Irish Maritime Casualty Regime Faces EU Challenge
On 19 July 2018, the European Commission announced that it was bringing Ireland to the Court of Justice of the European Union ("CJEU") for allegedly failing to implement correctly the EU directive on the investigation of maritime casualties.
If the European Commission wins its case before the CJEU or Ireland decides not to defend its position before the CJEU then Ireland would have to amend its regime and change the composition of the Maritime Casualty Investigation Board ("MCIB").
The MCIB had been established under the Merchant Shipping (Investigation of Marine Casualties) Act 2000 (the "2000 Act"). Section 9 of that Act sets out the composition of the board of the MCIB. When the 2000 Act was enacted, the composition was compatible with EU law.
Nine years after the enactment of the 2000 Act, on 23 April 2009, the European Parliament and Council adopted Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector across the EU (the "Directive"). The Directive provides that institutions in member states tasked with maritime investigations (e.g., collisions, sinking of vessels, fatalities and injuries) must be "independent".
On 14 June 2011, Ireland purported to implement the Directive into Irish law. It did so by way of a statutory instrument entitled the European Communities (Merchant Shipping) (Investigation of Accidents) Regulations 2011.
Nine years later, on 19 July 2018, the European Commission says Ireland has failed to implement the Directive properly. Unlike many cases where the European Commission is challenging a member state's failure to implement a directive into member state law, this is a case of the European Commission alleging that Ireland implemented the directive incorrectly. It is also interesting because the case turns on how national legislation (the 2000 Act) which pre-dated an EU directive would have to be amended to bring it into line with a subsequent EU directive.
The European Commission's case is that: (a) Directive 2009/18 requires each member state to establish an impartial permanent investigative body, which should be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it but (b) Ireland's MCIB is not independent.
The European Commission said in its 2018 press release that it has a number of concerns regarding the independence of the members of the MCIB as established under Irish law. The European Commission said that:
"Irish law provides that one of the five members of the Board is the Secretary General of the Department of Transport, Tourism and Sport (DTTAS) or his or her nominee while another is the Chief Surveyor of the Marine Survey Office (MSO). The Marine Survey Office however has regulatory, administrative and enforcement functions with regard to ships, their equipment as well as seafarers' competence. As for the Department of Transport, Tourism and Sport, it is responsible, inter alia, for maritime safety policy. The Commission takes the view that the responsibilities and activities of the DTTAS and the MSO could conflict with the investigative task of the Marine Casualty Investigation Board. It follows that the Marine Casualty Investigation Board lacks the necessary independence from those Irish authorities."
The Directive is clear on the need for independence both in its recitals and in its operative provisions. The thirteenth recital of the Directive lays the ground work:
"Conducting safety investigations into casualties and incidents involving seagoing vessels, or other vessels in ports or other restricted maritime areas, in an unbiased manner is of paramount importance in order to effectively establish the circumstances and causes of such casualties or incidents. Such investigations should therefore be carried out by qualified investigators under the control of an independent body or entity endowed with the necessary powers in order to avoid any conflict of interest."
Moreover, Article 8(1) of the Directive then goes on to provide:
"In order to carry out a safety investigation in an unbiased manner, the investigative body shall be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it."
Independence is seen as an important feature and one worthy of protection. Article 8(3) of the Directive states:
"The activities entrusted to the investigative body may be extended to the gathering and analysis of data relating to maritime safety, in particular for prevention purposes, insofar as these activities do not affect its independence or entail responsibility in regulatory, administrative or standardisation matters."
Articles 8(5) and (6) of the Directive echo this need for independence:
"5. The investigative body shall be enabled to respond immediately on being notified at any time of a casualty, and to obtain sufficient resources to carry out its functions independently. Its investigators shall be afforded status giving them the necessary guarantees of independence.
6. The investigating body may combine its tasks under this Directive with the work of investigating occurrences other than marine casualties on condition that such investigations do not endanger its independence."
If the European Commission's views prevail then Ireland would have to amend the primary legislation (i.e., the 2000 Act) to ensure that there is independence. On the face of it, the European Commission's case seems plausible but it will be interesting to see how Ireland seeks to defend the case.
For further information: contact Dr Vincent Power or any member of A&L Goodbody’s EU, Competition & Procurement or Shipping Law teams.
Date published: 26 July 2017