Intertanko & Ors, R (on the application of) v Secretary of State for Transport

A national court may refer the validity of an EU directive to the European Court of Justice before domestic implementing measures have been adopted. It must reject an invalidity argument that is merely speculative, but must refer an argument that is well founded, meaning that it has a reasonable prospect of success.

Arguments that a directive alters the MARPOL regime for third-country vessels on the high seas or in an exclusive economic zone, departs from MARPOL in the territorial sea, hampers innocent passage, or makes serious negligence legally uncertain may meet that threshold. A challenge based on inadequate reasons will not do so where the directive’s recitals clearly explain its objectives.

The claimants, organisations representing parts of the shipping industry, sought judicial review of Directive 2005/35/EC on ship-source pollution. They argued that the Directive exceeded Community competence under international law by departing from the MARPOL regime and the United Nations Convention on the Law of the Sea.

The claimants also challenged the Directive’s treatment of serious negligence, alleging infringement of innocent passage, legal certainty and the duty to give reasons. The central question was whether the invalidity arguments were sufficiently well founded to require a reference to the European Court of Justice under article 234 EC.

1. Reference threshold. A national court may consider the validity of a directive before implementing legislation is adopted. Only the European Court of Justice may declare the directive invalid. Following R (IATA and ELFAA) v Department for Transport (Case C-344/04), a reference is required where an invalidity argument is well founded, which means that it has a reasonable prospect of success.
2. High seas and exclusive economic zone. Article 5(2) of the Directive limits the MARPOL exceptions for accidental discharges by confining them to owners, masters and crew. The argument that the Community lacked power to modify MARPOL for third-country ships on the high seas or in the exclusive economic zone was well founded.
3. Territorial sea. The argument that the Directive could not depart from MARPOL in the territorial sea was also well founded. The Court therefore referred the relevant questions concerning article 5(1) and the territorial application of article 4.
4. Innocent passage and legal certainty. It was well founded that applying serious negligence to pollution from foreign ships could potentially hamper innocent passage. The phrase serious negligence also arguably lacked sufficient legal certainty where member states might impose criminal penalties, because the Directive supplied no guiding factors. By contrast, article 8’s requirement for effective, proportionate and dissuasive penalties was sufficiently clear.
5. Reasons. The challenge based on the duty to give reasons was unfounded. The recitals clearly explained the Community institutions’ concerns about non-compliance with MARPOL and the need for dissuasive penalties. The proceedings were stayed and the identified questions were referred to the European Court of Justice.

First-instance judicial review proceedings. No prior appellate history is stated in the judgment.