Requests for a preliminary ruling were made by the Tribunale amministrativo regionale per la Sicilia (Regional Administrative Court for Sicily, Italy) (the referring Court) in the context of two disputes between Sea Watch eV (Sea Watch) and the Ministero delle Infrastrutture e dei Trasporti (Ministry of Infrastructure and Transport, Italy) and other Italian authorities, concerning two detention orders given in respect of the Sea Watch 3 and the Sea Watch 4.

The questions referred essentially concern the extent of port State control powers under Directive 2009/16/EC concerning port State control in the EU (the Directive), and other applicable international standards, on private vessels which carry out, on a systematic and exclusive basis, the activity of search and rescue of persons in danger or distress at sea. The Court is called upon, more specifically, to specify the scope of the Directive, the frequency and intensity of checks on vessels, and the basis for detention measures.

Sea Watch is a non-profit humanitarian organisation based in Berlin, Germany, which carries out search and rescue activity in the Mediterranean Sea using vessels that it owns and operates. These include the relevant vessels, which fly the German flag and have been certified by an approved German classification and certification society as 'vessels of general-purpose loads'. During the summer of 2020, after carrying out rescue operations in the Mediterranean Sea and disembarking those rescued at sea in the ports of Palermo and Porto Empedocle, the Italian authorities required the vessels to undergo cleaning and disinfection procedures, and then detailed on-board inspections within the meaning of art 13 of the Directive. These detailed inspections were based on the existence of an 'unexpected factor', within the meaning of art 11 of the Directive, relating to the fact that the vessels in question were engaged in search and rescue activity at sea when they were not certified for this service, and had taken on board a number of people far in excess of the safety certificates for these vessels.

According to the Italian authorities, these detailed inspections revealed a number of technical and operational shortcomings in relation to EU regulations and applicable international Conventions. They therefore ordered the immobilisation of the vessels. Since then, Sea Watch has remedied a number of these irregularities, while considering that the remaining irregularities were not established.

Following these detentions, Sea Watch brought two actions before the referring Court, seeking the annulment of the detention notices, the inspection reports preceding those notices, and 'any other prior, related, or consecutive act', on the basis that the authorities had exceeded the powers attributed to the port State under the Directive, interpreted in light of applicable customary international law and Conventions.

Held: I propose that this Court answers the questions of the referring Court as follows:

1) The Directive applies to vessels which, while being classified and certified as 'multipurpose cargo vessels' by the flag State, carry out exclusively the activity of search and rescue at sea. It is up to the referring Court to draw any consequences therefrom as regards the interpretation and application of the national legal standards transposing the Directive. Even if these vessels contribute, de facto, to carrying out search and rescue missions at sea which are, in principle, the responsibility of the public authorities of the coastal State and are, to a certain extent obliged to co-operate with the system of co-ordination of search and rescue activities at sea, they do not constitute 'government' ships within the meaning of art 3(4) of the Directive. Moreover, this derogation is linked not to the public interest nature of the activity carried out, but rather to the complete immunity from jurisdiction with regard to any State other than the flag State, guaranteed in particular in art 96 of UNCLOS to '[s]hips owned or operated by a State and used only on government non-commercial service'.

2) Article 11 and Annex I, Part II, points 2A and 2B, of the Directive, read in the light of the obligation of rescue at sea incumbent on the master of a vessel under customary international law and included in particular in art 98 of UNCLOS, must be interpreted as meaning that the fact that a ship has transported, following rescue at sea, a number of people in excess of its maximum capacity, as indicated in the safety certificate, cannot in itself be considered a 'overriding factor' or an 'unexpected factor' imposing or justifying, respectively, additional inspections within the meaning of these provisions. This situation may sometimes, as in the present case, constitute the direct and necessary consequence of transport carried out in order to comply with the obligation of rescue at sea incumbent on the master of the vessel under customary international law, and enshrined in art 98 of UNCLOS. Indeed, the customary law of the sea exempts ships, in so far as they satisfy this obligation, from requirements imposed on the basis of the classification of the ship. However, it cannot be ruled out, in principle, that the systematic transport of a number of people well in excess of the vessel's capacities could affect the latter in such a way that it could endanger people, property, or the environment, which constitutes an 'unexpected factor' within the meaning of those provisions. That is for the referring Court to verify.

3) The power of the port State to carry out a detailed inspection, in accordance with art 13 of the Directive, of a ship flying the flag of a Member State, includes the power to verify that the ship complies with the requirements for safety, pollution prevention, and shipboard living and working conditions which are applicable to the activities to which the ship is actually assigned, taking into account those for which it has been classified.

4) a) The Directive must be interpreted as meaning that the authorities of the port State are entitled to require the possession of certifications and compliance with maritime safety and pollution prevention requirements relating to the activities for which a ship is classed, as well as any other certification, requirement or requirement based on the international or EU legal framework.

(b) The Directive must be interpreted as meaning that it is the responsibility of the port State to indicate during inspections which regulations, the requirements or prescriptions of which have been found to be violated, and which corrections or rectifications are required to ensure compliance with these regulations.

c) The Directive must be interpreted as meaning that a ship carrying out search and rescue activities at sea on a systematic basis is not, as such, considered as unlikely to be subject to measures of immobilisation where it breaches requirements applicable to it under international law or EU law, without prejudice to the obligation of rescue at sea.

[For the judgment of the Grand Chamber of the Court of Justice, see Sea Watch eV v Ministero delle Infrastrutture e dei Trasporti (Judgment), Cases C‑14/21 and C‑15/21, Judgment of the Court (Grand Chamber), 1 August 2022 (CMI1955).]