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January 24 2006

Court challenge to EU pollution penalty directive

Shipping industry organizations have brought legal proceedings to test the validity of the EU Directive on Criminal Sanctions for Ship-Source Pollution. They have have applied to the High Court in London for judicial review of the directive, and they are asking that the issue be referred to the European Court of Justice in Luxembourg for a ruling.

INTERTANKO is the lead applicant in a coalition that also includes, the Greek Shipping Cooperation Committee, LloydÕs Register and the International Salvage Union.

The industry coalition contends that under EU law the directive is invalid on the grounds that it conflicts with international law.

The application to the Administrative Court in London names as respondent the U.K. Secretary of State for the Department for Transport and it was served at the end of last month. It follows the precedent of similar cases in which the aviation industry has challenged EU legislation by proceedings started in London and referred to the European Court for a ruling.

The coalition contends that the directive, if implemented, would put EU member states in breach of their obligations under the International Convention on the Prevention of Pollution from ships 1973 (MARPOL) and the United Nations Convention on the Law of the Sea 1982 (UNCLOS). The coalition says that the directive would result in criminal sanctions for accidental pollution in cases where liability is excluded by international law.

The coalition also maintains that the directive is flawed because its test of liability is not sufficiently clear for penal legislation, and because it fails in various other respects to satisfy the European Community principle of legal certainty.

The proceedings bring before the courts concerns which industry bodies and other observers have voiced since the first draft of the directive was published in 2003, and which have been shared (among others) by international jurist Dr. Thomas Mensah, a former presiding judge of the International Tribunal on the Law of the Sea.

The coalition stresses that it is fully committed to safe transportation, cleaner seas, and effective measures to achieve further improvements in the prevention of pollution from ships. However, the coalition believes that the directive will not contribute to these objectives but will have a counter-productive effect, notably on the retention and recruitment of quality crews, and on the roles of classification societies, salvors and others concerned with ship safety and protection of the environment.

The coalition is convinced that the supremacy of international law is vital to the effective regulation of shipping. It supports global regulation under the auspices of the International Maritime Organisation, which has 166 member states including all EU member states. It says its action has been brought to test the validity of unilateral regional legislation which is in conflict with international law and, in the coalitionÕs view, threatens to undermine effective global regulation of shipping.

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