In The Bosphorus Queen Case C-15/17, ECLI:EU:C:2018:557, the CJEU has ruled on the interpretation of art. 220(6) of the UN Convention on the Law of the Sea 1982 (UNCLOS) in relation to the rights of a coastal state to initiate proceedings against a vessel arising out of pollution in its exclusive economic zone (EEZ). The vessel spilt oil on the edge of Finland’s EEZ and on its return through the Finnish EEZ it was detained and required to provide security to cover the amount of a possible fine for the spill. A fine of 17,112 Euros was subsequently imposed on the ground that the spill had caused major damage to or a threat of major damage to Finland’s coastline or related interests, or to resources of its territorial sea or EEZ. In the event the oil spilt did not reach the coastline, caused no damage, and no counter-measures were taken.
The CJEU held:(1) The EU as a party to UNCLOS, had jurisdiction to interpret its provisions. UNCLOS had primacy over secondary EU legislation. The EU was not a party to the 1969 Intervention Convention but could take account of it as it formed part of the relevant rules for interpreting UNCLOS.
(2) The relevant EU legislation was art.7(2) of Directive 2005/35 which incorporated into EU law the provisions of art.220(6) with almost identical wording, and had to be interpreted in accordance with art. 220(6).
(3) Article.220(6) provides: “ Where there is clear objective evidence that a vessel navigating in the [EEZ] or the territorial sea of a State has, in the [EEZ], committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or [EEZ], that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.” Paragraph 3 of art.220 refers to “violations of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards.”
The coastal state’s powers under paragraph 6 were subject to clear objective evidence both of the commission of a violation under paragraph 3 and also of the consequences of that violation.
(4) The reference to ‘coastline or related interests’ in art. 220(6) and art 7(2) of Dir 2005/35 could be interpreted as having the same meaning as the definition of these terms in art II(4) of the 1969 Intervention Convention, bearing in mind UNCLOS also applied to non-living resources. ‘Resources’ referred to harvested species and living species associated with them or which depended on them.
(5) It was not necessary to take account of the concept of ‘significant pollution’ referred to in art. 220(5) when assessing the consequences of a violation under art. 220(6). In assessing the extent of damage caused or threatened to the resources or related interests of the coastal state account should be taken of, inter alia,
– the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests;
– the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads .
The specific geographical and ecological characteristics and sensitivity of the Baltic Sea area have an effect on the conditions of applicability of Article 220(6) would have an effect on this assessment.
(6) Although art 1(2) of Dir 2005/35 allowed Member States to impose more stringent measures, it did not allow them to impose more stringent measures in accordance with international law that those laid down in Article 7(2) which authorised coastal states to take measures equivalent in scope to those laid down in Art. 220(6).
Thank you for bringing attention to a case which has raised so many interesting questions on so many levels. Apart from those already addressed, the reports do not mention how the ship was intercepted or physically detained. Was use of force or the threat of it in the EEZ necessary to induce the ship to stop? Or did it do so willingly upon request (or order) of a government ship? Is CJEU the most appropriate forum to determine on complicated questions of international law of the sea? If not, how could alternative routes have been engaged, if at all? Curiously for me, the flag State is not in the list of ‘interveners’ . It seems that Article 223 of LOSC 1982 would have facilitated attendance if the flag State so desired. Perhaps it stood behind the owner anyway. It will be interesting to know how the Finnish courts now finally determine the case. It wouldn’t surprise me to hear that the parties have by now expended not less than a six-figure sum on the case. Obviously, much more is at stake than the mere c. Euro 17k fine; subrogation being just one of the possible considerations that come to mind. A strong and reliably functioning mechanism for the protection of the environment, another.