Brussels, 22/11/2007 (Agence Europe) -Advocate General Juliane Kokott has advised the Court of Justice, in conclusions filed on 20 November, to judge that Directive 2005/35/EC of the Parliament and Council is perfectly legal. A coalition of the major world shipping companies brought a case against the transposition of this directive before the British High Court, based on the fact that it defines responsibility using the stricter criteria than the Convention on the Law of the Sea, or the “Marpol 73/78” protocol of 1978. In fact, under the directive grave negligence is enough to render a vessel responsible for its pollution from waste, whereas under Marpol 73/78, it is only responsible where there is imprudence and awareness of the damage likely to be caused. The shipping companies argue that accidental pollution will be punished excessively if this new definition of “responsibility” is applied by the member states.
If it follows the Advocate General's conclusions (which it is not obliged to do), the European Court of Justice will respond to the British court that the harsher criteria contained in the directive are applicable. Firstly, the directive applies to national waters, where Marpol 73/78 and the Convention on the Law of the Sea only serve as a minimum standard. In these waters the measures applied by the member states can therefore be stricter, and if harmonisation is needed at EU level (which the advocate general believes to be the case), the standards of the harmonisation can also be stricter. Finally, Ms Kokott does not believe that Directive 2005/35/EC affects legal certainty; the obligations remain clear and reasonable, and sailors do not risk excessive persecution under the directive. The Court's final judgement in this case (C-308/06) is expected in the next few months. (C.D.)