4.5 Legal certainty
The principle of legal certainty, another fundamental principle of EU law, requires that legal rules must be clear, precise, and predictable in their effects.(1) Case C-63/93 Duff and Others EU:C:1996:51, para. 20
It is relevant to consider this requirement within this context, as an expansion of the mutual recognition scheme could undermine this principle in several ways.
First, issues connected to the allocation of liabilities might arise because of multiple EU ROs potentially being involved in certifying interconnected systems, where determining liability in the event of failure may prove extremely complex, time consuming and ultimately costly.(2) Goebel, F. cit above. That could easily lead to protracted legal disputes and uncertainty for shipowners, manufacturers, and insurers. It is worth recalling the CJEU case Commune de Mesquer v Total France SA, Total International Ltd (“Erika”),(3) Case C-188/07 Commune de Mesquer EU:C:2008:359. which, while primarily addressing environmental liability under Directive 75/442/EEC, underscores the broader principle of accountability within the maritime sector. In this case, following the sinking of the oil tanker Erika, the CJEU examined the application of the “polluter pays” principle, emphasizing that entities responsible for environmental damage must bear the costs associated with remediation. Although the case does not directly address classification societies, it highlights the EU judiciary’s stance on ensuring that all relevant parties, including those involved in certification and compliance, uphold their responsibilities to prevent and address maritime accidents. This precedent reinforces the necessity for clear liability frameworks, which are crucial when multiple ROs are involved in mutual recognition schemes.
An expanded mutual recognition scheme may leave shipowners, insurers and even victims of maritime accidents in a precarious legal position. If EU ROs cease assessing interconnected equipment under mutual recognition, overall class certificates may provide a lesser degree of assurance. This fragmentation can create safety gaps and increase the risk of undetected deficiencies leading to accidents. Uncertainties can arise over which standards apply, as different EU ROs may interpret or implement them differently. Ships with equipment certified by ROs from multiple Member States may face jurisdictional questions on applicable law. Enforcement responsibilities could likewise become muddled, complicating coordination among multiple flag States and ROs.
Finally, these uncertainties carry tangible financial implications. Lack of clarity around liability and standards could destabilise insurance coverage or financial responsibility frameworks, potentially affecting the entire maritime industry’s risk assessment and pricing models.
The current system, based on the safety pyramid (see below) and clear delineation of responsibilities, provides a higher degree of legal certainty. Any proposed expansion of mutual recognition would need to demonstrate how it can maintain or improve this certainty to remain legally justifiable.