The European community, the European court of justice and the law of the sea

International Journal of Marine and Coastal Law

Volumn 23, Issue 4, 2008, Pages 643-713

  Boelaert Suominen, Sonja ^a  

^a EUROPEAN COMMISSION   (Belgium)

Author keywords

External treaty making power of the european community under the law of the sea; Marine and maritime policy of the european community; United nations convention on the law of the sea

Indexed keywords

EUROPEAN UNION; FISHERY POLICY; INTERNATIONAL LAW; LAW OF THE SEA; MARINE POLICY; UNITED NATIONS;

EURASIA; EUROPE;

EID: 70249134007     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180808X353894     Document Type: Article

References (278)

1. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 [hereinafter LOSC or the Convention]. For the text of the LOSC and related instruments as well as updates on signatures, ratifications and accessions see website of the UN Division for Ocean Affairs and the Law of the Sea: http://www.un.org/Depts/los/index.htm.
2. See also D. Freestone, "Editorial: Twenty-Five Years of the Law of the Sea Convention, 1982-2007", 22 IJMCL (2007) 1-5.
3. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, adopted on 17 August 1994, 33 ILM 1309 (1994), in force since 28 July 1996. It has 131 parties, among which is the European Community.
4. The Parties include 154 states and one international organisation (the European Community). The LOSC was not adopted by consensus but by recorded vote. The results were 130 in favour, 4 against, with 18 abstentions: UN Doc. A/CONF.62/30/SR. 182, 3 June 1982. Israel, Turkey, the United States and Venezuela voted against; several EEC Member States abstained. See: T. Treves, " The United Nations Law of the Sea Convention of 1982: Prospects for Europe", in Conference Papers Greenwich Forum LX, Britain and the Sea, Scottish Academic Press, Edinburgh (1984) 166-182 at 167.
5. See B. Kunoy, "A New Arctic Conquest: The Arctic Outer Continental Margin", 76 Nordic Journal of International Law (2007) 465-480 at 469.
6. See D. Caron and H. Scheiber, "The United States and the 1982 Law of the Sea Treaty", ASIL Insight, 11 June 2007, vol. 11(16), available at: http://asil.org/insights/2007/06/ insights0706l 1 .html#-edn2;
7. D. Bederman, The Old Isolationism and the New Law of the Sea: Reflections on Advice and Consent for UNCLOS, 49 Harv. Int'l L.J. Online 21 (2008), available at: http://www.harvardilj.org/online/126.
8. For an excellent critique of Article 309 of the LOSC (which excludes reservations and exceptions, unless expressly permitted by specific Articles) see: A. Pellet, "Les Reserves aux Conventions sur le Droit de la Mer ", in La Mer et Son Droit, Melanges Offerts à Laurent Lucchini et Jean-Pierre Quéneudec, Pedone, Paris, France (2003) 501-520.
9. The Treaty of Rome (hereinafter: TEC) establishing the European Economic Community (EEC), was signed on 25 March 1957, and entered into force on 1 January 1958.
10. For the consolidated text of the Treaty of Rome, see Official Journal of the European Communities (hereinafter: Official Journal), C325 24.12.2002.
11. The European Community (EC) replaced the EEC in 1993 as a result of the Treaty on the European Union {Official Journal, C191 29.07.1992) signed in Maastricht on 7 February 1992, which entered into force on 1 November 1993.
12. The Treaty of Lisbon, Official Journal, C306 17.12.2007) signed on 13 December 2007, provides that the EC will be succeeded by the 'European Union'. The Treaty of Lisbon was scheduled to be ratified by all Member States by the end of 2008, in time for the 2009 European elections.
13. "An Integrated Maritime Policy for the European Union", Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 10 October 2007, COM(2007) 575 final (not published in the Official Journal); available at: http://eur-lex.europa.eu/smartapi/cgi/sga-doc? smartapi!celexplus!prod!DocNumber&lg=en&type-doc=COMfinal&an-doc= 2007&nu-doc=575.
14. For all relevant documents see the website of the European Commission's maritime affairs directorate: http://ec.europa.eu/maritimeaffairs/subpage-en. html#press.
15. In addition, if one includes Europe's 'Outermost Regions', even parts of the Caribbean Sea and the Indian Ocean form part of the European Community's maritime waters.
16. Blue Book, op. cit., supra note 8 at 3, para. 2.
17. Maritime Facts and Figures, published to accompany the Green Book; available at: http:// ec.europa.eu/maritimeaffairs/pdf/facts-fig-en-bat-060523. pdf.
18. See too: European Community Shipowners' Associations, Expectations for a EU Maritime Policy-, June 2005, according to which the EEA-flagged fleet's share of the world market is about 26 %; available at: http:// www.ecsa.be/ publications/052.pdf.
19. Blue Book, op. cit, supra note 8 at 13, para. 4.4.
20. Council Decision of 8 June 1998 on the ratification by the European Community of the Agreement for the implementing of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling stocks and highly migratory fish stocks (98/414/EC), Official Journal, L 189,03.07.1998, pp. 14-15. Not all EC Member States have complied with this obligation yet.
21. Action Plan (Commission Staff Working Document accompanying the Blue Book), 10 October 2007, SEC (2007) 1278, para. 7.4, pp. 30-31.
22. This also includes active participation by the EC and its Member States in international discussions on marine genetic resources in areas beyond national jurisdiction. In this regard, the EC and its Member States are gathering international support for a new implementation agreement to the LOSC. See EU Presidency Statements made on 30 April 2008 to the UN 6th Committee on genetic resources beyond areas of national jurisdiction, available at: http://www.europa-eu-un.org/articles/en/article-7847-en.htm.
23. Actions for annulment based on Article 230 TEC may be brought against the Community's institutions (European Parliament, Council or Commission) by the institutions, Member States and natural or legal persons.
24. Proceedings on the grounds of failure to act based on Article 232 TEC may be brought against the Community's institutions (European Parliament, Council or Commission) by the institutions, Member States and natural or legal persons.
25. These proceedings under Articles 226 and 227 TEC are known as 'infringement proceedings' against Member States. They are usually brought by the Commission, but could also be brought by a Member State.
26. Under Article 234 TEC, a national court may request the ECJ to give a preliminary ruling on questions involving Community law if it considers that a decision on such questions is necessary to enable it to give judgment. However, if such a question arises in a case before a court of a Member State against whose decisions no judicial remedy is available under national law, the question must be referred to the ECJ.
27. In addition, the ECJ has appellate and review jurisdiction in regard to the Court of First Instance (CFI), established in 1989, and the Civil Service Tribunal, established in 2004
28. The role of the latter is to assist the Court. They are responsible for presenting, with complete impartiality and independence, an 'opinion' in the cases assigned to them. Their opinion is authoritative, but does not bind the Court.
29. The Court sits as a full court in the particular cases prescribed by the Statute of the Court (proceedings to dismiss the European Ombudsman or a Member of the European Commission who has failed to fulfil his or her obligations, etc.) and where the Court considers that a case is of exceptional importance. It sits in a Grand Chamber when a Member State or an institution which is a party to the proceedings so requests, and in particularly complex or important cases. Other cases are heard by Chambers of three or five judges.
30. This common policy has its current legal basis in Articles 2 and 3 as well as Articles 32-38 TEC which define the goals and organisation of the common policy in the sphere of agriculture and fisheries.
31. Official Journal, L 236, 20.10.1970, pp. 1 and 5-Council Regulations Nos. 2141 and 2142/70/EEC.
32. Fisheries Convention between the Governments of Austria, Belgium, Denmark, the French Republic, the Federal Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the U.K. of Great Britain and Northern Ireland, signed in London on 9 March 1964, 581 U.N.T.S. 76, hereinafter referred to as "the Fisheries Convention"). The EEC did not become a party to the Fisheries Convention but individual Member States did. The Convention includes a so-called 'EEC clause (Article 10 (a)) stating that the regime established by the Convention would be without prejudice to the regime established within the EEC for its Member States and associated states.
33. D. Vignes, "La Communauté européenne dans le domaine du droit général de la mer", in T. Treves and L. Pineschi (eds.), The Law of the Sea. The European Union and its Member States, Publications on Ocean Development, vol. 28, Martinus Nijhoff Publishers, The Hague, (1997) 7-26 at 12-13.
34. These were the U.K., Denmark, Ireland and Norway. In the end, Norway did not join the EEC.
35. Act concerning the conditions of accession and the adjustments to the Treaties, annexed to the Treaty concerning the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and the European Atomic Energy Community, Official Journal, L 73, English Special Edition, 27 March 1972, p. 14, hereinafter referred to as the " 1972 Act of Accession".
36. For a discussion of this provision see D. Vignes, op. cit., supra note 26 at 14-15.
37. Regulation No. 2141/70 was subsequently replaced by Council Regulation (EEC) No. 101/76 of 19 January 1976, Official Journal L 20, 28.01.1976, p.19. Article 2 of the latter Regulation contains provisions identical to those of Regulation No. 2141/70. The seventh recital in the preamble to Regulation No. 101/76, however, points out that, when the Regulation is being applied, the derogations provided for, in particular, by Article 100 of the 1972 Act of Accession must be taken into account.
38. On 25 January 1983 the Council adopted Regulation (EEC) No. 170/83 establishing a Community system for the Conservation and Management of Fishery Resources, Official Journal, L 24, 27.01.1983, p. 1.
39. Article 6 of Council Regulation (EEC) No. 170/83, op. cit., supra note 31.
40. Case 63/83, Regina v. Kirk, Judgment of 10 July 1984 [1984] European Court Reports (hereinafter: ECR) 2689.
41. Case 804/79, Commission v. U.K., Judgment of 5 May 1981 [1981] ECR 1045;
42. see too: Case 287781, Anklagemyndigheden v. Jack Noble Kerr, Judgment of 30 November 1982 [1982] ECR 4053.
43. Case 804/79, op. cit., supra note 34, para. 20.
44. Ibid., para. 23.
45. The concept of the EEZ was accepted in April-May 1976 by the 'Evensen group' at UNC-LOS III. At a meeting on political cooperation of their Ministers of Foreign Affairs in The Hague, on 31 October 1976, EEC Member States decided to incorporate this concept in the Community's fisheries policy; D. Vignes, op. cit., supra note 26 at 15-16.
46. Council Resolution of 3 November 1976 on certain external aspects of the creation of a 200-mile fishing zone in the Community with effect from 1 January 1977, Official Journal, C 105, 07.05.1981, p. 1.
47. Community waters are defined as waters under the sovereignty or jurisdiction of the Member States and indirectly incorporate the jurisdictional zones set out in the LOSC. See for the current CFP Regulation: Council Regulation (EC) No. 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, Official Journal L 358, 31.12.2002, pp. 59-80, Article 3 (a).
48. The TAC is a notion that closely follows the definition of Article 61.1 of the LOSC.
49. D. Vignes, op. cit., supra note 26 at 16-17.
50. See Council Regulation (EEC) No. 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture, Official Journal, L 389, 31.12.1992, p. 1.
51. Council Regulation (EC) No. 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, Official Journal, L 358, 31.12.2002, pp. 59-80.
52. See for an illustration of this new approach: "Fishing Opportunities for 2008-Policy Statement from the European Commission"; Communication from the Commission to the Council, COM (2007) 295 final, 6 June 2007, not published in the Official Journal, available from: http://ec.europa.eu/ fisheries/legislation/communications-en.htm.
53. See Council Regulation (EC) No. 2371/2002, op. cit., supra note 43, Article 17 (1).
54. Ibid., Article 17 (2).
55. Ibid., Article 20.
56. Ibid., Annex on coastal waters for Belgium.
57. E. Franckx, "Belgium and the Law of the Sea" in T. Treves and L. Pineschi (eds.), op. cit., supra note 26, 37-96 at 55. Articles 2 and 3 of the Treaty Establishing the Benelux Economic Union, 2 February 1958, 81 U.N. T.S. 165, and annexe A of volumes 480 and 565; unofficial translation in English also available from :http://www.benelux.be/en/rgm/rgm-unieverdrag.asp.
58. This will be discussed further below.
59. Article 20(1) of Council Regulation (EC) No. 2371/2002, op. cit., supra note 43. In practice votes are often taken, even if more recently decision-making by consensus has been possible as well.
60. The system of 'relative stability' had been applied since 1983 by the 10 Member States of the EEC, in accordance with the CFP Regulation, and it was extended upon the Spanish and Portuguese accessions, without modification. The same happened with the subsequent enlargements of the EC.
61. Case 46/86, Romkes v. Officier van Justitie, Judgment of 16 June 1987 [1987] ECR 2671, para. 17;
62. see too: Case C-120/99, Italy v. Council, Judgment of 25 October 2001 [2001] ECR 1-7997, paras. 42-44;
63. Joined cases C-61/96, C-132/97, C-45/98, C-27/99, C-81/00 and C-22/01, Spain v. Council, Judgment of 18 April 2002 [2002] ECR 1-03439;
64. Joined Cases C-87/03 and C-100/03, Spain v. Council, Judgment of 30 March 2006 [2006] ECR 1-2915, para. 27.
65. See for a recent confirmation: Joined cases C-87/03 and C-100/03, Spain v. Council, Judgment of 30 March 2006 [2006] ECR 1-2915, para. 38.
66. See the judgments of 13 October 1992 rendered in the following cases: regarding Greenland, Joined Cases C-63/90 and 67/90, Spain and Portugal v. Council [1992] ECR1-05073;
67. regarding the Faroe Islands, Cases C-70/90, Spain v. Council[1992] ECRI-05159;
68. regarding Norway, C-71/90 Spain v. Council [1992] ECR 1-05175 and regarding Swedish waters C-73/90, Spain v. Council [1992] ECR 1-05191.
69. Case C-91/03, Spain v. Council, Judgment of 17 March 2005 [2005] ECR I-2267, paras. 43-56.
70. Case C-442/04, Spain v. Council, Judgment of 15 May 2008, nyr, para. 35.
71. Ibid., paras. 36-45.
72. Ibid., paras. 47-48 (with references to cases C-87/03, C-100/03 and C-134/04).
73. Case C-141/05, Spain v. Council, Judgment of 8 November 2007, nyr, paras. 34-39, 47-48.
74. Case C-146/89, Commission v. U.K., Judgment of 9 July 1991 [1991] ECRI-03533.
75. Ibid., para. 25.
76. The Merchant Shipping Act 1988 provided that a vessel could only be registered as British if all the legal owners and at least 75 per cent of the beneficial owners were "qualified persons or companies" and its charterer, manager or operator was a qualified person. The vessel must also be managed and its operation directed and controlled from within the U.K.
77. Case C-221/89, The Queen v. Secretary of State for Transport, ex parte Factortame Ltd and others, Judgment of the Court of 25 July 1991 [1991] ECR1-03905.
78. Article 5(1) of this Convention (450 U.N.T.S. 6465) reads as follows: "Each State shall fix the conditions for the grant of nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag."
79. Case C-221/89, op. cit, supra note 64, at paras. 13-17.
80. Ibid., para. 13, which refers back to earlier case law. Insofar as fishing vessels in particular are concerned, the Court referred back to its judgment in Case C-223/86 (Pesca Valentia v. Minister for Fisheries and Forestry [1988] ECR 83, at para. 13), in which it held that the provisions of Council Regulation No. 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry referred to fishing vessels "flying the flag" of a Member State or "registered" there, but left those terms to be defined in the legislation of the Member States.
81. Case C-221/89, op. cit., supra note 64 at para. 14;
82. with reference to earlier judgments in Case 57/86, Hellenic Republic v. Commission [1988] ECR 2855, at para. 9, and in Case C-127/87, Commission v. Hellenic Republic [1988] ECR 3333, at para. 7.
83. Case C-221/89, op. cit., supra note 64 at para. 16.
84. The ECJ held that the requirements of the Merchant Shipping Act as to nationality, residence and domicile for legal and beneficial owners, charterers and managers and operators of fishing vessels were contrary to Community law, and breached Article 43 (ex 52) of the TEC on the freedom of establishment. The requirements that the vessel be managed and its operations directed and controlled from within a Member State were found not to be contrary to Community law.
85. In its judgments of 14 December 1989 in Cases C-3/87, Agegate, and C- 216/87, Jaderow, the Court held that, when exercising the power granted to them to define the detailed rules for the utilization of their quotas, EC Member States may determine which vessels in their fishing fleets will be allowed to fish against their national quotas, provided that the criteria employed are compatible with Community law. In Jaderow, the Court specified that a Member State may lay down conditions designed to ensure that the vessel has a real economic link with that state if that link concerns only the relations between that vessel's fishing operations and the populations dependent on fisheries and related industries; see Case C-3/87, The Queen v. Minister of Agriculture, Fisheries and Food, ex parte Agegate Limited [1989] ECR 4459;
86. Case C-216/87, The Queen v. Minister of Agriculture, Fisheries and Food, ex parte Jaderow Limited [1989] ECR 4509.
87. UNCLOS III was convened pursuant to Resolution 3067 (XXVIII) adopted by the General Assembly on 16 November 1973. The Convention was adopted by UNCLOS III and opened for signature, together with the Final Act of the Conference, at Montego Bay, Jamaica, on 10 December 1982.
88. The EEC was already present in 1972 in the Committee on the Seabed: D. Vignes, op. cit., supra note 26 at 20.
89. T. Treves, "The United Nations Law of the Sea Convention of 1982: Prospects for Europe", op. cit., supra note 3 at 177
90. and K. Simmonds, "The Community's Participation in the U.N. Law of the Sea Convention", in D. O'Keefe and H. Schermers (eds.), Essays in European Law and Integration, Kluwer, Deventer, The Netherlands (1982), 179-191 at 185 and 188.
91. Resolution IV was annexed to the Final Act of UNCLOS III setting out the agreement reached. Accordingly, national liberation movements which participated in UNCLOS III would be allowed to sign the Final Act of the Conference and participate in certain bodies set up under the Convention in their capacity as observers.
92. It signed the Final Act even though there was no explicit provision to this effect. See T. Treves, "The United Nations Law of the Sea Convention of 1982: Prospects for Europe", op. cit., supra note 3 at 177-178.
93. D. Vignes, op. cit., supra note 26 at 26.
94. T. Treves, "Introduction", in T. Treves and L. Pineschi (eds.), op. cit., supra note 26, 1-5 at 4.
95. Council Decision of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention on the Law of the Sea and the Agreement of 28 July 1994 relating to the Implementation of Part XI thereof (98/392/EC), Official Journal, L 179, 23.06.98, p.1.
96. ITLOS Case No. 7: Case concerning the Conservation and Sustainable Exploitation of Sword-fish Stocks in the South-Eastern Pacific Ocean (Chile/European Community). See http://www.itlos.org/start2-en.html.
97. There were no real precedents at that time for this formula in other international conventions; T. Treves, "The United Nations Law of the Sea Convention of 1982: Prospects for Europe", op. cit., supra note 3 at 178;
98. D. Vignes, op. cit., supra note 26 at 23.
99. Among 'obvious' problematic areas mentioned during UNCLOS III were the evolution of the CFP, the conservation and management of the living resources of the high seas and the utilisation and conservation of the living resources of the EEZ, the emerging Community policies on marine pollution and its participation in commodity agreements: K.R. Simmonds, op. cit., supra note 74 at 185 and 188.
100. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. See Article 27 of the 1969 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331.
101. Case C-61/94, Commission v. Germany, Judgment of 10 September 1996 [1997] ECR I-3989, para. 52.
102. Case C-459/03, Commission v. Ireland, Judgment of 30 May 2006 [2006] ECR I-4635, para. 123 (hereinafter: Case C-459/03 (MOX Plant).
103. Ibid., para. 82;
104. see also: Case C-308/06, Intertanko et al. v. Secretary of State for Transport, Judgment of 3 June 2008, nyr, para. 53.
105. Case C-459/03 (MOXPlant), op. cit, supra note 85 at para. 85 referring to Case C-13/00, Commission v. Ireland, Judgment of 19 March 2002 [2002] ECR 1-2943, at para. 15.
106. See generally on mixed agreements: A. Rosas, "The European Union and Mixed Agreements", in: A. Dashwood and C. Hillion (eds.), The General Law of E.C. External Relations, Sweet & Maxwell, London (2000) 200-220 at 204;
107. A. Dashwood, "Why continue to have mixed agreements at all?" in: J. Bourgeois, J.-L. Dewost, M.-A. Gaiffe (eds.), La Communauté européenne et les accords mixtes. Quelles perspectives? Collège d'Europe, Les Conférences de Bruges, No. 11, Presses Universitaires Européennes, Bruges (1997) 93-98.
108. It should be noted that for such parts, Member States are not even allowed to sign up to the agreement. Under Community law doctrine, once a subject falls within the exclusive competence of the EC, Member States are no longer competent to enter into international agreements, be it bilateral or multilateral, individually or collectively, to cover the subject area: Opinion 1/75 (OECD Local Costs Standard) [1975] ECR 1355 at 1363;
109. See too: C-476/98 Commission v. Germany [2002] ECR 1-9855, para. 105; Opinion 1/03 of 7 February 2006, on the Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2006] ECR I-1145, para. 116.
110. The Fish Stocks Agreement was adopted on 4 August 1995 by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks and opened for signature on 4 December 1995, 34 ILM 1542 (1995).
111. See also Final Act of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, General A/CONF. 164/38, 7 September 1995, available at: http://daccessdds.un.org/doc/UNDOC/GEN/N95/272/03/ PDF/N9527203.pdf?OpenElement.
112. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, approved on 24 November 1993 by Resolution 15/93 of the Twenty-Seventh Session of the FAO Conference, 33 I.L.M. 968 (1994).
113. http://www.fao.org/DOCREP/MEETING/003/X3130m/X3130E00.HTM.
114. On the participation of the Community in this conference see the excellent online paper by C. Hedley, "The European Community and the United Nations Fish Stocks Agreement", Ocean-Law On-Line Paper No. 12, February 2002, available at: http://www.intfish.net/ops/12.htm.
115. Rosas, op. cit., supra note 88 at 204 and footnote 27.
116. Council Decision 98/415/EC of 8 June 1998 on the ratification by the European Community of the Agreement for the implementing of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling stocks and highly migratory fish stocks, Official Journal, L 189, 03.07.1998, p.14.
117. The result has been criticised in the literature on the grounds that the Articles of the Fish Stocks Agreement that refer to member states' national competences are of an "ancillary" (subsidiary) nature. See Rosas, op. cit., supra note 88 at 204-205.
118. Case C-25/94, Commission v. Council, Judgment of 19 March 1996 [1996] ECR I-01469, para. 47.
119. Council Decision 96/428/EC of 25 June 1996 on acceptance by the Community of the Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, Official Journal, L 177, 16.07.1996, pp. 24-25.
120. Ruling 1/78 of 14 November 1978, Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 02151, para. 35.
121. Declaration concerning the Competence of the European Community; see Annex II to Council Decision pertaining to the LOSC: Official Journal, L 215, 20.08.1994, pp. 0010-0020.
122. C-316/91, Parliament v. Council, Judgment of 2 March 1994 [1994] ECR1-625, para. 29.
123. Paragraph (1) states that international organisations that have made the requisite declarations under Article 5 shall have "responsibility for failure to comply with obligations or for any other violation of this Convention". Paragraph 2 stipulates that the organisation or its Member States should comply within a reasonable time to requests for information by third parties as to "who has responsibility in respect of any specific matter" and that failure to comply with such requests or where contradictory information is provided "shall result in joint and several liability". In other words, Annex IX provides for joint and several liability only in exceptional circumstances.
124. In the Kupferberg case, which concerned an agreement falling within the EC's exclusive competence, the ECJ made clear that it was " incumbent upon the Community institutions, as well as upon the Member States, to ensure compliance with the obligations arising from such agreements": Case 104/81, Hauptzollamt Mainz v. C.A. Kupferberg & Cie Kg a.A. [1982] ECR 3641, para. 11;
125. see P. Koutrakos, EU International Relations Law, Hart Publishing, Oxford, UK (2006) 184-5.
126. E.g., see Council Decision (2004/815/EC) of 19 November 2004 amending the declaration by the European Community on the exercise of competence and voting rights submitted to the General Fisheries Commission for the Mediterranean, [2004] Official Journal, L 357, 02.12.2004, p. 30.
127. As explained in the judgment, the MOX plant is designed to recycle plutonium from spent nuclear fuel by mixing plutonium dioxide with depleted uranium dioxide and thereby converting it into a new fuel known as MOX, an abbreviation used to designate mixed oxide fuel, intended for use as an energy source in nuclear power stations. Some of the material used in the MOX plant originates in the thermal oxide reprocessing plant, or THORP, in which spent nuclear fuel from nuclear reactors in the UK and other countries is reprocessed in order to extract from it the plutonium dioxide and uranium dioxide: Case C-495/03 (MOX Plant), op. cit., supra note 85 at paras. 20-23.
128. Ireland had not chosen a particular form of dispute settlement under the LOSC, whereas the UK had opted for the International Court of Justice, which meant (leaving aside the question of the ECJ's jurisdiction), that Article 287(5) of the LOSC applied. The Permanent Court of Arbitration agreed to act as registry in the case brought by Ireland. See Dispute Concerning the MOX Plant, International Movements of Radioactive Materials, and the Protection of the Marine Environment of the Irish Sea, available from the website of the Permanent Court of Arbitration (PCA): http://www.pca-cpa.org/showpage.asp?pag-id=l148.
129. See President's Statement of 13 June 2003; available from the PCA's website, http://www. pca-cpa.org/showpage.asp?pag-id= 1148.
130. Case C-459/03 (MOX Plant), op. cit., supra note 85.
131. It should be recalled that it was the U.K. which had invoked Article 292 TEC against Ireland in the first place.
132. Case C-459/03 (MOX Plant), op. cit, supra note 85 at paras. 101-102.
133. See Articles 4 (2), 4 (3) and 5(1) of LOSC Annex IX.
134. Case C-459/03 (Mox Plant), op. cit., supra note 85 at para. 123.
135. The ECJ's statement raises the question: what if the EC and its Member States were to become parties to an international agreement that effectively requires a change in the allocation of powers between the EC and its Member States? Arguably, because of the principle of pacta sunt servanda, the EC and its Member States would be obliged to honour this agreement in their relations with third states.
136. As mentioned above, this provision (to which the EC agreed as a party to the Convention), would appear to establish the supremacy of the LOSC's provisions in cases of conflict between the obligations of an international organisation under the Convention and the obligations that would follow from the primary and secondary law governing the organisation.
137. The process of 'preemption', whereby the Community gradually becomes empowered to act in a particular field, can take place through the adoption of internal legislation in the form of common policies, or through the conclusion by the EC of international agreements: D. Verwey, The European Community, The European Union and the International Law of Treaties, TMC Asser Press, The Hague, The Netherlands (2004), 180, fn. 120, referring inter alia to Joined Cases C-3/76, 4/76 and 6/76, Cornelius Kramer and others, Judgment of 14 July 1976 [1976] ECR 1279; Opinion 1/76, Rhine Navigation [1977] ECR 741 and Opinion 1/78, Natural Rubber [1979] ECR 2871.
138. See Article 175 (1) TEC; Case C-459/03 (MOXPlant), op. cit, supra note 85 at para. 90.
139. The EC's Declaration of Competence states that in regard to the prevention of marine pollution, the Community has exclusive competence to the extent that the provisions of the Convention "affect common rules established by the Community".
140. Furthermore, because this exercise of external competence was based on an express legal basis in the TEC, there was (in principle) no need to resort to AETR/ERTA-type theories (see further below) to determine whether this competence existed: Case C-459/03 (MOX Plant), op. cit., note 85 at paras. 94, 95, 103-106.
141. Ibid., paras. 107-121.
142. Case 12/86, Demirel, Judgment of 30 September 1987 [1987] ECR 3719, paras. 9-11 (1963 Association Agreement with Turkey);
143. Case C-13/00 Commission v. Ireland, op. cit., supra note 87, paras. 13-20);
144. Case C-239/03, Commission v. France, Judgment of 7 October 2004 [2004] ECR 1-9325, paras. 25-31.
145. Case C-459/03 (MOX Plant), op. cit, supra note 85 at paras. 80-85.
146. See too: Case C-13/00, Commission v Ireland, op. cit., supra note 87 at paras. 14-20.
147. a, relating to the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) Judgment of 11 September 2007 [2007] ECR 1-7001, paras. 31-48.
148. Case C-459/03 (MOX Plant), op. cit., supra note 85 at para. 123.
149. Ibid., paras. 124-127.
150. Ibid., paras. 137, 152-154.
151. Opinion 1/91 (EEA Treaty), 14 December 1991 [1991] ECR 1-6079, para. 35;
152. Opinion 1/00 {European Common Aviation Area), 18 April 2002 [2002] ECR 1-3493, paras. 11 and 12.
153. Joined Cases C-3/76, 4/76 and 6/76, Kramer et al, op. cit., supra note 114.
154. U.N.T.S. 157.
155. Since its 1971 ruling in the AETR/ERTA case (Case C-22/70, Commission v. Council, Judgment of 31 March 1971 [1971] ECR 263), the Court has continuously developed and refined the principles applicable to the situation whereby the exercise of internal competence may lead to the exclusivity of the derived external competence linked to it. The literature on this case law is voluminous (see for example, P. Koutrakos, op. cit., supra note 102, at 321).
156. The latest restatement of the relevant principles is contained in the Court's Opinion 1/03 of 7 February 2006, on the new Lugano Convention, supra note 89.
157. Article 102 of the 1972 Act of Accession reads as follows: "From the sixth year after accession at the latest, the Council, acting on a proposal from the Commission, shall determine the conditions for fishing with a view to ensuring protection of fishing grounds and conservation of biological resources of the sea".
158. Joined Cases 3/76, 4/76 and 6/76, Kramer et al, op. cit., supra note 114, paras. 17/18.
159. Ibid., pa ras. 9/20.
160. Ibid., paras. 21-32.
161. Ibid., paras. 30/33.
162. Ibid., paras. 39 and 40;
163. see too: Case C-405/92, Ets Armand Mondiet SA v. Armement Islais SARI, Judgment of 24 November 1993[1993] ECR 1-6133, paras. 10-16 (further discussed below).
164. Joined cases 3/76, 4/76 & 6176, Kramer et al, op. cit., supra note 114, paras. 44/45.
165. Council Resolution of 3 November 1976, op. cit., supra note 38.
166. The bilateral agreements concluded between the EC and the Faroe Islands, Norway and Iceland do not involve a financial compensation.
167. The EC has currently concluded 21 such FPAs with developing countries and Greenland.
168. Source: European Commission website: http://ec.europa.eu/fisheries/cfp/ external-rela-tions/bilateral-agreements-en.htm.
169. Source: European Commission website: http://ec.europa.eu/fisheries/cfp/ external-rela-tions/bilateral-agreements-en.htm.Ibid.
170. Case 61/77, Commission v. Ireland, Judgment of 16 February 1978 [1978] ECR 417, para. 63.
171. Case C-258/89, Commission v. Spain, Judgment of 25 July 1991 [1991] ECR I-3977, paras. 6-9.
172. Case C-405/92, Ets. Armand Mondiet SA v. Armement Islais SARL (hereinafter: Mondiet) op. cit., supra note 133, para. 10.
173. See UNGA Resolution 44/225 of 22 December 1989, Large-scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas A/RES/44/225, adopted without vote at the 85th plenary meeting, 22 Dec. 1989, available at: http://daccess-dds.un.org/doc/RESOLUTION/GEN/NR0/ 549/84/IMG/NR054984.pdf?OpenElement.
174. Case 405/92 (Mondiei) op. cit., supra note 133, para. 12, which refers to earlier case law.
175. U.N.T.S. 11.
176. Case C-286/90, Anklagemyndigheden v. Poulsen and Diva Navigation, Judgment of 24 November 1992 [1992] ECR I-6019, paras. 9-10.
177. Case C-405/92 (Mondiet), op. cit., supra note 133, paras. 11-16.
178. Ibid, para. 13.
179. Case C-405/92 (Mondiet), op. cit., supra note 133, para. 14 (which refers to a similar observation in para. 11 of the Poulsen Judgment, op. cit., supra note 146 and discussed further below).
180. Case C-405/92 (Mondiet), op. cit, supra note 133, para. 15.
181. Case C-25/94, Commission v. Council, op. cit., supra note 96.
182. Ibid., para. 46.
183. Ibid., para. 44.
184. Ibid., paras. 41-47.
185. Council Decision 96/428/EC, op. cit., supra note 97.
186. Case C-6/04, Commission v. U.K., Judgment of 20 October 2005 [2005] ECR I-9017, paras. 115-117.
187. For example: Case 36/74, Walravev. Union Cycliste Internationale, Judgment of 12 December 1974 [1974] ECR 1405;
188. Case 237/83, Prodest/Caisse primaire d'assurance maladie de Paris, Judgment of 12 July 1984 [1984] 3153.
189. Case C-214/94, Boukhalfa v. Germany, Judgment of 30 April 1996 [1996] ECR 1-2253.
190. Case 167/73, Commission v. France, Judgment of 4 April 1974 [1974] ECR 359.
191. Case 9/88, Mario Lopes da Veiga v. Staatssecretaris v. Justitie, Judgment of 27 September 1989 [1989] ECR 2989.
192. This is confirmed by the EC's Declaration of Competence made in relation to the 1994 Implementation Agreement and the 1995 UN Fish Stocks Agreement: paragraph 6 of this Declaration states that the "Community enjoys the regulatory competence granted under international law to the flag State of a vessel (...)": Official Journal, L 189, 03.07.98, p. 39.
193. See for instance, a recent preliminary ruling on questions of taxation involving the laying and supply of submarine cables: Case C-111/05, Aktiebolaget NN v. Skatteverket, Judgment of 29 March 2007 [2007] ECR I-2697. The ECJ held that insofar as maritime spaces are concerned, the sixth Framework Directive on VAT, based on the wording used, could be only be held to apply to the laying and supply of submarine cables in the territorial waters of Member States, not in the EEZ nor on the continental shelf.
194. Council Regulation 3094/86/EEC laying down certain technical measures for the conservation of fishery resources, Official Journal, L 288, 11.10. 1986, p. 1.
195. According to Article 1, the Regulation concerns the catching and landing offish stocks in all maritime waters under the sovereignty or jurisdiction of the Member States and within one of regions 1 to 8 defined in the Regulation. By derogation from this provision, Article 6(1) of the Regulation provides, with regard to salmon and sea trout, that, even where those fish have been caught outside waters under the sovereignty or jurisdiction of the Member States in Regions 1,2,3 and 4, as defined in Article 1, they may not be retained on board, transshipped, landed, transported, stored, sold, displayed or offered for sale, but must be returned immediately to the sea.
196. Contracting parties to the NASCO Convention are: the European Community, Canada, Denmark on behalf of the Faroe Islands and Greenland, Iceland, Norway, Russian Federation and the United States of America. The Convention entered into force on 1 October 1983; TIAS 10789, 1982; Cmnd 8830) available from: http://ec.europa.eu/fisheries/cfp/external-relations/rfos/nasco-en.htm.
197. Council Decision adopting the NASCO Convention: Official Journal, L 378, 31.12.1982, pp. 24-25.
198. Opinion of Tesauro AG [1992] ECR I-06019.
199. Case C-286/90 (Poulsen), op. cit., supra note 146, para. 11;
200. as discussed before, the ECJ had already confirmed the existence of an obligation ergo, omnes for all members of the international community to cooperate in the conservation of the living resources of the high seas: Case C-405/92 (Mondiet), op. cit, supra note 133, para. 14.
201. Case C-286/90 (Poulsen), op. cit., supra note 146, para. 9.
202. Ibid., para. 10.
203. The ECJ has consistently held that as from the entry into force of an international agreement concluded by the Community, its provisions form an integral part of the Community legal system; Case 181/73, Haegeman v. Belgium, Judgment of 30 April 1974 [1974] ECR 449, paras. 2-6;
204. see too: Case C-459/03 (MOX Plant), op. cit. supra note 85, para. 82.
205. In the Van Duyn case the ECJ had pointed out that it could not be assumed that the TEC disregards the principle of international law that a state is precluded from refusing its own nationals the right of entry or residency: Case 41/71, Van Duyn v. Home Office [1974] ECR 1337, para. 22.
206. In the Ahlstroem case the ECJ referred, in relation to the Community's jurisdiction to apply its competition rules, to the territoriality principle as "universally recognised in public international law": Joined Cases 89, 104, 114, 117, 117 and 125 to 129/85, A. Ahlstroem Osakeyhtio and others v. Commission [1993] ECR I-1307.
207. C. Timmermans, "The EU and Public International Law" (1999) European Foreign Affairs Review 181-194 at 187.
208. See P. Eeckhout, External Relations of the European Union. Legal and Constitutional Foundations, Oxford University Press, Oxford, UK (2004) 326.
209. But see Case C-308/06 (Intertanko), op. cit., supra note 86, discussed below.
210. Case C-286/90, Poulsen, op. cit., supra note 146, paras. 12-14.
211. See A. D'Andrea, "The "Genuine Link" Concept in Responsible Fisheries: Legal Aspects and Recent Development," FAO Legal Papers Online Number 61, November 2006, available at: http://www.fao.org/legal/ prs-ol/years/2006/list06.htm.
212. The European Community is currently promoting diplomatic initiatives towards defining the genuine link between a State and a vessel. It proposes that a distinction should be drawn between the fishing fleet and the merchant fleet in that regard. See 'action 13' in Action 13, p. 13, Commission Staff Working Document, Accompanying Document to the Proposal for a Council Regulation establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, SEC(2007) 1310 Brussels, 17 October 2007, available at: http://ec.europa.eu/fisheries/cfp/external-relations/illegal- fishing/pdf/EN-staff-work-doc.pdf.
213. Case C-286/90 (Poulsen), op. cit., supra note 146, paras. 17-20.
214. Many international instruments dealing with illegal, unregulated and unreported (IUU) fishing activities call upon states to enact laws prohibiting their nationals from engaging in IUU fishing activities, regardless of where they take place: IUU Fishing and State Control over Nationals (2004) FAO, Rome.
215. See too: Commission Proposal for a Council Regulation Establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, COM (2007) 602 final, Brussels, 17 October 2007, Chapter VIII of which contains proposals for European Community Member States to impose sanctions on nationals involved in IUU fishing, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=COM:2007:0602:FIN:EN:PDF.
216. Case C-286/90 (Poulsen), op. cit, supra note 146, paras. 17-20.
217. Ibid., paras. 30-34.
218. Ibid., paras. 35-90.
219. GATT Agreement, 55 U.N. T.S. 187.
220. See Joined Cases 21-24/72, International Fruit Company v. Produktschap voor Groenten en Fruit, Judgment of 12 December 1972 [1972] ECR 1219, paras. 10-18 (hereinafter: International Fruit Company).
221. For the texts of the WTO agreements see 1867 U.N. T.S. 3, 33 I.I.M. 9 (1994) (December 1993 text) and 33 I.I.M. 1143 (1994)(April 1994 text).
222. Until the ECJ's judgment of 3 June 2008 in Case C-308/06 (Intertanko), op. cit., supra note 86 and discussed below, it seemed that criteria set by the Court for the " invocability" of treaty provisions appeared to differ significantly on whether or not the agreement in question belongs to the category of GATT/WTO multilateral trade agreements: P. Eeckhout, op. cit., supra note 174 writes at 92: " (....) In fact the GATT and WTO agreements are the only ones in (sic) which the Court of Justice has considered not to be capable of producing direct effect in light of the structure and nature of the agreements as a whole".
223. There is voluminous literature on this case law. See for example: P. Eeckhout, op. cit., supra note 174 at 274-344;
224. P Koutrakos, op. cit., supra note 102 at 217-300;
225. J. Klabbers, "International Law in Community Law: the Law and Politics of Direct Effect", (2001) 21 Yearbook of European law 263-298.
226. Case 69/89, Nakajima All Precision v. Council, Judgment of 7 May 1981 [1991] ECR 2069, paras. 27-32.
227. Case 70/87, FEDIOI v. Commission, Judgment of 22 June 1989 [1989] ECR 1781, paras. 19-20.
228. Case C-61/94, Commission v. Germany, op. cit., supra note 84, para. 52.
229. Case C-405/92 (Mondiet), op. cit. supra note 133, para. 13.
230. See too: Case C-162/96, Racke v. Hauptzollamt Mainz [1998] ECRI-3655 (hereinafter Case C-162/96 (Racke)), para. 45.
231. See also the joined opinion of Advocate-General Léger in Cases C-284/95 and C-341/95, Safety Hi-Tech [1998] ECRI-4312, para. 33.
232. Case T-115/94, Opel Austria GmbH v. Council[1997] ECR II-39.
233. Case C-162/96 (Racke), op. cit, supra note 189, paras. 45-49, 52.
234. Case C-379/92 (Peralta), Judgment of 14 July 1994, [1994] ECR I-3453.
235. U.N. T.S. 22484.
236. Case C-379/92 (Peralta), op. cit., supra note 192, para. 15.
237. Ibid., para. 16.
238. with reference to the judgment in Joined Cases 21/72 to 24/72 (International Fruit Company), op. cit., supra note 183, para. 18.
239. Case C-379/92 (Peralta), op. cit, supra note 192, para. 17.
240. As will be seen below, in the 2008 Intertanko Judgment, the MARPOL provisions invoked in that proceeding represented customary law, but it decided that this was not the case: C-308/06 (Intertanko), op. cit., supra note 86, para. 51.
241. See further below.
242. J. Wouters & D. Van Eeckhoutte, " Giving Effect to Customary International Law through European Community Law", K.U. Leuven, Faculty of Law, Institute for International Law, Working Paper No. 25, June 2002, p. 41, available at: http://law.kuleuven.be/iir/nl/wp/WP/ WP25e.pdf.
243. E.J. Molenaar, "Port State Jurisdiction: Towards Mandatory and Comprehensive Use", in D. Freestone et al. (eds.), The Law of the Sea, Progress and Prospects, Oxford University Press, Oxford, UK (1996), pp. 192-210.
244. Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, Official Journal, L 255, 30.09.2005, pp. 11-21.
245. The claimants were: The International Association of Independent Tanker Owners (Intertanko), the International Association of Dry Cargo Shipowners (Intercargo), the Greek Shipping Co-operation Committee, Lloyd's Register and the International Salvage Union (Intertanko et al).
246. See R. Barnes and M. Happold, " 'Intertanko'" Case referred to the European Court of Justice, Current Legal Developments, United Kingdom, (2007) 22 IJMCL 331-338.
247. For a brief description of these measures see the website of the Commission's Directorate-General for Transport: http://ec.europa.eu/transport/ maritime/safety/2000-prestige-en.htm.
248. Source: UNEP Offshore Oil and Gas Environment Forum, available at: http://www. oilandgasforum.net/spanishoil.htm.
249. The Directive makes such discharges of polluting substances an offence when carried out in: (1) the internal waters, including ports, of a Member State; (2) the territorial waters of a Member State; (3) straits used for international navigation subject to the regime of transit passage, as laid down in the LOSC; (4) the exclusive economic zone (EEZ) of a Member State; (5) the high seas.
250. The transposition date of the Directive was 1 March 2007.
251. Eleven judges sat in the Chamber, signalling the importance of the issues raised.
252. The Advocate-General had taken a different view on this point. The Advocate-General had concluded that according to the LOSC, the Community could only legislate with respect to the high seas if such legislation correctly implements international standards, as laid down in MARPOL. However, as MARPOL itself can be interpreted broadly, she saw no conflict with the strict liability standards under the Directive, concluding that the Directive was not invalid: Opinion of Advocate-General Kokott, 20 November 2007, available from the ECJ's website: http://curia.europa.eu/fr/content/juris/index-form.htm.
253. Case C-308/06, (Intertanko), op. cit., supra note 86, para. 43.
254. Ibid., para. 43.
255. Ibid., paras. 44 and 45.
256. Ibid., paras. 47-52.
257. Ibid., paras. 51.
258. Ibid., para. 52.
259. Ibid., paras. 55-65.
260. Ibid., para. 51.
261. The Community is not a party to MARPOL because the latter only allows states to become parties.
262. Case C-308/06 (Intertanko), op. cit., supra note 86, para. 51.
263. Ibid., para. 52.
264. See also quotation cited above from Case C-61/94, Commission v. Germany, op. cit., supra note 84, para. 52.
265. It is not excluded that in its answer to question 4 (whether the Directive by using the terms 'serious negligence' infringes the general principle of 'legal certainty') the ECJ implicitly 'took account' of MARPOL.
266. I.e., whether the Directive infringes the general principle of legal certainty by using the terms 'serious negligence' in Article 4.
267. Case C-303/05, Advocaten voor de Wereld [2007], Judgment of 3 May 2007 [2007] ECR I-3633, para. 49.
268. Case C-308/06 (Intertanko), op. cit., supra note 86, para. 70.
269. Case C-213/03, Syndicat professionnel coordination des pêcheurs de l'étang de Berre et de la région and Électricité de France (EDF), Judgment of 15 July 2004 [2004] ECR 1-7357, paras. 39-46.
270. protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, signed in Athens on 17 May 1980, 278 UNTS 1987; approved by Council Decision 83/101/EEC of 28 February 1983, Official Journal, L 67, 12.3.1983, p. 1.
271. Ibid., para. 25.
272. Case C-213/03, op. cit., supra note 225, para. 39.
273. Ibid, paras. 39-47.
274. It should be recalled in this regard that the Community is a full contracting party to the NASCO Convention, which was at issue in the Poulsen case.
275. Case C-188/07, Commune de Mesquer v. Total France SA, Total International Ltd, Judgment of 24 June 2008, nyr. The International Convention on Civil Liability for Oil Pollution Damage adopted at Brussels on 29 November 1969, 9 ILM 45; correction noted 13 ILM 1048. The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage adopted at Brussels on 18 December 1971, Cmnd 5061. Both agreements are available from the IMO's website: http://www.imo.org/inforesource/main-frame. asp?topic-id=831.
276. Ibid., para. 83.
277. Ibid, para. 84.
278. Ibid., para. 85.