(A)

Does the scope of Directive 2009/16/EC (1) include — and if so, can port State control (PSC) be exercised against — a ship which has been classified as a cargo ship by the classification society of the flag State but which in practice routinely engages only in non-commercial activities such as search and rescue (SAR) (as in the case of [Sea Watch E.V.] and SW4 [the vessel Sea Watch 4] on the basis of its statute)?

If the Court … should find … that the scope of Directive 2009/16/EC also includes ships [that are not actually engaged in trade], does the national legislation enshrined in Article 3 of [Legislative Decree] No 53/2011, which transposed Article 3 of Directive 2009/16/EC but in Article [3(1) of that legislative decree] instead expressly limits the scope of PSC to ships used for commercial purposes, excluding not only pleasure craft but also cargo ships that are not actually engaged in — and so are not used for — trade, represent an obstacle to the directive interpreted thus?

Lastly, can the Court reasonably consider that cargo ships which routinely carry out SAR activities for persons in distress at sea fall within the scope of the directive, in so far as it includes passenger ships, following the amendments made in 2017, thereby equating the carriage of persons rescued at sea because their lives are in danger with passenger transport?

(B)

Does the fact that the ship transported a far greater number of people than the number indicated in the safety equipment certificate, albeit as a result of SAR activities, or otherwise holds a safety equipment certificate covering far fewer persons than the number actually carried, mean that the overriding factors listed in Annex I, Part II 2A or the unexpected factors listed in Annex I, Part II 2B, as referred to in Article 11 of Directive 2009/16/EC, can duly apply to it?

(C)

Can and/or should the power to conduct a more detailed PSC inspection under Article 13 of Directive 2009/16/EC of ships flying the flag of Member States also include the power to ascertain which activities are carried out in practice by the ship, irrespective of those for which the class certificate and the consequent safety certificates were issued by the flag State and the relevant classification society, and therefore the power to ascertain that the ship is in possession of the certificates and, in general, fulfils the criteria and/or requirements laid down in international standards on safety, pollution prevention and on-board living and working conditions and, if so, may that power also be exercised against a ship which in practice routinely engages in SAR activities?

(D)

How is Regulation 1(b) [rectius Article 1(b)] of the SOLAS Convention — which is specifically referred to in Article 2 of Directive 2009/16/EC and for which a consistent EU interpretation is, therefore, necessary for the purposes of and in the context of PSC — to be interpreted in so far as it provides that ‘(b) The Contracting Governments undertake to promulgate all laws, decrees, orders and regulations and to take all other steps which may be necessary to give the present Convention full and complete effect, so as to ensure that, from the point of view of safety of life, a ship is fit for the service for which it is intended’? More specifically, regarding the ship’s fitness for the service for which it is intended, which the port States are required to assess by means of PSC inspections, are the requirements imposed in the light of the classification and the relevant safety certificates held, which were obtained on the basis of the theoretical activity declared, to be used as the sole assessment criterion, or may regard also be had to the service that the ship actually provides?

Accordingly, with regard to the abovementioned international criterion, do the administrative authorities of port States have the power not only to ascertain the compliance of the equipment and appliances on board with the requirements of the certificates issued by the flag State, based on the theoretical classification of the ship, but also to assess the conformity of the ship’s certificates and the related equipment and appliances on board in the light of the activity carried out in practice, which is different from the one stated in the classification certificate?

The same points must be made for paragraph 1.3.1 of International Maritime Organisation (IMO) Resolution A.1138(31) — Procedures for Port State Control, 2019, adopted on 4 December 2019, in so far as it provides that ‘Under the provisions of the relevant conventions set out in section 1.2 above, the Administration (i.e. the Government of the flag State) is responsible for promulgating laws and regulations and for taking all other steps which may be necessary to give the relevant conventions full and complete effect so as to ensure that, from the point of view of safety of life and pollution prevention, a ship is fit for the service for which it is intended and seafarers are qualified and fit for their duties.’

(E)

Lastly, were it to be confirmed that the port State has the power to ascertain the possession of the certificates and the fulfilment of the criteria and/or requirements on the basis of the activity for which the ship is specifically intended: