Judgment of the Court (Third Chamber) of 11 July 2018.Bosphorus Queen Shipping Ltd Corp. v Rajavartiolaitos.Request for a preliminary ruling from the Korkein oikeus.Reference for a preliminary ruling — Montego Bay Convention — Article 220(6) — Enforcement by the coastal State — Jurisdiction of the Court to interpret provisions of international law — Directive 2005/35/EC — Ship-source pollution — Article 7(2) — Marpol Convention 73/78 — Oil spill in the exclusive economic zone from a foreign vessel in transit — Circumstances in which a coastal State may instigate proceedings against a foreign vessel — Freedom of navigation — Protection of the marine environment — Major damage or threat of major damage to the coastline, related interests or any resources in the territorial sea or exclusive economic zone

Bosphorus Queen Shipping Ltd Corp.

v

Rajavartiolaitos

(Request for a preliminary ruling from the Korkein oikeus)

Reference for a preliminary ruling — Montego Bay Convention — Article 220(6) — Enforcement by the coastal State — Jurisdiction of the Court to interpret provisions of international law — Directive 2005/35/EC — Ship-source pollution — Article 7(2) — Marpol Convention 73/78 — Oil spill in the exclusive economic zone from a foreign vessel in transit — Circumstances in which a coastal State may instigate proceedings against a foreign vessel — Freedom of navigation — Protection of the marine environment — Major damage or threat of major damage to the coastline, related interests or any resources in the territorial sea or exclusive economic zone — Clear objective evidence)

Summary — Judgment of the Court (Third Chamber), 11 July 2018

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — International convention binding the Union — Interpretation of the provisions of a convention signed and approved by the Union — Included — Convention on the Law of the Sea 1982 (Montego Bay Convention)

(Art. 267 TFEU; European Parliament and Council Directive 2005/35, as amended by Directive 2009/123, Art. 7(2))

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — International convention not binding on the European Union — International Convention on the Prevention of Pollution from Ships (‘MARPOL Convention’) — Interpretation of provisions of secondary law of the Union falling within the scope of the convention — Included

(Art. 267 TFEU; European Parliament and Council Directive 2005/35, as amended by Directive 2009/123, Art. 7(2))

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — International convention not binding on the European Union — International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties — Not included

(Art. 267 TFEU)

Transport — Maritime transport — Ship source pollution and on the introduction of penalties for pollution offences — Directive 2005/35 — Enforcement measures by coastal States — Detention of a vessel — Conditions — Clear objective evidence that the violation has been committed — Concept

(European Parliament and Council Directive 2005/35, as amended by Directive 2009/123, Art. 7(2))

Transport — Maritime transport — Ship-source pollution and the introduction of penalties — Directive 2005/35 — Enforcement measures by coastal States — Detention of a vessel — Possibility for a Member State to impose a stricter measure in accordance with international law — Not included

(European Parliament and Council Directive 2005/35, as amended by Directive 2009/123, Arts 1(2) and 7(2))

See the text of the decision.

(see paras 44, 49)

See the text of the decision.

(see para. 45)

See the text of the decision.

(see para. 46)

Article 220(6) of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, and Article 7 (2) 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, including criminal penalties, for pollution offences, as amended by Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009, must be interpreted as meaning that the expression ‘clear objective evidence’ within the meaning of those provisions covers not only the commission of a violation, but also evidence of the consequences of that violation.

Thus, it appears that the authors of the Montego Bay Convention intended to confer on coastal States the right to take such a particularly drastic measure, first, where the violation committed by a vessel causes or threatens to cause substantial damage to that State and, second, it has been established that the vessel is responsible for such a violation. Since those two conditions, which are of equal importance, are cumulative, Article 220(6) of the Montego Bay Convention must therefore be interpreted as providing that the power to take action by the coastal State is subject to the existence of clear objective evidence of the commission by that vessel of a violation within the meaning of Article 220(3) thereof and of the major damage or risk of major damage for the coastal State concerned caused by that violation.

(see paras 61, 62, 65, operative part 1)

The expression ‘coastline or related interests’ in Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7 (2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that, in principle, it has the same meaning as the expression ‘coastline or related interests’ in Article I(1) and Article II(4) of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, concluded at Brussels on 29 November 1969, it being understood that Article 220(6) of the United Nations Convention on the Law of the Sea also applied to non-living resources of the territorial sea of the coastal State and to any resources in its exclusive economic zone.

(see para. 79, operative part 2)

Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7 (2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that the resources of the territorial sea and the exclusive economic zone of a coastal State, within the meaning of those provisions, cover both harvested species and also species associated with them and which are dependent on them, such as animal and plant species which feed on the harvested species.

It must be observed that Article 220(6) of the Montego Bay Convention refers to damage caused or the threat of damage to ‘any’ resources of the territorial sea or the EEZ of the coastal State. Therefore, that provision must be interpreted broadly in that regard, which is clear from its wording, and must not be understood as excluding certain resources from the scope of that provision.

(see paras 81, 84, operative part 3)

It is unnecessary, in principle, to take account of the concept of ‘significant pollution’ referred to in Article 220(5) of the United Nations Convention on the Law of the Sea when applying Article 220(6) of that convention and Article 7 (2) of Directive 2005/35, as amended by Directive 2009/123, and, in particular, when assessing the consequences of a violation, such as those defined in those provisions.

Although the protection of the ‘related interests’ of the coastal State are normally relevant where pollution has been caused, Article II(4) of the Convention Relating to Intervention on the High Seas 1969 specifically covers the harmful economic, social and health-related consequences of such pollution on the coastal State, that is, more specifically, the fact that significant damage has been caused or there is a threat of such damage, first, to the various professional activities related to the use of the sea by its coastal population constituting an essential means of livelihood for that population, then on tourism in its coastal areas and, lastly, on the health and well-being of that population. It is clear from that comparison that there are fundamental differences between Article 220(5) and Article 220(6) of the Montego Bay Convention. First, Article 220(5), read in the light of Article 1(4) of the Montego Bay Convention, does not seek to specifically protect the resources and related interests of the coastal State and, second, that State need not establish the existence of ‘major damage’ to those interests.

(voir points 88-90, 92, operative part 4)

In order to assess the consequences of a violation, as defined in Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7 (2) of Directive 2005/35, as amended by Directive 2009/123, all the evidence to establish that damage has been caused or that there is a threat of damage to the resources and related interests of the coastal State and to evaluate the extent of the damage caused or threatened to those resources or related interests, taking account inter alia of:

–

the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests;

–

the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads.

(see para. 102, operative part 5)

The specific geographical and ecological characteristics and sensitivity of the Baltic Sea area have an effect on the conditions of applicability of Article 220(6) of the United Nations Convention on the Law of the Sea and Article 7 (2) of the Directive 2005/35, as amended by Directive 2009/123, as regards the definition and classification of the violation and, although not automatically, on the assessment of the extent of the damage that that violation has caused to the resources and related interests of the coastal State.

In that connection, as the Advocate General observed in point 105 of his Opinion, the Baltic Sea is internationally recognised as being a special area characterised by geographical particularities and a particularly sensitive ecosystem in need of special protection. That being the case, it must be recalled that the specific objective of Article 220(6) of the Montego Bay Convention is not to ensure enhanced protection of special areas, but to protect certain resources and interests of the coastal State, regardless of whether or not the sea adjacent to that State is a special area.

(see paras 104, 106, 108, operative part 6)

Article 1 (2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning that it does not allow the Member States to impose more stringent measures in accordance with international law that those laid down in Article 7(2) thereof, where international law is applicable, given that the coastal States are authorised to take other measures equivalent in scope to those laid down in Article 220(6).

According to paragraph 63 of the present judgment, Article 220(6) of the Montego Bay Convention reflects the intention of that convention to strike a fair balance between the interests of the States in their capacity as coastal States and the interests of the States in their capacity as flag States, for all maritime areas. Therefore, Article 7 (2) of Directive 2005/35 cannot be regarded as authorising a coastal State to take measures which are more stringent than those laid down in that article which risk disturbing the fair balance between the interests of the coastal State and that of the flag State sought by Article 220(6) of the Montego Bay Convention. That being the case, such an interpretation cannot prevent the coastal State from taking measures of equivalent scope to those laid down in Article 220(6), since that article does not lay down an exhaustive list of authorised measures, as is clear from the use of the expression ‘inter alia’.

(see paras 115-118, operative part 7)