4 A brief comparative angle
As probably already indicated, the author finds that from the point of view of legality, it would be appropriate if the RO agreement indicated that the recognised organisations were covered by the Public Administration Act, to the extent that they can make decisions against the citizen, in this case the RO client. However, it could be asked if this would provide for insurmountable administrative obstacles and, therefore, that the handling of procedural guarantees would have to be referred to a potential complaints or appeals procedure. If this were the case, one would expect that other flag States would have chosen not to impose full obligations on classification societies under the part of their regulation that corresponds to the Public Administration Act. To compare, contrast and perhaps even promote further discussion, a quick glance at how the Norwegian and The Swedish Maritime Authorities have chosen to tackle this situation will therefore be provided below.
The Norwegian class agreement (the “Class Agreement")(1) See https://www.sjofartsdir.no/en/vessels/inspection/approved-classification-societies/klasseavtalen. is concluded between the Maritime Directorate and the classification societies DNV-GL, the American Bureau of Shipping, Bureau Veritas, Class NK, Lloyd's Register and RINA. The Norwegian authorities have thus chosen not to grant licences to all the companies approved by the EU and EFTA. The classification societies can generally perform the same tasks on behalf of the coastal State, as is the case under the Class Agreement. Contrary to the Danish RO agreement however, it is stated directly in clause 6.3 of Class Agreement that the Norwegian Public Administration Act applies when the classification society carries out work on behalf of the Norwegian Maritime Directorate. Their appeals body is formally the Ministry of Trade and Industry, but the Norwegian Maritime Directorate may choose to agree fully with the complainant, in which case they would not send the case to the ministry.
The Swedish authorities have also chosen to limit the number of recognised organisations, as is permitted in the EU and EFTA, and have, with the exception of Class NK, authorised the same classification societies as is the case in Norway. The Swedish rules do not indicate that the principles of public administrative law apply, but set out specific principles of administrative law that classification societies must follow when carrying out tasks on behalf of the Department of Transport.(2) See https://www.transportstyrelsen.se/en/shipping/Vessels/Survey-and-inspection/Recognised-Organisations/Swedish-RO-Agreement/. The rules are specifically about the principle of equality, the obligation to be objective and impartial, see clause 3.5, 1st indent of the agreement, and a general duty of care to maintain confidentiality, cf. clause 7.5 of the agreement. In addition, clause 3.5, 2nd and 3rd indents of the agreement stipulate that the classification society’s employees must not have a conflict of interest and may not receive gifts. However, it is important to note that according to Swedish law, recognised classification societies only have the power to make decisions that fully endorse the applicant, see clause 3.6, 1st indent of the agreement. As soon as it becomes clear that the applicant’s full certification will be denied or suspended by the classification society, the case will be transferred to the Department of Transport for further action. Decisions made by the classification societies on behalf of the Swedish authorities will thus never have the same potential for major impact as those made by classifications societies on behalf of Denmark as a flag state. As mentioned earlier, under Danish rules the classification society can effectively deny a Danish ship the right to sail and even initiate full or partial sanctions on the shipping company’s operation of other ships within their fleet. The Swedish approach that the activities of the authorised classification societies are not covered by the general rules of administrative law therefore does not pose the same potential problems as the Danish approach, since the classification societies acting on behalf of the Swedish flag State do not hold all the decision-making power.
When comparing Danish regulation with its Norwegian and Swedish counterparts, one can quickly note that the Danish regulation is the most far-reaching. Firstly, the Danish Maritime Authority has chosen to authorise all classification societies permitted by the EU rules (which consequently means that the Danish Maritime Authority is required to supervise more companies than the Norwegian and Swedish authorities); secondly, the competence that the Danish Maritime Authority has allocated to the classification societies goes to the limit of what may be delegated at all; and finally, the administrative principles and procedural rules to be adhered to by the classification societies are limited. The author therefore proposes that during any forthcoming renegotiation of the RO Agreement and/or revision of the Maritime Safety Act, that the Norwegian and Swedish rules should be used as a source of inspiration and that it be clearly stated which parts of the administrative regulation should apply to the classification societies' activities. Particular consideration should be given to whether (at least parts of) the Administration Act should apply when a recognised organisation, acting on behalf of Denmark as a flag State, takes potentially restrictive decisions against the citizen.