MarIus

3.1.1 Legal basis

In Denmark, the competence delegated to the classification societies is described more specifically in the so-called "Class Agreement" or "RO Agreement" (Danish Recognised Organisation Agreement with its subsequent annex).(1)http://www.soefartsstyrelsen.dk/SynRegistrering/Syn/Klassifikationsselskaber/Documents/DanishROAgReement2015.pdf. The agreement is concluded by reference to the RO Directive(2) Directive 2009/15/EC. and the RO Regulation,(3) Regulation EC No. 391/2009. as mentioned above under section 2.3.(4) See the RO Agreement’s preface. In addition, the agreement itself indicates that it complies with the IMO's RO Code,(5) RO Agreement, clause 1.3. so that not only EU regulation, but also the RO Code, should be used, in case of any doubt, to create a frame of reference for interpretation.

3.1.2 The competence of the classification society

According to clause 4 of the RO Agreement, certified classification societies are, in principle, authorised to issue all statutory certificates for use on Danish flagged ships. The Danish Maritime Authority may at any time decide to issue a given certificate itself, see section 11 of the RO Agreement, but certificates issued by the authorised classification society are deemed to have been issued by the Danish Maritime Authority. See in particular, clause 4(6) of the RO Agreement, which states: “statutory services rendered and statutory certificates issued by ROs in accordance with this agreement shall be accepted as services rendered by or certificates issued by the DMA provided that the RO maintains compliance with the provisions of the agreement”. In return, the classification society, according to clause 5(3) of the RO Agreement, enjoys the same legal status regarding its liability etc., as the Danish Maritime Authority would have had, had it performed the task itself.

The competence of the classification society is more extensively regulated in clause 15 of the RO Agreement and in the Annex to the RO Agreement, clause 1.(6) See in particular the Annex to the RO Agreement clauses 1.11 and 1.12. The classification society is entitled to (and indeed must) require ship owners to carry out any change or repair required in order to comply with a given regulation. In addition, the classification society can suspend or revoke any certificate which it has issued.(7) See the Annex to the RO Agreement clause 1.13. Revocation of the vessel’s ISM Certificate may however only be done by the DMA. In view of the above mentioned legal effects of revocation or refusal of certificates, this competence is so far-reaching that its exercise will directly affect the ability to operate the ship (or the shipping company as a whole).

Clause 12(1) of the RO Agreement specifies the rules that the classification society must follow when operating, in a hierarchical order. The provision gives Danish legislation and Danish administrative acts, issued by the Danish Maritime Authority, precedence over EU legal sources. If under consultation these sources do not produce results, IMO regulations must be applied, and finally, and as a last resort, existing industry standards.

It falls outside the scope of this article to discuss in detail how this hierarchy harmonises with the principle of the primacy of EU law. However, when considering that both Danish law and European Union law in this area consists of implementing rules required to be implemented by IMO regulations, contradictions are likely to be a rare occurrence. I would therefore restrictmyself to pointing out, that the RO agreement seems to indicate an unusual version of the normal hierarchy of rules.

If the above rules do not provide answers to a specific question, the classification society must provide the DMA with a proposal as to how the problem should be solved. The DMA ultimately decides whether it will follow the proposal, but even the possibility of proposing solutions in itself provides for a certain quasi-legislative effect.(8) RO Agreement, clause 12.3.

3.1.3 Complaints, administrative recourse and control

The DMA, as the delegating entity, has a general authority to instruct the recognised classification society in relation to its duties under the RO Agreement, see the RO Agreement clause 4.4. According to clause 14 of the RO Agreement, complaints by the subject of the classification (the “RO client”), which in most cases would be the shipping company, shall be handed over to the Danish Maritime Authority for its final administrative decision. In this way, the Danish Maritime Authority is the appeals body for decisions made by the private entity to which the competence is delegated. Further explanation is provided by the Maritime Safety Act § 21(1), which states that the decisions of the Danish Maritime Authority regarding statutory certificates may be brought before the Board of Appeals for Maritime Affairs, see § 7(2) of Regulation No. 744 of 24/06/2013 concerning the assignment of certain powers to the Danish Maritime Authority and on appeal, etc.

Clause 14 of the RO Agreement, which specifies the Danish Maritime Authority as the highest administrative authority, and the Maritime Safety Act § 21, which on the contrary indicates that the Board of Appeals for Maritime Affairs is the highest administrative entity, seem to cover some of the same situations and may therefore be seen as contradictory. It may be assumed, however, that a complaint about e.g. the non-issuance of certificates must be made to the Danish Maritime Authority first, with the possibility of further appeal to the Board of Appeals for Maritime Affairs thereafter. See also the Eastern Court of Appeal’s judgment of 18 March 2009, in the Folmer case,(9) Ruling of the Eastern Court of Appeal of 18 March 2009 in the case of The Board of Appeal for Maritime Affairs and the Danish Maritime Authority v. the Shipbroking Firm H. Folmer & Co., following the administrative ruling of the Board of Appeal for Maritime Affairs of 8 May 2007 in case No. 200614317. where this approach was followed.

In addition to being a complaint body, the Danish Maritime Authority, as the flag State representative, is obliged to continuously review the authorised classification societies, see clause 19 of the RO Agreement. If the DMA discovers that the classification society does not meet the requirements of the RO Agreement and the further requirements which Denmark as a flag State may reasonably impose, the DMA may suspend the classification society and ultimately withdraw its authorisation in accordance with Clause 7 of the RO Agreement.(10) According to the RO Directive (Directive 2009/15/EC) art. 8, the DMA must, in the event of withdrawal of the authorisation, immediately inform the Commission of the withdrawal and the reasons for it.