3.2 “in appropriate cases”
Textually, the term “appropriate” implies something that is suitable in the circumstances.(1) Oxford English Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/appropriate_1#:~:text=%E2%80%8Bsuitable%2C%20acceptable%20or%20correct,an%20appropriate%20response%2Fmeasure%2Fmethod In a legal context, it implies a degree of discretion and adaptability to specific situations.
Systematically, the Regulation’s broader context clarifies that “in appropriate cases” operates as a safeguard, ensuring that mutual recognition remains aligned with the overarching goals of maritime safety and environmental protection.(2) As enshrined in 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, OJ L 131/47, 28 May 2009. It is worth mentioning that this directive was part of the Third Maritime Safety Package adopted in March 2009. Indeed, Article 10(1) (second sentence) explicitly preserves the powers of flag States, reinforcing the requirement that “in appropriate cases” should be interpreted in a manner that respects this balance of authority.
Moreover, the CJEU often adopts a teleological interpretation.(3) Case C-341/95 Bettati EU:C:1998:353. The legislative intent, as revealed in the recitals of the Regulation, emphasises that safety and environmental protections have primacy over mere efficiency.(4) Regulation 391/2009, Recitals 3, 5, and 17. The recitals, preparatory works, and overall “spirit” of the Third Maritime Safety Package confirm that safety ultimately prevails. This intent supports a narrower reading of “in appropriate cases,” thus limiting the scheme to circumstances where safety remains uncompromised.
The expression “where appropriate” has been used in several EU maritime laws, including Directive 2009/15/EC, which – together with Regulation (EC) No 391/2009 – forms part of the Third Maritime Safety Package.(5) European Commission MEMO/05/438 of 23 November 2005, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_05_438 Historically, it has provided flexibility in the application of EU rules, allowing adaptation to specific maritime contexts. In context, “in appropriate cases” must therefore be read alongside the instrument’s broader objectives (safety, pollution prevention, harmonisation) to ensure that any expansion of mutual recognition does not undermine these aims.
The emphasis on stringent safety standards also suggests that mutual recognition should apply only where it does not compromise safety. Although no direct CJEU case law interprets “in appropriate cases” under Article 10(1), the Court’s general approach to “discretionary” phrases calls for balancing legislative objectives. Accordingly, EU ROs must maintain the overriding safety aims of Regulation (EC) No 391/2009 when determining whether mutual recognition is indeed “appropriate”.(6) Case C-72/15 Rosneft EU:C:2017:236. In the context of Article 10(1), this principle suggests that EU ROs must consider the overarching aim of safety set out in Regulation (EC) No 391/2009, when determining the appropriateness of mutual recognition.
The principle of effectiveness in EU law further informs this approach. When a provision is open to several interpretations, preference must be given to the one that ensures its effectiveness. In the context of Article 10(1), this principle supports an interpretation that promotes effective implementation of the mutual recognition scheme, while maintaining rigorous safety standards. If safety standards are lowered to the extent that an incident is more likely to happen, the effectiveness of the standards will thereby be undermined.
Before taking a closer look at the recitals, it is worth noting that, according to the CJEU, recitals can clarify legislative provisions only where ambiguities arise and only for so long as they do not contradict the legislation’s clear wording.(7) See case C-244/95 P. Moskof AE v Ethnikos Organismos Kapnou EU:C:1997:551, paras. 44-45; case C-162/97 Gunnar Nilsson and Others EU:C:1998:554, para. 54; case C-136/04 Deutsches Milch-Kontor EU:C:2005:716, para.32; C-173/99 BECTUEU:C:2001:356, paras. 37-39; case C-435/06,EU:C:2007:714, paras.51-52. The recitals in Regulation (EC) No 391/2009 highlight the necessity for uniform maritime safety /environmental standards, emphasising that competition between EU ROs must not undermine these standards (Recital 3). Recital 5 stresses the aim of enhancing the safety of ships and preventing pollution, while Recital 17 explicitly states that mutual recognition should be considered “in appropriate cases,” taking the most demanding standards as reference – again confirming that safety must not be compromised for harmonisation.
Considerations such as liability allocation, protection of intellectual property and the impact on competition/innovation may also limit the appropriateness of mutual recognition in certain cases.
For instance, an extended mutual recognition could cause unclear liability lines. Classification societies have traditionally been cautious about liability and trust – accepting another EU RO’s certificate could mean assuming responsibility (at least in the eyes of shipowners and/or insurers) for an item the society did not itself test. If that item fails, questions arise: is the issuing RO liable, or the accepting RO, or both?(8) Goebel, F. Classification Societies Competition and Regulation of Maritime Information Intermediaries. Zurich: LIT Verlag Gmbh, 2017, pp.407-422. Although Article 10(1) does not explicitly address liability, it implicitly forces ROs into greater cooperation, which may require arrangements for sharing data and potentially legal responsibility – which would mean that the paradigm is shifting from competition to co-opetition. The fact that Recital 18 expressly states that recognised organisations should be held responsible only for the items they certify is another sign that there were only limited ex ante discussions and impact assessments when the scheme was introduced.
Similarly, situations could occur where mutual recognition would suggest the sharing of sensitive data. Sensitive data could, for example, be a customer’s trade secrets that are protected by non-disclosure agreements that an EU RO has signed, or another example could be that EU ROs would have to share anti-competitive data between EU ROs. It seems clear from the recitals that the intention with the Regulation is not to introduce concepts that blur these lines, but rather the opposite.
Arguably, mutual recognition, that blurs such and other important and established boundaries and leads to heightened legal and financial exposure for involved parties, is not “appropriate”.
Overall, “in appropriate cases” acts as a flexible but principled criterion that must balance a variety of factors – foremost among them safety. This nuanced interpretation aligns with the CJEU’s preference for teleological and systematic analysis, respecting Article 10(1)’s clear wording, while acknowledging the real-world complexities of maritime classification. Accordingly, a case-by-case approach is necessary: the key objectives of Regulation (EC) No 391/2009 – enhancing safety and promoting harmonisation – must be met, without sacrificing the sector’s need for flexibility.