bg es cs de et el en fr hr ga it lv lt hu mt nl pl pt ro sk sl fi sv

Under EU law, the port State may adopt detention measures where the inaccuracies found pose a manifest risk to safety, health or the environment

Sea Watch is a non-profit humanitarian organisation with its registered office in Berlin (Germany). Its purpose is, in particular, search and rescue at sea and it carries out that activity in international waters of the Mediterranean Sea using ships of which it is both the owner and operator. Those ships include Sea Watch 3 and Sea Watch 4, which fly the German flag and have been certified as ‘general cargo/multipurpose ships’. During the summer of 2020, after carrying out rescue operations and disembarking those rescued at sea at the ports of Palermo (Italy) and Port Empedocles (Italy), the ships were subject to more detailed on-board inspections by the port authorities of those two cities on the ground that they had engaged in search and rescue at sea while they were not certified for that service and had recovered on board a considerably greater number of persons than the number certified. The inspections identified a number of technical and operational deficiencies, some of which were considered as clearly hazardous to safety, health or environment, and therefore both port authorities ordered that the ships be detained.

Following the detention of the ships, Sea Watch brought before the Tribunale amministrativo regionale per la Sicilia (Regional Administrative Court, Sicily, Italy) two actions for annulment, inter alia, of the detention notices and the inspection reports which preceded those notices. In support of its actions, Sea Watch claimed, in essence, that the port authorities from which those measures emanate had exceeded the powers conferred on the port State under Directive 2009/16, 1 interpreted in the light of applicable customary and treaty-based international law.

Consequently, the Tribunale amministrativo regionale per la Sicilia referred questions to the Court of Justice for a preliminary ruling in order to ascertain whether Directive 2009/16 applies to the ships concerned but also to clarify the conditions and extent of the port State’s powers of control and the conditions for detaining a ship.

In his Opinion delivered today, Advocate General Athanasios Rantos considers that Directive 2009/16 applies to ships, such as those at issue, which, while being registered as ‘multipurpose ships’, carry out search and rescue at sea. Directive 2009/16 applies to any ship and its crew calling at a port or anchorage of a Member State to engage in a ship/port interface. Among ships used for non-commercial purposes, only specific categories of ship – to which the legislature wanted to limit the exception – are excluded from the scope of that directive.