1 Introduction
Robust safety standards have remained central to the maritime sector for centuries. Ensuring that vessels are constructed to meet the requirements of such established standards is seen as crucial for preventing accidents. Holistically, a vessel is a system composed of multiple interacting sub-systems – mechanical, structural, electrical, digital, and operational. Taking such a holistic perspective is an important starting point, because accidents are normally the result of emergent failures, meaning that they result from complex interactions and integrations across what may be “safe” individual components.(1) Cf. the approach to “interactions” in maritime safety that emphasises accidents as emergent phenomena within interlinked vessel systems, see also in this sense Leveson, N. G. Engineering a Safer World: Systems Thinking Applied to Safety. Cambridge: MIT Press, 2011, p.61 et seq. Even where individual parts meet all relevant technical criteria, unpredictable interactions across the vessel’s unique configuration can still create new hazards. In the unfortunate events where accidents happen in the maritime industry, these unpredictable interactions may often have immediate consequences for safety of life, property and the environment.
Modern classification rules aim to ensure that such systemic integrations are not separated into isolated rules and/or certificates without considering potential safety gaps. In that sense, advanced system-safety thinking suggests focusing on how the integration of many different systems, that will each perform a function safely, might create emergent risks if left uncoordinated.
Imagine a shipyard constructing a new vessel. Before that vessel can sail, it must comply with an array of detailed classification rules and standards, underpinned by both international conventions and EU legislation, demonstrating that its interconnected systems, from propulsion units and navigation consoles to environmental controls and emergency alarms, all function safely and reliably. Each component is normally scrutinised by a classification society whose aim is to independently establish that the said component meets requirements and is compatible within the bespoke configuration of the ship.(2) More information about the role of classification societies can be found here: https://iacs.org.uk/membership/role-of-class Classification societies who are authorised to check requirements on behalf of flag States are referred to as Recognised Organisations(3)A "Recognised Organisation" (RO) is a classification society which a flag State has assessed and formally authorised to perform statutory ship surveys and issue the corresponding certificates on its behalf under applicable IMO conventions and in accordance with the International Maritime Organization’s Code for Recognized Organizations (RO Code) as implemented by the relevant flag State. Within the European Union, the term refers to an organisation granted EU recognition under Regulation (EC) No 391/2009 after demonstrating strict independence, highly specialised technical competence, rigorous quality management, and adequate financial liability coverage, with the European Maritime Safety Agency (EMSA) providing support and oversight in the recognition and monitoring process. An overview of EU Recognised Organisations can be found here: https://www.emsa.europa.eu/inspections/assessment-of-classification-societies.html (each, an RO) when acting in that context. The role of class societies or RO’s goes beyond mere verification and may perhaps be understood as a form of normative qualification – where empirical properties are translated into legally or contractually operative standards that have to be followed by the relevant stakeholders. Then the Classification society or RO, depending on which role they have, will verify that the vessel, material or component meet the relevant norm.(4) On this understanding, see the concept of qualification norms as discussed by Trond Solvang, From the Role of Classification Societies to Theories of Norms and Autonomous Ships, Marius nr. 519 (2018), pp. 244–245, drawing on Nils Kristian Sundby’s norm theory. The argument situates classification societies as norm-generating actors, operating in a hybrid zone between empirical judgment and legal effect. It is important to note that the way norms are formulated and the methodologies used for verifying compliance with the norms may differ between the different Classification society or RO's.
Now consider a scenario in which certain components, originally certified by one EU RO, have to be accepted by another EU RO without undergoing that RO’s own certification process.(5) At the European level, only a certain number of ROs operating worldwide have been recognised and can operate accordingly. These ROs are usually referred to as EU ROs to distinguish them from the generality of the other ROs. This, in practical terms, is the idea behind mutual recognition.
Yet, given that ships are often highly customised, the feasibility of one EU RO relying on a peer EU RO’s certificate raises important questions about equivalence and thoroughness. Moreover, while traditional reliability theory focuses on a “weak link” model, more recent frameworks highlight the fact that accidents emerge also from interactions among nominally sound parts. Even when all the components involved have been checked and “passed the test” for safety, that does not guarantee the potential non-occurrence of an accident each time they interact. In large, modern vessels, the many intersections between hardware, software, and operational elements multiply the potential for emergent failures. When considering if the ideals behind mutual recognition can be realised, one should then attempt to respond to the following question: where then, is the threshold beyond which efficiency gains might erode critical safety checks?
At the European level, there is an aspirational idea of pursuing harmonisation to enhance competitiveness within the EU single market. This approach, exemplified by the mutual recognition principle amongst notified bodies for various conformity-assessment contexts, is said to have yielded efficiencies across several sectors.
In the maritime domain, this concept is introduced in Article 10(1) of Regulation (EC) No 391/2009, which sets out a framework for mutual recognition of class certificates that, under certain conditions, takes the “most demanding and rigorous standards” as their reference.(6) Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (recast) [2009] OJ L 131/11. Article 10(1) obliges EU ROs to consult periodically to maintain equivalence and aim for harmonisation of rules and procedures “in appropriate cases”, as well as cooperation to achieve consistent interpretation of international conventions.(7) Djønne, K. The Political Economy of Maritime Safety, EU Regulation, Ship Classification, and the International Regime. Switzerland: Springer Nature, 2023. Over time, EU ROs have implemented such a scheme through the development of common technical requirements and product evaluation processes, selecting, as a starting point relatively low-risk, non-safety-critical items to be mutually recognised. Despite this, its extension to complex, safety-critical components and systems in shipping remains contentious.(8) Djønne, K. cit. above, p114 (historical overview of classification societies’ role in product certification).
The European Commission has been an advocate for expanding the scope of mutual recognition under Article 10(1) of Regulation (EC) No 391/2009, citing broader aims of enhancing competitiveness and lowering administrative burdens within the EU maritime sector.In particular, the European Commission has noted the “room for expansion” of the scheme to more complex or safety-critical products,(9) COM(2015) 382 final of 31.7.2015, p9, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52015DC0382&rid=1 a position consistently repeated by the European Commission and shared by certain parts of the manufacturing industry.(10) Sea Europe contribution to the “EU trade policy review: Changes needed for a renewed trade and investment policy” (2020) available at: https://www.seaeurope.eu/images/files/2020/position-papers/trade-finance/sea-europe-response-to-eu-trade-policy-review.pdf#:~:text=State%20approval%20of%20all%20those,conditions%20are%20met and Sea Europe Mutual Recognition Study (2014) available at: https://www.vsm.de/sites/default/files/dokumente/9c721b3441531645a4bd41052c8e781b/sea_europe_mr_study_december_2014.pdf Similarly, some observers have queried whether the scheme as currently implemented truly addresses industry needs and have indicated that the EU ROs have developed a “painstaking” process for selecting (step-by-step) individual materials, equipment and components, potentially suitable for mutual recognition within ship classification.(11) Jessen, H. Mutual Recognition Within Ship Classification – Fundamentals and Some Possible Future Problems of Art. 10 Regulation EC/391/2009. RdTW, Vol 10, 2015, pp.368-374.
Other industry stakeholders, such as insurers, class societies and certain flag administrations and ship-owners have advocated a more precautionary approach and have emphasised that an overly broad mutual recognition scheme may blur lines of statutory and commercial responsibility, potentially reducing the efficacy and reliability of the ship classification system.(12) See, for example, International Union of Marine Insurance (IUMI)’s position paper highlighting that: “Insurers takes the view MR should be limited to low-risk items, safeguarding classification standards and maritime safety”, available at: https://iumi.com/opinions/policy-agenda. This position is also supported publicly by for example The Nordic Association of Marine Insurers (Cefor). See for example the EU MR working group report from SMM in Hamburg 2024 op. cit. But also Cefor annual report from 2014 available at https://cefor.no/globalassets/documents/statistics/nomis/2014/cefor-annual-report-2014.pdf This system relies on the interplay between an overall system certification, on the one hand, and individual certification of each material and component that forms part of the system, on the other hand. Hence, if crucial parts are no longer certified by the same EU RO who certifies the entire vessel (the “system”) under that society’s technical rule books, the integrative approach to a vessel’s certification may be weakened. From this side of the debate, the views have typically been that the class society classifying the ship needs to have a complete overview of the ship, since blind spots increase the risk of potential adverse interaction, which again can lead to malfunctioning of systems.
In addition, the inherently international nature of the maritime sector, characterised by complex cross-border operations and multiple regulatory regimes, presents an ongoing challenge to the uniform application of EU-wide rules. This complexity is further compounded by evolving environmental requirements, cybersecurity, and safety standards, coupled with technological changes within the industry. Moreover, because International Maritime Organization (IMO) conventions and other global instruments remain the main fora governing international maritime regulations, EU measures risk overlapping or conflicting with these global commitments.(13) Cf. United Nations Convention on the Law of the Sea (UNCLOS), highlighting flag State prerogatives. Ensuring that the mutual recognition scheme, as provided for in Article 10(1) of Regulation (EC) No 391/2009, remains effective (effet utile) in this complex environment, requires a careful balancing act – one that respects international commitments, protects the sovereign prerogatives of flag States, and maintains the highest safety benchmarks.
All told, this analysis supports the view that Article 10(1) must be construed with caution and care – a balanced interpretation that fosters the harmonising benefits of mutual recognition, while safeguarding the maritime industry’s fundamental safety obligations and respecting both EU and international commitments. To demonstrate this, we first examine Article 10(1) by scrutinising the legal meaning of its key terms (“in appropriate cases” and “serious safety reasons”) and assess their implications vis-à-vis the EU ROs’ obligations. We then consider mutual recognition in light of general EU principles – competence, proportionality, subsidiarity, legal certainty, and legitimate expectations – confirming that a measured approach aligns with these constitutional norms. Next, we examine the implementation of Article 10(1) in practical terms, paying particular attention to the “safety pyramid” approach that underpins the EU ROs’ mutual recognition scheme. This combined evaluation reveals that the present system achieves the objectives set out in the Regulation (EC) No 391/2009 while maintaining maritime safety. We then touch on potential expansions of the mutual recognition scheme and the implications of that for competition law, as well as challenges surrounding autonomous shipping and digitalisation.