In the context of litigation between the International Association of Independent Tanker Owners (Intertanko), the International Association of Dry Cargo Shipowners (Intercargo), the Greek Shipping Co-operation Committee, the Lloyd's Register, and the International Salvage Union on the one side, and the Secretary of State for Transport of the United Kingdom on the other side, concerning the validity of arts 4 and 5 of the Directive of the European Parliament and the Council of 7 September 2005, 2005/35/CE (the Directive) on ship-source pollution and on the introduction of penalties for infringements, pending before the High Court of Justice, Queen’s Bench Division (Administrative Court), the Queen’s Bench Division decided to suspend proceedings, proposing a preliminary ruling to the Court of Justice of the European Communities, asking:

1. Whether concerning straits used for international navigation, the exclusive economic zone (EEZ), or equivalent zone of a Member State and the high seas, art 5.2 of the Directive is invalid, as it limits the exceptions under specific provisions of MARPOL 73/78 addressed to the shipowner, the master, and the crew;
2. Whether concerning the territorial sea of a Member State, art 4 of the Directive is invalid, as it imposes on Member States the requirement to apply the criterion of gross negligence to assess liability in case of discharge of polluting substances;
3. Whether art 4 of the Directive violates the right of innocent passage recognised by the United Nations Convention on the Law of the Sea 1982 (UNCLOS);
4. Whether the term 'gross negligence' violates the principle of certainty of law.

Held:

1. The validity of the Directive cannot be assessed either in the light of MARPOL 73/78, or in the light of UNCLOS.
2. Examination of the fourth question has revealed nothing capable of affecting the validity of art 4 of the Directive in the light of the general principle of legal certainty.

The Court emphasised that the European Communities are not parties to MARPOL 73/78, nor do its norms recalled by the claimants constitute customary international law.

Furthermore, the Court stressed that UNCLOS balances the interests of coastal States and flag States, and that the contracting States fixed the limits of their sovereign rights over those maritime zones.

The Court also highlighted that individuals do not enjoy rights under UNCLOS. In particular, they can enjoy the freedom of navigation if they establish a genuine link between the ship and the flag State. The Court recalled arts 91 and 92.1 of UNCLOS. When the vessel has no flag State, neither the ship nor the people on board enjoy freedom of navigation. Under art 110.1 of UNCLOS, warships can board foreign vessels on the high seas if there are reasonable grounds to believe that the ships are without nationality. The Court pointed out that the international status of the vessel depends on the flag State, and not the ownership of physical and legal persons.

In conclusion, the Court decided that the structure and nature of UNCLOS do not allow an assessment of the Directive's validity. The Court also decided that the term 'gross negligence' does not violate the principle of certainty of law.