EU Shipping Law
Page 1349
CHAPTER 29
Maritime safety: ship inspection and survey organisations
A. Introduction
29.001 Ship inspection and survey organisations1 are long-established, necessary and systemically important to shipping. In terms of longevity, their origins lie in, at least, the mid-eighteenth century so they have provided useful and important services to the shipping community, and beyond, for at least 250 years. They are systemically important because they allow insurers to insure ships and cargoes, provide a protective layer in the fight to ensure safety of shipping and give some reassurance to the shipping community participants. They therefore serve both public and private functions. The tenth recital to Directive 2009/152 provides that “ship inspection and survey organisations play an important role in [European Union (“EU”)] legislation concerning maritime safety.” 29.002 The EU believes that ship inspection and survey organisations should be able to offer their services throughout the EU and compete3 with each other while providing equal levels of safety and environmental protection. The necessary professional standards for their activities should therefore be uniformly established and applied across the EU.4 It is interesting to see how the EU seeks to achieve two aims simultaneously: a competitive regime but also a top quality one operating to the highest standards. One sees this twin track approach within the European Commission with DG Mobility and Transport paying attention to the safety dimension while the Directorate General for Competition is paying attention to the competition dimensions. The two aims are not incompatible andPage 1350
B. Regulation 391/2009 on common rules and standards for ship inspection and survey organisations
Introduction
29.003 On 23 April 2009, the Parliament and the Council adopted Regulation 391/2009 on common rules and standards for ship inspection and survey organisations.5 Article 19 of Regulation 391/2009 provides that the regulation entered into force on the twentieth day following its publication in the Official Journal; as it was published on 29 May 2009, it therefore entered into force on 17 June 2009. 29.004 Regulation 391/2009 was amended by Commission Implementing Regulation 1355/2014 of 17 December 2014.6 On 23 April 2009, the Parliament and the Council also adopted Directive 2009/15 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations.7 29.005 The legal basis for Regulation 391/2009 was the Treaty establishing the European Community (“TEC”) (now, with amendments, the Treaty on the Functioning of the European Union (“TFEU”)) and, in particular, Article 80(2) of the TEC (now Article 100(2) of the TFEU). 29.006 The legislative history of Regulation 391/2009 included a proposal by the Commission, an opinion of the European Economic and Social Committee8 and an opinion of the Committee of the Regions.9 29.007 Part of the background to Regulation 391/2009 was Council Directive 94/57 of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations10 – this latter measure had been amended substantially several times. As further amendments were to be made by 2009, the original Directive 94/57 was recast but largely in the interests of clarity.11 However, in view of the nature of the provisions of Directive 94/57, the EU decided that it was appropriate that its provisions be recast in two different EU legal instruments, namely, a directive and a regulation.12 29.008 The EU was mindful of the need to harmonise the EU approach with that of the International Maritime Organization (“IMO”) so the fourth recital to Regulation 391/2009 provides that the objective of recasting Directive 94/57“should be pursued through measures that adequately tie in with the work of the International Maritime Organisation (‘IMO’) and, where appropriate, build on and complement it. Furthermore, the Member States and the Commission should promote the development by the IMO of an international code for recognised organisations.”13