The EU's Advocate General Kokott has delivered an opinion at the in the reference for a European Court of Justice reviewing of the validity of EU Ship Source Pollution Directive 2005/35/EC which criminalises accidental pollution. The opinion partly supports the case made by shipping industry organisations against the directive.
A preliminary ruling sought is by the English High Court of Justice in the proceedings brought by a coalition of shipping industry interests to review the validity of the EU Directive which applies within EU member states' territorial waters as well as in their Exclusive Economic Zones and on the high seas. The Directive also provides that it applies irrespective of a vessel's flag.
In her detailed Opinion Advocate General Kokott has supported the Coalition's argument that outside territorial seas the Community has no power to apply laws of its own which go beyond MARPOL. She has also agreed that the Directive was clearly intended to do this, as it prescribes "serious negligence" as an additional test of liability. However she has suggested that the Directive would not be invalid if the term "serious negligence" is interpreted restrictively, to mean no more than the MARPOL test of recklessness. She has also proposed that this narrow interpretation should not apply in the territorial sea, where she considers that the Community is not bound by MARPOL, and where she recommends that "serious negligence" should be given a broader meaning.
The Advocate General's opinion is not binding on the Court. It is the judgement of the Grand Chamber that will be decisive and is expected to reach a decision early next year.
Peter Swift, Managing Director, Intertanko, one of the parties pursing the claim, said: "These proceedings have been brought to uphold the principle of the shipping industry being regulated on a global basis with regulations that are legally certain and capable of uniform application. Furthermore, they have been brought to ensure the fair treatment of seafarers and others engaged in the shipping industry. We await the European Court's final determination of the issues raised before commenting further."
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