On 9 July 2020, the European Court of Justice published its judgment in Case C‑257/19, European Commission v Ireland, on the action brought by the Commission where it requested the Court to declare that, by failing to provide for an investigative body which is independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to that investigative body, Ireland had failed to comply with its obligations under Article 8(1) of Directive 2009/18. 

In 2015, the Commission had sent a letter to Ireland as part of the EU Pilot procedure, inviting it to provide clarification on the rules under Irish law for ensuring operational independence and impartiality as required by Article 8 of Directive 2009/18. More specifically, the Commission stated that two members of the Marine Casualty Investigation Board (“MCIB”), that is to say the Chief Surveyor and the Secretary-General of the Department of Transport, Tourism and Sports (“DTTS”), had performed other regulatory and enforcement functions in respect of the regulations in the field of maritime transport and/or fisheries. Following the informal dialogue, the Commission, not satisfied with Ireland’s replies, decided to bring an action before the Court of Justice.

According to the Court, the purpose of the Directive 2009/18 is to improve maritime safety and the prevention of pollution by ships and it is for those purposes of paramount importance to effectively establish the circumstances and causes of casualties or incidents involving seagoing vessels, or other vessels in ports or other restricted maritime areas. In order to avoid any conflict of interest such investigations should be carried out by qualified investigators under the control of an independent body or entity endowed with the necessary powers. Since the MCIB is responsible for conducting safety investigations and for drawing up reports and recommendations which may result in it ruling on maritime shipping regulations and since the DTTS is responsible for those regulations, according to the Court the MCIB may be called upon, in its functions,  to rule on activities directly undertaken by the DTTS, but also by the Maritime Safety Policy Division, and by the Coast Guard and the Marine Survey Office, in the same way that, in the reports which it draws up, it may be called upon to question the management of the powers conferred on those public authorities and to make recommendations on practices to be followed in the future or reforms to be introduced. 

Therefore, the Court has declared that, by failing to provide for an investigative body which is independent in its organisation and decision-making of any party whose interests could conflict with the task entrusted to that investigative body, Ireland has failed to comply with its obligations under Article 8(1) of Directive 2009/18.

Esmeralda Dedej