EU recognition criteria for classification societies and the ladder from remedial action to withdrawal (EU Regulation 391/2009)

Say the classification society that issued your ship’s certificates is on the EU list of recognised organisations. What does being on that list guarantee. And if that organisation falls short of the minimum criteria, what happens first.

EU Regulation 391/2009 lays out recognition through to withdrawal as a ladder. Recognition, regular assessment, remedial demand, fines, withdrawal. Each rung is written with a different threshold, so which rung has opened tells you how far the organisation has gone.

Recognition is applied for by the Member State, not by the organisation

1. Member States which wish to grant an authorisation to any organisation which is not yet recognised shall submit a request for recognition to the Commission together with complete information on, and evidence of, the organisation’s compliance with the minimum criteria set out in Annex I and on the requirement and its undertaking that it shall comply with the provisions of Articles 8(4), 9, 10 and 11.

The applicant is the Member State, not the organisation. A Member State that wants to authorise an organisation not yet recognised submits the request to the Commission. What goes with it is information and evidence that the minimum criteria in Annex I are met, plus the organisation’s undertaking to comply with a set of named articles.

The assessment is carried out by the Commission together with the Member State that submitted the request. Where the requirements are not met, or where the organisation’s performance is considered an unacceptable threat to safety or the environment, recognition is refused. The list of recognised organisations is published in the Official Journal of the European Union.

Recognition can be fenced in by ship type, size and trade

4. The Commission, acting in accordance with the regulatory procedure referred to in Article 12(3), may limit the recognition as regards certain types of ships, ships of a certain size, certain trades, or a combination thereof, in accordance with the proven capacity and expertise of the organisation concerned. In such a case, the Commission shall state the reasons for the limitation and the conditions under which the limitation shall be removed or can be widened. The limitation may be reviewed at any time.

Recognition is granted to the parent entity of the legal entities that make up the organisation. A fence can then be put around it. Certain types of ships, ships of a certain size, certain trades, or a combination of those. The measure is proven capacity and expertise.

Where a fence goes up, the Commission has to state the reasons together with the conditions for removing or widening it. For an owner there is one thing to read out of this. Being on the list is not the whole answer; whether your ship falls inside that scope is a separate question.

The assessment comes round at least once every two years

1. All recognised organisations shall be assessed by the Commission, together with the Member State or Member States which authorised them in accordance with Article 3(2) of Directive 2009/15/EC, on a regular basis and at least every two years, to verify that they meet the obligations under this Regulation and fulfil the minimum criteria set out in Annex I to this Regulation. The assessment shall be confined to those activities of the recognised organisations, which fall within the scope of this Regulation.

This assessment is what moves the ladder. The Commission carries it out together with the authorising Member State, at least once every two years. It is confined to the activities that fall within the scope of the Regulation.

The assessment may include a visit to regional branches together with random inspection of ships, both in service and under construction. Such an inspection is not looking at the ship. It is looking at the organisation.

Falling short of the minimum criteria brings a remedial demand with a deadline first

Where the Commission considers that a recognised organisation has failed to fulfil the minimum criteria set out in Annex I or its obligations under this Regulation, or that the safety and pollution prevention performance of a recognised organisation has worsened significantly, without, however, it constituting an unacceptable threat to safety or the environment, it shall require the recognised organisation concerned to undertake the necessary preventive and remedial action within specified deadlines to ensure full compliance with those minimum criteria and obligations and, in particular, remove any potential threat to safety or the environment, or to otherwise address the causes of the worsening performance.

There are three grounds. Failure to fulfil the minimum criteria in Annex I, failure to meet the obligations under the Regulation, and a significant worsening of safety and pollution prevention performance. Then comes the ceiling on this rung. without, however, it constituting an unacceptable threat to safety or the environment. It is the stage that has not yet reached an unacceptable threat.

What the Commission requires is preventive and remedial action, to be taken within specified deadlines. Where the potential threat is immediate, interim protective measures can sit here too. And the Commission gives advance notice of the measures to every Member State that authorised the organisation. The route by which an owner learns of this rung runs through the flag State.

Delay puts periodic penalty payments on top

2. Without prejudice to paragraph 1, where a recognised organisation fails to undertake the preventive and remedial action required by the Commission, or incurs unjustified delays, the Commission may impose periodic penalty payments on that organisation until the required action is fully carried out.

Article 6 does not replace the rung below it. It opens with In addition to the measures taken under Article 5. It is a rung laid on top of the remedial demand.

There are two grounds for fines. One is where serious or repeated failure, or worsening performance, reveals serious shortcomings in the organisation’s structure, systems, procedures or internal controls. The other is where the organisation deliberately provided incorrect, incomplete or misleading information during the assessment, or obstructed it. The periodic penalty payments in the passage above run separately, until the action is fully carried out.

The aggregate amount of the fines and periodic penalty payments imposed shall not exceed 5 % of the total average turnover of the recognised organisation in the preceding three business years for the activities falling under the scope of this Regulation.

The cap is tied to turnover. And nothing is imposed until the organisation and the Member States concerned have been given the opportunity to submit their observations.

Withdrawal opens where repetition and seriousness overlap

(a) whose repeated and serious failure to fulfil the minimum criteria set out in Annex I or its obligations under this Regulation is such that it constitutes an unacceptable threat to safety or the environment;

The grounds are the same as on the rung below, with two more words attached. repeated and serious. And the result has to reach an unacceptable threat. What separates the two rungs is not the ground but the repetition and the result.

Five doors open onto withdrawal. The passage above is the first, and the second is repeated and serious failure in safety and pollution prevention performance producing the same result. The remaining three close the ladder. Preventing or repeatedly obstructing the assessment, failing to pay the fines or the periodic penalty payments, and seeking to have fines imposed covered or reimbursed by someone else. Acts that avoid the sanction on a lower rung become grounds for the last one.

Withdrawal is decided by the Commission on its own initiative or at the request of a Member State, and after the organisation has been given the opportunity to submit its observations.

Worth confirming

The passages above come from Articles 3 to 8 of EU Regulation 391/2009. The minimum criteria themselves sit in Annex I and are not covered here. This Regulation deals only with EU recognition. Whether a flag State has authorised that organisation to survey and certify is settled separately by flag State law.

Back at your own ship, there are three things to look at. Whether the organisation is on the list published in the Official Journal, whether the recognition carries a limitation by ship type, size or trade and whether your ship falls inside it, and whether the organisation is currently under a remedial demand. The third arrives through Member States, so it is the flag State you ask.