2.1 Historical background
Regulation (EC) No 391/2009 sets out common rules and standards for ship inspection and survey organisations. Under these rules an EU RO may survey vessels according to the same rules and standards that apply to EU-flagged ships, thereby promoting uniform safety and technical benchmarks.(1) See Article 10(4) Reg. 391/2009.
Since its entry into force, Regulation (EC) No 391/2009 has been amended periodically to reflect evolving maritime safety needs and standards.(2) Amended by Commission Implementing Regulation (EU) No 1355/2014 of 17 December 2014 amending Regulation (EC) No 391/2009 with regard to the adoption by the International Maritime Organization (IMO) of certain Codes and related amendments to certain conventions and protocols, in OJ L 365/82, 19 December 2014, https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32014R1355; Successive amendments did not affect the provisions under examination in this article. Together with Directive 2009/15/EC, these form the primary legal framework for ROs in the EU.(3) Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations in OJ L 131/47, 28 May 2009. [Consolidated version],https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02009L0015-20190726
When the earliest versions of these rules were proposed on the back of serious maritime incidents (in the form of directives in 1994), their objective was the improvement of maritime safety regulation throughout the EU and beyond. The current version of Article 10 (1) did not form part of the European Commission’s original proposal in 2005. The Commission’s draft recast the concept from the earlier directive on EU ROs and, at the outset, only hinted that “mutual recognition of class certificates should be considered” as a future possibility, but it did not impose outright obligations in this respect. The push for mutual recognition emerged during the Council’s first reading in 2008, reflecting an acknowledgment by the EU legislators that EU ROs could play a crucial role in strengthening safety regimes.(4) For a comprehensive analysis of the historical and political background of Regulation (EC) No 391/2009 and the interplay between EU and international rule-development in the field, see Djønne, K. cit. above.
The fact that Article 10(1) was only introduced fairly late in the legislative process for Regulation (EC) No 391/2009 – being added by the European Commission in its proposal to the Council – meant that it emerged in this context as a “standalone” provision centred on harmonisation, rather than direct safety requirements.(5) It is worth recalling that Regulation (EC) No 391/2009 is itself an amended version of a directive with similar purposes, reflecting the evolution of EU maritime safety legislation. As a matter of fact, Article 10 was in its entirety added to Regulation (EC) No 391/2009 at a later stage of the legislative process (in the Commission’s proposal to the Council) not having been part of any earlier versions of legislation, mainly intended to address the role and responsibilities of ROs in the EU. For an in depth chronology, see Djønne, K. cit. above, pp170-173. Its inclusion marked a shift in focus: rather than prescribing direct safety obligations, it established conditions under which EU ROs could mutually recognise class certificates. This made it a standalone provision within the Regulation, designed to foster regulatory convergence, while maintaining safety as the overriding imperative.(6) This is acknowledged in Reg. 391/2009, Recital 17. This late-stage addition signified that Article 10(1) first appeared in the legislative text at a relatively advanced phase of negotiations, rather than being a well-debated element from the start, meaning that the specific obligation to harmonise and mutually recognise class certificates received less targeted scrutiny and impact assessment ex ante than other provisions. The way in which the provision was included illustrates the regulatory tension between the EU’s internal market objectives promoted by the European Commission and the Member States' insistence on preserving safety autonomy in ship classification. The European Parliament and Council ultimately accepted Article 10(1) during conciliation in early 2009, as part of a broader political compromise on Regulation (EC) No 391/2009 and the third maritime safety package.
Nevertheless, Regulation (EC) No 391/2009 points to several interrelated factors that influenced its adoption. These included: (i) the need to strengthen and harmonise the system of ship inspection and certification within the EU; (ii) a policy objective of ensuring that ROs could operate within the then Community, while maintaining equal levels of safety and environmental protection; and (iii) the overarching goal of enhancing the safety of ships and preventing pollution, as reflected in the minimum criteria for recognition (of EU ROs).(7) Reg. 391/2009, Recital 3. The debates that took place at the time underscore the EU’s focus on heightened safety standards and improved flag State compliance through robust classification criteria.(8) See Djønne, K. cit. above, pp118-120, confirming this understanding from a historical perspective. Hence, when we now look at the contemporary views, while market efficiency played a role, the main motivation for adopting mutual recognition was predominantly the idea that this could be a factor in a strengthened safety regime.