The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport.
Date: 2008-06-03
31. In that regard, it is to be remembered that, when a question on the validity of a measure adopted by the institutions of the European Community is raised before a national court, it is for that court to decide whether a decision on the matter is necessary to enable it to give judgment and, consequently, whether it should request the Court to rule on that question. Accordingly, where the national court’s questions relate to the validity of a provision of Community law, the Court is obliged in principle to give a ruling ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 34 and the case-law cited).
32. It is possible for the Court to refuse to give a preliminary ruling on a question submitted by a national court only where, inter alia, it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 35 and the case-law cited).
33. In the present case, it is clear from the order for reference that the claimants in the main proceedings have made an application to the High Court for judicial review of implementation of Directive 2005/35 in the United Kingdom and that they may make such an application even though, when the application was made, the period prescribed for implementation of the directive had not yet expired and no national implementing measures had been adopted.
34. Nor is it disputed before the Court of Justice that the questions submitted are relevant to the outcome of the main proceedings, as the adoption of national measures designed to transpose a directive into domestic law in the United Kingdom may be subject to the condition that the directive be valid (see British American Tobacco (Investments) and Imperial Tobacco , paragraph 37).
42. It is clear from Article 300(7) EC that the Community institutions are bound by agreements concluded by the Community and, consequently, that those agreements have primacy over secondary Community legislation (see, to this effect, Case C-61/94 Commission  v Germany  [1996] ECR I-3989, paragraph 52, and Case C-311/04 Algemene Scheeps Agentuur Dordrecht  [2006] ECR I-609, paragraph 25).
43. It follows that the validity of a measure of secondary Community legislation may be affected by the fact that it is incompatible with such rules of international law. Where that invalidity is pleaded before a national court, the Court of Justice thus reviews, pursuant to Article 234 EC, the validity of the Community measure concerned in the light of all the rules of international law, subject to two conditions.
44. First, the Community must be bound by those rules (see Joined Cases 21/72 to 24/72 International Fruit Company and Others  [1972] ECR 1219, paragraph 7).
45. Second, the Court can examine the validity of Community legislation in the light of an international treaty only where the nature and the broad logic of the latter do not preclude this and, in addition, the treaty’s provisions appear, as regards their content, to be unconditional and sufficiently precise (see to this effect, in particular, Case C-344/04 IATA and ELFAA  [2006] ECR I-403, paragraph 39).
47. First, with regard to Marpol 73/78, it is to be observed at the outset that the Community is not a party to this Convention.
48. Furthermore, as the Court has already held, it does not appear that the Community has assumed, under the EC Treaty, the powers previously exercised by the Member States in the field to which Marpol 73/78 applies, nor that, consequently, its provisions have the effect of binding the Community (Case C-379/92 Peralta  [1994] ECR I-3453, paragraph 16). In this regard, Marpol 73/78 can therefore be distinguished from GATT 1947 within the framework of which the Community progressively assumed powers previously exercised by the Member States, with the consequence that it became bound by the obligations flowing from that agreement (see to this effect, in particular, International Fruit Company and Others , paragraphs 10 to 18). Accordingly, this case-law relating to GATT 1947 cannot be applied to MARPOL 73/78.
51. Admittedly, as is clear from settled case-law, the powers of the Community must be exercised in observance of international law, including provisions of international agreements in so far as they codify customary rules of general international law (see, to this effect, Case C-286/90 Poulsen and Diva Navigation  [1992] ECR I-6019, paragraphs 9 and 10; Case C-405/92 Mondiet  [1993] ECR I‑6133, paragraphs 13 to 15; and Case C-162/96 Racke  [1998] ECR I‑3655, paragraph 45). None the less, it does not appear that Regulations 9 and 11(b) of Annex I to Marpol 73/78 and Regulations 5 and 6(b) of Annex II to that Convention are the expression of customary rules of general international law.
52. In those circumstances, it is clear that the validity of Directive 2005/35 cannot be assessed in the light of Marpol 73/78, even though it binds the Member States. The latter fact is, however, liable to have consequences for the interpretation of, first, UNCLOS and, second, the provisions of secondary law which fall within the field of application of Marpol 73/78. In view of the customary principle of good faith, which forms part of general international law, and of Article 10 EC, it is incumbent upon the Court to interpret those provisions taking account of Marpol 73/78.
53. Second, UNCLOS was signed by the Community and approved by Decision 98/392, thereby binding the Community, and the provisions of that Convention accordingly form an integral part of the Community legal order (see Case C‑459/03 Commission  v Ireland  [2006] ECR I‑4635, paragraph 82).
58. For all those marine areas, UNCLOS seeks to strike a fair balance between the interests of States as coastal States and the interests of States as flag States, which may conflict. In this connection, as is apparent from numerous provisions of the Convention, such as Articles 2, 33, 34(2), 56 and 89, the Contracting Parties provide for the establishment of the substantive and territorial limits to their respective sovereign rights.
69. The general principle of legal certainty, which is a fundamental principle of Community law, 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 (see Case C-110/03 Belgium  v Commission  [2005] ECR I-2801, paragraph 30, and IATA and ELFAA , paragraph 68).
70. Furthermore, in obliging the Member States to regard certain conduct as infringements and to punish it, Article 4 of Directive 2005/35, read in conjunction with Article 8 thereof, must also observe the principle of the legality of criminal offences and penalties ( nullum crimen, nulla poena sine lege ), which is one of the general legal principles underlying the constitutional traditions common to the Member States (Case C-303/05 Advocaten voor de Wereld  [2007] ECR I-3633, paragraph 49) and is a specific expression of the general principle of legal certainty.
71. The principle of the legality of criminal offences and penalties implies that Community rules must define clearly offences and the penalties which they attract. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see, in particular, Advocaten voor de Wereld , paragraph 50, and the judgment of the European Court of Human Rights in Coëme and Others v. Belgium , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, Reports of Judgments and Decisions  2000-VII, § 145).
74. Next, those concepts are fully integrated into, and used in, the Member States’ respective legal systems.