5.3 Reflections on Possible Approaches That the EU May Adopt
5.3.1 Two possible regulatory approaches
The EU needs to determine its regulatory approach to ANS, and to AI in shipping more generally. In the case of ANS, two approaches may be envisaged: one in which the Union places continued trust in the IMO, and another in which it adopts a more active role. Based on the findings of this thesis, I will briefly reflect on these approaches and consider the legal amendments that each would require.
5.3.2 The first approach – trusting the IMO
To delegate the regulation of ANS to the IMO may entail either a fully passive stance from the EU, or that IMO law and ANS regulation are given effect within the EU legal framework. Assuming that the latter is the most likely scenario, I offer certain reflections on its implications.
First and foremost, this approach presupposes that the AIA and its requirements for high-risk AI systems do not apply to ANS. It appears that the lex specialis function of the MED can ensure this outcome for ANS located on board EU-flagged ships.(1) Thesis Section 3.4. However, in order to avoid the creation of loopholes whereby the AIA could apply to primarily land-based ANS,(2) Thesis Section 3.4.2.3. or ANS installed on board non-EU ships,(3) Thesis Section 3.4.2.5. the most straightforward course of action would be to determine that ANS do not meet the conditions for applying the AIA directly, as set out within the Act. An effective legislative course of action would be for the European Commission to clarify that ANS are not high-risk AI systems.(4) Thesis Section 3.3.2. With respect to the interpretive method in EU law, the Commission could also consider amendments to the AIA that explicitly clarify that LNG and LPG shipping does not constitute supplying gas within the meaning of Annex III.(5) Thesis Section 3.3.5.
Furthermore, in order to ensure an implementation of IMO requirements in the spirit of the MED, the scope of the Directive should be amended to explicitly cover ANS in their entirety, like the MASS Code will. The current version of the MED, from 2014, was drafted for conventional ships, in which INS are physically located on board.(6) Regulation (EU) 2024/1975, MED/4.59. The Directive will only cover components of ANS that are physically placed on board EU-ships, whereas land-based components will not be covered.(7) Thesis Sections 3.4.2.2 and 3.4.2.3. This distinction may create unintended regulatory incentives in system designs. Furthermore, the MED is a dynamic instrument of nature, designed to respect the "constant evolution" of international standards for marine equipment.(8) The MED Recitals para. 4. This evolution, particularly in light of the upcoming MASS Code, currently calls for an expansion of the scope of the MED to encompass all components of ANS.
An alternative approach could be to retain the MED with its current scope, while establishing a complementary Directive or Regulation that governs certain land-based components that are covered by the MASS Code. Like the MED, such a regulation can give effect to relevant IMO requirements, thereby ensuring consistency and coherence in the implementation of IMO standards for MASS within EU law.
To enhance legal certainty during the period of the non-mandatory MASS Code, the EU could also consider expressly recognizing this version of the Code via the MED. The mandatory version will inevitably be given effect, and the non-mandatory Code might have interpretive relevance for current requirements.(9) Thesis Section 3.4.2.2.
5.3.3 The second approach – a more active role for the EU
The Explanatory Memorandum to the AIA acknowledges AI as a "fast-evolving family of technologies".(10) The AIA Act Proposal Explanatory Memorandum, Section 1.1. Against this background, the EU may have an interest in bringing AI in shipping within the scope of the AIA, as a unified regulatory framework. Furthermore, freight transport at sea is generally recognized as "critical infrastructure" under the AIA.(11) Pursuant to the AIA Art 3(62), referring to the CER Art 2(4), read in light of Commission Delegated Regulation (EU) 2023/2450. The question thus also becomes one of how much confidence the EU places in the IMO as a drafter of law in areas that are important to European safety.
Of course, there is no need for conflicting regulations between the AIA and the MASS Code, should both apply to ANS. However, the EU has already demonstrated, particularly in the context of regulating GHG emissions, that it is not opposed to adopting stricter requirements within the Union than those provided by the IMO.(12) Thesis Section 4.3.2.
From a legal perspective, this approach from the EU would require amendments to the MED to ensure that it does not operate as lex specialis with respect to the AIA. It would also require a clarification of which ANS are to fall under the scope of the AIA and why – for instance, through the adoption of delegated acts expanding Annex III to designate "AI systems for autonomous shipping" as high-risk, in line with the proposal from Norway in 2021.(13) Government of Norway, 'Norwegian Position Paper' (n 109) Section 5.
5.3.4 Is there a preferable approach?
The approach chosen by the EU will, naturally, have strong political connotations, particularly in light of the aforementioned safety concerns. However, from a legal standpoint, it is my view that the most appropriate course of action would be for the EU to entrust the regulation of ANS to the IMO, while ensuring that such regulation is given effect within EU law for EU-flagged ships – for instance through the MED.
First, this approach would be consistent with the long-standing tradition of the EU respecting and supporting operational and regulatory standards established by the IMO.(14) Thesis Section 2.4. Second, it would uphold the legal rationale of the MED by ensuring uniform regulation of ANS across the Union, while also facilitating EU member states in meeting their IMO obligations.(15) Thesis Sections 2.4 and 3.4.2.2. This is arguably important in the implementation of new maritime technologies, such as ANS, which require international coordination. Finally, this approach would not pose significant regulatory risks, as the MED contains a legislative safeguard in Articles 8(2) and (3).(16) Thesis Sections 4.2.1 and 4.2.4.1.