EU Shipping Law

Vincent Power

Document

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CHAPTER 5 The historical development of European Union shipping law

A. Introduction

5.001 The purpose of this chapter is to provide an historical overview of the development of European Union (“EU”) shipping law.1 While there is an obvious overlap with other chapters, a separate chapter providing an historical overview is valuable to provide a background and a context to the rest of the book and to convey a sense of how the law on this area has evolved. It is proposed to analyse the development of EU shipping law using seven time-periods: (a) the 1950s; (b) the 1960s; (c) the 1970s; (d) the 1980s; (e) the 1990s; (f) the 2000s; and (g) the 2010s. While there is an obvious limitation to presenting the issues using the rubric of decades, it has a certain simplicity which facilitates the narrative. 5.002 A number of general trends emerge from an historical review of shipping in the EU. First, the fortunes of the EU have varied enormously during the last half century.2 For the most part, the EU’s fortunes have declined over time relative to the emergence of new powers in global shipping but the EU has also grown exponentially in terms of its tonnage and in certain specialist areas (e.g. containerised traffic). The last decade or so, until the financial and economic crises of 2008–2010, saw enormous growth in the fortunes of EU shipping. Second, the EU has essentially approached the issue in terms of free market or open market economics and espoused a policy of competition but has also, for many years until recently, protected the position of liner conferences by granting them a block exemption.3 Third, despite the aspiration to have a comprehensive system of EU shipping

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law, it will be impossible to achieve this aim because the world of shipping is wider than the world of the EU. Fourth, there have been some inter-institutional tensions between, for example, the Council of Ministers which granted a block exemption for liner conferences in Regulation 4056/864 and the Commission which waged what can only be described as a battle to have the block exemption repealed; the Commission eventually succeeded.5 Fifth, the EU has become involved in areas of shipping such as safety and environmental issues which would not have been seriously contemplated even in the 1970s. Competition law proved centre stage in many ways in the evolution of EU shipping law but this may have been a factor, in part, of the Commission’s unease with the block exemption in Regulation 4056/86.6 Sixth, progress in this area (as in so many other areas) has been slow because of the diversity of approaches and regimes between the Member States. Finally, the evolution of EU shipping law has been partly planned in terms of the Commission adopting strategy and partly reactive to events such as safety and environmental shortcomings. Some of these safety and environmental disasters enabled legislative proposals which had been lying in wait to be adopted because politicians needed to be seen to react to events.

B. The 1950s: the Foundation Treaties

5.003 Shipping (or, more accurately, “maritime transport”) was mentioned only once in the original European Economic Community (“EEC”) Treaty. It was not mentioned at all in the European Atomic Energy Community (“EAEC”) Treaty. It was not expressly mentioned at all in the European Coal and Steel Community (“ECSC”) Treaty. The net effect of Article 84 of the then EEC Treaty (the only treaty provision expressly referring to maritime transport) was that sea transport (like air transport) was excluded from the normal rules for formulating the common transport policy (or CTP).7 Nonetheless, the general rules of the then EEC Treaty have always applied to sea and air transport.8 Why was shipping treated differently from other economic sectors? It is worth recalling that the European Parliament’s Committee on Regional Policy, Regional Planning and Transport published in 1977 an “Interim Report on the Sea Transport Problems in the Community” which stated:

“There is no point in asking why the authors of the [EEC] Treaty left sea transport out of the Common Transport Policy during the negotiations at Val Duchesse in 19579 … It may be that they simply could not agree on rules for sea transport or that they intended to draw up special rules for sea transport but did not have the time before the Treaty was pronounced ready for signature by the Heads of Government, or they had specific reasons for excluding sea transport which are unknown to us. In any case the situation is now completely different.”10

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