Flag states
As a matter of policy the EU has not generally favoured regulating international shipping by means of flag state rules. Requirements that only apply to ships flagged in member states involve the risk of subjecting these ships to a competitive disadvantage in relation to ships of other flags. In view of the ease with which ship operators may change the flag of their ships, such an approach involves a risk of ‘out-flagging’, which in turn would reduce both the impact of the requirement and the size of the EU’s fleet. With respect to ships operating in the Arctic, the prospect of out-flagging seems particularly real, as this type of trade supposedly involves a relatively low number of ships, which are specifically constructed and equipped for the trade.
However, while the EU rules that apply exclusively to ships flagged in a member states are relatively few, and usually target the administration rather than ships,(1) See notably Directive 2009/15 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administration requirements [2009] OJ L131 47; Directive 2001/25 on the minimum level of training for seafarers [2001] OJ L136/17; and Directive 2009/21 on compliance with flag state requirements [2009] OJ L131/132. many EU acts also apply to this category, in addition to their focus on foreign ships operating in the coastal waters and/or ports of member states. Most EU rules that apply to ships flagged in member states do not include a geographic limitation of their applicability, although in some cases it follows from the nature of the requirements that their scope is limited to ships operating in, or in the immediate vicinity of, the EU.(2) This is the case e.g. with respect to Directive 2002/59 establishing a Community vessel traffic monitoring and information system [2002] OJ L 208/10 (hereinafter, the VTMIS Directive) and Directive 2000/59 on port reception facilities for ship-generated waste and cargo residues [2009] OJ L332/81. In the absence of such a limitation, the rules for ships flagged in EU member states therefore apply wherever the ship in question operates, including in the Arctic. Thus, for example, the requirements to have proper insurance for maritime claims,(3) Directive 2009/20 on the insurance of shipowners for maritime claims [2009] OJ L131/128 to have international safety management procedures in place,(4) Regulation 336/2006 on the implementation of the International Safety Management Code within the Community [2006] OJ L64/1. or to use environmentally friendly anti-fouling paints on board ships’ hulls,(5) Regulation 782/2003 on the prohibition of organotin compounds on ships [2003] OJ L115/1 all apply to ships flying the flag of an EU member state in the Arctic.(6) On the more complex question as to whether the EU’s double hull requirements on oil tankers applied to EU flagged ships which did not trade in EU waters, see Ringbom note 18 above, at pp. 172-173. On the other hand, all of the EU flag state requirements which apply without geographical limitation do implement widely accepted IMO rules, and therefore do not add completely new substantive requirements.