Comité Maritime
International
EU Maritime Law Update
9 November 2018
BREXIT
The most
significant development in contemporary European Union ("EU") maritime
law is undoubtedly the planned withdrawal from the EU of both the United
Kingdom and Gibraltar on 29 March 2019.
While the EU
fully respects the wishes of the voters in the UK and Gibraltar to decide to
leave the EU, there is widespread disappointment and sadness among the EU
institutions and officials that the UK has decided to leave.
In terms of the
development of EU maritime law, the UK will be a significant loss to the
cause. The UK has, with its rich
maritime tradition and sophisticated maritime law community, made an enormous
contribution to the development of EU law in terms of, for example, the 1986 package
of measures on competition, economic dumping, freedom to provide maritime
services and so on. Over time, many
of the measures proposed by the European Commission have been tempered and
amended by the input from the UK maritime law community as well as UK maritime industries
with the result that there is little doubt that the final measures have
benefitted from the input from the maritime community in the UK. There is a risk that the interest in
the UK in EU maritime measures might decline over time after the UK leaves but,
in reality, the interest in the UK should remain at least as strong in
monitoring EU proposals and developments as it is now. Indeed, given the fact that the UK
Government will not be at the table, there is an even greater need for the UK
maritime legal community to monitor, and comment on, EU maritime
proposals. This is all the more so
as many EU legal measures will apply to UK maritime interests because some of
the EU rules will apply to all vessels in EU waters irrespective of the vessel's
flag.
Turning to
the specifics of the implications of Brexit and maritime law, it is worth
noting that the European Commission has published a series of papers outlining
the implications of a so-called "No Deal" Brexit on maritime issues. It is useful to consider a sample of
them.
First, on 27
February 2018, the European Commission’s Directorate-General for Mobility and
Transport issued a “Notice to Stakeholders” on the “Withdrawal of The United Kingdom and EU Rules in the Field of Maritime
Transport”. There are
features to the Notice which are irrelevant to the issue of safety but key
provisions include:
“…Subject to any transitional arrangement that may be contained in a
possible withdrawal agreement, as of the withdrawal date, the EU rules in the
field of maritime transport no longer apply to the United Kingdom. This has in
particular the following consequences in the different areas of Union law in
the field of maritime transport: ….
MARITIME SAFETY
• Recognition of organisations: The
withdrawal of the United Kingdom does not as such affect the recognitions by
the Commission in accordance with Article 4 of Regulation (EC) No 391/2009 of
organisations referred to in Article 2(c) of that Regulation. However,
according to Article 8 of Regulation (EC) No 391/2009 Recognised Organisations
are to be assessed on a regular basis (at least every two years) by the
Commission, together with the Member State that initially submitted the request
for recognition for the organisation in question. This also applies to the
organisations which had initially been recognised by the relevant Member State
and which now enjoy recognition pursuant to Article 15 of Regulation (EC) No
391/2009. As of the withdrawal date, the United Kingdom will no longer be in a
position to participate in the assessments carried out in accordance with
Article 8 of Regulation (EC) No 391/2009 of organisations initially recognised
by it. With respect to this procedural requirement, the Commission is
considering the necessary and appropriate steps to allow for the assessment in
accordance with the terms of the Regulation.
• Port State Control: Directive
2009/16/EC sets out the EU Port State Control system. The Directive requires
Member States to inspect foreign ships in ports by Port State Control officers
for the purpose of verifying that the condition of a ship and its equipment
comply with the requirements of international conventions, and that the vessel
is manned and operated in compliance with applicable international law.
Directive 2009/16/EC also requires verification of compliance with a number of
other EU-law based requirements, including insurance certificates under
Directive 2009/20/EC. While EU-27
Member States will continue to verify United Kingdom ships calling to EU ports,
as of the withdrawal date, the Port State Control inspection system set out in
Directive 2009/16/EC no longer applies in the United Kingdom. Relations between the United Kingdom
and the EU in respect of Port State Control will be governed by the Paris
Memorandum of Understanding on Port State Control.
• Operations of passenger ships:
According to Articles 4, 5 and 6 of Council Directive 1999/35/EC, host States, as defined in that
Directive, are to carry out mandatory inspections to provide for assurance of
safe operation of regular ro-ro ferry and high-speed passenger craft services
to or from ports of the EU. While these ships will continue to be subject to
such inspections in the EU-27 Member States to or from which they operate, as
of the withdrawal date, the United Kingdom will no longer have to carry out
such inspections in accordance with Directive 1999/35/EC….
The Commission services stand ready to provide further clarifications to
interested stakeholders. The website of the Commission on maritime transport
(https://ec.europa.eu/transport/modes/maritime_en) provide for general
information.
These pages will be updated with further information, where necessary.
Further information on other maritime safety related questions is available on
European Maritime Safety Agency’s website at the following link: https://www.emsa.europa.eu/.”
In regard to seafarer qualifications, the European
Commission’s Directorate-General for Mobility and Transport issued a notice to
stakeholders on 19 January 2018.
It is entitled “Notice to stakeholders - Withdrawal of the United
Kingdom and EU rules on the minimum level of training of seafarers and the
mutual recognition of seafarers' certificates”. After reciting that the UK had served notice under
Article 50 of the TEU and would therefore become a “third country” if it leaves
the EU, the Notice continues:
“In view of the considerable uncertainties, in particular concerning the
content of a possible withdrawal agreement, all seafarers subject to Directive
2008/106/EC on the minimum level of training of seafarers and Directive 2005/45/EC on the mutual
recognition of seafarers' certificates issued by the Member States are reminded
of legal repercussions, which need to be considered when the United Kingdom
becomes a third country.
Subject to any transitional arrangement that may be contained in a
possible withdrawal agreement, as of the withdrawal date, the EU rules in the
field of minimum level and mutual recognition of seafarers' certificates no
longer apply to the United Kingdom. This has in particular the following
consequences for the validity of certificates:
• According to Article 3 of
Directive 2008/106/EC, seafarers serving on board a vessel flying the flag of
an EU Member State have to hold the requisite certificate of competency or
certificate of proficiency (hereafter "certificates") issued by that
Member State, by another EU Member State or by one of the third countries
recognised under Article 19 of Directive 2008/106/EC. The Member State of the
vessel recognises the certificates issued to seafarers by the other Member
States or the recognised third countries, for such certificates to be valid in
that Member State. There are two distinct recognition procedures:
• Article 3 of Directive 2005/45/EC
provides that every Member State shall recognise the certificates issued to
seafarers by the other Member States: the recognition of these certificates (by
the Member State of the vessel) must be accompanied by an 'endorsement
attesting such recognition'.
• Article 19(4) of Directive
2008/106/EC provides that a Member State may decide to endorse the certificates
issued by the recognised third countries.
• As of the withdrawal date, the
certificates issued to seafarers by the United Kingdom can no longer be
presented for an 'endorsement attesting recognition' by an EU-27 Member State
under Directive 2005/45/EC.
The 'endorsement[s] attesting recognition' issued prior to the
withdrawal date by EU-27 Member States under Directive 2005/45/EC of certificates
issued to seafarers by the United Kingdom will continue to be valid until their
expiry. A master or an officer holding an 'endorsement attesting recognition'
issued by a Member State will be able to continue working on board vessels
flying the flag of that Member State. However, they will not be able to change
and work on board a vessel flying the flag of another Member State on the basis
of their existing UK-issued certificates, given that the basis for the
recognition of their certificates by that Member State (Directive 2005/45/EC)
would no longer be applicable.
• As of the withdrawal date,
recognition by an EU-27 Member State of certificates issued to seafarers by the
United Kingdom will be subject to the conditions set out in Article 19 of Directive
2008/106/EC, in line with the new
status of the United Kingdom as a third country.
Preparing for the withdrawal is not just a matter for Union and national
authorities, but also for private parties.
The website of the Commission on maritime transport
(https://ec.europa.eu/transport/modes/maritime/seafarers_en) provides general
information. These pages will be updated with further information, where
necessary….”
On 22 January
2018, the European Commission issued a “Notice to stakeholders - Withdrawal of
the United Kingdom and EU rules in the field of industrial products” which touches on marine equipment as well. The Notice states:
“Currently, Union product legislation does not generally oblige the
manufacturer to designate an authorised representative. However, if the
manufacturer chooses to do so, the applicable legislation requires the
authorised representative to be established in the Union. In addition, specific
Union legislation does provide for the obligation to have an authorised
representative (e.g. ….marine equipment) or a responsible person (cosmetic
products….) established in the Union.
Authorised representatives or responsible persons established in the
United Kingdom will not, as from the withdrawal date, be recognised as
authorised representatives or responsible persons for the purposes of the
applicable Union product legislation. Therefore, manufacturers are advised to
take the necessary steps to ensure that, as from the withdrawal date, their
designated authorised representatives or responsible persons are established in
the EU-27.”
On 28 March
2018, the European Commission’s Directorate General for Environment issued a
Notice to Stakeholders entitled “Withdrawal of The United Kingdom and the EU Ship Recycling Regulation.” The Notice recalled that the UK
submitted on 29 March 2017 the notification of its intention to withdraw from
the Union pursuant to Article 50 of the TEU and the Notice continued, this
“means that, unless a ratified withdrawal agreement establishes another date, all Union primary and secondary
law will cease to apply to the United Kingdom from 30 March 2019, 00:00h (CET)
('the withdrawal date'). The
United Kingdom will then become a 'third country'. ” Turning to the specific of recycling, the Notice
states:
“Subject to any transitional arrangement that may be contained in a
possible withdrawal agreement, as of the withdrawal date, the EU rules on ship
recycling, and in particular Regulation (EU) No 1257/2013 of the European
Parliament and of the Council of 20 November 2013 on ship recycling no longer apply to the United Kingdom.
This has in particular the following consequences:
According to Article 6(2)(a) of Regulation (EU) No 1257/2013, owners of
ships flying the flag of a Member State
shall ensure that ships destined to be recycled are only recycled at
ship recycling facilities that are included in the European List of ship
recycling facilities (‘the European List’). As of the withdrawal date, the
entries in the European List of
ship recycling facilities for facilities located in the United Kingdom will
become void. As a consequence, ships flying the flag of a Member State of the
Union may no longer be recycled at these ship recycling facilities.
The above is without prejudice to the possibility for the Commission to
list facilities located in third countries in the European List in accordance
with Article 16 of Regulation (EU) No 1257/2013.
The website of the Commission on the European Union's ship recycling
policy (http://ec.europa.eu/environment/waste/ships/index.htm) provides general
information concerning shipments of waste and the recycling of specific waste
streams. These pages will be updated with further information, where
necessary.”
The litigation dimension was also
considered. 48.047 On 21 November 2017,
the European Commission’s Directorate-General Justice and Consumers issued a
“Notice to Stakeholders: Withdrawal of the United Kingdom and EU Rules in the
Field of Civil Justice and Private International Law.” The operative parts are:
“In view of the considerable uncertainties, in particular concerning the
content of a possible withdrawal agreement, members of the legal professions as
well as other stakeholders are reminded of legal repercussions, which need to
be considered when the United Kingdom becomes a third country.
Subject to any transitional arrangement that may be contained in a
possible withdrawal agreement, as of the withdrawal date, the EU rules in the
field of civil justice and private international law no longer apply to the
United Kingdom. This has in particular the following consequences in the
different areas of civil justice:
• International jurisdiction: the
rules on international jurisdiction in EU instruments in the area of civil and
commercial law as well as family law no longer apply to judicial proceedings in
the United Kingdom and under certain circumstances (in civil and commercial
cases where the defendant is domiciled in the United Kingdom) to judicial
proceedings in the EU. International jurisdiction will be governed by the
national rules of the State in which a court has been seized.
• Recognition and enforcement:
judgments issued in the United Kingdom are no longer recognised and enforced in
EU Member States under the rules of the EU instruments in the area of civil and
commercial law as well as family law, and vice versa. Recognition and
enforcement of judgments between the United Kingdom and an EU Member State will
be governed by the national law of the State in which recognition and
enforcement is sought or by international Conventions where both the EU (or EU
Member States) and the United Kingdom are contracting parties.
• Judicial cooperation procedures:
EU instruments facilitating judicial cooperation (e.g. in relation to the
service of documents, taking of evidence or within the context of the European
Judicial Network in Civil and Commercial Matters) no longer apply between EU
Member States and the United Kingdom.
• Specific EU procedures: EU
instruments making available specific procedures, in particular the European
Payment Order Procedure or the European Procedure for Small Claims, will no
longer be available in courts of the United Kingdom and will not be available
in the courts of EU Member States where one or more parties are domiciled in
the United Kingdom.
The website of the Commission on civil justice
https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/civil-justice_en
as well as the dedicated webpage of the European Judicial Network in civil and
commercial matters
https://ejustice.europa.eu/content_ejn_in_civil_and_commercial_matters-21-en.do
provides
general information concerning the field of civil justice. These pages
will be updated with further information, where necessary.”
Staying with
Brexit, there are a number of measures currently going through the EU
legislative process.
There is a
proposed regulation to amend rules on NSM
corridor. On 1 August 2018, the
Commission adopted a proposal for a Regulation of the European Parliament and
of the Council amending Regulation (EU) 1316/2013 with regard to the withdrawal
of the UK from the EU. The proposal is being adopted under the ordinary legislative
procedure, which means that the European Parliament and the Council, being
co-legislators, will need to adopt the same final text.
There is a
proposed regulation to amend rules on ship
inspection and survey organisations.
Again, this would be adopted under the ordinary legislative
procedure. It essentially takes
the UK out of the EU regime.
At a more
general level, there will be growing divergence between EU and UK law. 48.048 If the UK adopts various elements of EU law as
UK law on the day in which the country leaves the EU, then the risk of
divergence is minimised. However,
the divergence will be greater than many imagine. This notion that there would
be convergence or even identical laws is grossly inaccurate. First, the laws of the EU and the UK
will not be the same at the moment when the UK leaves because the way in which
these laws will be interpreted by the UK courts would differ from the ways in
which the CJEU would interpret them and, in any event, some of the general
principles of EU law are not easily incorporated into UK law. Secondly, the way in which the EU law
and the "EU laws dressed as UK laws" would be applied and implemented
would differ (not least because of the divergent objectives of the EU (e.g.,
internal market and EU interests) and the UK (e.g., a more national-centred
approach). Thirdly, the EU adopts
laws on an on-going basis – several hundred measures are adopted each year by
the EU. Fourthly, if Brexit is to
be in anyway meaningful then it makes sense that the UK will choose different
rules. Ultimately, it is to be
assumed that there will be greater divergence between the EU and the UK legal
regimes both substantively and procedurally.
Turning away
from Brexit, there is a proposal in regard to port reception facilities for the delivery of waste from ships,
there is likely change in that area as well. .On 16 January 2018, the
Commission adopted a proposal for a Directive of the European Parliament and of
the Council on port reception facilities for the delivery of waste from ships,
repealing Directive 2000/59/EC and amending Directive 2009/16/EC and Directive
2010/65/EU.
Apart from
Brexit, the most significant development in EU maritime law is likely to be the
so-called Third Mobility Package. On 17 May 2018, the Commission adopted
its Third Mobility Package. This includes: a proposal for a Regulation of the
European Parliament and of the Council establishing a European Maritime Single
Window environment and repealing Directive 2010/65/EU.and
a proposal for a Regulation of the European Parliament and of the Council on
electronic freight transport information.
This has
been a brief summary of some of the developments in EU maritime law which
continues to evolve and have a shape and a substance of its own.
Dr Vincent
Power
Partner,
A&L Goodbody,
vpower@algoodbody,
9 November
2018
