Commission threatens (again) to take the UK before the ECJ

-- Margarida Vasconcelos. Full text from The European Journal --

On 28 November 2007, the European Commission took the decision to send reasoned opinions to several Member States, including the UK, for failure to fully transpose into national law a Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements. The Directive applies within EU Member States’ territorial waters, in their Exclusive Economic Zones and on the high seas. It is also provided that the Directive applies irrespective of a vessel’s flag. The Directive calls for adequate penalties to be imposed on whomever is responsible to ship source discharges of polluting substances at sea when committed with intent or serious negligence. The Member States in question have not introduced into their national legislation penalties against those responsible for polluting discharges at sea. The deadline to transpose the Directive into national law was 1 April 2007.

The reasoned opinion is the last procedure before the Commission can bring a Member State to the European Court of Justice. It should be mentioned that the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) is seeking a preliminary ruling in the proceedings brought by the International Association of Independent Tanker Owners and Others (coalition of shipping industry interests) to review the validity of the EU directive. The action was brought against the United Kingdom’s Secretary of State for Transport in connection with the intended implementation of the directive. The issues raised are whether Articles 4 and 5 of Directive 2005/35 which lay down criminal liability for discharge violations, are compatible with the United Nations Convention on the Law of the Sea, acceded by the Community in 1998, and the 1973 International Convention for the Prevention of Pollution from Ships (‘Marpol 73/78’). The claimants are particular concerned with the uncertainty which was raised as the directive appears to provide for a stricter liability standard than does Marpol 73/78. While the Marpol 73/78 case provides for “at least recklessness and knowledge that damage will probably result” under the directive, “serious negligence” is sufficient. Moreover, it was asked whether the standard of liability of serious negligence is compatible with the principle of legal certainty. The Advocate General Kokott delivered her Opinion on 20 November [Case C-308/06]. The Advocate General concluded that the “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.” The ECJ is very likely to follow the Advocate General’s Opinion.

On 29 November, the Commission decided to send a letter of formal notice to 10 Member States, including the UK, for not having notified the Commission of the measures taken to transpose into national law the Directive 2005/45/EC on the mutual recognition of seafarers’ certificates issued by the Member States. The Directive provides for a recognition procedure for the recognition by Member States of seafarers’ certificates issued in the EU in observance of present Community provisions. It also set ups a regular audit of the national marine training and certification systems in order to make sure that the Member States respect existing standards of training and certification. The Directive should have been transposed by Member States into their national law by 20 October 2007.