A short note (on the day the UKSC appeal in MSC Flaminia is being heard) on the CJEU judgment in C‑188/23 Land Niedersachsen v Conti 11. Container Schiffahrts-GmbH & Co. KG MS ‘MSC Flaminia’.
The Court essentially followed the Opinion of Capeta AG which I discussed here. The operative part reads
Article 1(3)(b) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste
must be interpreted as meaning that the exclusion from the scope of that regulation that that provision provides for, pertaining to the waste generated on board a ship following damage sustained by that ship on the high seas until that waste is offloaded in order to be recovered or disposed of, no longer applies to the waste which remains on board that ship in order for it to be shipped, together with that ship, for recovery or disposal, after part of that waste has been offloaded in a safe port in order to be recovered or disposed of, that interpretation being in conformity with Article 1(4) of the Convention on the control of transboundary movements of hazardous wastes and their disposal, signed in Basel on 22 March 1989, approved on behalf of the European Economic Community by Council Decision 93/98/EEC of 1 February 1993.
The CJEU applies the VCLT’s interpretative matrix holding it leads to the Basel Convention having to be applied teleologically, and it also reminds us [58] of the ling-standing CJEU authority that “in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the legislation of which it forms part”. It then essentially repeats the AG’s lines of analysis that while exemption from notification etc may be justified in the light of the immediate aftermath of an incident at sea, but is no longer justified once the ship had docked and the captain etc can properly assess the various implications of what has happened.
All in all a sensible judgment.
Geert.
Handbook of EU Waste Law, 2nd ed. 2015, Oxford, OUP, Chapter 3, 3.27 ff.
