2.5 International interface (UNCLOS/IMO)
Article 10(1) of Regulation (EC) No 391/2009 potentially extends the European Union’s regulatory reach beyond its territorial waters, affecting ships flying non-EU flags and operating in international waters. Legally, this extraterritorial effect may intersect with the well-established principles of flag State jurisdiction under the United Nations Convention on the Law of the Sea (UNCLOS), enshrined, in particular, in Articles 91 (Nationality of ships) and 94 (Duties of the flag State). Indeed, non-EU flag States have expressed concerns about the scope of the mutual recognition scheme. These were formally conveyed to the European Commission via the IMO Secretary General, as documented in MSC 86/INF.9.(1) IMO, “Note by the Secretariat”, MSC 86/INF.9, 17 March 2009, paras1-4. The European Commission, in response, clarified in a letter dated 30 January 2009 that their understanding remained that mutual recognition would only apply where “appropriate” and would not be restrictive upon flag States’ sovereign rights to set stricter safety standards.(2) Letter from Vice-President and Commissioner for Transport of the European Commission to IMO Secretary-General, 30 January 2009 (cited in MSC 86/INF.9).
The CJEU’s judgment in Case C-366/10 Air Transport Association of America and Others(3) Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change EU:C:2011:864. provides a precedent for the European Union’s ability to regulate activities with a sufficient nexus with the European Union, which could be applied to maritime matters. For example, in Case C-786/19 The North of England P&I Association,(4) Case C-786/19 The North of England P&I Association EU:C:2021:276. the CJEU held that where insurance contracts cover risks linked to vessels registered in one Member State, but temporarily flying the flag of another State, the Member State maintaining the shipping register (for the principal purpose of proving ownership) retains exclusive taxation powers. This ruling demonstrates the Court’s willingness to define the Member State of registration for regulatory purposes, even when a vessel’s formal flag may differ, further indicating the complex interplay between EU law and the traditional principles of flag State jurisdiction.
An expansion of the application of Article 10(1) of Regulation (EC) No 391/2009 into other areas and product categories could potentially conflict with international conventions such as the International Convention for the Safety of Life at Sea (SOLAS)(5) 1184 UNTS 2, 1 November 1974, https://treaties.un.org/pages/showDetails.aspx?objid=08000002800ec37f and the International Convention for the Prevention of Pollution from Ships (MARPOL),(6) 1340 UNTS 61, 17 February 1978, https://treaties.un.org/pages/showDetails.aspx?objid=0800000280291139 particularly if EU regulations impose requirements that diverge from or exceed those established by these conventions, thereby creating compliance challenges for shipowners and flag States.These conventions, which form the backbone of international maritime safety and environmental protection, rely on clear lines of responsibility and oversight. The IMO has consistently emphasised the importance of flag State sovereignty in ensuring compliance with these, an approach to which the EU adheres.(7) IMO Resolution A.1070(28): IMO Instruments Implementation Code (III Code), adopted on 4 December 2013. The IMO has also developed instruments such as the IMO Instruments Implementation (Triple-I) Code and the Recognized Organization Code (in force since 2015) to set uniform expectations for how flags oversee ROs and how ROs perform statutory work. Notably, the RO Code (an IMO resolution) does not mandate that ROs accept each other’s work; instead, it focuses on quality and impartiality in each RO’s services for its authorising flag. In this context, the EU’s Article 10(1) initiative is somewhat ahead of (or outside) the global curve – it introduces a mutual recognition concept that IMO instruments do not explicitly require. Historically, Regulation (EC) No 391/2009, and the sequence of events that led to its adoption emerged at a time when practical experience and statistics suggested that flag States were not adequately fulfilling their supervisory responsibilities, and it was this that prompted the EU to take a more active role in regulating maritime safety.
The interplay between EU law and international law is nuanced. Regulation (EC) No 391/2009 operates within the framework of IMO Conventions. Indeed, in Intertanko and Others the CJEU clarifies that it will not measure EU law’s validity strictly by IMO conventions not integrated into EU law.(8) Case C-308/06 Intertanko and Others EU:C:2008:312. On the (external) relationship between the EU institutions, Member States and IMO, see Case C-161/20 European Commission v Council of the European Union (‘IMO’) EU:C:2022:260. Yet, EU law must, where possible, be interpreted consistently with international agreements to which the EU and its Member States are parties.(9) Dunbar, R. The Application of International Law in the Court of Justice of the European Union: Proportionality Rising. German Law Journal, Vol 22, 2021, pp.557–592. Therefore, an interpretation of Regulation (EC) No 391/2009 in line with relevant IMO standards is desirable and, in some respects, required.