4.1 Competence
Competence is a potential limit on a more expansive interpretation of mutual recognition under Article 10(1). Where the EU lacks legal competence, all other considerations fall aside. Questions of competence are rarely simple, particularly regarding maritime safety.
There is a safeguard in place for flag States through “without prejudice to the powers of the flag States”, indicating that their prerogatives cannot be undermined by the application of mutual recognition. This does not imply that the EU institutions, particularly the European Commission, have limited powers. On the other hand Article 10(1) cannot be interpreted as a default system for the world fleet, since this would violate the sovereign rights of flag states under UNCLOS. Nonetheless, it is still reasonable, at least, to interpret this as a default system for EU flagged vessels.
It is worth recalling that the Commission had to clarify, via an recital in the Commission Implementing Regulation (EU) 1355/2014 amending Regulation (EC) No 391/2009(1) Commission Implementing Regulation (EU) No 1355/2014 of 17 December 2014 amending Regulation (EC) No 391/2009, cit. above. that:”The scheme for the mutual recognition of class certificates for materials, equipment and components laid down by Article 10(1) of Regulation (EC) No 391/2009 is only enforceable within the Union in respect of ships flying the flag of a Member State. As far as foreign vessels are concerned, the acceptance of relevant certificates remains at the discretion of relevant non-EU flag States in the exercise of their exclusive jurisdiction, notably under the United Nations Convention on the Law of the Sea (UNCLOS)”.(2) Recital 25, Commission Implementing Regulation (EU) No 1355/2014 of 17 December 2014 amending Regulation (EC) No 391/2009. The clarification incorporated into this Implementing Regulation is the result of the lengthy discussions and formal exchanges that occurred between all parties involved, to address the perceived interference and expansion of the powers of the EU institutions into an area traditionally reserved for flag States and their ROs. This highlights the jurisdictional tension arising from the imposition of a regional rule on a global industry: classification certificates may now have a dual character – mutually recognised by law within Europe, but still private certificates elsewhere. The practical result is that ROs must navigate two regimes, and equipment manufacturers hoping for worldwide acceptance might still need to pursue multiple certifications unless non-EU authorities decide to align.
Non-EU flag States documented their concerns in various IMO official documents in the years 2008-2009.(3) See, in particular, the Report of The Maritime Safety Committee, MSC 85/26 (paras 23.16 to 23.18) and the related Note by the Secretariat MSC86/INF.9 as well as the Report to the Maritime Safety Committee and the Marime Environment Protection Committee FSI 17/20 (paras 14.4 to 14.7) and the Report of The Maritime Safety Committee, MSC 86/26 (paras 13.5 and 13.6), https://webaccounts.imo.org/Common/WebLogin.aspx?App=IMODOCS. Although the first two concerns (sovereignty/freedom of choice) were largely addressed by Implementing Regulation 1355/2014, safety remains a challenge. Indeed, a possible consequence of the implementation of Article 10(1), as advocated by the European Commission, is that EU ROs could face pressure to lower safety standards in the name of harmonisation.(4) Report from the Commission to Parliament and Council, COM(2015) 382 final, cit. above. Moreover, it is not unreasonable to expect that some actors may seek to obtain the services of an EU RO that adopts a more flexible approach, which could potentially have implications in terms of safety. In the absence of clear boundaries and uncertainty regarding safety protection levels, it is known within the maritime sector that some non-EU flag States have instructed their ROs not to accept certificates issued under the EU mutual recognition scheme for ships flying their flags.
The principle of competence is therefore a relevant test in determining the authority of EU institutions to expand the mutual recognition scheme. While the EU has competence in transport matters, including aspects of maritime safety, this competence is shared. Under shared competence, both the EU and Member States may legislate, so long as the EU has not fully exercised its own authority.(5) Article 2(2) TFEU provides that in areas of shared competence between the EU and its Member States, the Member States may act only if and to the extent that the Union has not exercised its competence. Article 4(2)(g) TFEU establishes transport as an area of shared competence, which includes maritime transport and safety.
Article 10(1) of Regulation (EC) No 391/2009 carefully balances EU-level harmonisation with respect for flag State authority. The phrase “without prejudice to the powers of the flag States” is more than a formality – it acknowledges the EU’s competence in this domain. International law, especially UNCLOS, grants significant authority to flag States in matters of maritime safety, further reinforcing this limitation.
An overly expansive interpretation of Article 10(1) might stretch EU competence by encroaching on flag State prerogatives protected under international law, extending beyond “materials, equipment and components” into broader aspects of ship safety certification, thus upsetting the delicate balance between EU-level coordination and Member State authority. Any expansion of the mutual recognition scheme must be checked to ensure that it remains within the scope of EU competence (as defined by the Treaties) and respects international maritime law.