5.3 Legal assessment of the system implemented by the EU ROs
As established, the EU ROs’ interpretation of Article 10(1) incorporates a structured framework aligned with EU legal principles and international standards. A high degree of alignment occurs through IACS and the EU MR Secretariat. Technical instruments – the TRs and the PEP – provide uniform methods for assessing “in appropriate cases” and “serious safety reasons”. The so-called “safety pyramid” offers a transparent risk-based mechanism by categorising items into six levels of safety criticality. This hierarchy ensures that mutual recognition applies to low-risk equipment, whereas higher-risk components remain subject to a direct and potentially more rigorous review by each EU RO. Such stratification advances two objectives:
First, the tailoring of certification requirements to the criticality level embodies the principle of proportionality under Article 5(4) TEU, preventing an overly broad extension of mutual recognition to essential or safety-critical systems.(1) See also Case C-343/09 Afton Chemical EU:C:2010:419. Similarly, subsidiarity remains satisfied because each RO can reserve direct oversight for high-impact products, as the case-by-case approach allows for tailored application, while maintaining EU-wide standards, while preventing undue centralisation, and respects the prerogatives of Member States in overseeing maritime safety.
Second, grounding the process in IMO instruments and IACS guidelines ensures that EU ROs do not invent or apply arbitrary criteria. Stakeholders – from manufacturers to shipowners, underwriters, flag States, and financiers – benefit from predictable standards and procedures based on a scientifically based technical scrutiny. This clarity reduces the likelihood of a legal challenge, instead more demonstrating that the scheme is consistent with established maritime norms.
Some interest groups have argued that expansion of the scheme would align with internal market principles and ultimately the raison d'être of ensuring the free movement of services under Article 56 TFEU. On the other hand, maintaining the current scope of mutual recognition preserves legal certainty and it also seems clear that an expanded interpretation may give rise to challenges based on the precautionary principle – as applied in Artegodan in the context of public health and safety. Maritime safety has many unique factors, and fragmented oversight has been highlighted in many cases as a cause of accidents in maritime incident investigations.
Pursuant to Regulation (EC) No 391/2009, the European Commission is the delegated authority for monitoring the system’s functioning, periodically reviewing progress with the EU ROs. In the context of these delegated powers, the European Commission produced a report published in 2015 whereby it concluded that the mutual recognition scheme developed by the EU ROs was compliant with Regulation (EC) No 391/2009, which further strengthens its legal defensibility, and this, as mentioned previously, has been regularly confirmed since then.(2) Report from the Commission to the European Parliament and the Council, Brussels COM (2015) 382 final, cit. above.
Based on this, it seems clear that the EU ROs have taken the necessary steps and implemented the scheme in compliance with the legal requirements provided for in Article 10(1), and the current implementation of Article 10(1) demonstrates strong alignment with EU legal principles. The current approach – balancing harmonisation with safety imperatives, supported by robust technical evaluations – shows how mutual recognition can function without eroding fundamental safety objectives.(3) Similar conclusions were reached in ’Study on Article 10.1 of Regulation (EC) 391/2009’ carried out by Iraklis Lazakis, Osman Turan, Anna Lito Michala in 2015, commissioned by the European Commission, https://pure.strath.ac.uk/ws/portalfiles/portal/62003564/Lazakis_etal_2015_harmonising_the_rules_and_procedures_and_on_mutual_recognition.pdf. See also article by the same authors, Lazakis I, Michala A L and Turan, O, (2016) The European Commission’s Role in Marine Materials, Equipment and Components Mutual Recognition Certification’, in Journal of Contemporary European Research. 12 (3), pp754–772. Rather than representing a departure from established rules, the current implementation refines and enhances them, providing a model that is legally sound and practically effective. While some flexibility remains, it is important that future attempts to broaden the scheme must be considered carefully from a safety perspective.