European Union: EU v. IMO: Whose Emissions Legislation Will Prevail?

Last Updated: 22 April 2014
Article by Fionna Gavin and Sheridan Steiger

Manzi and another v. Capitaneria di Porto di Genova Case C-537/11

As the EU and IMO emissions regulation legislation looks set to diverge even further, one owner fights back in the European Court of Justice, arguing that EU member states who are party to the IMO's MARPOL Annex VI could not impose inconsistent EU requirements upon vessels flagged in other MARPOL Annex VI states.

The 1997 Protocol to the International Convention for the Prevention of Pollution from Ships, signed in London on 2 November 1973, as supplemented by the Protocol of 17 February 1978 (MARPOL 73/78), included a new Annex VI Rule 14(1), providing that the sulphur content in marine fuels must not exceed 4.5% by mass. Annex VI entered into force on 19 May 2005. However, EU legislation enacted in the same year required Member States to ensure that passenger ships operating on "regular services" to or from any EU port used fuel with a maximum sulphur content of 1.5% (Article 4a(4) of Council Directive 1999/32/EC of 26 April 1999, as amended by Directive 2005/33/EC of 6 July 2005 (Directive 1999/32)).

The expression "regular services" was defined as meaning:

"A series of passenger ship crossings operated so as to serve traffic between the same two or more ports, or a series of voyages from and to the same port without intermediate cause, either:

  1. According to a published timetable, or
  2. With crossings so regular or frequent that they constitute a recognisable schedule."

The Incident

In July 2008, a cruise ship flying the Panamanian flag was found to be using marine fuels with a sulphur content in excess of 1.5% by the Capitaneria di Porto di Genova while in the Port of Genoa. An administrative penalty was issued against the Captain of the vessel jointly and severally with Compagnia Naviera Orchestra, the Owner of the vessel, by the Capitaneria di Porto di Genova for infringement of the Italian legislation giving effect to EU Directive 1999/32.

The Captain and the Compagnia Naviera Orchestra (the applicants) brought an appeal against that Order in the Italian Courts, arguing that:

  1. Cruise ships did not operate "regular services" within the meaning of Articles 4a(4) and 2(3g) of Directive 1999/32, and accordingly did not fall within the scope of the Directive;
  2. There was a discrepancy between Article 4a(4) of the EU Directive and Annex VI to MARPOL 73/78 as regards the maximum amount of sulphur contained in marine fuels; and
  3. A ship flying the flag of a State party to MARPOL 73/78 was authorised to use a fuel with a sulphur content of less than 4.5% by mass where it was in the port of another State party to MARPOL 73/78.

The Italian Court referred various questions to the European Court of Justice ("ECJ") for a preliminary ruling, the issues for decision being:

  1. Whether the term "regular services" applied to cruise ships;
  2. Whether the 1.5% sulphur limit in Article 4a(4) was invalid on the basis that it contravened the principle of cooperation in good faith as between the EU and its Member States, in that it required Member States which had agreed to and ratified Annex VI to MARPOL 73/78 to act in breach of the obligations entered into towards the other States which were party to MARPOL 73/78; and
  3. Whether, in light of the general principle of international law requiring international agreements to be implemented and interpreted in good faith, Article 4a(4) of Directive 1999/32 was to be interpreted as meaning that the sulphur limit of 1.5% in marine fuels did not apply to ships flying the flag of a non-EU State which was party to MARPOL 73/78 where such ships were in the port of an EU State which was itself a party to MARPOL 73/78.

The ECJ decision

The ECJ held as follows:

  1. Directive 1999/32 applied to cruise ships. A series of crossings for the purpose of tourism was to be regarded as traffic within the meaning of Article 2(3g). The list of ports contained in the itinerary for a normal cruise would necessarily consist of at least two ports which could not be avoided, i.e. the port of departure and the port of arrival. The transport was thus made between "the same two or more ports" even where the transport ended at the port of departure.
  2. The validity of Article 4a(4) of Directive 1999/32 could not be determined in the light of Annex VI to MARPOL 73/78 since the EU was not a contracting party to MARPOL 73/78, and was not bound by it.
  3. It was not for the Court to rule on the impact of Annex VI to MARPOL 73/78 on the scope of Article 4a(4) of Directive 1999/32. Article 4a(4) did not make any reference to Annex VI. The ECJ had accepted in a previous case that even where the EU was not itself bound by an international agreement, the fact that all its member states are contracting parties to it is liable to have consequences for the interpretation of EU law, in particular those provisions which fell within the field of application of the original agreement (R (International Association of Independent Tanker Owners (Intertanko) and Others v. Secretary of State for Transport C - 308/06). However, the Intertanko case was concerned in part with a conflict between EU legislation and MARPOL 73/78 by which all EU member states were bound. There were three EU member states (all landlocked) who were not contracting parties bound by the 1997 Protocol giving effect to Annex VI. The ECJ held that to interpret the provisions of EU law in the light of an obligation imposed by an international agreement which did not bind all the EU member states would amount to extending the scope of that obligation to those member states which were not contracting parties to such an agreement. Therefore, the Court was not required to interpret Article 4a(4) of Directive 1999/32 in the light of Annex VI.


In the light of this ECJ ruling, the owners of vessels flying flags of countries outside of the EU must ensure compliance with the requirements set out in Article 4a(4) of Directive 1999/32. Compliance with the lesser requirements of Annex VI of MARPOL 73/78 will not provide a defence in the event that EU port authorities choose to prosecute in relation to excessive sulphur in marine fuels.

Given this decision, owners also need to be aware that outside ECAs, where more stringent restrictions apply, from January 2020 EU Regulations will limit the sulphur content of fuel used in all EU waters to a maximum of 0.5%. Whilst Annex VI of MARPOL imposes a similar requirement, the latter is subject to the outcome of a fuel availability review in 2018. The EU has given a clear indication that the restriction will apply in EU waters regardless of the outcome of that fuel availability review.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions