MarIus

3.4.2.1 The two conditions – parallel application and overlapping purposes

For the MED to be regarded as lex specialis to the AIA in the context of ANS, Article 3(2) indicates that two cumulative conditions must be fulfilled.

First, the ANS must "fall within the scope" of application of both the AIA and the MED. This chapter proceeds on the assumption that the requirements for high-risk AI systems may be applied to ANS, at least in certain situations, pursuant to the conditions in the AIA. The remaining issue is whether ANS also fall within the scope of the MED, creating a possible parallel application of the AIA and the MED.

Second, the lex specialis effect of the MED is limited to "the purpose set out in Article 1" of the Directive. Consequently, for the MED to override the AIA, the AIA must pursue a regulatory purpose that overlaps with the one of the MED.

3.4.2.2 The first condition – are ANS regulated by the MED?

As previously outlined, the question of whether the MED covers ANS gives raise to two principal issues – namely the role of the MASS Code in the MED, and the geographical location and design of an autonomous navigation system in relation to the scope of the MED.^{(3) Thesis Section 2.4.}

First, the MED only gives effect to requirements set out in SOLAS, COLREGs, and MARPOL. None of these currently provide comprehensive regulation of ANS or its components. This regulatory gap will be filled by the upcoming MASS Code.^{(4) Seungje Jin and Kwangil Lee, 'Gap analysis and harmonization of International Standards for Maritime Autonomous Surface Ships' (2024) 2867 J. Phys. 012051.} Once the mandatory version of the MASS Code is adopted under the conventions, likely under SOLAS, and enters into force, its requirements will be given effect through the MED. This is scheduled for 2032.^{(5) The draft MASS Code Annex II.} Nonetheless, I assume that the non-mandatory version of the MASS Code will serve as a form of provisional de lege lata when interpreting the conventions in a MASS context, in the absence of any mandatory MASS-specific regulations from the IMO. Furthermore, several member states of the EU might adopt the non-mandatory MASS Code. Consequently, it is reasonable to assume that the MASS Code will, in practice, have to be taken into account under the MED already from the time of its adoption in 2026.

Second, the MED only gives effect to requirements for "marine equipment" that is to be "placed on board" an EU-flagged ship and "for which the approval of the flag State administration is required by the international instruments".^{(6) The MED Article 3(1).} I presume that the IMO, as a continuation of its work on the MASS Code, will ensure that both ANS as a whole and its components will need flag state approval under the current conventional framework. The legally contentious question is whether ANS are "marine equipment" that is to be "placed on board" ships.

While the MED applies to equipment, and not systems, it differs from both the AIA and the MASS Code. However, Annex I of the AIA appears to presume that the MED can in fact cover "AI systems".^{(7) Thesis Section 3.3.3.} This implies that the MED must be capable of covering AI systems, such as ANS, by encompassing the specific components ("equipment") that together constitute the "AI system" under the AIA.

The fact that the equipment must be "placed" on board may suggest that it should be easily removable too. However, this should arguably not be interpreted too strictly. INS are currently covered by the MED, and many of their components are deeply integrated into the core structures of the vessel.^{(8) Regulation (EU) 2024/1975, MED/4.59.}

A natural interpretation of the condition that the equipment must be placed "on board" suggests that, in order to fall within the scope of the MED, the equipment must be physically located on board the ship. However, not all components of ANS will necessarily be situated on board.^{(9) Thesis Section 2.1.2.} Autonomous software components located on shore will, as a starting point, fall outside the scope of the MED.

This raises the question of whether the phrase "on board" can be interpreted broadly so as to include all necessary components of ANS, regardless of their physical location. Pursuant to the interpretive method set out by the CJEU, provisions of EU law must be interpreted in light of their purpose.^{(10) As arguably set out originally in Case C-77/83 Srl CILFIT and others and Lanificio di Gavardo SpA v Ministero della sanità (1984) EU:C:1984:91, cf. Sorina Doroga and Alexandra Mercescu, 'A Call to Impossibility: The Methodology of Interpretation at the European Court of Justice and the PSPP Ruling' (2021) 13 EJLS 87, 95-96.} At the same time, the CJEU is exceptionally reluctant to depart from the natural understanding of a clear wording.^{(11) Koen Lenaerts and José A Gutiérrez-Fons, To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice (Academy of European Law, September 2013) 7.}

The MED is a dynamic instrument of nature. It explicitly acknowledges the "constant evolution" of international marine equipment standards, and it is designed to align EU law with these developments – partly to ensure legal harmonisation, and partly to facilitate the free movement of such equipment within the Union.^{(12) The MED Article 1 and Recitals para. 4.} The Directive was originally drafted with conventional ships in mind, where INS would be physically located on board.^{(13) Regulation (EU) 2024/1975, MED/4.59.} With the upcoming MASS Code, the IMO implicitly recognizes that some marine equipment essential to navigation of MASS may not be located on board the ships.

Against this background, it may be argued that all components recognized as part of ANS under the MASS Code should fall within the scope of the MED as well, even if located on shore. Nonetheless, it is my understanding that this interpretive approach pushes the limits of what is permissible under the current, quite clear wording. It would likely be more appropriate to address this through an amendment of the MED, rather than by stretching its current scope.^{(14) Thesis Section 5.3.2.}

In conclusion, pursuant to an interpretation of the MED, the Directive only covers components of ANS that are physically located on board EU ships.

3.4.2.3 Implications for the substantive scope of the AIA that land-based components of ANS fall outside the scope of the MED

Since the MED only covers marine equipment that is physically placed on board ships, it cannot be lex specialis to the AIA in cases where the latter regulates purely land-based AI systems. If this were to be the case, a question is whether the land-based components of an autonomous navigation system in isolation can qualify as an "AI system".^{(15) Pursuant to the definition in the AIA Article 3(1), see Section 3.2.1 of the thesis.} This would, of course, require the autonomous software components of the system to be located on shore.^{(16) Which is not inconceivable, see thesis Section 2.4.} However, even if this were to be the case, it appears unlikely, as an AI system includes all software and hardware components that "enable the AI system to function".^{(17) Guidelines on the Definition of an AI system, para. 11.} That said, it remains difficult to reach a definitive conclusion on this issue without insight into how ANS will ultimately be designed and operate.

3.4.2.4 The second condition – do the purposes of the AIA and the MED overlap?

The AIA Article 1(1) outlines the "purpose" of the Act, while the Recitals and the Explanatory Memorandum provide further elaboration and context. This provides for a natural basis of comparison with the purpose set out in the MED Article 1.

As a starting point, the purpose of the AIA is significantly broader than that of the MED. Certain elements in the purpose of the AIA, such as ensuring democracy and supporting innovation, is not reflected within the purpose of the MED. Therefore, it is necessary to consider whether the MED Article 3(2) requires a complete overlap in purposes.

When describing the legislation that the MED will be lex specialis to, the Recitals refer to "other instruments of Union law which lay down requirements and conditions, inter alia, in order to ensure" certain elements of the purpose in its Article 1.^{(18) The MED Recitals para. 4.} The phrase "inter alia" arguably acknowledges that the lex specialis function will apply despite the fact that the relevant EU instruments pursue other elements within its purposes as well. This is quite logical. Extensive lex generalis instruments will often have more detailed and multifaceted purposes than the MED has in its field of marine equipment regulation. Therefore, I interpret the MED Article 3(2) to not require a complete overlap in purposes – it is sufficient that there is an overlap.

As long as any overlap is sufficient, this condition appears to be met in the case of the AIA and the MED. First, the MED seeks to "ensure the free movement" of marine equipment within the EU.^{(19) The MED Article 1.} Similarly, the AIA aims to "improve the functioning of the internal market"^{(20) The AIA Article 1(1).} and ensure "the free movement, cross-border, of AI-based goods and services."^{(21) The AIA Recitals para.1.} In the context of AI-based navigational equipment, these purposes must be considered to overlap.

Second, the MED seeks to "enhance safety at sea and to prevent marine pollution through the uniform application" of international instruments like SOLAS, COLREGs and MARPOL.^{(22) The MED Article 1, referring to the "international instruments" in Article 2.} When comparing the objective of marine pollution prevention with purposes in other EU legislation, it follows from the Recitals that this can be equated with the more general concept of "environmental purposes".^{(23) The MED Recitals para. 4.} The AIA shall "ensure a high level" of safety and environmental protection. The AIA differs from the MED in that it aims to ensure such protection "against the harmful effects of AI systems." At the same time, the essence is that the AIA, like the MED, is intended to address fundamental safety and environmental concerns.

In conclusion, it appears to be an overlap between the purposes of the AIA and the MED. This suggests that the MED is lex specialis to the AIA in the context of ANS. It may also be argued that the AIA implicitly supports this conclusion. Article 2(2) of the AIA prevents the requirements for high-risk AI systems from being applied to systems covered by the MED.^{(24) High-risk classification pursuant to the AIA Article 6(1), see Sections 3.3.1. and 3.3.3 of the thesis.} This exclusion may be interpreted as an acknowledgment that the AIA pursues regulatory objectives similar to those of the MED, thereby activating the lex specialis principle. However, this is not explicitly stated in the AIA, nor in its Recitals or the Explanatory Memorandum.

3.4.2.5 Significance of the lex specialis function only applying to "EU ships"

The lex specialis function of the MED will only extend to components of ANS that are physically on board an "EU-ship". An "EU ship" is defined as a vessel "flying the flag of Member State" of the EU.^{(25) The MED Article 2(2). This includes the EFTA states, such as the coastal states Iceland and Norway, since the MED is incorporated into the EEA agreement.} Just as non-EU shipowners may fall within the general scope of the AIA,^{(26) Thesis Section 3.2.2.} ANS on board non-EU-flagged ships may be regulated by the AIA. The lex specialis function of the MED does not apply to components of ANS on board such vessels.