the claimants, Malta and Cyprus, under Article 14(1) the contracting States are bound by Annexes I and II in their entirety.
127. These provisions define a minimum standard for provisions to protect against discharges of polluting substances from ships into the sea which is binding on the States that are parties to Marpol 73/78. As has already been shown, by reason of the interaction with provisions of the Convention on the Law of the Sea this minimum standard is the only permitted standard of protection in the exclusive economic zone, in straits and on the high seas.
128. However, among the provisions of Marpol 73/78 referred to there is only one, that is to say, the prohibition on the discharge of oil set out in Regulation 9 of Annex I, that could possibly be construed as express authorisation for certain forms of discharge. That is because that provision states that discharges are prohibited ‘except when all the following conditions are satisfied’. These conditions concern the discharge of small amounts of oil during navigation. Nor are they prohibited by Directive 2005/35 since Article 5(1) incorporates this exception in full. Therefore, in this case it is not necessary to decide whether Marpol 73/78 actually allows such discharges.
129. By contrast, the standard of liability laid down by Regulation 11(b)(ii) of Annex I to Marpol 73/78 has, in terms of regulation, an entirely different function from the exception contained in Regulation 9. Regulation 9 does not apply unless the owner or the master acted with intent to cause damage or recklessly and with knowledge that damage would probably result. The same applies with regard to the interaction between Regulation 5 of Annex II and Regulation 6(b)(ii). Consequently, in these circumstances Marpol 73/78 contains no rules on discharge caused by damage. The absence of rules cannot normally be construed as authorisation.
130. Thus, whilst no authorisation can be discerned, there is evidence in the wording of Marpol 73/78 that stricter rules are to be permitted under certain circumstances. In particular, Article 9(2) states expressly that Marpol 73/78 is not to prejudice the jurisdiction of coastal States as laid down within the framework of the Convention on the Law of the Sea. As already shown, the Convention on the Law of the Sea does, however, allow stricter protective provisions in the territorial sea.
131. Furthermore, the second paragraph in the preamble to Marpol 73/78 recognises that, inter alia, negligent and accidental release constitutes a serious source of pollution. It would therefore be surprising if Marpol 73/78 were to exempt these forms of discharge under all circumstances.
132. This is not precluded by the universal purport within the meaning of the fifth paragraph in the preamble, which is highlighted by the claimants. This relates only to the substances covered, namely to supplementing the rules on oil pollution with rules on the discharge of chemicals. On the other hand, this paragraph does not make it clear whether the standards of liability are to apply in a definitive and universal manner.
133. It would therefore be going too far to claim, as Greece does, that stricter protective provisions are possible only where Marpol 73/78 makes express provision for them. Even though the contracting States were unable to agree on such stricter rules, as Greece and the claimants submit, it by no means follows that in Marpol 73/78 they agreed on a definitive standard of protection for all areas of the sea.
134. Although, according to the claimants’ submissions, a proposal by Canada to lay down the power to adopt stricter provisions in Marpol 73/78 was rejected at the time, the Commission correctly points out that the material on the history of Marpol 73/78 submitted by the claimants indicates instead that the issue of stricter standards of protection should, in the view of many of the parties to the negotiations, be governed by the Convention on the Law of the Sea. (78)
135. In so far as stricter standards were discussed, during the negotiations the States were essentially concerned with ensuring that the requirements on vessels laid down in Marpol 73/78 were not unilaterally rendered more stringent. This is at present ensured, with regard to the territorial sea, by a reference in Article 21(2) of the Convention on the Law of the Sea to international shipping standards, that is to say, in particular Marpol 73/78. (79) By contrast, there is precisely no such reference with regard to the standards of liability.
136. Therefore, the background to Marpol 73/78 also suggests that it did not lay down definitive rules. It must instead be concluded that the coastal States’ powers derive from the Convention on the Law of the Sea, which does not make Marpol 73/78 binding in respect of the territorial sea.
137. Consequently, in the area of the territorial sea neither the Convention on the Law of the Sea nor Marpol 73/78 require a narrow interpretation of the concept of serious negligence in conformity with the standard of liability under Regulation 11(b)(ii) of Annex I and Regulation 6(b)(ii) of Annex II to Marpol 73/78.
138. In 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) .
(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, 2 nd
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.