In January 2015, the Regional Taxation Commission (Commissione Tributaria Regionale - the Commission) of the region of Piemonte rejected the appeal presented by Tri-Marine Europe SpA (TME) against the measure adopted by the Italian Customs Authority (Agenzia delle Dogane (AD)) in terms of which AD had imposed customs duties on tuna caught by fishing vessels owned by TME. The Commission found that these fishing vessels were registered both in El Salvador and in the Seychelles (bareboat charter and ownership registrations respectively), thus preventing the applicability of the EU Regulation of 2 July 1993 n 2454, notably the condition that ships need to enjoy El Salvadorian nationality in order to be exempted from customs duties. Moreover, according to art 92 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), no nationality can be enjoyed by vessels flying 'flags of convenience'.

Article 92 UNCLOS reads as follows:

1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.

TME complained about this decision, claiming the recognition of the El Salvadorian nationality of its ships by AD. In particular, it stressed the lawfulness of the registration of the ships both in El Salvador and the Seychelles pursuant to the United Nations Convention on the Registration of Ships 1986, which allowed for provisional navigation of its ships under the new flag after the bareboat charter registration in El Salvador. Finally, in TME’s view, the registration in both El Salvador and the Seychelles did not, in itself, imply the effective use of both flags according to convenience. Therefore, TME appealed in cassation to the Supreme Court of Cassation to challenge the findings of the Commission.

Held: The appeal in cassation is dismissed.

The Court notes that arts 86 ff of UNCLOS (Pt VII of the Convention) are aimed at preventing conflicts of jurisdictions as to the applicable State law governing ships navigating in international waters. Recalling the international customary rule of exclusive flag State jurisdiction on the high seas, the Court also highlights the exception of ships sailing under the flags of two or more States, as in the case under assessment. The Court concludes that the lack of previous cancellation or suspension of the ships' registration in the Seychelles in respect to the charter registered in El Salvador could not allow for provisional navigation under El Salvadorian nationality by virtue of the United Nations Convention on the Registration of Ships 1986. Therefore, it is not possible to determine the nationality of the ships and to identify the competent State exercising jurisdiction over them, leading the Court to rule against the recognition of the El Salvadorian nationality of the ships in question.