Joined Cases C‑14/21 and C‑15/21
Sea Watch eV
v
Ministero delle Infrastrutture e dei Trasporti and Others
(Requests for a preliminary ruling from the Tribunale amministrativo regionale per la Sicilia)
Judgment of the Court (Grand Chamber), 1 August 2022
(Reference for a preliminary ruling – Activities relating to the search for and rescue of persons in danger or distress at sea carried out by a humanitarian non-governmental organisation (NGO) – Regime applicable to ships – Directive 2009/16/EC – United Nations Convention on the Law of the Sea – International Convention for the Safety of Life at Sea – Respective competences and powers of the flag State and the port State – Inspection and detention of ships)
1. Transport – Maritime transport – Port State control – Directive 2009/16 – Scope – Ships classified and certified as cargo ships by the flag State but systematically used by a humanitarian organisation for non-commercial activities relating to the search for and rescue of persons in danger or distress at sea – Included – National legislation limiting the applicability of the directive only to ships used for commercial activities – Not permissible
(European Parliament and Council Directive 2009/16, Art. 3(1), first subpara., and (4))
(see paragraphs 69-78, 80-82, 86, operative part 1)
2. Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – International convention not binding on the European Union – The SOLAS Convention – Interpretation of provisions of EU secondary legislation falling within the scope of the convention – Included
(Art. 267 TFEU; European Parliament and Council Directive 2009/16)
(see paragraphs 90, 91)
3. Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – International convention binding on the European Union – Interpretation of the provisions of a convention signed and approved by the Union – Included – 1982 Convention on the Law of the Sea (Montego Bay Convention)
(Art. 267 TFEU; European Parliament and Council Directive 2009/16)
(see paragraphs 92-94, 96-108)
4. Transport – Maritime transport – Port State control – Directive 2009/16 – The SOLAS Convention – 1982 Convention on the Law of the Sea (Montego Bay Convention) – Possibility for the port State to subject ships used for non-commercial activities relating to the search for and rescue of persons in danger or distress at sea located in its port or in waters falling under its jurisdiction to an additional inspection – Whether permissible – Conditions – Existence of serious indications of a danger to health, safety, on-board working conditions or the environment
(European Parliament and Council Directive 2009/16, Art. 11(b) and Annex I)
(see paragraphs 114-126, operative part 2)
5. Transport – Maritime transport – Port State control – Directive 2009/16 – The SOLAS Convention – 1982 Convention on the Law of the Sea (Montego Bay Convention) – More detailed inspections – Ships classified and certified as cargo ships by the flag State but systematically used by a humanitarian organisation for non-commercial activities relating to the search for and rescue of persons in danger or distress at sea – Possibility for the port State to take this specificity into account in the context of a control – Whether permissible – Possibility for the port State to demand certificates other than those issued by the flag State or compliance with requirements applicable to another classification – Not permissible
(European Parliament and Council Directive 2009/16, Art. 13)
(see paragraphs 128-139, operative part 3)
6. Transport – Maritime transport – Port State control – Directive 2009/16 – Detention of a ship – Ships classified and certified as cargo ships by the flag State but systematically used by a humanitarian organisation for non-commercial activities relating to the search for and rescue of persons in danger or distress at sea – Existence of deficiencies which are clearly hazardous to safety, health or the environment and which make the ship concerned unseaworthy – Possibility for the port State to impose corrective measures – Whether permissible – Conditions
(European Parliament and Council Directive 2009/16, Art. 19)
(see paragraphs 144-148, 150-157, 159, operative part 4)
Résumé
Sea Watch is a humanitarian non-profit organisation registered in Berlin (Germany). It carries out activities relating to the search for and rescue of persons in danger or distress in the Mediterranean Sea, using ships in respect of which it is both the owner and the operator. Those ships include, in particular, the ships known as ‘Sea Watch 3’ and ‘Sea Watch 4’ (‘the ships in question’), which fly the German flag and which have been certified in Germany as ‘general cargo/multipurpose’ ships.
During the summer of 2020, following search and rescue operations in the international waters of the Mediterranean Sea and then the transhipment and disembarking of the rescued persons in the ports of Palermo (Italy) and Porto Empedocle (Italy), towards which the Italian authorities had requested that the ships in question be directed, those ships were subject to inspections carried out by the harbour master’s offices of the ports of those two municipalities, which subsequently ordered that they be detained. Those harbour master’s offices considered that the ships in question were engaged in search and rescue activities at sea although they were not certified in respect of those activities and had, as a result, taken persons on board in greater numbers than they were authorised to accommodate. In addition, they noted a number of technical and operational deficiencies, some of which, in their view, fell to be regarded as giving rise to a clear risk to safety, health or the environment and as being sufficiently serious to warrant the detention of those ships.
Following the detention of the ships in question, Sea Watch brought two actions before the Tribunale amministrativo regionale per la Sicilia (Regional Administrative Court, Sicily, Italy) for annulment of (i) the detention orders and (ii) the inspection reports which preceded those orders. In support of those actions, it claimed, in essence, that the harbour master’s offices responsible for those measures had exceeded the powers conferred on the port State, as derived from Directive 2009/16, (1) interpreted in the light of the relevant rules of international law, and that the inspections carried out by those harbour master’s offices in fact constituted a roundabout means of frustrating the search and rescue operations at sea to which it is dedicated.
In that context, the Regional Administrative Court, Sicily, considered that the disputes before it raised important and unprecedented issues concerning the legal framework and regime applicable to ships which are operated by humanitarian non-governmental organisations in order systematically to carry out activities relating to the search for and rescue of persons in danger or distress at sea (‘private humanitarian assistance ships’).
By its judgment, delivered by the Grand Chamber, the Court of Justice interprets Directive 2009/16 for the first time, in particular in the light of the United Nations Convention on the Law of the Sea (2) and the SOLAS Convention. (3) It holds that that directive also applies to ships that systemically carry out activities relating to the search for and rescue of persons in danger or distress at sea and that the national rules transposing that directive cannot limit its applicability to ships used for commercial activities. In addition, the Court clarifies the extent and the conditions of implementation of the powers of control that can be exercised by the port State, as well as the powers of inspection and detention of ships.
Findings of the Court
As regards the applicability of Directive 2009/16, the Court holds that that directive is applicable to ships which, although classified and certified as cargo ships by the flag State, are in practice being systematically used by a humanitarian organisation for non-commercial activities relating to the search for and rescue of persons in danger or distress at sea. That directive applies, first, to any seagoing vessel which flies a flag other than that of the port State, (4) with the exception of specific categories of ships which are expressly excluded from its scope. (5) Those categories, which thus constitute exceptions, must be regarded as exhaustive and must be interpreted strictly. From that point of view, the fact that the activities actually carried out by a ship do not coincide with those in respect of which it was classified and certified has no bearing on the applicability of the directive; this is also true of the fact that those actual activities are commercial or non-commercial in nature. Secondly, Directive 2009/16 applies to such a ship when it is located, inter alia, in a port or anchorage of a Member State for the purpose of engaging in a ship/port interface there. (6)
In the light of that interpretation, the Court points out that Directive 2009/16 precludes national legislation ensuring its transposition into domestic law from limiting its applicability only to ships which are used for commercial activities. In particular, all ships which may fall within the scope of that directive, including private humanitarian assistance ships, must be able to benefit from the monitoring, inspection and detention mechanism provided for therein.
As regards the conditions for implementing the monitoring, inspection and detention mechanism (7) in respect of ships subject to the jurisdiction of the port Member State and, more specifically, private humanitarian assistance ships, the Court finds, in the first place, that Directive 2009/16 must be interpreted by taking account of the Convention on the Law of the Sea and the SOLAS Convention. It follows, in particular, that, in a situation where the master of a ship flying the flag of a State that is a party to the SOLAS Convention has implemented the duty to render assistance at sea enshrined in the Convention on the Law of the Sea, neither the coastal State, which is also a party to the first of those two conventions, nor the flag State can make use of their respective powers to ascertain whether the rules on safety at sea have been complied with in order to verify whether the presence on board of persons to whom assistance has been rendered may result in the ship in question infringing any of the provisions of that convention. (8)
In the second place, the Court holds that the port State may subject ships which systematically carry out search and rescue activities and which are located in one of its ports or in waters falling within its jurisdiction, having entered those waters and after all the operations relating to the transhipment or disembarking of persons to whom their masters have decided to render assistance have been completed, to an additional inspection if that State has established, on the basis of detailed legal and factual evidence, that there are serious indications capable of proving that there is a danger to health, safety, on-board working conditions or the environment in view of the relevant legal provisions, having regard to the specific conditions under which those ships operate. (9) In the event of an appeal, compliance with those requirements can thus be verified by the national court. In that regard, the Court sets out the factors which may be taken into account for the purposes of that verification, namely the activities for which the ship in question is used in practice, any difference between those activities and the activities in respect of which the ship is certified and equipped, how frequently those activities are carried out, and the equipment of that ship with regard to the expected (but also the actual) number of persons on board. The Court adds that, when circumscribed in this way, the inspection of the ship concerned by the port State falls within the framework laid down by the Convention on the Law of the Sea and the SOLAS Convention.
In the third place, the Court states that, during more detailed inspections, (10) the port State has the power to take account of the fact that ships which have been classified and certified as cargo ships by the flag State are, in practice, being systematically used for activities relating to the search for and rescue of persons in danger or distress at sea in the context of a control intended to assess, on the basis of detailed legal and factual evidence, whether there is a danger to persons, property or the environment, in view of the relevant provisions of international and EU law, having regard to the conditions under which those ships operate. The act of thus making the control which may be carried out by the port State conditional upon the existence of clear grounds for believing that a ship or its equipment does not comply with the rule that a ship must be maintained in conditions such as to ensure that it will remain fit to proceed to sea without danger to itself or to the persons on board is consistent with the rules of international law governing the division of powers between that State and the flag State. By contrast, the port State does not have the power to demand proof that those ships hold certificates other than those issued by the flag State or that they comply with all the requirements applicable to another classification. That would call into question the way in which the flag State has exercised its powers in the area of conferring its nationality on ships, as well as the area of classifying and certifying those ships.
In the fourth and last place, the Court holds that the port State may not detain a ship unless the deficiencies confirmed or revealed by a more detailed inspection, first, pose a clear risk to safety, health or the environment and, second, individually or together, make it impossible for the ship concerned to sail under conditions capable of ensuring safety at sea. In addition, that State may impose predetermined corrective measures relating to safety, pollution prevention and on-board living and working conditions, if they are warranted in order to rectify the deficiencies found. That being so, such corrective measures must, in each individual case, be suitable, necessary and proportionate to that end. Moreover, the adoption and implementation of those measures by the port State must be the result of cooperation between that State and the flag State, having due regard to the respective powers of those two States and, where the flag State is also a Member State, to the principle of sincere cooperation.