On the legality of the Ship-Source Pollution 2005/35/EC directive: the Intertanko case and selected others

The case is an interesting example of the legal difficulties faced by private parties challenging before a Member State’s courts the validity of Community acts in light of the ever proliferating international environmental agreements signed by the Community or the Member States themselves. In this case, a shipping industry coalition challenged in the English High Court the legality of Directive 2005/35/ EC on Ship–Source Pollution in light of the International Convention for the Prevention of Pollution from Ships (“Marpol 73/78”) and the United Nations Convention on the Law of the Sea (1982 UNCLOS), which in turn referred questions for a preliminary ruling before the European Court of Justice. Predictably, the Directive has been vilified by the shipping industry for imposing higher standards than those established under international law. The case also shows how the concept of serious negligence, which appears in a number of EU/EC acts or proposals establishing an obligation of Member States to introduce criminal sanctions for violations of Community legislation or with the broader object of combating crime in the EU, may be interpreted by the national courts and the legislature of the Member States