CELEX: 62021CO0014
Language: en
Date: 2021-02-25 00:00:00
Title: Order of the President of the Court of 25 February 2021.#Sea Watch E.V v Ministero delle Infrastrutture e dei Trasporti and Others.#Reference for a preliminary ruling – Expedited procedure – Lack of effectiveness – Relationship with national proceedings for interim measures.#Joined Cases C-14/21 and C-15/21.

ORDER OF THE PRESIDENT OF THE COURT
   25 February 2021 (
         *1
      )
   (Reference for a preliminary ruling – Expedited procedure – Lack of effectiveness – Relationship with national proceedings for interim measures)
   In Joined Cases C‑14/21 and C‑15/21,
   REQUEST for two preliminary rulings under Article 267 TFEU from the Tribunale amministrativo regionale per la Sicilia (Regional Administrative Court for Sicily, Italy), made by decisions of 23 December 2020, received at the Court on 8 January 2021, in the proceedings
   
      Sea Watch eV
   
   v
   
      Ministero delle Infrastrutture e dei Trasporti (C‑14/21 and C‑15/21),
   
      Capitaneria di Porto di Palermo (C‑14/21),
   
      Capitaneria di Porto di Porto Empedocle (C‑15/21),
   THE PRESIDENT OF THE COURT,
   after hearing the Judge-Rapporteur, J. Passer, and the Advocate General, A. Rantos,
   makes the following
   
      Order
   
   
            1
         
         
            These requests for a preliminary ruling concern the interpretation of Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (OJ 2009 L 131, p. 57) and of the International Convention for the Safety of Life at Sea, concluded in London on 1 November 1974 (United Nations Treaty Series, Vol. 1185, No 18961, p. 3).
         
      
            2
         
         
            Those requests were presented in two sets of proceedings between, first, Sea Watch eV and the Ministero delle Infrastrutture e dei Trasporti (Ministry of Infrastructure and Transport, Italy) and the Capitaneria di Porto di Palermo (Port of Palermo Harbour Master’s Office) and, second, Sea Watch and the Capitaneria di Porto di Porto Empedocle (Port of Porto Empedocle Harbour Master’s Office, Italy), respectively, concerning two detention orders issued by each of those Harbour Master Offices with regard to the ships known as Sea Watch 4 and Sea Watch 3.
         
      
      The disputes in the main proceedings
   
   
            3
         
         
            Sea Watch is a non-profit humanitarian organisation with its registered office in Berlin (Germany). Its statute provides that its purpose is, in particular, the rescue of persons in distress or danger at sea and the maintenance and operation of ships, boats and aircraft with a view to coming to the rescue of those persons. In keeping with that purpose, in practice it carries out research and rescue activities in the Mediterranean Sea with ships of which it is both the owner and the operator. Those ships include, inter alia, two ships, known respectively as Sea Watch 3 and Sea Watch 4, which are registered in the German national register, which fly the German flag and have each been certified by a classification and certification body established in Germany as ‘general cargo/multipurpose’.
         
      
            4
         
         
            During the summer of 2020, the Sea Watch 3 and the Sea Watch 4 in turn left the port of Burriana (Spain) and carried out the rescue of several hundreds of people in distress in international waters of the Mediterranean Sea. The respective Masters of those ships were then informed by the Italian Maritime Rescue Coordination Centre that the Ministero degli Interni (Ministry of the Interior, Italy) had authorised the landing and trans-shipping of the persons concerned in ships in the port of Palermo (Italy), as regards the Sea Watch 4, and in the port of Porto Empedocle (Italy), as regards the Sea Watch 3, and they were therefore instructed to steer their ships to those two ports to carry out those operations.
         
      
            5
         
         
            Once those operations had been carried out, the Ministro della Sanità (Minister for Public Health, Italy) ordered both ships to remain anchored near those ports for the purposes, in the first place, of confining crews to prevent the spread of COVID-19 and, in the second place, of cleaning, disinfection and health certification.
         
      
            6
         
         
            Following cleaning and disinfecting procedures, the Harbour Master’s Office of the port of Palermo and port of Porto Empedocle carried out on-board inspections, then ordered the detention of the Sea Watch 4 and the Sea Watch 3, respectively, on the ground that they had found a series of technical and operational irregularities, some of which had to be classified as ‘serious’ and, as such, justified that detention.
         
      
            7
         
         
            Since then, Sea Watch has put an end to a number of those irregularities. On the other hand, it considers that the remaining irregularities (‘the irregularities at issue’) have not been established. Those irregularities relate, in essence, to the fact that the Sea Watch 3 and the Sea Watch 4 are not, according to the competent Italian authorities, certified to take on board and transport several hundred persons, as they did in the summer of 2020, or fitted with suitable technical equipment, in particular as regards the treatment of waste water, showers and toilets.
         
      
            8
         
         
            In those circumstances, Sea Watch brought two actions for annulment before the Tribunale amministrativo regionale per la Sicilia (Regional Administrative Court for Sicily, Italy) against the measures by which the Harbour Master’s Office of the port of Palermo and that of the port of Porto Empedocle ordered the detention of the Sea Watch 4 and the Sea Watch 3 until the irregularities at issue had been brought to an end, and against the inspection reports attached to those measures and any other preliminary measures, connected with or resulting from those measures.
         
      
            9
         
         
            In addition, Sea Watch joined to those actions applications for interim measures, for the purposes of adopting protective measures, on the ground that there was a risk of serious and irreparable harm within the meaning of the provisions of the relevant Italian law.
         
      
            10
         
         
            In its requests for a preliminary ruling, the referring court states, inter alia, that the information contained in the respective files of the disputes in the main proceedings shows that the existence of the irregularities at issue is the subject of divergent positions taken by not only the parties to those disputes but also by the competent authorities in Italy, the port State, and in Germany, the flag State. The competent Italian authorities consider, in essence, that those irregularities are established and that they must be brought to an end, whereas the competent German authorities consider that a fair interpretation of the relevant provisions of EU law and applicable international law leads to the conclusion that there are no such irregularities.
         
      
            11
         
         
            In the light of that situation, the referring court considers that the interpretation of Directive 2009/16 and of the International Convention for the Safety of Life at Sea raises complex questions of law which are new and of major importance for all Member States, the resolution of which is necessary to enable it to resolve the disputes in the main proceedings.
         
      
            12
         
         
            In those circumstances, the Tribunale amministrativo regionale per la Sicilia (Regional Administrative Court for Sicily) decided, in each of the two actions in the main proceedings, to stay the proceedings and to refer five questions to the Court for a preliminary ruling, worded in almost identical terms. It also requested the Court to apply the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice to the present cases.
         
      
            13
         
         
            By decision of the President of the Court of 2 February 2021, the present cases were joined for the purposes of the written and oral parts of the procedure and the decision of the Court.
         
      
      Requests for an expedited procedure
   
   
            14
         
         
            Under Article 105(1) of the Rules of Procedure, where the nature of a case requires that it be dealt with within a short time, the President of the Court may, at the request of the referring court or, exceptionally, of his own motion, decide that that case is to be determined pursuant to an expedited procedure derogating from the provisions of those Rules of Procedure.
         
      
            15
         
         
            In this case, the referring court substantiated its requests that the present cases be determined under the expedited procedure provided for in that provision, stating the following factors.
         
      
            16
         
         
            First of all, that court points out, in essence, that those cases concern a sensitive area in that they apply to activities relating to the rescue of persons in a state of distress which have been carried out in the Mediterranean Sea since 2014 and 2015 by humanitarian non-governmental organisations by, inter alia, cargo ships flying the flag of Member States, which include the Sea Watch 3 and the Sea Watch 4.
         
      
            17
         
         
            Secondly, that court states, in essence, that the detention measures imposed on ships operated by Sea Watch fall within the framework of a set of measures capable of affecting, in a general manner, the activities referred to in the preceding paragraph. Indeed, almost all ships carrying out those activities are currently subject to detention measures adopted by the Harbour Masters of various Italian ports (in particular those of the ports of Olbia, Palermo, Porto Empedocle and Venice) and are based on the fact that they do not comply with the necessary requirements.
         
      
            18
         
         
            Furthermore, the referring court considers it necessary, in view of that situation, to clarify rapidly the legal framework within which those activities are carried out, observing not only that compliance of needed safety and health requirements constitutes a matter of public policy, but also that, at present there does not exist, in the absence of such clarification, any instrument to put an end to the practice of the detention of ships.
         
      
            19
         
         
            Finally, the referring court is of the view that the average time needed by the Court to process cases will not enable it to rule on the disputes in the main proceedings before the beginning of the summer of 2021, whereas experience in past years shows that rescue operations of persons in distress and having to be undertaken in the Mediterranean Sea by non-governmental organisations such as Sea Watch and its counterparts occur mostly during that season.
         
      
            20
         
         
            In view of all those elements, that court considers that it is necessary to obtain, within a short time, answers to the questions that it submits to the Court, while observing that, taking account of its requests that the present cases be dealt with under the expedited procedure, it itself rejected, purely provisionally and without prejudice to a final decision in that regard once the Court’s ruling on those applications was known, the applications for interim measures made to it by Sea Watch for the purposes of the adoption of protective measures.
         
      
            21
         
         
            In light of the arguments raised by the referring court, it must be noted that, in the first place, as is clear from the Court’s settled case-law, the legal uncertainty that may weigh on the activities of one party to national proceedings in the context of which the court with jurisdiction finds it necessary to bring before the Court questions of interpretation of EU law, first, and the legitimate interest of that party in knowing as quickly as possible the rights that it derives from EU law, second, constitute exceptional circumstances that may arise in many disputes and are therefore not such as to justify that a reference for a preliminary ruling should be dealt with under the expedited procedure provided for in Article 105 of the Rules of Procedure (see, to that effect, order of the President of the Court of 20 December 2017, M.A. and Others, C‑661/17, not published, EU:C:2017:1024, paragraph 16, and judgment of 14 January 2021, The International Protection Appeals Tribunal and Others, C‑322/19 and C‑385/19, EU:C:2021:11, paragraph 47).
         
      
            22
         
         
            That expedited procedure is a procedural instrument meant for an exceptional situation of urgency, the existence of which must be established in the light of exceptional circumstances specific to the case in connection with which an application for an expedited procedure is made (see, to that effect, order of the President of the Court of 20 December 2017, M.A. and Others, C‑661/17, not published, EU:C:2017:1024, paragraph 17).
         
      
            23
         
         
            In the second place, and for the same reason, the significant number of persons who may find themselves in the same situation of uncertainty as the parties to the main proceedings or in legal situations potentially affected by the ruling that the referring court is called upon to hand down after having received responses to the questions that it asked the Court or by decisions that that court or other national courts may be called upon to hand down in similar proceedings, does not constitute, as such, an exceptional circumstance that may justify the application of an expedited procedure (see, to that effect, orders of the President of the Court of 13 July 2016, Banco Santander, C‑96/16, not published, EU:C:2016:566, paragraph 18; of 20 September 2018, Minister for Justice and Equality, C‑508/18 and C‑509/18, not published, EU:C:2018:766, paragraph 14; and judgment of 8 December 2020, Staatsanwaltschaft Wien(falsified transfer orders), C‑584/19, EU:C:2020:1002, paragraph 36).
         
      
            24
         
         
            Consequently, while pointing to the significant and sensitive character of the main proceedings and of the responses that the Court is likely to give to the questions before it, in the field of EU law at issue (see, by analogy, orders of the President of the Court of 8 March 2018, Vitali, C‑63/18, not published, EU:C:2018:199, paragraph 16, and of 27 February 2019, M.V. and Others, C‑760/18, not published, EU:C:2019:170, paragraph 17), those separate elements, whose existence in this case, are clearly apparent from the statements of the referring court summarised in paragraphs 17 and 18 of the present order, are not such as to justify that the present cases be determined under the expedited procedure.
         
      
            25
         
         
            In the third and final place, it is clear from the statements of the referring court summarised in paragraphs 16 and 19 of the present order that the disputes in the context of which that court asks the Court about the interpretation of EU law are characterised, beyond their legal issues and their specific repercussions, by a significant and delicate human dimension, in so far as they concern the circumstances in which humanitarian non-governmental organisations are called upon to carry out activities to rescue persons who are in a situation of distress or danger at sea. In that context, the referring court notes, in particular, that it is requesting that the expedited procedure be applied in order to obtain from the Court answers within a period enabling it to settle the disputes in the main proceedings before the beginning of the summer of 2021, a season during which, experience shows, rescue operations of persons in distress or in danger and having to be undertaken in the Mediterranean Sea mostly occur.
         
      
            26
         
         
            However, as it is clear from the settled case-law of the Court, the fact that a national dispute is urgent and that the court with jurisdiction is required to do everything possible to ensure that it is resolved swiftly is not in itself sufficient to justify that the corresponding reference for a preliminary ruling should be dealt with under the expedited procedure provided for in Article 105 of the Rules of Procedure (orders of the President of the Court of 31 July 2017, Mobit, C‑350/17 and C‑351/17, not published, EU:C:2017:626, paragraph 6, and of 29 November 2017, Bosworth and Hurley, C‑603/17, not published, EU:C:2017:933, paragraph 9).
         
      
            27
         
         
            That procedure differs, both in terms of its purpose and the conditions for its implementation, from proceedings for interim measures such as that provided for in Articles 160 to 166 and 190 of the Rules of Procedure with regard to direct actions and appeals (see, to that effect, orders of the President of the Court of 7 April 2016, Council v Front Polisario, C‑104/16 P, not published, EU:C:2016:232, paragraph 18, and of 11 October 2017, Commission v Poland, C‑441/17, not published, EU:C:2017:794, paragraph 15), or of that applicable before the referring court, as referred to in paragraph 20 of this order.
         
      
            28
         
         
            In particular, the expedited procedure provided for in Article 105 of the Rules of Procedure pursues the aim of enabling the Court to deliver, within a short time a decision on the substance of the request for a preliminary ruling before it and not to assess whether it is necessary to adopt interim measures pending such a decision.
         
      
            29
         
         
            In addition, unlike the proceedings for interim measures referred to in paragraph 27 of the present order, the expedited procedure does not allow the Court to rule immediately and, if necessary, provisionally on the questions referred to it, but first requires it to respect the right to submit written observations which Article 105(3) of the Rules of Procedure confers on the parties to the main proceedings and on the other interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union, which include the Member States, who may, in accordance with Article 38(4) of the Rules of Procedure, submit written observations in their own official language. In addition to the time limits relating to compliance with that requirement are, inter alia, those that the translation of the request for a preliminary ruling into the different official languages of the European Union entails, and of the written observations submitted by the Member States in the language of the proceedings, and then of the ruling of the Court for publication.
         
      
            30
         
         
            In the present case, in the light of those requirements and of the date on which the referring court submitted its requests for a preliminary ruling, it does not appear possible for the Court, even if the present cases were to be determined under the expedited procedure, to deliver a ruling on them within a period which complies with the sound administration of justice and which allows the referring court to settle the disputes in the main proceedings before the beginning of the summer of 2021, as that court has indicated having to do for the reasons set out in paragraphs 19 and 25 of the present order.
         
      
            31
         
         
            It follows that recourse to such a procedure cannot, in any event, achieve the objective referred to in the previous paragraph of this order and therefore is not effective in the present cases (see, by analogy, order of the President of the Court of 20 December 2017, de Diego Porras, C‑619/17, not published, EU:C:2017:1025, paragraph 25). Accordingly, the circumstances of the present case do not justify the Court derogating from the generally applicable provisions of its Rules of Procedure, in the present case, on the basis of Article 105(1) of those rules.
         
      
            32
         
         
            That said, the Court has already held that any national court before which a dispute governed by EU law has been brought must have the power to grant interim measures in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under that law, if necessary by disapplying the rules of domestic law that would hinder that power. That is all the more true where the competent national court decides to stay proceedings and to refer questions to the Court for a preliminary ruling, since such interim measures may prove adequate to ensure the effectiveness of the system of references for a preliminary ruling provided for in Article 267 TFEU (see, to that effect, judgment of 19 June 1990, Factortame and Others, C‑213/89, EU:C:1990:257, paragraphs 21 to 23).
         
      
            33
         
         
            It is primarily up to the national court before which the urgent dispute has been brought, which is best placed to assess the specific issues for the parties and considers it necessary to refer questions to the Court for a preliminary ruling on the interpretation of EU law, to adopt, pending the decision of the Court, all adequate interim measures to guarantee the full effectiveness of the decision that it itself is called upon to make (see, to that effect, order of the President of the Court of 10 April 2018, Gómez del Moral Guasch, C‑125/18, not published, EU:C:2018:253, paragraph 15 and the case-law-cited).
         
      
            34
         
         
            In the present case, it will therefore be for the referring court, as it envisaged in its requests for a preliminary ruling, as summarised in paragraph 20 of this order, to decide whether interim measures are adequate to ensure the full effectiveness of the judgments which it is required to deliver and, if so, to determine the measures to be adopted.
         
      
            35
         
         
            For its part, the Court will consider the present cases as a priority, pursuant to Article 53(3) of the Rules of Procedure, in the light of the particular circumstances of those cases, as is apparent from the statements of the referring court summarised in paragraphs 16 to 19 of this order.
         
      
            36
         
         
            In the light of all the foregoing considerations, it must be concluded that the referring court’s requests that the present cases be dealt with under the expedited procedure provided for in Article 105 of the Rules of Procedure cannot be granted.
         
       
         
            On those grounds, the President of the Court hereby orders:
         
       
            
               
                  The requests of the Tribunale amministrativo regionale per la Sicilia (Regional Administrative Court for Sicily, Italy) seeking that Joined Cases C‑14/21 and C‑15/21 be determined under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court are dismissed.
               
            
          
            
               
                  [Signatures]
               
            
         (
         *1
      )	Language of the case: Italian.