Industry remains concerned that implementation of Directive 2005/35/EC on Ship-Source Pollution and on the introduction of penalties for infringements by EU Member States will result in conflicts with their international treaty law obligations under MARPOL and UNCLOS unless the Directive is interpreted in a manner consistent with the international treaties. In her Opinion in the Intertanko et al proceedings in the European Court of Justice, the Advocate General came to the conclusion in relation to Articles 4 and 5 of the Directive that the concepts “serious negligence” and “recklessly” have to be interpreted in conformity with MARPOL, namely “intent to cause damage or recklessly and with knowledge that damage would probably result”, at least in areas beyond the territorial sea, which include the Exclusive Economic Zone and the high seas.
It was agreed at the last Committee meeting (2 February 2009) that EU national associations should encourage their administrations to adopt the approach of the Advocate General as regards interpretation of the Directive, and that the Secretariat should produce a position paper to assist EU national associations in their discussions with their respective administrations. The attached paper has been prepared jointly with the European Community Shipowners’ Associations and circulated to ECSA members. The paper recommends that when implementing and interpreting Articles 4 and 5 of Directive 2005/35/EC in their national laws, EU Member States should follow the approach suggested by the Advocate General. ECSA members have been invited to inform the ECSA Secretariat of the results of their efforts, and this information will be relayed to the Committee in due course.
