Crackdown on foreign flags in the nautical industry: doubts about the legitimacy of the new Article 26-ter
From Studio Zunarelli an analysis of the norm of the Nautical Code aimed at environmental protection highlights problems of compatibility with EU law and international treaties
The inclusion of Article 26-ter in Legislative Decree 171/2005, introduced by Law No. 70 of 7 May 2026, has sparked debate among industry professionals and maritime law experts due to the potential significant bureaucratic and economic repercussions.
Although the provision was formally included under the heading "Prevention of environmental damage," its actual objectives appear to be moving in a different direction. As highlighted by lawyer Alberto Pasino of the Zunarelli Law Firm, the legislator's stated intent is actually to combat the phenomenon of so-called 're-flagging,' the widespread tendency among many Italian shipowners to register their vessels in foreign countries to benefit from more streamlined tax, administrative, or control regimes.
The law introduces strict restrictions for pleasure craft up to 24 meters flying a foreign flag, if they are owned by Italian citizens or companies with registered offices in Italy, and are sailing or docked in Italian waters. These vessels are required to demonstrate their seaworthiness through certificates issued by the flag state or, alternatively, by undergoing a preliminary inspection by an Italian notified technical body for the issuance of a certificate valid for five years.
According to Pasino, this introduction highlights a series of critical legal issues that risk undermining the stability of the regulation at the international and European level, affecting the CE marking, the principle of non-discrimination, and maritime law.
Specifically, the technical analysis conducted by Studio Zunarelli highlights that European Directive 2013/53/EU establishes the principle that the CE marking has the same certification value in every Member State, uniformly ensuring safety, consumer protection, and environmental protection. While the directive itself allows states to restrict navigation in certain areas for specific environmental protection reasons, such measures must meet the criteria of necessity and proportionality. However, it is doubtful whether such proportionality exists: Port Authorities already carry out checks on navigation safety, while Article 26-ter introduces a generalized preventive obligation that could increase costs and bureaucracy without real benefits.
The second weakness lies in the principle of non-discrimination enshrined in the Treaty on the Functioning of the European Union. The new provision does not apply indiscriminately to all foreign-flagged vessels in Italian waters, but rather affects only those owned by Italian residents or companies. This asymmetry risks constituting indirect discrimination based on the owners' nationality or residence.
Finally, the conflict with international maritime law: the established case law of the Court of Justice of the European Union has reaffirmed that the flag State has exclusive jurisdiction to verify and ensure the seaworthiness of a vessel. The port State cannot therefore require certifications other than those already issued by the vessel's original registry.
If these critical issues were confirmed, the law could also be exposed to questions of constitutionality, in addition to creating a further burden for a strategic sector like recreational boating, concludes the note from Studio Zunarelli.
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