This was a request from the Tribunale di Genova (District Court, Genoa, Italy) for a preliminary ruling on the issue of whether Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters prevents a Court of a Member State, in an action in tort, delict or quasi-delict in which compensation is sought for death and personal injury caused by the sinking of a passenger ferry, from holding that it has no jurisdiction and from recognising the jurisdictional immunity of private entities and legal persons established in that Member State which carry out classification and/or certification activities in so far as they carry out those activities on behalf of a third State (here, Panama).

The request was made in the context of proceedings brought by the claimants LG and others, who are relatives of the victims and survivors of the sinking, against Rina SpA and Ente Registro Italiano Navale (together 'the Rina companies') concerning compensation by the Rina companies, by way of civil liability, for pecuniary and non-pecuniary losses sustained by LG and others as a result of the sinking of the Al Salam Boccaccio ’98 in the Red Sea.

Held: Article 1(1) of Council Regulation (EC) No 44/2001 must be interpreted as meaning that an action for damages, brought against corporations engaged in the classification and certification of ships on behalf of and upon delegation from a third State, falls within the concept of 'civil and commercial matters', within the meaning of that provision, and, therefore, within the scope of that Regulation, provided that that classification and certification activity is not exercised under public powers, within the meaning of EU law, which is for the referring Court to determine. The principle of customary international law concerning immunity from jurisdiction does not preclude the national Court seised from exercising the jurisdiction provided for by that Regulation in a dispute relating to such an action, where that Court finds that such corporations have not had recourse to public powers within the meaning of international law.

The United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) came into force on 16 November 1994. It was approved on behalf of the European Community by Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p 1). Under art 90 of that Convention 'every State … has the right to sail ships flying its flag on the high seas'.

Article 91 of that Convention provides:

1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly …
2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.

Articles 94.1 and 94.3-5 of the Convention provide:

1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. ...

3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:

(a) the construction, equipment and seaworthiness of ships; ...

4. Such measures shall include those necessary to ensure:

(a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship; …

5. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.

According to the documents before the Court, the classification and certification operations were carried out by the Rina companies for remuneration under a commercial contract governed by private law, concluded directly with the shipowner of the Al Salam Boccaccio ’98, according to which the services provided by the Rina companies consisted solely in establishing whether the vessel examined met the requirements laid down by the applicable measures and, if so, in issuing the corresponding certificates. In addition, it is apparent from the information before the Court that the interpretation and choice of the applicable technical requirements were reserved to the authorities of the Republic of Panama.

In that regard, it follows from arts 91 and 94.3 and 94.5 of UNCLOS 1982, which the Court has jurisdiction to interpret (see, to that effect, judgments of 24 June 2008, Commune de Mesquer, C‑188/07, EU:C:2008:359, [85] (CMI739), and of 11 July 2018, Bosphorus Queen Shipping, C‑15/17, EU:C:2018:557, [44] (CMI180)), that it is for States to fix the conditions to which ships are subject for the purposes of obtaining a flag and to take the measures necessary to ensure safety at sea, in particular as regards the construction and equipment of the ship and its seaworthiness.

Accordingly, the role of recognised organisations, such as the Rina companies, consists in conducting checks of the ship in accordance with the requirements laid down by the applicable legislative provisions, which may, where appropriate, result in the certificate being withdrawn on the ground that the ship does not comply with those requirements. However, such a withdrawal does not stem from the decision-making power of those recognised organisations, which operate within a pre-defined regulatory framework. If, following the withdrawal of a certificate, a ship is no longer able to sail, that is because of the sanction which, as the Rina companies admitted at the hearing, is imposed by law. Furthermore, it follows from regs 6(c) and (d) of Ch I of the SOLAS Convention, that where the ship does not comply with the requirements, the recognised organisation is to notify the authorities of the State concerned, which remain responsible and must fully guarantee the completeness and efficiency of the inspection and survey, and must undertake to ensure the necessary arrangements.

It follows from the foregoing that, subject to the checks to be carried out by the referring Court, the classification and certification operations, such as those carried out on the vessel Al Salam Boccaccio ’98 by the Rina companies, upon delegation from and on behalf of the Republic of Panama, cannot be regarded as being carried out in the exercise of public powers within the meaning of EU law, with the result that an action for damages in respect of those operations falls within the concept of 'civil matters and commercial matters', within the meaning of art 1(1) of Regulation No 44/2001, and falls within the scope of that Regulation.

The referring Court has expressed uncertainty regarding the effect, for the purposes of the applicability of Regulation No 44/2001 in the dispute in the main proceedings, of the plea based on the principle of customary international law concerning immunity from jurisdiction, relied on by the Rina companies, in order to determine whether, in recognising that immunity on account of the exercise of classification and certification activities by those companies, the national Court seised may decline jurisdiction in the case.

The rules which constitute an expression of customary international law are binding upon EU institutions and form part of the EU legal order. However, a national Court implementing EU law in applying Regulation No 44/2001 must comply with the requirements flowing from art 47 of the Charter. Consequently, in the present case, the referring court must satisfy itself that, if it upheld the plea relating to immunity from jurisdiction, LG and others would not be deprived of their right of access to the courts, which is one of the elements of the right to effective judicial protection in art 47 of the Charter.

The immunity of States from jurisdiction is enshrined in international law and is based on the principle par in parem non habet imperium, as a State cannot be subjected to the jurisdiction of another State. However, in the present state of international law, that immunity is not absolute, but is generally recognised where the dispute concerns sovereign acts performed iure imperii. By contrast, it may be excluded if the legal proceedings relate to acts which do not fall within the exercise of public powers. In the present case, the immunity from jurisdiction of bodies governed by private law, such as the Rina companies, is not generally recognised as regards classification and certification operations for ships, where they have not been carried out iure imperii within the meaning of international law.

Accordingly, the principle of customary international law concerning immunity from jurisdiction does not preclude the application of Regulation No 44/2001 in a dispute relating to an action for damages against bodies governed by private law, such as the Rina companies, on account of the classification and certification activities carried out by them, upon delegation from and on behalf of a third State, where the Court seised finds that such bodies have not had recourse to public powers, within the meaning of international law.​