Referral EU Commission for failure to correctly implement Directive 2009/18/EC

Referral EU Commission for failure to correctly implement Directive 2009/18/EC

On the 19th July 2018 the European Commission referred Ireland to the Court of Justice of the European Union (EU). The grounds of this referral is that Ireland failed to correctly implement EU Law under Directive 2009/18/EC. The Directive is responsible for establishing the fundamental principles governing the investigation of accidents in maritime transport. The two organisations that carry out investigations of accidents in maritime transport is the Marine Survey Office (“MSO”) and the Marine Casualty Investigation Board (“MCIB”).

The MSO is part of the Irish Maritime Administration (“IMA”) and comes under the Department of Transport, Tourism and Sport (“DTTAS”). The DTTAS is responsible for maritime safety policy. The MSO is responsible for all national and international legislation in relation to the safety of shipping and the prevention of pollution of the marine environment from vessels in Irish waters. The MSO also carries out investigations into marine casualties that occur in Irish waters or involve Irish registered vessels. The MSO investigates marine casualties to establish the cause and will then draft up a report together with a recommendation as to who was at fault that is sent to the Director of Public Prosecutions (“DPP”). The DPP can then decide whether or not to bring a prosecution against the responsible party.

The function of the MCIB is to carry out investigations into marine casualties that occur in Irish waters or involve Irish registered vessels. The main purpose of the MCIB investigations is to establish the cause of the marine casualty with a view to making recommendations to the Minister for Transport for the avoidance of similar casualties. The MCIB states that the investigations are not for the purpose of attributing fault or blame, however the follow up draft report of the MCIB investigation can also lead to criminal investigations. The MCIB task of drafting and submitting the draft report accordingly, is governed by Section 36 of the Merchant Shipping (Investigation of Marine Casualties) Act 2000.    
Directive 2009/18/EC requires each EU Member State to establish a neutral permanent investigative body, that should be independent of its legal structure, organisation and judgment of any party whose interests could conflict with the tasks assigned to it.

The European Commission raised numerous concerns in relation to the independence of the MCIB under Irish law. The main reason of concern was that Irish law provided that one of the five members of the Board of the MSCIB is the Chief Surveyor of the MSO while another is also the Secretary General of the DTTAS.

The European Commission has taken the view that the accountability and actions of the DTTAS and the MSO could conflict with the investigative task of the MCIB. This follows on that the MCIB now lack the necessary freedom to independently investigate maritime casualties from the DTTAS and MSO.

This recent decision of the European Commission is being closely followed by Noble Shipping Law and we will keep you updated on what decision is reached by the Court of Justice of the EU.