3.1 The aim for harmonisation of rules and procedures
The obligation for periodic consultation and “aiming for” harmonisation established in Article 10(1) reflects longstanding industry practices that predate EU regulatory efforts. Notably, the International Association of Classification Societies (IACS), founded in 1968, grew, for example, out of the 1930 Load Lines Conventions initiative to promote further unification of technical standards.
The inclusion of the opening sentence of Article 10(1), mandating periodic consultation among EU ROs, was also not a novel concept in EU maritime legislation when introduced in Regulation (EC) No 391/2009. Rather, it formalised a long-standing regulatory approach which already also present in the earlier Council Directive 94/57/EC.
The persistence in having such provisions in regulations through various iterations reflects the perceived importance of achieving the overarching goals of safety and harmonisation. It aligns with the EU's broader strategy of promoting coordination and consistency across Member States and their ROs, according to the EU provisions interpreted in the light of international conventions, as established, for example, in the Intertanko case mentioned above.(1) Case C-308/06 Intertanko and Others EU:C:2008:312. Consequently, the obligation to consult under Article 10(1) intersects with existing international frameworks for classification society cooperation, notably IMO and IACS standards.
However, the wording in Article 10(1) is notably measured, for example when using phrases like “with a view to” maintaining equivalence and “aiming for” harmonisation. This choice of words suggests that the provision establishes more of an aspirational goal than a strict harmonisation requirement. Thus, the actual legal obligation arguably centres on “shall consult” rather than on guaranteeing harmonisation per se. At the same time, “without prejudice to the powers of the flag States” confirms that flag State sovereignty under international maritime law remains intact, as established in UNCLOS Articles 91 and 94, and reinforced by the CJEU in Intertanko and Bosphorus Queen Shipping.(2) Case C‑15/17 Bosphorus Queen Shipping EU:C:2018:557 Hence, consultation cannot not override or diminish the authority of the relevant flag State.
In fulfilling this consultation obligation, EU ROs rely on structured forums like IACS, IMO and the EU RO MR Group, which provide legitimate platforms for periodic interaction and technical alignment.
When interpreting Article 10(1), we must consider not only the literal text of the Regulation, but also its historical place in classification society cooperation and the unique development of the maritime industry's safety regime. This system, which has evolved over centuries, is characterised by the central role of classification societies – private organizations that develop and maintain technical standards for the construction and operation of ships, which is then complemented by the statutory requirements that are developed by the IMO and adopted by flag States. The evolution of class societies grew organically out of the needs of the maritime industry itself, with insurers, shipowners, and other stakeholders recognising the value of independent technical expertise in assessing and mitigating risks, and over time this has established classification societies as bodies that can develop and update rules much more quickly than typical governmental regulatory processes.
Importantly, classification societies are deeply integrated with the maritime industry, participating not only in rulemaking but also in innovation, product development, and post-accident investigations. This synergy fosters a high degree of technical sophistication, arguably surpassing what single national regulators can achieve alone, and without it innovation in standard development would be reactive, if not stifled. Over the centuries, classification societies have become central in developing technical rules for ship construction and operation, while also performing tasks delegated by flag States.(3) This unique system has proven effective over time in promoting maritime safety and technological advancement, as demonstrated by the decline in shipping losses. In this respect, see “Safety and Shipping Review 2024 - An annual review of trends and developments in shipping losses and safety”, https://commercial.allianz.com/news-and-insights/reports/shipping-safety.htmlAlthough standardisation can be seen in many cases as a means of increasing safety, the maintaining of competition and innovation amongst classification societies' may be an important factor for safety. In an industry where customisation and decentralisation are the norm when it comes to ship building, due to both market needs and requirements, it may also be important for safety reasons to leave room for competition and efficacy on requirements for ships. Accordingly, preserving competition and innovation among classification societies can be vital for safety, since “complete” harmonisation might eliminate beneficial differences in technical approaches, potentially leading to a lowest-common-denominator effect on safety if the only remaining competition is based on cost or speed of certification.
At the same time, even where nominally similar or “harmonised” technical requirements apply, each classification society adopts differing methodologies in their approaches when performing conformity assessments related to a given vessel and its materials and components. In other words, classification societies can legitimately interpret or implement an identical ruleset in ways that reflect their internal procedures, staff expertise, and engineering judgment. While this flexibility can spur innovative solutions, differentiate societies from each other and ensure adaptation to specific project needs, it also presents a risk in relation to mutual recognition, since certain issues may “fall through the cracks” if a given classification society’s chosen approach inadvertently overlooks particular system interactions or operating profiles. Therefore, even under a harmonised rule framework, the actual classification outcomes might diverge in practice.
The obligation to “cooperate with each other” must also be balanced against EU competition law provisions. Under Article 101 of the Treaty on the Functioning of the European Union (TFEU), cooperation between competitors must not facilitate anti-competitive practices. The CJEU, in cases such as the Wouters(4)Case C-309/99 Wouters and Others EU:C:2002:98 case, has acknowledged that certain cooperative arrangements may be justified for the proper functioning of a profession, but only if proportionate to the objectives pursued. This places EU ROs in a delicate position: they must cooperate sufficiently to meet the requirements of Article 10(1) yet avoid sharing information or engage in practices that could be deemed anti-competitive. For guidance, EU ROs may refer to the European Commission Guidelines on horizontal cooperation agreements,(5) OJ C 259, 21.7.2023, pp1-125. but significant uncertainties remain about applying those guidelines to classification societies.
Indeed, the EU ROs have previously encountered competition scrutiny in Case COMP/39.416 (Ship Classification),(6) Case COMP/39.416 – Ship classification. where the European Commission examined IACS practices.(7) For the full list of relevant documents, see Competition Cases Register on https://competition-cases.ec.europa.eu/search?search=COMP%2F39.416&caseTitleOrCompanyName=shipping%20classification&sortField=relevance&sortOrder=DESC. The tension became evident: the regulatory push for collaborative harmonisation collided with competition authorities’ concerns about restricted competition. This highlights the need to ensure compliance with Article 101 TFEU, balancing necessary technical collaboration with preventing anti-competitive behaviour.(8) Djønne, K. cit. above, pp201-211.
This is particularly relevant when EU ROs jointly develop common standards or share technical data in forums like IACS or the EU RO MR Group, where the lines between legitimate harmonisation and antitrust risk can become blurred. Engaging in structured, transparent cooperation (especially after reforms following the Commission’s investigation) allows EU ROs to fulfil their obligations under Article 10(1), while mitigating competition law concerns.
In sum, the obligation to work to harmonise classification rules is a codification of historical industry practices and imposes a modern legal mandate that must be navigated carefully to respect flag State sovereignty, ensure system safety, consider various methods and approaches in execution, and comply with EU competition law. This careful approach is needed to ensure that the overarching goals of maritime safety are upheld, at the same time as the sector pursues harmonisation and efficiency in line with other EU single market ideals.