Registration of European Yachts and the Treaty of Free Intermittently Movement
“Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.” − United Nations Convention on the Law of the Sea, art. 90
The Schengen Convention is a set of rules integrated into European Union law, whose objective is to promote the free movement of citizens and the fight against organized crime within the “Schengen Area”, through the abolition of the checks on persons at internal borders between participating States and the establishment of a common control system at external borders. The external border of the Schengen area (80% maritime and 20% terrestrial) is more than 50,000 km long and includes hundreds of airport, maritime and land border crossings.
Many European states have ratified the Montego Bay convention, and it has become possible for a European citizen to register their pleasure yachts in the register of any EU member state, allowing navigation of the unit even in international waters, without any limit from the coast.
On the basis of these premises, until the summer of 2018, the naval registers of Belgium and the Netherlands allowed EU citizens to register their yachts in these two countries without being residents in the territory (other states such as Malta, for example, requires a resident agent in the area of registration, or a domicile).
There is no need for a yacht safety certification, there is no possibility of inspections by certification bodies, the minimal equipment on board is established on the basis of common sense of the Captain, and there are advantages also on the sale of a boat with a Belgian or Dutch flag, because in many countries it is not required to register the deed with the Revenue Authority, saving quite a bit of money.
The advantages in registering with the Belgian or Dutch flag are also attributable to a considerable reduction in costs and time, thanks to an extremely streamlined bureaucratic system and to the management costs of annual fees for the truly economic navigation license (Lettre de Pavillon), with costs ranging from 30 to 50 euros a year.
This yacht registration system was brutally stopped following the events of Thursday 21 June 2018, when the Lifeline ship rescued hundreds of migrants off the coast of Libya, then headed for Italy, where the ship was rejected by the Italian authorities .
Lifeline is a SAR (Search And Rescue) ship owned by the German NGO Mission Lifeline, and, as in the case of the SeaWatch ships, which have been talked about a lot these last months, they all used to sail under the flag of the Netherlands.
Claiming that their ship had Dutch nationality, NGOs claim that migrants were already in European territory. Italy, in response, claiming that the ship was flying the Dutch flag, supported the thesis that the Lifeline should have sailed towards its port of armament, and for this reason disembarked migrants in Holland, and not in Italy. However, the Dutch government reacted immediately by stating that the Lifeline ship was not registered in the Netherlands.
The NGO was convinced that it was in good standing with the registration for its ship, which was registered, like thousands of other boats in Europe, at the Watersport Verbond association, recognized by the Dutch Ministry of Infrastructure and Water Management, and that it was authorized by the same ministry to the certification of the property, but did not attribute the right to “fly the Netherland flag” according to the provisions of art. 94 of the Montego Bay Convention, although the certificate included “flag: Dutch”, and numerous nautical agencies proposed this registration as perfectly regular. In fact, the ICP certificate has been well known for years and has always been accepted by European and non-European ports and customs authorities.
While in Italy there was lively discussion about where the Lifeline should dock, in the Dutch Parliament questions were raised and in less than a week the maritime affairs department of the Dutch Ministry of Infrastructure and Water Management modified the legislation related to the Dutch ICP, making in fact the wording regarding the flag “not applicable”:
“Prior to issue of this document ownership has been rendered credible. This certificate is valid only as long as the particulars have not changed. In case of change, it must be returned to the issuing organization for amendment.
This document can not be interpreted as giving Dutch nationality to the craft, nor does it constitute the right to fly the flag of the Kingdom of the Netherlands as defined by Article 9 of the United Nations Convention on the Law of the Sea (UNCLOS). Consequently the Kingdom of the Netherlands does not accept any of the responsibilities listed in article 94 of UNCLOS” – Dutch ICP issued by Watersport Verbond
The European citizens who are in possession of the old ICP falled into a state of uncertainty from which it was complex to see the light. The modification has no retroactive value, consequently, the units registered before the intervention of the Ministry of Infrastructure, will have no problems until the two-year renewal, when the new ICP will be released with the wording “flag: not applicable”.
In the meantime, however, it will be necessary to cancel the Dutch ICP and register the unit with some other national yacht registry.
Many have thought of Belgium, but even this country has followed the choice of Holland.
Due to the upcoming elections in Belgium, the ministry has not yet “turned off the taps” on registrations. This means that if the Lettre de Pavillon is renewed now, yacht owners will have the right to fly the Belgian flag for 5 years. However, what will happen after the Belgian elections is uncertain:
Case 1) if registrations will be stopped, those already in progress will not be canceled because the laws cannot be retroactive.
Case 2) as anticipated in the Belgian Official Gazette (available here), from the next elections it could be mandatory that the boat is registered at least 50% to a Belgian citizen or that the owner takes a residence (also fictitious through a resident agent to payment) in Belgium.
Case 3) Belgium could revise the law and retrace its steps, but as far as is known, the law is only waiting to be applied.
The Belgian registration is then a way still viable, but in 5 years could the problem recur, so the Belgian flag from this point of view not by large guarantees I think in the long term, and I would not feel to advise, unless some people would want to spend a lot of money every few years for the change of registration.
Non-European flags, on the other hand, are subject to being able to stay a minimum time in European waters, and then having to do the exit procedure, and possibly a new entry. Penalty, payment of VAT on import. For European boaters, in addition to returning to their national registers, and their bureaucratic complications, the best choice for those who decide to stay with the EU yacht registers, at the time, seemed to be the Maltese registration, but, among the cost of managing the file, the survey technical, and the payment of a resident agent, this last flag is worth only to the big yachts.
However, there are other European countries that offer through the agency the possibility of registering the yachts in regular registers and with regular navigation licenses worldwide recognized and regular MMSI: for more information, you can write me at the email address email@example.com.
“For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.” − Nelson Mandela
Written by Claudio Fadda