Interaction between
international and EU law in
relation to maritime and
air law: the case law of the
ECJ
Dr Malgorzata Nesterowicz
1
Treaty on the Functioning of the EU,
art. 216
The Union may conclude an agreement with one or more
third countries or international organisations where the
Treaties so provide or where the conclusion of an
agreement is necessary in order to achieve, within the
framework of the Union's policies, one of the objectives
referred to in the Treaties, or is provided for in a legally
binding Union act or is likely to affect common rules or
altertheir scope.
Agreements concluded by the Union are binding upon the
institutions of the Union and on its Member States.
2
Treaty on the Functioning of the EU, art. 351
The rights and obligations arising from agreements concluded before
1 January 1958 or, for acceding States, before the date of their
accession, between one or more Member States on the one hand, and
one or more third countries on the other, shall not be affected by the
provisions of the Treaties. To the extent that such agreements are not
compatible with the Treaties, the Member State or States concerned
shall take all appropriate steps to eliminate the incompatibilities
established. Member States shall, where necessary, assist each other
to this end and shall, where appropriate, adopt a common attitude.
In applying the agreements referred to in the first paragraph, Member
States shall take into account the fact that the advantages accorded
under the Treaties by each Member State form an integral part of the
establishment of the Union and are thereby inseparably linked with the
creation of common institutions, the conferring of powers upon them
and the granting of the same advantages by all the other Member
States.
3
C-308/06 Intertanko, Intercargo and
others v. Secretary of State for
Transport
• Judgement from 3 June 2008, Grand Chamber
• Prejudicial questions regarding the validity of the EU
Directive 2005/35 on sanctions for ship source pollution
in the light of international conventions: UNCLOS and
MARPOL
• Last question reg. the concept of “serious negligence”
and principle of legal certainty
4
Legal background
• UNCLOS – defines the jurisdictional powers of the States
within various maritime zones in relation to navigation and
management of marine natural resources, as well as their
rights and responsibilities in their use of the world's oceans
• MARPOL - designed to minimise marine pollution,
including dumping and accidental discharges. Prohibition of
discharges unless certain exceptions apply.
• Directive 2005/35 (now amended by Directive
2009/123) – prohibits illegal discharges (as in MARPOL) in
all marine zones. EU Member States are supposed to
design effective, proportionate and dissuasive penalties if
discharges are caused voluntarily or by serious negligence
of any person (natural and legal) involved.
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Dir. 2005/35 + Dir. 2009/123 in detail
General – purpose and scope (Art. 1 and 3):
• Ship-source discharges of polluting substances (substances
covered by Marpol Annex I and II) are considered
infringements (Dir. 2005/35) and in particular crimes (Dir.
2009/123)
if committed with: intent, recklessly or by serious
negligence
• Applies irrespective of flag;
• Applies to owner, master as well as any other person who is
found responsible for the discharge (i.e. the owner of the cargo,
the classification society or any other person involved)
•Applies within internal waters (including ports), territorial sea,
straits used for international navigation, EEZ of a MS, high seas
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Dir. 2005/35 + Dir. 2009/123 in detail
Obligations for MS (art. 4-5 and 8):
• Member States shall ensure that ship-source discharges of
polluting substances, including minor cases of such
discharges, are regarded as criminal offences if committed
with intent, recklessly or with serious negligence.
- Minor cases, where the act committed does not cause
deterioration in the quality of water, shall not be regarded as
criminal offence;
- Repeated minor cases, that in conjunction result in
deterioration in the quality of the water shall be regarded as
a criminal offence;
- Punishable by effective, proportionate and dissuasive
penalties.
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Questions
1. In relation to straits, EEZ and high seas, Directive
limits the exceptions of MARPOL relating to the
shipowner, master and crew. Validity in the light of
MARPOL?
2. In relation to the territorial sea, Directive limits the
exceptions of MARPOL and introduces a “new” liability
test – serious negligence. Validity in the light of
MARPOL?
3. The requirements of the Directive valid in the light of
UNCLOS right to innocent passage?
4. Concept of serious negligence.
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When the ECJ can consider the validity
of the EU act in light of international law
1. EU must be bound by the international rules in question:
• EU institutions are bound by agreements concluded by
the Community/EU – those agreements have primacy
over secondary EU legislation.
• This will also apply if the Member States signed the
international agreements and then the Community has
assumed acc. to the Treaty the powers previously
exercised by the MS.
2. ECJ can only examine the validity when the provisions of
the international treaty are unconditional and sufficiently
precise.
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In this case: condition 1
Condition 1: The Community did not ratify MARPOL and
did not assume the powers exercised by the MS in relation
to the topics included in MARPOL (still shared
competences, not exclusive competences) – conclusion:
validity in the light of MARPOL cannot be accessed.
Condition not fulfilled.
The Community ratified UNCLOS. Condition fulfilled.
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In this case: condition 2
Condition 2: Individuals are not granted independent
rights and freedoms by UNCLOS. UNCLOS is addressed to
the States. The rights to individuals (e.g. freedom of
navigation) must be further granted by the States.
As UNCLOS does not establish rules intended to apply
directly to individuals, the individuals cannot rely on
UNCLOS to have the validity of the Directive assessed by
the ECJ.
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Concept of “serious negligence”
• In all MS the concept of “negligence” refers to an
unintentional act or omission by which the person
responsible breaches his duty of care.
• MS will have to transpose the Directive into national law
so they will define the applicable concepts and
penalties.
• Conclusion: Principle of legal security not affected by
“serious negligence”
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C-336/10 Air Transport Association of
America and others v Secretary of
State for Energy and Climate Change
• Judgement from 21 December 2011, Grand Chamber
• Prejudicial questions regarding the validity of the EU
Directive 2008/101 amending Directive 2003/87
including aviation activities in the scheme for
greenhouse gas emission allowance trading in the light
of international law: Chicago Convention, Kyoto Protocol
and Open Skies Agreement as well as customary
international law
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Legal background
• Chicago Convention: establishes rules on airspace,
aircraft registration, safety, and details the rights of the
signatories in relation to air travel. It also exempts air fuels
from tax.
• Kyoto Protocol: its objective is to reduce the
concentration of greenhouse gases in the atmosphere.
• Air Transport Agreement between EU and US (amended
by the Protocol on Open Skies): its objective is to
facilitate international air transport between EU and US by
opening access to markets.
• EU Directive 2003/87: establishes a scheme for
greenhouse gas emission allowance trading.
• EU Directive 2008/101: amends the previous Directive
by adding aviation.
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Questions
1. The validity of Directive 2003/87 as amended by
Directive 2008/101 in the light of:
- Principles of customary international law that each State
has an exclusive sovereignty over its air space, that no
State can subject any part of high seas to its
sovereignty, that there is freedom of flying over high
seas, that aircraft flying over high seas is subject only
to the jurisdiction of the country of their registration.
The Emission Trading Scheme applies also to part of the
flights outside of the airspace of EU MS in relation to the
aircrafts registered in the third countries.
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Questions
2. Validity of the Directive in the light of customary
international law, Chicago Convention and Open Skies
Agreement in relation to the Emissions Trading Scheme as
far as it applies to parts of the flights outside of the
airspace of EU MS by the aircrafts registered in the third
countries.
3. Validity of the Directive in the light of Kyoto Protocol,
Chicago Convention and Open Skies Agreement in so far
as it applies to aviation activities.
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When the ECJ can consider the validity
of the EU act in light of international
agreements
1. EU must be bound by the international rules in
question
2. The provisions of the international treaty have to be
unconditional and sufficiently precise
17
In this case: condition 1
• Condition 1:
- Chicago Convention: EU is not a party although all MS
are. It could be still bound if all powers previously
exercised by MS that fall within the Convention were
transferred to the EU but this is not the case. EU only
acquired some powers regarding relations with third
states and taxation of fuels. Condition not fulfilled.
- Kyoto Protocol: EU has approved it by Decision
2002/358. Condition fulfilled.
- Open Skies Agreement: EU has approved it. Condition
fulfilled.
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In this case: condition 2
• Kyoto Protocol: it is directed to the States who, with
certain degree of flexibility, have to introduce measures
to decrease the concentration of greenhouse gases. It
does not confer rights and obligations directly on
individuals. Condition not fulfilled.
• Open Skies Agreement: contains some rules that apply
directly to the airlines and thereby confers on them
rights and freedoms that they can rely on against the
parties to the Agreement. Condition fulfilled.
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Validity of the Directive in light of the
Open Skies Agreement
1. Emission Trading Scheme: allowances are calculated on the
basis of emissions for whole flights, also parts of the flights
carried above high seas or territories of the third states. The
only condition is that the aircraft would enter or depart from the
territory of an EU MS.
• ECJ concludes: it applies to all aircrafts at no distinction and
if operators of third country registered aircrafts choose to
operate commercial routes with the use MS airports, it
applies to them too (not if they only fly over the territory)
2. ETS: is it compatible with exemption of fuel from taxes?
• ECJ concludes: it is different. No direct link between the
burden and the quantity of fuel consumed (depends on the
number of allowance purchased by the operator on the
market) and the scheme is not intended to generate revenue
for public authorities.
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…
3. Does ETS limit volume of traffic and frequency of
service?
• ECJ concludes: Open Skies Agreement, art. 3 allows for
measures that limit volume and frequency of traffic if
the measures are linked to the protection of the
environment and applied in a non-discriminatory
manner. According to the ECJ the scheme fulfils those
conditions.
Final conclusion: the Directive is not invalid in the light of
the Open Skies Agreement.
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When the ECJ can consider the validity
of the EU act in light of customary
international law
1. The principles referred have to be recognised as forming
part of customary international law
2. Determine to what extent the individuals can rely on them
Condition 1: ECJ agrees that those principles are recognised:
that each State has an exclusive sovereignty over its air
space, that no State can subject any part of high seas to its
sovereignty and the principle of freedom of flying over high
seas. Condition fulfilled.
No recognised as principle: that aircraft flying over high seas
is subject only to the jurisdiction of the country of their
registration.
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…
Condition 2: ECJ concludes that the principles confer direct
rights on individuals and therefore they can rely on them.
As the Directive can affect those rights, the individuals can
request to have the validity assessed before the referring
court. Condition fulfilled.
As a principle of customary international law does not have
the same degree of precision as a provision of an
international agreement, judicial review must be limited to
the question whether, in adoption the relevant act, the EU
institutions made manifest errors of assessment
concerning the conditions for applying those principles.
The answer of the ECJ was that there was no
manifest error.
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Comm. Proposal for a Regulation on
the monitoring, reporting and
verification of carbon dioxide
emissions from maritime transport
• Launched on 28/06/2013
• Regulation applies to ships above 500 GT in respect of
emissions released during their voyages from the last
port of call to a port under the jurisdiction of a MS and
from a port under the jurisdiction of a MS to their next
port of call.
• Companies (shipowners) will monitor and report for every
ship the amount and type of fuel consumed during a
calendar year for each voyage arriving to and departing
from a port in a MS.
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Proposal for a Regulation: details
• Companies shall submit to verifiers (by 31/08/2017) a
monitoring plan indicating the method chosen to
monitor and report emissions. Verifiers (accredited legal
entities) shall assess the conformity of the plan with the
Reg.
• Monitoring is done on per voyage basis and on yearly
basis.
• Methods: (1) bunker delivery notes, (2) bunker fuel
tank sounding, (3) fuel flow meters, (4) direct
emissions measurements.
• From 2019, by 30 April each year, companies shall
submit to the Commission and flag State authorities, an
annual emission report.
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…
• Relationship with the Regulation (EU) No 525/2013 of
the European Parliament and of the Council of 21 May
2013 on a mechanism for monitoring and reporting
greenhouse gas emissions and for reporting other
information at national and Union level relevant to
climate change;
• Referring to UN Framework Convention on Climate
Change and IMO Energy Efficiency Design Index (for
new ships) and Ship Energy Efficiency Management Plan
.
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Potential application of the C-366/10
ECJ judgement
• The EU had approved the United Nations Framework
Convention on Climate Change by Decision 94/69
• The Convention does not create rights and obligations
directly for individuals
• Geographical scope: inter-EU voyages and the voyages
departing or arriving to the EU (compare also with Reg.
no 392/2009 on the liability of carriers of passengers by
sea in the event of accidents)
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Any questions?
• Thank you for your attention
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