Over the years, the RYA has increasingly been asked to provide precise information on the equipment and evidence of competence required for UK registered vessels visiting France. Although we had established what is required under French law we didn't know to what extent French legislation applies to foreign flagged pleasure vessels.

Therefore, with a view to providing members with definitive advice regarding the evidence of competence and equipment required for visiting France the RYA has taken French legal advice. As a result we now have greater clarity, but have established that there simply isn't a definitive answer to this question.

Differing legal systems

Despite the primacy of European Union (EU) legislation, individual Member States have essentially retained their own constitutions and legal systems. Conceptually, the legal systems used in the UK and Ireland (and Cyprus) are different from those used in the rest of the EU and the consequential differences in approach can lead to difficulties when trying to understand how another nation's rules are applied.

France adopted its current constitution in 1958. This constitution was founded on the principle that acts of parliament were the supreme source of law and could not be overturned by the courts. This principle has its origins in the French Revolution, the supporters of which were keen to ensure that the courts could not block its legislative reforms.

Much the same principle applies in the UK, although its origins can be traced back to the English Glorious Revolution of 1688 that served to preserve the Monarchy rather than to overthrow it. This principle was extended to Scotland through the 1707 Acts of Union. As explained on the UK Parliament's website: "Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change."

Principle of parliamentary supremacy eroded

The principle of parliamentary supremacy has its advantages in terms of the application of the law - if every new law were at risk of being held to be inapplicable (in whole or in part) by the courts then there would be much legal uncertainty and the authority of the law could be undermined.

While this principle still holds firm in the UK, in France it has become eroded. In 1971, a case came before the French Constitutional Council in which the Council concluded that the particular legislation in question contravened the preamble to the 1958 constitution and was thus inapplicable. Since then, the ability to refer legislation to the Constitutional Council has been expanded and the procedure is now frequently used by politicians who oppose particular legislative acts.

In addition to challenges to the Constitutional Council, article 55 of the French constitution states that international treaties and agreements that have been ratified by France are superior to legislation. The French courts must refuse to apply legislation which appears to be incompatible with a treaty, whether it was ratified before or after the legislation.

As a consequence, it is not unusual for the French legislature to adopt legislation that the courts cannot or will not enforce because it is unconstitutional . yet the offending legislation nevertheless remains in place. Reading French legislation in isolation does not, therefore, necessarily give the full legal picture.

UNCLOS and Innocent Passage

From a recreational boating perspective, this situation is particularly relevant in the application of the UN Convention on the Law of the Sea 1982 (UNCLOS), which France ratified on 11 April 1996. Various French laws have been introduced in recent years that purport to apply domestic equipment and manning rules to foreign-flagged recreational boats in French waters, even if those boats are on "innocent passage". While UNCLOS does permit some regulation by the coastal state of vessels on innocent passage, article 21 of UNCLOS provides that such regulations "shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards". Since there are few "international rules or standards" applicable to the manning or equipment of small recreational boats, these French laws would appear to be at odds with UNCLOS.

However, to exercise the right of "innocent passage" vessels must undertake a continuous and expeditious passage through Territorial Waters and may not engage in any activity which does not have direct bearing on the passage. This will not be the case for most pleasure vessels cruising within the Territorial Waters of another country and the right of passage ends when the vessel enters Internal Waters. Most pleasure boaters will therefore be under the jurisdiction of the Coastal State while they are in the waters of that State.

What does this really mean?

In the UK, if the vessel were found to have committed an offence under UK law and jurisdiction then it is unlikely that the fact of the vessel's "foreign" flag would provide it with a defence. But in France the principle of sovereignty of the flag state is applied more firmly than in the UK. As a result, it may well be that the French courts would decline to enforce the French domestic equipment and manning rules against foreign-flagged vessels, even those not on innocent passage.

The difficulty is that the owner/skipper of a foreign recreational boat cruising in French waters can't be certain unless they find themselves in a French court, which is not to be recommended in France any more than it is in any other country.

The owner/skipper of a foreign recreational boat in French waters therefore needs to decide whether to "nail the colours to the mast" and be willing to pursue the matter to court should the French authorities attempt to enforce the French domestic rules against them or, alternatively, just to carry the prescribed equipment and evidence of competence.

Equipment

Coastal waters:

Article L5241-2 of the Transport Code refers to foreign-flagged vessels sailing in French territorial waters or Inland waters or calling at a French port thereby applying Division 240 (the French legislation which details safety equipment for pleasure boats up to a hull length of 24m) to foreign flagged vessels.

A summary of the requirements under Division 240 for sea-going vessels (in French) along with English translation of an older version of the French document is also available. On page 3 of this document note (5) relating to VHF says that, "Since 1 January 2017, a fixed VHF radio has been mandatory for semi-offshore navigation. It is no longer obligatory to carry three parachute flares and two smoke flares." These flares were required in addition to 3 hand-held red flares which are still required as detailed on the table on page 2 of the document.  

Members whose permanent or registered address is in France may wish to note the paragraph in the document which, when translated, reads: In French territorial waters, pleasure boats belonging to persons whose permanent or registered address is in France are subject to the same rules on safety equipment and pleasure boat licences as French boats, regardless of which flag they fly (Article 52 of the "Blue Economy Law" No 2016-816 of 20 June 2016).

Inland waters:

Information for Inland Waters is provided in a separate document. It is important to note that regulations for canals, rivers and lake is often more stringent than for coastal waters as the regulations stem from a wider number of sources. The equipment requirements for inland waters are for boat up to 20m in length as long the product of their width x length x draught is less than 100m³. Vessels over 20m in length or 100m³ must meet the requirements of the European Standard laying down Technical Requirements for Inland Navigation vessels (ES-TRIN) and require a Community Inland Navigation Certificate.

Translated summary of requirements for vessels on inland waters