1 Interaction between international and EU law in relation to maritime and air law: the case law of the ECJ Dr Malgorzata Nesterowicz

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. 5

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 6

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. 7

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. 8

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. 9

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. 10

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. 11

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” 12

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 13

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. 14

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. 15

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. 16

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. 18

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. 19

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. 20

… 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. 21

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. 22

… 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. 23

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. 24

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. 25

… 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. 26

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) 27

Any questions? Thank you for your attention 28