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COMPLAINT TO THE COMMISSION OF THE EUROPEAN COMMUNITIES CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW The Greek Government

Failure to Compel Removal of the Sea Diamond Wreck November 4, 2012 1. Name of complainant: Archipelagos Institute of Marine Conservation, Greece 2. Where appropriate, represented by: Prepared with the assistance of the Yale Environmental Law Clinic of Yale University, USA 3. Nationality: Greek 4. 5. Address or Registered Office: Telephone/fax/e-mail address:

6. Field and place(s) of activity: The Archipelagos Institute is a non-profit environmental organisation focusing on scientific research on the marine and terrestrial biodiversity of the Greek Aegean Sea and islands. This work is carried out in collaboration with universities and scientific experts from the EU and the USA. The work of the Archipelagos Institute aims to trigger environmental conservation actions. 7. Member State alleged by the complainant not to have complied with Community law:

Greece 8. Fullest possible account of facts giving rise to complaint:

The Sea Diamond1 cruise ship sank off the coast of Santorini, Greece, on April 5th, 2007 after hitting a volcanic reef in a high-risk zone of the Santorini Caldera. The ship was operated by Louis Hellenic Cruises, a cruise line owned by Louis plc, a Cypriot travel company. The ship is currently stagnating on the wall of the Santorini Caldera on a steep incline; its bow sits in 125 meters of water and its stern is in 147 meters of water. The vessel has been continuously leaking crude oil from its tanks since the sinking. As a result, the Sea Diamond wreck represents a significant health threat to the inhabitants of Santorini and local ecosystems, and imperils Santorinis tourism industry. We respectfully urge the EU Commission to compel Greece to enforce EU law by compelling Louis Cruises to initiate an immediate removal of the Sea Diamond shipwreck. Louis Cruises has third party liability insurance that could cover the costs of remediation.2
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The Sea Diamond was built in 1986 and registered under Elona Maritime Co Limited. After acquiring the ship in 2006, Louis conducted a series of upgrades, the details of which are unknown. Equasis Ship Folder, Sea Diamond, IMO: 8406731, Edition Date: Mar. 3, 2011, available at www.fortunes-de-mer.com/rubriques/liens%20et% 20contacts/detailsactualites/SeaDiamond2007.htm. 2 Louis Cruises possesses third party liability insurance through its Protection & Indemnity (P&I) Club, West of England, which contains a liability cover for marine pollution that could reach into the hundreds of millions of euros.

The Greek Government is in violation of several EU directives because it has failed to compel the removal of the wreck (see Section 9 for a detailed discussion of the violations). As a result, the wreck remains in the sea and has been leaking pollutants into the marine ecosystem for nearly six years. Due to the precarious position of the Sea Diamondon a steep incline in a seismically active regionthere is a very serious risk that the wreck will slip deeper into the crater, which would result in increased levels of crude oil and other chemicals being released into the marine environment. At that point, the wreck would become prohibitively expensive to remove. We are deeply concerned about violations of EU laws caused by the Sea Diamond shipwreck. Significant quantities of oil remain onboard the Sea Diamond and pose an ongoing health threat. Of the reported 572 m3 of diesel, oil, heavy fuel oil, and lubricating oil onboard the Sea Diamond when it sank, an estimated 50% of the materials were released into the water column.3 The remainder of the fuel and lube oils flooded the ships interior and are still leaking into the sea. Currently, between 30 and 60 litres of oil are seeping out of the Sea Diamond every day.4 A floating boom is in place in an attempt to contain the continuously released oil. However, this method may be ineffective, especially since the size of the boom has been reduced over time (see Appendix 1). An underwater search-and-survey company, Dronik Maritime Consultants, conducted oil pumping from the vessel in 2009. It came to our knowledge that the liquid mixture pumped from the wreck was officially destroyed without any scientific analysis of its contents, such that the total volume of oil removed during this operation could not be estimated. However, the State laboratory in Syros Island tested the mixture in of one of the barrels, revealing that the mixture was 99% seawater and only 1% oil. This indicates that the oil pumping operation was extremely ineffective.

Although various questions have been submitted to the EU concerning the marine pollution being caused by the Sea Diamond (see Appendix 3), the Greek Government to date has chosen to allow the wreck to remain in the Aegean Sea. Two months after the accident, the Greek Ministry of Maritime Affairs fined Captain Marinos of the Sea Diamond and Louis Cruises a total of USD 1.5 million for the marine pollution that resulted from the accident. However, to the best of our knowledge, the fines have not been recovered. Yet, following the shipwreck, Louis Cruises received an insurance compensation of USD 55 million.5 (The ship was worth USD 35 million when Louis Cruises purchased it second-hand in 20066). Following the sinking, Louis Cruises produced a document listing the chemicals onboard the Sea Diamond. The document, called the Green Passport (see Appendix 2), was produced after the shipwreck and is thought to be a highly conservative estimate of both the quantities of chemicals onboard at the time of the sinking as well as the composition of the chemicals onboard. Nonetheless, according to the Green Passport, there are still many hazardous materials onboard the vessel: mercury, lead, zinc, chlorofluorocarbons (CFCs), radioactive material, cadmium
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Both naval architects and salvage experts agree that the partially full fuel and oily waste tanks imploded when the ship sank. This conclusion is substantiated by observations of the wreck; oil releases were indiscernible until after the ship sank. Oil releases following the sinking were significant and the high volume releases continued for several s days. See Michael L. OBrian and Vassillios Mamaloukas-Frangoulis, supra note Error: Reference source not found 4 Evangelos Gidarakos, Estimated Release of Metals from the MS Sea Diamond in the Caldera: Present and Future Environmental Impacts, PowerPoint presentation, Slide 32. 5 Sea Diamond Owner Receives Compensation, Financialmirror.com, November 7, 2007, available at http://216.197.105.115/more_news.php?id=8848&type=news 6 Johanna Jainchill, Damaged Louis Cruise's Sea Diamond Sinks Off of Santorini, TRAVEL WEEKLY , Apr. 6, 2007, available at http://www.travelweekly.com/Cruise-Travel/Damaged-Louis-Cruise-s-Sea-Diamond-sinks-off-ofSantorini/. 2

copper, and TBTs. Mussel and shellfish samples from the area contain high concentrations of cadmium and lead, which exceeded EC limits for edible shellfish.7 Fish samples from the area of the sinking contain higher levels of heavy metal concentrations (such as cadmium, lead, and mercury) than permitted by EU Directive 1881/2006/EC (on maximum levels for certain contaminants in foodstuffs).8 As long as the Sea Diamond wreck remains on the seafloor, it will continue to leach contaminants into the environment. This leaching results in bioaccumulation up the food chain over time, posing a serious long-term risk to the health of the local communities and the water quality in the region, as well as to the health of the surrounding marine ecosystems.9 The Greek Government has been disputing any conclusions that the Sea Diamond is contaminating the marine environment by relying solely on findings by a government-funded marine research centre, the Hellenic Centre for Marine Research (HCMR). The HCMR has produced four annual reports on the Sea Diamond wreck. The most recent of these reports concluded that the Sea Diamond wreck has had only a negligible effect on the marine ecosystem, thus providing convenient results for the Greek Government to justify inaction and avoid the ships retrieval costs. However, the HCMR report masks the true environmental damage and risk to human health caused by the Sea Diamond. It is based on data and analysis that are inadequate, and its findings conflict with a more comprehensive study carried out by the Technical University of Cretes Laboratory of Toxic and Hazardous Waste Management. The study by the Technical University of Crete found that the Sea Diamond had caused and continues to causesignificant environmental harm as well as serious threats to human health. Most worrisome, the study reveals a wide range of marine contaminants occurring in 35% of sediment samples, in up to 60% of certain fish species, and over 90% of oyster samples. To produce data comparable to the HCMR report, the Technical University of Crete collected samples of sediment and seawater from sites near the Sea Diamond wreck that had also been sampled by HCMR. However, the Technical University of Crete also sampled additional sites around the wreck and covered a wider area, which is crucial for analysis in a scientific evaluation of the effects of this type of pollution event. Since the HMCR study took samples further away from the wreck, it could very well have missed the presence of hydrocarbons in the substrate. Another key difference between the studies is that the Technical University of Cretes sampling methods were designed to account for the nature of the contaminants listed on the Sea Diamonds Green Passport, with a focus on sampling sites where those contaminants are likely to accumulate, such as benthic and sediment samples. Furthermore, the Technical University of Crete collected, with greater frequency, wild fish and mollusks from the area around the wreck, whereas the HCMR took mollusk species from far-away aquacultures and placed them near the wreck for a limited time before carrying out their analysis. The Technical University of Cretes study presents, from a scientific point of view, a much more reliableand unfortunately alarming analysis of the ongoing pollution and harm being caused by the Sea Diamond wreck. To date, the only two studies carried out on the effects of the Sea Diamond wreck are the HCMR study and the Technical University of Crete study.
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Evangelos Gidarakos, Sea Diamond: Assessment of current and future environmental impacts, Study performed at the Technical University of Crete, 2010. 8 Id. 9 The effects of the Sea Diamonds hazardous metals will amplify throughout the food chain as metals and chemicals bioaccumulate in high trophic level animals that consume smaller contaminated organisms. Aside from the risks to human health, these contaminants also threaten Mediterranean marine animals, such as the Mediterranean striped dolphin. For example, tissue and organ samples from Mediterranean striped dolphins have been found to contain high levels of mercury and selenium. Scientists concluded that the route of contamination was via the trophic network. H. Augier, L. Benkoel, A. Chamlian, W.K. Park, C. Ronneau, Mercury, Zinc and Selenium Bioaccumulation in Tissues and Organs of Mediterranean Striped Dolphins Stenella Coeruleoalba Meyen. Toxicological Result of their Interaction. CELLULAR MOLECULAR BIOLOGY , 1993, Sep 39 (6):621-34. 3

The bay in which the Sea Diamond sank has poor water flow due to weak tides and little to no ocean current. As a result, contaminants from the wreck will have unusually long residence times inside of the bay, leading to high concentrations of chemicals in the nearshore waters of Santorini. The University of Crete study cautions that it will be 10-20 years from the time of the sinking before the full environmental impacts of the damage occur. Given the scientific conclusions reached by the Technical University of Crete proving that there is significant marine pollution being caused by the Sea Diamond wreck the Greek authorities cannot continue to ignore the results of this study. The proof of significant pollution damage must be taken into consideration when evaluating Greeces obligations and liability in removing the shipwreck. In addition to the human health risks, pollution from the Sea Diamond wreck also threatens natural habitats with important biodiversity and endangered marine species. The Sea Diamond is positioned just18 km east of one of the European Unions Natura 2000 Special Protected Areas (SPA), site code GR4220022. The area in question, Nisoi Christiana, is a cluster of islands 20 km southwest of Thira. The site was selected to conserve species that are dependent on cliffs and islands.10 One such species is the Peregrine Falcon (Falco peregrinus), a protected bird species under Annex I of Council Directive 79/409/EEC, and a resident species of the islands within the Nisoi Christiana SPA.11 Furthermore, Santorini and Nisoi Christiana are important habitats of the Mediterranean Monk Seal (Monachus monachus). The Mediterranean Monk Seal is considered to be the worlds most endangered marine mammal, with a remaining global population of fewer than 600 monk seals.12 Both the Monk Seal and the Peregrine Falcons diets are based on the marine food web (largely fish and small seabirds), and so fish and shellfish contaminated by the Sea Diamond wreck pose a serious threat to their health. Oil pollution is a particular threat to their continued existence as a species.13 Scientists have cautioned that removal of the Sea Diamond wreck from the Caldera is the only way to eliminate leaks from oil and emission of pollutants like heavy metals into the surrounding aquatic environment.14 Removal is a precautionary measure that will also protect against future seepage that would occur if the ship experiences further structural damage, hence preventing further bioaccumulation in the food chain. Those responsible for this significant pollution incident have not properly responded to the problem and are not only violating EU laws, but also creating a dangerous and moral hazard precedent to encourage the abandonment of shipwrecks in Europes seas. To our knowledge, no remediation efforts been made beyond the limited work by Dronik Maritime Consultants. The following section explains which EU laws and regulations we believe that Greece has violated with regard to pollution from the Sea Diamond. We respectfully urge the EU Commission to compel Greece to enforce EU law by compelling Louis Cruises to initiate an immediate removal of the Sea Diamond shipwreck. Louis Cruises has third party liability insurance that could cover the costs of remediation.
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Natura 2000. Standard Data From for Special Protected Areas. Id. 12 Monk Seal Fact Files: Distribution and Abundance, THE MONACHUS GUARDIAN, 2006, available at http://www.monachus-guardian.org/factfiles/medit15.htm (estimating the total population of Mediterranean Monk Seals to be between 495-553). 13 Id. Ratcliffe, Derek. The Peregrine Falcon. Princeton, NJ: Princeton University Press, 1993. 14 See, e.g., Evangelos Gidarakos, Qualitative and Quantitative Characterization of Hazardous and Toxic Substances Resulting from the Sinking of the Sea Diamond, PowerPoint presentation, slide 32 4

9.

Provisions of Community law that the complainant considers to have been infringed by the Member State concerned: With respect to the Sea Diamond wreck, Greece has violated: (1) The EU Waste Framework Directive (2006/12/EC and 2008/98/EC) (2) The Environmental Liability Directive (2004/35/EC) (3) The Habitats Directive (92/43/EEC), and (4) The Barcelona Convention for Protection Against Pollution in the Mediterranean Sea.

The sections below discuss in detail the specific violations. However, before doing so, it is important to acknowledge that the precautionary principle is the cornerstone of environmental protection in the European Union. The European Commission has formally expressed its commitment to the precautionary principle in Article 191 of the Treaty of Lisbon: Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.15 The Greek Government has pointed to the alleged scientific uncertainty surrounding the pollution impact of the Sea Diamond, buteven if the Technical University of Cretes study did not demonstrate significant pollution effectsthe Greek authorities should not be able to continue citing such uncertainty to avoid upholding its commitments under EU law. 1. THE EU WASTE FRAMEWORK DIRECTIVE (2006/12/EC AND 2008/98/EC) (Transposed into Greek law through Joint Ministerial Decision 50910 on Waste: Measures and Conditions on Solid Waste Management - National and Regional Management Plan) The Sea Diamond, as well as the items onboard, qualify as waste under Directives 2006/12/EC and 2008/98/EC and as such cannot legally remain in the Caldera.16 In fact, many of the items listed on the ships Green Passport indicate that the wreck contains highly hazardous waste.17 Directive 2006/12/EC, which has been repealed and replaced by 2008/98/EC on waste, was in force at the time of the Sea Diamond sinking and until December 12, 2010, at which point the new directive entered into force and has continued to apply to the situation. Accordingly, Greece has violated both directives as a result of its action in both periods where the directives were in force: Greece violated Directive 2006/12/EC in the first period from the date of the Sea Diamonds sinking to December 12, 2010, and Greece through its inaction is presently in violation of Directive 2008/98/EC since its entry into force on December 12, 2010. By failing to
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Consolidated version of the Treaty on the Functioning of the European Union (Treaty of Lisbon), 13 December 2007, 2008/C 115/01, art. 191, para. 2 (emphasis added). 16 The definition of waste under Article 3 of Directive 2008/98/EC is any substance or object which the holder discards or intends or is required to discard. See also Part 8 and Appendix 1 of 2006/12/EC listing the substances that are leaking into the environment from the Sea Diamond. 17 As defined by Commission Decision of May 3, 2000 (2000/532/EC) establishing a list of hazardous wastes. 5

ensure the removal of the wreck, Greece has failed to uphold its obligations to the European community and the environment. The Sea Diamond wreck and its contents qualify as waste because they are substances that, under Articles 1 and 3 of Directives 2006/12/EC and 2008/98/EC, respectively, the holder discards or intends or is required to discard. Furthermore, the Sea Diamond wreck consists of and contains many substances that at least fall into the categories Q4, Q6, Q7, and Q14 of Annex I of the Directive 2006/12/EC and the hazardous waste categories H5 (harmful), H6 (toxic), H7 (carcinogenic), H-10 (toxic for reproduction), and H-14 (ecotoxic) of Annex III of Directive 2008/98/EC. The Greek Government has violated Directive 2008/98/EC and Directive 2006/12/EC in the following ways: (i) Greece violated Articles 10 and 36 of Directive 2008/98/EC and Article 4 of then-current Directive 2006/12/EC by failing to take the necessary measures to prohibit the abandonment of the wreck and then ensure that it was safely recovered; Greece violated Article 10 and 36 of Directive 2008/98/EC and Article 8 of then-current Directive 2006/12/EC by failing to ensure that Louis Cruises recover and dispose of the wreck; Greece violated Article 36 of Directive 2008/98/EC by failing to enforce the penalties on Louis Cruises.

(ii)

(iii)

(i) Violation of Articles 10 and 36 (2008/98/EC) and Article 4 (2006/12/EC) requiring the Member State to prohibit the abandonment of waste and to ensure the disposal of such waste Greece has failed in its obligation to take the necessary measures to prohibit the abandonment, dumping, or uncontrolled disposal of waste18 and to ensure that any such waste is safely recovered or disposed of.19 The Commission has maintained: if [a] situation persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member States have exceeded the discretion conferred on them by [Article 4].20 The Greek Government has done virtually nothing to prevent the abandonment and dumping of the Sea Diamond and the items onboard; the ship has been in the Caldera for nearly six years and continues to leak oil and other toxic substances.21 The Greek Government also has not ensured the effective remediation of pollution from the Sea Diamond, as the limited efforts to remove contaminants from the ship have been unsuccessful. For example, records indicate that samples from the limited oil pumping conducted by Dronik Maritime Consultants in 2009 removed from the site were comprised of only 1% oil and 99% seawater,22 which casts doubts on the efficacy of this remediation process. Despite the continued and increasing contamination of the marine environment from the Sea Diamond wreck, the minor remediation efforts have slowed even further. All that remains of any response is a
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Directive 2008/98/EC, art 36 and Directive 2006/12/EC, art. 4. Directive 2008/98/EC, art 10 and Directive 2006/12/EC, art. 4. 20 Case C-420/02, Commission of the European Communities v. Hellenic Republic, Nov. 2004. 21 See Appendix 2 for a list of the toxic substances. 22 Interview with Loukas Lignos, Member of Save Santorini Group, in Santorini, Greece (Mar. 17, 2010). 6

small ring of floating booms for oil containment. Furthermore, the modest fine imposed upon Louis Cruises for the environmental damage has gone unpaid and collection efforts are nonexistent. This pattern of ineffectual behaviour constitutes a violation of Articles 10 (Recovery) and 36 (Enforcement and Penalties) of Directive 2008/98/EC as well as then-effective Article 4 of Directive 2006/12/EC. There is significant precedent for the Commission to find discrete incidents, such as the Sea Diamond situation, to be violations of the Directive in cases where non-compliance continues for a long period of time.23 Greece has already been found to be in violation of the European waste legislation. In the case of the Pra Galini waste site in the prefecture of Heraklion, the European Court of Justice found that a period of state inactivity of four years exceeded Greeces margin of discretion and showed the problem was of a structural character.24 Similarly, Greeces inertia and relative nonresponse over the same period of time with respect to the Sea Diamond is representative of a systemic pattern of state inactivity and a failure to implement both Directives 2006/12/EC and 2008/98/EC.25 As a result, Greece should be compelled to properly initiate remediation of the Sea Diamond site. (ii) Violation of Article 15 of Directive 2008/98/EC and Article 8 of Directive 2006/12/EC requiring the Member State to ensure that waste is treated by its producer Greece has failed to uphold its obligation under Directive 2008/98/EC to take the necessary measures to ensure that any original waste producer or other holder carries out the treatment of waste himself or has the treatment handled by . . . an undertaking which carries out waste treatment operations or arranged by a private or public waste collector . . . Greece also failed to uphold its obligation under former Directive 2006/12/EC, which held in relevant part: Member States shall take the necessary measures to ensure that any holder of waste: (a) has it handled by a . . . public waste collector . . . ; or (b) recovers or disposes of it himself in accordance with the provisions of this Directive. The Greek Government has taken no action to compel Louis Cruises, the owner of the Sea Diamond, and thus the holder of the waste, to recover or dispose of the ship and its contents. Louis Cruises simply left the ship where it sank. Though a limited amount of oil was recovered by the Dronik Maritime Consultants operation, the vast majority of the waste created, including the wreck itself, has not been handled by a waste collector, recovered, and/or sustainably disposed of. Despite Louis Cruises refusal to remove this waste, the Greek Government has not mandated any further action. Instead, the government delegated the responsibility for the Sea Diamond site to the local port authority, the Port Authority of Thira. Understandably, this small government unit on an island with a local year-round population of less than 14.000 has been unable to compel Louis Cruises to pay for adequate remedial measures. The Port Authority of Thira simply lacks the financial means and expertise to adequately bring action against the large company, Louis Cruises, and its P&I Club.
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Case C-420/02, Commission of the European Communities v. Hellenic Republic, Nov. 2004 at para. 16-17. In this particular case, the infringement proceedings began in February 2000, and the opinion was handed down in July 2004. Case C-420/02, Commission of the European Communities v. Hellenic Republic, Nov. 2004. 25 Indeed, Greece has a history of non-compliance with the Waste Framework Directive. Greece has been in and out of the ECJ for over two decades on waste-related allegations. In fact, the first case to ever reach the Court was a Greek violation of Directive 2006/12/EC with respect to a toxic waste dump in Crete. In that case, the ECJ imposed a daily fine on Greece, which it only began paying after the Commission threatened to terminate other sources of aid. Damian Chalmers, Gareth Davies & Giorgio Monti, EUROPEAN UNION LAW: CASES AND MATERIALS 345 (2010). 7

Article 14 of Directive 2008/98/EC and Article 15 of Directive 2006/12/EC adopt the polluter pays principle: the previous holder of the discarded wastein practice, the persons who cause the waste26must pay the cost of disposing of the waste. The governments only real response to date has been a limited fine for the damage. As mentioned above, to our knowledge, this fine has yet to be collected. Although Louis Cruises is liable for the cost of disposing of the waste under these waste directives, Article 15 of 2008/98/EC and Article 8 of Directive 2006/12/EC make it the responsibility of the Greek Government to ensure that the Sea Diamond wreck is remediated which means undertaking remedial action if Louis Cruises will not act. Furthermore, the Greek Government would likely not have to bear the final costs of remediation: Louis Cruises possesses third party liability insurance through its Protection & Indemnity (P&I Club), West of England, which contains a liability cover for marine pollution that could reach into the hundreds of millions of euros. Nearly six years have elapsed since the accident, and the Greek Government to date has failed to ensure the collection, recovery, or disposal of the waste; for this reason Greece is in violation of Article 15 of Directive 2008/98/EC and Article 8 of Directive 2006/12/EC. (ii) Violation of Article 36 of Directive 2008/98/EC requiring Member States to enforce dissuasive penalties Article 36 of Directive 2008/98/EC states that Member States shall lay down provisions on the penalties applicable to infringements of the provisions of this Directive and shall take all measures necessary to ensure that they are implemented. The penalties shall be effective, proportionate and dissuasive. The USD 1.5 million fine imposed on Louis Cruises is relatively small, especially when contrasted with the companys insurance payout of USD 55 million and the projected cost of salvaging the Sea Diamond. In this light, the fine is not proportionate or dissuasive. Furthermore, Louis Cruises does not appear to have paid the fine; accordingly, Greece has also failed under its Article 36 duty to ensure the fine is implemented. 2. THE ENVIRONMENTAL LIABILITY DIRECTIVE (2004/35/EC) (Transposed into Greek law through Presidential Decree 148/2009)

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Case C-188/07, Commune de Mesquer. v. Total France SA and Total International Ltd., June 2008. 8

Under Directive 2004/35/EC, Louis Cruises is obligated to take the necessary remedial measures27 and to bear the costs for the preventive and remedial actions28 with respect to the Sea Diamond site. This holds regardless of whether or not Louis Cruises was at fault for causing the accident. Article 3(1)(a) of Directive 2004/35/EC applies a strict liability standard for hazardous activities, which include transport by . . . sea of dangerous goods or polluting goods . . . 29 As demonstrated in the prior section, the Sea Diamond and its contents certainly include at least polluting goods.30 Because Louis Cruises is liable for the remediation, regardless of the fault standard,31 Greece, as a Member State, has an obligation to ensure that the site is remediated and Louis Cruises is held financially responsible. Greece, however, has not fulfilled this obligation and therefore is in violation of Directive 2004/35/EC. The fact that Directive 2004/35/EC came into force twenty-five days after the Sea Diamond sinking does not obviate Greeces responsibility under the Directive. It is not the sinking of the ship on April 5, 2007, but rather the subsequent ongoing leakage, that triggers the Directive. Every ship sinking cannot be considered a triggering event for the purpose of the Directive; it is the release or emission of hazardous pollutants that makes Directive 2004/35/EC applicable. The continual emissions from the Sea Diamond are triggering events under the Directive. These emissions have occurred continuously after Directive 2004/35/EC came into force on April 30, 2007.32 This is a fact counter to the Commissions apparent reluctance to apply Directive 2004/35/EC to the Sea Diamond case on the grounds that the Directive came into force shortly after the ship sank.33 Moreover, there is a risk of significant future damage from the wreck as it deteriorates and especially if it slides deeper into the Caldera. Directive 2004/35/EC places the duty of preventing future environmental damage on Louis Cruise lines, and as a consequence, on the Greek Government to ensure that the company undertakes proper remediation. If these actors are not held responsible, the environment and the local population will be forced to bear the costs, and this contravenes the intentions of Directive 2004/35/EC. The Greek Government has violated Directive 2004/35/EC in three ways: (i) Greece violated Article 6 by not requiring Louis Cruises to remediate the Sea Diamond site;

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Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on Environmental Liability With Regard to the Prevention and Remedying of Environmental Damage, O.J. (L 143) 56, art. 6. 28 Id. at art 3. 29 Id. at annex III. 30 Directive 2004/35/EC includes in its Annex III a list of the activities for which it applies a strict liability standard. In the Annexs sub-section 8, it includes the following activity: 8. Transport by road, rail, inland water ways, sea or air of dangerous goods or polluting goods as defined either in Annex A to Council Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road (1) or in the Annex to Council Directive 96/49/EC of 23 July 1996 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by rail (2) or as defined in Council Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods (3). Article 2 of Council Directive 93/75/EEC includes in its definition of polluting goods oils as defined in Marpol Annex 1. . . . In turn, Marpol Annex 1 defines oil as petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined products . . . . Accordingly, considering the substantial presence of oil onboard the Sea Diamond and the fact that it falls under the definition of polluting good under Directive 2004/35/EC, a strict liability standard should be applied. 31 Even if a negligence standard were applied, there are allegations that there were a number of irregularities leading up to the Sea Diamond accident and in its subsequent handling. 32 Id. 33 European Commission Answer to Question H-0037/10 on February 11, 2010, in Strasbourg. See Appendix 3 for a copy of the Commissions answer. 9

(ii)

Greece violated Article 11 by not guaranteeing the ability of the Ministry of Maritime Affairs, Islands, and Fisheries to empower or require third parties to carry out the necessary remediation of the site; Greece violated Article 12 by not adequately responding to the requests by civil society organizations, Archipelagos Institute and others, to take action.

(iii)

(i) Violation of Article 6 Greece has done very little to compel Louis Cruises to remediate the site. This lack of action is a violation of Article 6 of Directive 2004/35/EC. Directive 2004/35/EC has as one of its primary objectives the remediation of contaminated sites,34 like the area of the Caldera where the Sea Diamond sank. Article 6 of the directive, and the corresponding national law put in place to implement the directive (PD 148/2009), hold that when an operator does not pay for remediation, the competent authority (as defined by each Member State) shall require that the remedial measures are taken by the operator. In the case of the Sea Diamond, the competent authority responsible for enforcing the law should have been the Ministry of Maritime Affairs, Islands, and Fisheries, but after an administrative reorganizing, the Greek Government has devolved the responsibility to individual port authorities, essentially making enforcement impossible. The delegation to individual port authorities was an unfunded mandate to civil entities with little to no resources and political power. Because Greece has failed to compel Louis Cruises to significantly remediate the site and/or remove the wreck, Greece is in violation of Article 6 of Directive 2004/35/EC. (ii) Violation of Article 11 Greeces delegation of responsibility to the local port authority is itself a violation of Article 11. Article 11 requires that Member States shall ensure that the competent authority may empower or require third parties to carry out the necessary preventive or remedial measures. The Port Authority of Thira, with its limited funding and capacity, is functionally unable to either salvage the Sea Diamond or successfully sue Louis Cruises and its P&I Club to recover the costs. By choosing to give jurisdiction to a local authority that the government knows or should know is unable to carry out such a large task, Greece violated Article 11. (iii) Potential Violation of Article 12 Article 12 preserves the rights of civil society organizations and non-governmental organizations (NGOs) to submit observations and request that competent authorities take action under the Directive. The Article further requires that the competent authorities immediately inform any such inquiring party of their intentions with respect to the request. Local civil society organizations and NGOs, including the Archipelagos Institute, have been repeatedly and intentionally excluded from providing independent assessments of the levels of environmental pollution and damage caused by the Sea Diamond wreck, as well as from offering solutions for remediation, despite numerous requests to be allowed to do so. Local civil society

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Greece transposed it into its national legal framework as Presidential Decree 148/2009 (Appendix 4). 10

organizations have also reported a systematic rejection of requests for information from the Port Authority of Thira and the Port Fund. The Greek Governments unresponsive and exclusionary behaviour is a direct violation of Article 12 of Directive 2004/35/EC. 3. THE HABITATS DIRECTIVE (92/43/EEC) The Sea Diamond wreck threatens protected areas listed in the EUs Natura 2000 network. Greece, as a Member State, has an obligation to take appropriate steps to avoid . . . the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated.35 In this instance, the relevant site is the Natura 2000 Special Protected Area, code GR4220022, Nisoi Christiana. Among the species that are protected in this habitat is the highly-endangered Mediterranean Monk Seal,36 which lives on the islands and in the surrounding waters where the wreck is located. The Greek Government has violated Directive 92/43/EEC: (i) (ii) (i) Greece violated Article 6 by failing to prevent the deterioration of the protected habitat, and Greece has also violated Article 6 by failing to protect the Monk Seal from disturbance. Habitat Protection

Greece has violated its Article 6 obligation to take appropriate steps to avoid . . . the deterioration of natural habitats protected by Directive 92/43/EEC. The Sea Diamond wreck sits less than ten nautical miles from the protected shores of the Nisoi Christiana islands, yet the Greek Government has done nothing to ensure that leaking toxic pollutants do not reach them. Directive 92/43/EEC imposes a strict obligation on the Member State to maintain a pristine environment in listed areas. These areas are specifically listed because they should be afforded more protection than the general environment of a state. In this instance, Greece has done the opposite. Until Greece puts measures in place to protect this ecosystem from the nearby toxic pollutants at the Sea Diamond site, it will remain in violation of Directive 92/43/EEC. (ii) Protection of Monk Seal from Disturbance

The Greek Government has also violated its Article 6 duty to protect from disturbance the nearly-extinct Monk Seal population, which uses the waters at the wreck site as a feeding ground. This is particularly troubling because the Monk Seal is a priority species within the meaning of Article 1 of Directive 92/43/EEC and is near extinction. In light of the potential danger to this extremely endangered species, Greece has an obligation to at least ensure that the pollutants being released from the Sea Diamond wreck are not affecting the Monk Seals that feed in the very same waters. Greece has ignored this dutyand in fact, impeded the ability of independent scientists to test the quality of the water surrounding the wreckageand is thereby violating Directive 92/43/EEC.
35

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (L 206), art. 6(2). 36 Hellenic Ministry for the Environment, Physical Planning, and Public Works, Natura 2000 in Hellas, http://www.minenv.gr/1/12/121/12103/viotopoi/e4220003.html. 11

4. BARCELONA CONVENTION FOR PROTECTION AGAINST POLLUTION IN THE MEDITERRANEAN SEA (U.N.T.S. 122) The Barcelona Convention for the Protection of the Mediterranean Sea against Pollution (hereinafter the Convention) applies to the Sea Diamond wreck because it is a pollution incident.37 Of specific relevance to the Sea Diamond situation is the associated Protocol Concerning Cooperation in Preventing Pollution From Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (hereinafter Emergency Protocol),38 which deals specifically with pollution incidents in emergency situations like the Sea Diamond. The Sea Diamond qualifies as a pollution incident under Article 1 of the Emergency Protocol because it involves a discharge of oil and/or hazardous and noxious substances . . . which poses or may pose a threat to the marine environment.39 Crude oil and other materials containing toxic substances such as mercury and cadmium, have entered the aquatic environment and food chain as a result of the Sea Diamond sinking. Greece ratified the Convention itself at its inception in 1976 and the Emergency Protocol in 2004. As a result, in dealing with the Sea Diamond situation, Greece is obligated to abide by the Conventions requirements. Greece has violated Article 10 of the Emergency Protocol because it has failed to take every practicable measure to reduce or eliminate the effect of the Sea Diamond pollution incident. Violation of Article 10 Greece, as the nation faced with the pollution incident involving the Sea Diamond, has failed to uphold its duty under Article 10(b) to take every practicable measure to prevent, reduce and, to the fullest possible extent, eliminate the effects of the pollution incident.40 Greece has made at best a severely limited effort to reduce the pollution from the Sea Diamond site. The Emergency Protocol includes an affirmative obligation to take every practicable measure rather than simply doing the minimum. Greece has not pursued every practicable measure: as just one example, it has failed to seek to enforce the (already low) fines imposed upon Louis Cruises, even though the company is covered by third-party liability insurance in case of marine pollution through its P&I Club, West of England. CONCLUSION The continued inaction with respect to remediation of the Sea Diamond site represents a failure of the Greek Government to uphold its obligations to the European and world
37

Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution, Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and Other Harmful Substances in Cases of Emergency, Feb. 16, 1976, U.N.T.S. Reg. No. 16908, 1102 U.N.T.S. 122 (1978), art. 1 (defining pollution as the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results, or is likely to result, in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of seawater and reduction of amenities.); see also Protocol Concerning Cooperation in Preventing Pollution From Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea, Jan. 25, 2002, art. 1(b) (Pollution incident means an occurrence or series of occurrences having the same origin, which results or may result in a discharge of oil and/or hazardous and noxious substances and which poses or may pose a threat to the marine environment, or to the coastline or related interests of one or more States, and which requires emergency action or other immediate response.). 38 Protocol Concerning Cooperation in Preventing Pollution From Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea, Jan. 25, 2002. 39 Id. at art. 1(b). 40 Id. at art. 10(b). 12

communities. As demonstrated above, Greece has specifically violated three European community directives (Directives 2006/12/EC, 2004/35/EC, and 92/43/EEC) and one international treaty (the Barcelona Convention). Greece should not be permitted to rest its defence on inadequate, incomplete, and/or inaccurate scientific information when the environmental obligations in question flow from directives and treaties that specifically embrace the precautionary principle to preclude such a defence. Greece has been given ample time to address the Sea Diamond problem, yet has failed to do so. We now respectfully submit that it is the duty of the European Commission to compel the Greek Government to action. 10. Details of any approaches already made to the Commission's services:

Please see Appendix 3 for a list of questions and answers that have been submitted to the Commission regarding the Sea Diamond. 12. Approaches already made to national authorities: 13.1 Administrative approaches The officials at the Ministry of Maritime Affairs and at the Port Authority of Thira have been repeatedly dismissive towards offers from NGOs and local community groups to help with data collection and even remediation, and have proved systematically uncooperative in responding to requests for information. Local citizens have been continuously impeded in their efforts to approach the local authorities for further information. Local community groups organized peaceful demonstrations to voice the dissatisfaction with the governments lack of action and blocking of access to information, but these proved fruitless in compelling government action. 13.2 Recourse to national courts or other procedures Following the accident in 2008, the captain of the Sea Diamond and five other crewmembers faced charges of negligence in connection with the sinking. After a survey by AKTI Engineering revealed that the volcanic reef was at a distance of 130 metres from shore, not 60 metres as indicated on charts issued by the Hellenic Navy Hydrographic Service, the charges against the captain were dropped. In 2011, the Prosecutor of Naxos began an investigation and plans to file a case against Louis Cruises. This case, which was recently transferred to the Prosecutor of Pireas is still in its infancy and, with the backlog of the Greek court system, it likely will not be tried for another two to four years. However, the ongoing litigation will be inadequate to resolve this urgent problem. The Greek administrative courts face an enormous backlog in their caseload, which has only been worsened by the economic crisis facing Greece. It would take, at the very earliest, three more years for even a hearing to occur before the Council of State41; considering the precarious nature of the Sea Diamonds position in the Santorini Caldera, this is a very long time to wait, and would lead to a bare minimum of nine years of government inaction (and likely more). Furthermore, even if the Council of State rules that Greece has failed to act and must pay to remedy the damage, there is no way to enforce such a ruling if the state does not subsequently act.
41

Interview with Maria Karamanov, Vice-President of the ES Chamber and member of the Council of State in Athens, Greece, on March 14, 2011. 13

Accordingly, this avenue of action is by itself insufficient to address and remedy the substantial public health threat the Sea Diamond poses to the inhabitants of Santorini. 14. Specify any documents or evidence that may be submitted in support of the complaint, including the national measures concerned: Appendix 1 Picture of Shrinking Boom Over Time (2007, 2010) at the Sea Diamond Site Appendix 2 Environmental Protection Engineering, Green Passport for Cruise Ship Sea Diamond (2008). Appendix 3 European Commission responses to questions submitted (H-0037/10) Appendix 4 Presidential Decree 148/2009 (in Greek) (implementing the Environmental Liability Directive, Directive 2004/35/EC) Appendix 5 Joint Ministerial Decision 50910 on Waste: Measures and Conditions on Solid Waste Management - National and Regional Management Plan (in Greek) (implementing the 2006 Waste Framework Directive, Directive 2006/12/EC) 15. 16. Confidentiality (tick one box): "I authorise the Commission to disclose my identity in its contacts with the authorities of the Member State against which the complaint is made." "I request the Commission not to disclose my identity in its contacts with the authorities of the Member State against which the complaint is made." Place, date and signature of complainant/representative:

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