5.4 Competition law considerations
A separate but related dimension concerns competition law, as tangentially mentioned above. While performing public-interest tasks, EU ROs still compete in the global classification market. Article 10(1) itself demands cooperation among EU ROs to establish mutual recognition, yet overly detailed or far-reaching information exchange among direct competitors could, theoretically, raise concerns under Article 101 TFEU. Article 101 TFEU prohibits agreements between undertakings that may affect trade between Member States and prevent, restrict, or distort competition.(1) Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012, pp47–390. In cases such as T-Mobile Netherlands and more recently Banco BPN v BIC Português,(2) Case C-8/08 T-Mobile Netherlands and Others EU:C:2009:343; Case C-298/22 Banco BPN v BIC Português and Others EU:C:2024:638. amongst others,the CJEU has taken a strict approach to information exchange between competitors, emphasizing the need to prevent collusion and maintain competitive markets. As such, the EU ROs must strike a fine balance between coordinating to comply with Article 10(1) and avoiding practices that might distort the market.
While the CJEU has recognised that some information exchange may be necessary for technical and safety reasons in regulated industries,any expansion of information sharing must be carefully tailored to avoid collusion or reduction of innovation incentives. The maritime safety context may provide some justification for information exchange, but the EU ROs would need to implement robust safeguards to ensure compliance with competition law principles. These may include measures such as limiting the scope of information shared, ensuring transparency in information exchange processes, and regularly auditing compliance with competition laws. This is consistent with the careful balance struck in the current system as discussed above.
Moreover, significant information sharing needed for an expanded mutual recognition scheme covering safety-critical product categories could alter the competitive dynamics among the EU ROs, as ROs with advanced rules or specialised expertise might lose a competitive edge if compelled to accept a competitor’s certificate. Others worry that it could lead to uniform standards that hamper innovation or create a “race to the bottom.” An EU RO such as DNV invests at least 5% of its annual global revenue on R&D and innovation.(3) DNV Annual Report 2024, p13. https://www.dnv.com/annualreport/ Overly broad mutual recognition could incentivize EU ROs to lower safety-related R&D, contrary to the spirit of Article 10(1). While manufacturers could potentially benefit from less certification costs, the EU ROs must ensure this does not weaken safety or stifle technical innovation.
As a result, although Article 10(1) cooperation is mandatory, any such cooperation must still comply with competition and anti-trust legislation. As emphasised by the Commission’s guidelines on horizontal cooperation, legitimate coordination to harmonise technical requirements is permissible, provided it remains narrowly directed at fulfilling statutory obligations and does not unnecessarily undermine competition in the classification market.