Intertanko & Ors, R (on the application of) v Secretary of State for Transport [2006] EWHC 1577 (Admin)

[2006] EWHC 1577 (Admin)Case No CO/10651/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/06/2006
Before
MR JUSTICE HODGE
Between
The Queen on the application ofClaimant(1) THE INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS (INTERTANKO)Claimant(2) THE INTERNATIONAL ASSOCIATION OF DRY CARGO SHIPOWNERS (INTERCARGO)Claimant(3)THE GREEK SHIPPING CO-OPERATION COMMITTEEClaimant(4) LLOYD’S REGISTERClaimant(5) THE INTERNATIONAL SALVAGE UNIONClaimantTHE SECRETARY OF STATE FOR TRANSPORTDefendant
Christopher Greenwood QC and Hugh Mercer (instructed by Ince & Co) for ClaimantsClive Lewis and Nigel Cooper (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 7 June 2006
Judgment
[1]Ship-source pollution, whether caused by accident or deliberate discharge, is a very serious problem. There are international maritime standards governing discharges of polluting substances. The European Parliament and the Council of the European Union consider that these standards are being regularly ignored. They decided that further dissuasive and proportionate penalties are needed to address the problem. The European Community Directive 2005/35/EC declares at Preamble(8):
“Ship-sourced discharges of polluting substances should be regarded as infringements if committed with intent, recklessly or by serious negligence. These infringements are regarded as criminal offences by and in the circumstances provided for in, Framework Decision 2005/667/JHA supplementing this Directive.”
[2]The claimants in this action are a group of responsible organisations within the marine shipping industry. They represent substantial proportions of the industry. The first claimant for instance represents nearly 80% of the world’s tanker fleet. The claimants are committed to the maintenance of proper standards within their industry. But they doubt the jurisdiction of the Community under international law to legislate in accordance with Directive 2005/35/EC (“the Directive”).[3]This case concerns the degree to which the EU is entitled to take unilateral action by introducing legislation applicable to the shipping industry, which, the claimants say, departs from internationally harmonised rules on the same issue contained in the International Convention for the Prevention of Pollution from Ships 1973 as amended (MARPOL). The claimants accordingly invite this Court to grant permission to apply for judicial review and to then refer a series of questions of Community law to the European Court of Justice pursuant to Article 234 of the Treaty establishing the European Community.[4]The Directive must be implemented by member states on or before 1st April 2007. It has not yet been implemented by the United Kingdom. It is settled law that a national court has jurisdiction to make a reference to the European Court relating to the validity of a directive in advance of the adoption of domestic implementing measures. Only the ECJ, not a national court, has power to declare that a directive is invalid. The national court may reject contentions as to invalidity. But if it considers that one or more of the arguments related to invalidity are well-founded, it must stay proceedings and make a reference to the ECJ for a preliminary ruling on the validity of, here, the Directive (case C-344/04 R(IATA and ELFAA) v Department for Transport, judgment of 12th January 2006).

UNCLOS

[5]The EC has jurisdiction to make provisions relating to transport by sea (articles 70-80 and in particular article 80(2) EC Treaty). The EC also has jurisdiction to conclude treaties which are binding on Community institutions (article 300(7) EC Treaty). The Community is a party to the United Nations Convention on the Law of the Sea (UNCLOS). The provisions of that Convention “now form an integral part of the Community legal order” (case C-459/03 Commission v Ireland, judgment May 30th 2006).[6]Article 2 of UNCLOS recognises the sovereignty of a coastal state over its territorial sea but such sovereignty is “exercised subject to this convention and to other rules of international law” (article 2(3)). Ships have a right of innocent passage through the territorial sea (article 17). By article 19, a passage is “innocent so long as it is not prejudicial to the peace, good order or security of the coastal state”. That provision is breached if a foreign ship engages in “any act of wilful and serious pollution contrary to this convention (article 19(2)(h))”.[7]Coastal states have jurisdiction over their exclusive economic zones (EEZ) in relation to the protection and preservation of the marine environment. By article 89, “no state may validly purport to subject any part of the high seas to its sovereignty”. Freedom of navigation of the high seas is guaranteed by article 87.[8]Part XII of UNCLOS deals with the protection and preservation of the marine environment. Article 211 provides so far as relevant:
“(1) States, acting through the competent international organisation or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimise the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal states. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary. (2) States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards, established through the competent international organisation or general diplomatic conference… (4) Coastal states may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels. (5) Coastal states, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organisation or general diplomatic conference.”

MARPOL

[9]MARPOL was adopted under the auspices of the International Maritime Organisation (the IMO), a United Nations Agency. It aims to regulate pollution from ships and is the successor to a previous International Convention for the Prevention of Pollution of the Sea by Oil 1954. MARPOL was adopted in 1973, amended by a protocol in 1978 and came into force in 1983 after receiving the requisite number of ratifications.[10]MARPOL was in force during the negotiations for the United Nations Convention on the Law of the Sea (UNCLOS). All EU member states are parties to the Convention establishing the IMO, to MARPOL and to UNCLOS.[11]The fourth preamble to MARPOL speaks of the desire to “achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimisation of accidental discharge of such substances”.[12]The requirements for control of operational pollution are set out in chapter II of Annex I to MARPOL. In relation to oil, these are contained in regulations 9 and 10. The requirements involve restrictions prohibiting discharges in special areas, within a minimum distance from land or in excess of maxima stipulated for the rate of discharge per nautical mile, for the total quantity discharge and for the oil content of the effluent. Discharges into the sea of oil or oily mixtures from ships are accordingly prohibited except when a list of conditions is satisfied. If those conditions are not satisfied, contracting states are required to penalise offenders.[13]A different approach is taken in relation to accidental discharges. Most accidental spills breach the conditions in regulations 9 and or 10 and so would be prohibited. But regulations 9 and 10 are disapplied to certain oil spills. Annex I regulation 11 provides as follows: “Regulations 9 and 10 of this annex shall not apply to: a) the discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving life at sea; or b) the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment; i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimising the discharge; and ii) except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or c) the discharge into the sea of substances containing oil approved by the Administration, when being used for the purpose of combating specific pollution incidents in order to minimise the damage from pollution. Any such discharge shall be subject to the approval of any Government in whose jurisdiction it is contemplated the discharge will occur.” i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimising the discharge; and ii) except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or[14]Hence an accidental oil spill which falls within regulation 11(b) is not a prohibited discharge for the purposes of MARPOL. Regulations 9 and 10 are disapplied altogether.[15]It is of significance to note that Annex II to MARPOL contains provisions which are similar to those in Annex I. However, these provisions apply not to oil or oily mixtures but to noxious liquid substances in bulk. Regulation 5 of Annex II prohibits the discharge into the sea of specified substances.

(b) Annex II states:

“Regulation 5 of this Annex shall not apply to: .. (b) the discharge into the sea of noxious liquid, substances or mixtures containing such substances resulting from damage to a ship or its equipment (i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge with the purpose of preventing or minimising the discharge; and (ii) except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage could probably result.” (i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge with the purpose of preventing or minimising the discharge; and (ii) except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage could probably result.”
[16]Regulations 9, 10 and 11 of Annex I of MARPOL impact on the operations of the tankers owned by the members of the first claimant. That Annex also effects the ships operated by the second claimant in relation to oil carried on those ships but they are also subject to regulations 5 and 6 of Annex II of MARPOL concerning other substances provided for in that Annex.[17]The claimants contend that the international law obligations of the EU member states in relation to these matters are contained in MARPOL. They say the Directive is inconsistent with, and contrary to, those international law obligations.

The Directive

[18]The Directive was proposed by the European Commission shortly after the sinking of an oil tanker, the Prestige, in the High Seas west of Portugal in November 2002. Substantial parts of the coastline of Spain and France were polluted as a result of that accident. Significant pollution had earlier, in 1999, been caused to the coast of France by the sinking of the Erika, another tanker. The Preamble to the Directive says:
“(7) Neither the international regime for the civil liability and compensation of oil pollution nor that relating to pollution by other hazardous or noxious substances provides sufficient dissuasive effects to discourage the parties involved in the transport of hazardous cargos by sea from engaging in substandard practices; the required dissuasive effects can only be achieved through the introduction of penalties applying to any person who causes or contributes to marine pollution; penalties should be applicable not only to the ship owner or the master of the ship, but also the owner of the cargo, the classification society or any other person involved. ”
[19]It is unnecessary for the purposes of this judgment to detail the objections that were raised to the Directive as it proceeded through the EU legislative processes. It is however clear that the European Parliament raised concerns, particularly on the conflict between the international and community legal regimes in relation to marine pollution. Various member states’ shipping interests raised concerns. It is the claimants’ case that the Directive by conscious choice departs from the international regime for the control of ship-source pollution set out in MARPOL.[20]The purpose of the Directive is set out in article 1 and: “is to incorporate international standards for ship-source pollution into Community law and to ensure that persons responsible for discharges are subject to adequate penalties as referred to in Article 8, in order to improve maritime safety and to enhance protection of the marine environment from pollution by ships”.[21]The scope of the Directive is set out in article 3. By article 3(1) it applies “in accordance with international law to discharges of polluting substances in” among other areas:
“3(1)… b) The territorial sea of a Member State; c) straits used for international navigation… … d) the exclusive economic zone or; equivalent zone… and e) the high seas.”
The Directive applies to discharges of polluting substances from any ship irrespective of its flag, (article 3(2)) with the exception of warships and other government-owned ships.[22]Articles 4 and 5 define the scope of infringements of the Directive and provide for exceptions:
“Article 4: Member states shall ensure that ship-source discharges of polluting substances into any of the areas referred to in Article 3(1) are regarded as infringements if committed with intent, recklessly or by serious negligence. These infringements are regarded as criminal offences by, and in the circumstances provided for, in Framework Decision 2005/667/JHA supplementing this Directive. Article 5: (1) A discharge of polluting substances into any of the areas referred to in Article 3(1) shall not be regarded as an infringement if it satisfies the conditions set out in Annex I, Regulations 9, 10, 11(a) or 11(c), or in Annex II, Regulation 5, 6(a) or 6(c) of Marpol 73/78.

(b) or in Annex II, Regulation 6(b) of Marpol 73/78”

.

Article 5:

[23]These provisions highlight the distinctions in the Directive between the provisions penalising pollution in territorial seas on the one hand and on the high seas or in the exclusive economic zone on the other.[24]In relation to territorial seas, discharges of polluting substances within the territorial sea of a member state are an infringement if they are committed with intent, recklessly or by serious negligence. There are no exclusions or exceptions. All or anybody associated with the ship involved might potentially be liable. Regulation 11(b) of Annex I and Regulation 6(b) of Annex II of MARPOL are disapplied.[25]Discharges on the high seas or in the exclusive economic zone of a member state are also an infringement if they are committed with intent, recklessly or by serious negligence. However, for owners, masters and the crew acting under the master’s responsibility, such a discharge of polluting substances is not an infringement provided that all reasonable precautions have been taken to prevent or minimise the discharge and the owner and master has not acted either with intent to cause damage or recklessly and with knowledge that damage would probably result. Hence if those three groups, the owners, the masters and the crew satisfy the conditions in regulation 11(b) of Annex I to MARPOL, they are exempted.[26]The Directive therefore provides that in relation to the discharge of polluting substances on the high seas or in the exclusive economic zone, all persons involved in the ship other than the owners, masters or crew, will be criminally liable for an infringement if it was committed with intent, recklessly or by serious negligence. So, if there were “serious negligence”, such persons as the fourth claimant or a salvor might be liable.

The grounds for a reference

[27]The claimants contend that four arguments that the Directive is invalid are well-founded. They are:(1) Whether it is lawful for the EU to legislate independently of MARPOL for 3rd country vessels in the high seas or in the Exclusive Economic Zone(2) Whether it is lawful for the EU to legislate for the territorial sea otherwise than in accordance with MARPOL(3) Whether the standard of liability of serious negligence in the Directive breaches the right of innocent passage(4) Whether the standard of liability in the Directive of “serious negligence” is consistent with legal certainty and or with the duty to give reasons for the Directive[28]I consider, and reach a conclusion on each issue in turn.[29]The claimants argue that MARPOL sets a fixed and binding set of rules for the regulation of ship-source pollution. They say that insofar as the Directive provides that discharges, which are not prohibited by MARPOL, are to be infringements, it is invalid. It is the defendant’s view that a state only has jurisdiction in relation to discharges on the high seas in relation to ships which are flying its flag, or where its legislation implements international rules. Articles 211(1) and (2) of UNCLOS quoted at paragraph 8 above support this submission. Insofar as the Directive gives effect to MARPOL, then it is consistent with articles 211(1) and (2) of UNCLOS. However, the Directive does go further. It seeks to impose liability in respect of discharges from 3rd country ships in cases of serious negligence by persons other than the owner, master or crew. The Directive clearly aims to achieve that. There are savings within article 5(1) of the Directive, but they exclude the savings provided for in 11(b) of Annex I and Regulation 6(b) of Annex II of MARPOL.[30]Equally, in relation to the Exclusive Economic Zone, it is said states may only legislate to give effect to general international standards, see article 211(5) UNCLOS.[31]Provisions in articles 218 and 211 of UNCLOS allow states to take action in relation to discharges on the high seas from ships of other flag states in circumstances set out in those articles. There is for instance a right in international law to enforce measures to protect a state’s coastline or related interests from pollution or the threat of pollution following a maritime casualty.[32]However it is clear that article 5(2) of the Directive, by limiting the effect of regulation 11(b) of Annex I and regulation 6(b) of Annex II of MARPOL changes the position. A person associated with ships other than the owner, master and crew would normally be able to take advantage of these regulations but loses this right under the Directive on both the high seas and in the EEZ. The claimants assert that the Community has no jurisdiction to provide that discharges from 3rd country ships caused by serious negligence on the part of a person other than owner, master or crew acting under his responsibility (and not falling within article 5(1) of the Directive) are to be infringements and subject to penalties.[33]The defendants support that claim to the extent that they doubt that the Community has power under international law to impose such restrictions and to regulate such discharges.[34]I regard the argument that these provisions in article 5(2) are invalid as well founded. I too share the doubt that the Community is able to modify the MARPOL regime for discharges from 3rd country ships on the high seas or in the EEZ. I therefore refer this issue to the European Court of Justice under Article 234 EC.[35]The defendant assert that the claimants’ contention that MARPOL provides a fixed, binding and uniform set of rules which cannot be departed from save by amendment of MARPOL even in relation to the territorial seas of a coastal state is wrong. First, the defendant notes that articles 2 and 211(4) of UNCLOS provide that coastal states retain sovereignty over and may legislate for their territorial sea, subject to rights of innocent passage. Secondly the defendant says that there is nothing in MARPOL that provides that its provisions should be the sole source of applicable standards within the territorial sea or that coastal states may not adopt more stringent requirements. Third, the defendants note that article 9(2) of MARPOL recognises that nothing in MARPOL is to prejudice the “codification and development of the Law of the Sea by the United Nations Conference”.[36]The claimants argue that, as the recitals of MARPOL say, the rules are established as “having a universal purport”. Further, Article 4 provides:
“4(2) Any violation of the requirements of the present Convention within the jurisdiction of any Party to the Convention shall be prohibited and sanctions established therefor under the law of that Party.”
[37]Further, MARPOL introduced detailed rules and standards for controlling pollution which are contained in the annexes to MARPOL. Some of those annexes, for instance III, IV, V are optional. Annexes I and II with which this application is concerned are compulsory and by Article 14(1) “parties to the convention shall be bound by an Annex in its entirety”.[38]Annex I which covers regulations for the prevention of pollution by oil has been binding at all times, and no protocol has been agreed to postpone or modify its implementation. It applies to all ships, Regulation 2(1). There are extremely detailed provisions in relation to surveys of tankers of above a certain tonnage and the certification of oil pollution prevention. It prohibits all discharges of oil or oily mixtures from ships at sea subject to the provisions of Regulations 10 and 11 of Annex I. There are rules (regulation 8a) for the exercise of port state control over pollution.[39]The claimants contend for an accepted view by the international community “that shipping is by definition an international industry which requires regulation on a global basis by uniform international laws, in particular for matters concerned with construction standards, navigational rules, standards of crew competence and the management and operation of ships”. They argue against “a plethora of conflicting national regulations resulting in commercial distortion and administrative confusion which would compromise both safety and efficiency”.[40]They also rely on the travaux preparatoires of MARPOL. In particular they say that the Canadian delegation involved in the negotiation of MARPOL proposed that the Convention should not be construed as “derogating from the powers of any contracting government to take measures within its jurisdiction in respect of any matter to which the Convention relates” IMCO (Inter-Governmental Maritime Consultative Organisation) Summary Record of the Twelfth Plenary Meeting at the International Conference on Marine Pollution, 1973, 1 November 1973 at page 11. . This proposal was defeated by 32 votes to 15 with only 2 European states voting in favour of the proposal. In the statement of Mr de la Rue filed on behalf of the claimants, he quotes the French delegation at the time of the time of the negotiations. They said at the time:
“The Conference would strengthen the value of the Convention by deciding to delete [the draft compromise text] and in so doing would recognise that Contracting States could not take special measures within their jurisdiction and consequently go against its objectives”
Page 3 of the Summary Record at (2). .[41]There is, say the claimants, an element of compromise or bargain inherent in such international instruments. Flag states limit their rights to behave as they wish on the high seas. As part of the bargain coastal states agree to limit their rights within their territorial waters in accordance with the agreed convention. They also rely on there being an accelerated procedure for achieving amendments to MARPOL without convening a fresh diplomatic conference. They note that in an addendum to the draft minutes of the Council of the European Union (Economic and Financial Affairs) meeting in Brussels on 12th July 2005 dated 15th September 2005, the following statement was included: “Statement by the Council on the possibility of reviewing the MARPOL 73/78 Convention The Council invites the Commission to explore the possibility of launching an initiative in the framework of the International Maritime Organisation with a view to having the MARPOL 73/78 Convention reviewed, more particularly its annexes on regulations for the prevention of pollution by oil and by noxious liquid substances, and narrowing the scope of the exceptions to prohibitions to discharge these products into the sea on the basis of the recent legislation of the EC and the EU on ship-sourced pollution and to report to the Council in the course of 2006 ”.[42]No such amendments have apparently as yet been tabled.[43]The claimants also argue that UNCLOS and MARPOL, read together, can properly be understood as decisions by coastal states to limit their sovereign rights over their territorial seas. In effect they argue that MARPOL is an example of states agreeing to exercise sovereign powers in an agreed uniform manner. Once they have entered into laws and regulations for the prevention, reduction and control of marine pollution as provided for in UNCLOS article 211(4) and in MARPOL, they have limited their rights over the territorial seas. All the EU member states have participated in MARPOL and established international rules and standards to control pollution in accordance with UNCLOS article 211(1). These treaties, say the claimants, mean the countries of the EU have restricted the exercise of their sovereign powers for the future. Hence the Directive is also invalid in this respect.[44]The defendants have relied on Article 9(2) of MARPOL which provides:
“Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea … nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.”
[45]The claimants say that article 9(2) was designed to avoid any argument that because both flag states and coastal states have limited their rights to control pollution by agreement, these rights are evidence of the full extent of the sovereign rights or otherwise of states for the purpose of UNCLOS. They also say that the Directive is not directed at the EU member states as flag states. Had it been then the more stringent requirements expressly permitted by article 211(2) UNCLOS might have applied.[46]In IATA, this Court raised a question of the ECJ as to the validity of the provisions of a Community instrument. At question 8, the validity issue was raised on the basis of whether the claim was “arguable” or “not unfounded”. The Court ruled that the test to be applied (see para 4 above) was whether the claim was “well founded”. The phrase “well founded” means something more than merely arguable and will in my judgment bear an equivalence to the well understood phrase in English jurisprudence of a claim having “a reasonable prospect of success”. With that in mind I regard the arguments as put forward by the claimants on the second issue as well founded. Accordingly I refer the second issue to the European Court of Justice under article 234 EC.[47]Article 17 of UNCLOS provides:
“Subject to this Convention, ships of all states, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea.”
[48]Article 19 defines innocent passage:
“1) Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such passage shall take place in conformity with this Convention and with other rules of international law. 2) Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal state if in the territorial sea it engages in any of the following activities … (h) any act of wilful and serious pollution contrary to this Convention.” (h) any act of wilful and serious pollution contrary to this Convention.”
[49]It is the claimant’s case that “passage where there is negligent or seriously negligent pollution remains innocent and lowering the threshold of liability hampers innocent passage”. They support this contention relying on the analysis contained in a paper given in 2005 by Dr Thomas A Mensah the now retired but former Presiding Judge of the Law of the Sea Tribunal in Hamburg. (See papers for the Eighth Cadwallader Memorial Lecture LSLC)[50]It is his view that “there is no basis either in MARPOL or in UNCLOS for the claim that a coastal state has the power to enact laws that deviate from the parameters specified under international law”. Article 211(4) of UNCLOS provides that any laws or regulations enacted by coastal states shall “not hamper innocent passage of foreign vessels”. The definition in article 19 paragraph 2(h) of UNCLOS means in Dr Mensah’s view that “in the absence of a wilful and serious act of pollution, passage by a foreign vessel in the territorial sea of a coastal state must be considered to be ‘innocent passage’”.[51]He goes on to argue that the EC Directive lowers the requirement for the application of sanctions to a discharge from a foreign vessel involving “serious negligence”. That is not provided for in either MARPOL or UNCLOS. Hence the standard hampers innocent passage of a foreign vessel through the territorial sea. He says:
“In particular a member state of the EU which enacts legislation to implement the Directive would be in breach of its obligations to another state party to MARPOL if it seeks to apply sanctions to the vessel of that other state for a discharge that results solely from ‘serious negligence’.”
[52]The defendant on the other hand argues that this ground adds nothing to the second issue. If in fact the Community has jurisdiction to adopt legislation dealing with the territorial sea in the way provided for in the Directive, that legislation does not hamper the right of innocent passage.[53]In my judgment, it is clearly arguable that the adoption of the Directive does potentially hamper the right of innocent passage. There are differing obligations under the Directive and under the international regimes provided for in MARPOL and UNCLOS. This creates potential difficult legal problems in the relationship between parties to the international instruments who are not member states of the EU and a state which implements the Directive. Again, this is an argument which has a reasonable prospect of success and is accordingly in my judgement “well founded” and meriting a reference to the European Court of Justice under Article 234 EC.[54]There is a duty under article 253 EC to give reasons for the implementation of among other matters a Directive. In Government of the Federal Republic of Germany v Commission of the European Economic Community Case 24/62 [1963] ECR 63, the Court held at page 69:
“To attain these objectives it is sufficient for the decision to set out in a concise but clear and relevant manner the principle issues of law and of fact upon which it is based and which are necessary in order that the reasoning which has led the Commission to its decision may be understood.”
[55]I agree with the submission of the defendants that the recitals make it abundantly clear why the Community institutions have decided to exercise their jurisdiction in this Directive. Recital 2 says the rules in MARPOL are being ignored by ships in Community waters; recital 4 proposes measures of a “dissuasive nature” and recital 7 asserts that the current regime for civil liability and compensation does not provide sufficient dissuasive effect to stop substandard practices when transporting hazardous cargoes by sea.[56]The European Court said at paragraph 66 of IATA:
“It is to be remembered that, while the statement of reasons required by article 253 EC must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its powers of review, it is not required to go into every relevant point of fact and law.”
[57]I am satisfied that the reasons for the Directive are clearly set out in the recitals. In my judgment the arguments put forward by the claimants in relation to this aspect of the 4th issue are unfounded and do not call for any reference to the ECJ.[58]Article 4 of the Directive requires member states to “ensure that ship-source discharges of polluting substances into any of the areas referred to in article 3(1) are regarded as infringements if committed with intent, recklessly or by serious negligence”. Such infringements are to be regarded as criminal offences within the terms of the Framework decision 2005/667/JHA. The phrase “serious negligence” does not appear in MARPOL. The claimants are concerned that the term does not have a clearly defined meaning. They say it lacks legal certainty. In particular they say there is a risk of subjectivity infecting any decision to prosecute under the Directive. There needs to be some uniform factors which spell out when the standard of “serious negligence” will be satisfied. They say the risk of subjectivity can be seen in the treatment by the Spanish authorities of the master of the Prestige who still faces criminal sanction despite, it is said “his exemplary conduct” during the time when attempts were made to save that vessel.[59]They contend in their grounds for judicial review “that at least some specification by way of criteria is required as to when the circumstances of oil pollution are sufficiently serious for the conduct to be ‘serious’ for the purposes of article 4”.[60]The defendant doubts on the other hand that the use of the phrase “serious negligence” infringes the principles of legal certainty. The defendant regards the provisions as sufficiently precise to be capable of implementation by a member state and to enable individuals to determine whether or not particular conduct can properly be described as amounting to an infringement within the meaning of Article 4. I do not agree. The Directive envisages member states implementing it by introducing penalties which may include criminal sanctions. There is arguably a need for some factors to be set out to guide member states as to when the standard of “serious negligence” is satisfied. Without such a provision there may be a danger of different states implementing the Directive in a different manner. I regard the contention that the phrase “serious negligence” is currently lacking legal certainty as well founded for the purposes of a reference to the European Court of Justice under Article 234 EC.[61]On the other hand I do not accept that article 8 of the Directive presents legal uncertainty such as to justify a reference. The obligation on member states is to take measures to ensure that infringements of article 4 are “subject to effective proportionate and dissuasive penalties” which may include criminal or administrative penalties. The responsibilities imposed on member states in relation to this aspect are in my judgment clear.[62]For the reasons given above(1) I grant permission to the claimant to apply for judicial review but I stay the proceedings.(2) I refer the questions set out below to the European Court of Justice pursuant to Article 234 EC. Questions: (1). In relation to straits used for international navigation, the Exclusive Economic Zone or equivalent zone of a member state and the high seas, is article 5(2) of Directive 2005/35/EC invalid insofar as it limits the exceptions in Annex I regulation 11(b) of MARPOL 73/78 and in Annex II regulation (6)(b) of MARPOL 73/78 to the owners, masters and crew? (2). In relation to the territorial sea of a member state: a) Is article 4 of the Directive invalid insofar as it requires member states to treat serious negligence as a test of liability for discharge of polluting substances; and/or b) Is article 5(1) of the Directive invalid insofar as it excludes the application of the exceptions in Annex I regulation 11(b) of MARPOL 73/78 and in Annex II regulation (6)(b) of MARPOL 73/78? (3). Does article 4 of the Directive, requiring member states to adopt national legislation which includes serious negligence as a standard of liability and which penalises discharges in territorial sea, breach the right of innocent passage recognised in the United Nations Convention on the Law of the Sea, and if so, is article 4 invalid to that extent? (4). Does the use of the phrase “serious negligence” in article 4 of the Directive infringe the principle of legal certainty, and if so, is article 4 invalid to that extent?

Cited in 1 later judgment