In its judgment of 7 May 2020 in the case C-641/18, LG v. Ente Registro Italiano Navale and other, ECLI:EU:C:2020:349, the Court of Justice of the European Union dealt again with the nature of classification and statutory certification of vessels performed by private entities on behalf of States. The ultimate addressees of the obligation established under article 94 of the UN Convention on the Law of the Sea and under the International Convention for the Safety of Life at Sea or SOLAS Convention (respectively approved in Montego Bay on 10 December 1982 and in London on 1 September 1974, both ratified by all Member States) to adopt all necessary measures in order to safeguard safety at sea, are indeed the States, more particularly by making sure that vessels flying their flag are designed, built, and maintained according to structural, mechanical and electric prescriptions either established by a classification society recognized by national authorities or in accordance with the applicable national legislation providing for an equivalent level of safety.
Within the request for a preliminary ruling, the referring judge asked the Court to clarify whether the claim would fit in the scope of the notion of «civil and commercial matters» provided for under article 1 para. 1 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, or, instead, in the notion of administrative matters, thus being excluded from the normative regime under the Regulation, and especially from the latter’s rules on jurisdiction. In the first case, the Court was also requested to clarify the impact of the customary principle on State immunity on the jurisdictional rules established under the Regulation and, more precisely, on the general rule under article 2 para. 1.
The Court, thus, confirmed its previous case-law concerning freedom of esablishment and free movement of services, that already assessed that activities performed by companies acting as certifying entities do not fit in the exception established under Article 51 TFEU, because said companies are profit enterprises performing their activities within the realm of competition, with no decision-making power (see also judgment of 16 June 2015, Rina Services and others, C‑593/13, EU:C:2015:399, para. 16-21; 12 December 2013, SOA Nazionale Costruttori, C‑327/12, EU:C:2013:827, para. 50). In the mentioned case law the Court also confirmed that the exam of the financial and technical situation of enterprises undergoing certification, as well as the completeness and authenticity of declarations, certifications and documents by recognized organizations is not to be considered an activity implying decision-making autonomy connected to sovereign powers, as it is performed under the strictest control by the State, besides from being rigorously defined and regulated within the relevant national regulatory framework (cf. judgment SOA Nazionale Costruttori, supra, para. 54, and, by analogy, judgment of 22 October 2009, Commission c. Portugal, C‑438/08, EU:C:2009:651, para. 41; and judgment of 15 October 2015, Grupo Itevelesa and others, C‑168/14, EU:C:2015:685, para. 56). Hence, the Court established that «the immunity from jurisdiction of bodies governed by private law, such as the Rina companies, is not generally recognized with regards to classification and certification operations for ships, where they have not been carried out iure imperii within the meaning of international law», thus entrusting the referring judge with the ultimate decision concerning the actual existence of said circumstances in the case at hand.