Explanatory Memorandum to COM(2012)129 - Amendment of Directive 2009/16/EC on port State control - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)129 - Amendment of Directive 2009/16/EC on port State control. |
|---|---|
| source | COM(2012)129  |
| date | 23-03-2012 |
The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world.
The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite.
At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force.
The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue.
To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned.
However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities.
This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to:
– move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law;
– ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4]
The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC.
This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC.
As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”.
The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship.
The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the 'fourth pillar' of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention).
It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection.
Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection.
Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers.
The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules.
The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control.
Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States.
As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to:
_ Minimum Age Convention, 1973 (No. 138);
_ Minimum Age (Sea) Convention (Revised), 1936 (No. 58);
_ Minimum Age (Sea) Convention, 1920 (No.
7);
_ Medical Examination (Seafarers) Convention, 1946 (No. 73);
_ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7);
_ Accommodation of Crews Convention (Revised), 1949 (No. 92);
_ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5);
_ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4)
- Seamen's articles of agreement Convention, 1926 (No 22)
- Repatriation of Seamen Convention, 1926 (No 23)
- Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87)
- Right to Organize and Collective Bargaining Convention, 1949 (No 98)
These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC.
The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping.
In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC.
All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken.
ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
1.3.1 Directive 2009/16/EC on Port State control[6]
At EU level, Directive 2009/16/EC aims at helping to drastically reduce substandard shipping by means of:
(a) increasing compliance with international and relevant EU legislation on maritime safety, maritime security, protection of the marine environment and on-board living and working conditions of ships of all flags;
(b) establishing common criteria for inspecting ships by the port State and harmonising procedures on inspection and detention, building upon the expertise and experience under the Paris Memorandum of Understanding (Paris MoU[7]);
(c) implementing within the EU a port State control system based on the inspections performed within the Union and the Paris MoU region, aiming to inspect all ships with a frequency depending on their risk profile, with ships posing a higher risk being subject to a more detailed inspection carried out at more frequent intervals.
Following the agreement between the EU social partners, Directive 2009/13/EC implements certain standards of the MLC within Union law. Its annex, in particular, has incorporated the relevant elements of Titles 1, 2, 3 and 4 of the MLC on the minimum requirements to work on board ships (medical certificate, minimum age, training and qualifications), the conditions of employment (seafarer's employment agreements, repatriation, compensation for the ship's loss or foundering, manning level, career and skill development and opportunities for seafarers' employment), provisions on accommodation, recreational facilities, food and catering, the provisions on health protection, medical care and welfare including the shipowners' liability and access to shore based facilities and lastly the provisions on onboard complaint procedures.
Except as expressly provided otherwise, Directive 2009/13/EC applies to all ships whether publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing or in similar pursuits and ships of traditional build such as dhows and junks.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES
- LEGAL ELEMENTS OF THE PROPOSAL
- 1.1. The Maritime Labour Convention
- 1.2. The MLC Port State control responsibilities
- 1.3 Current EU legislation
- 1.3.2 Directive 2009/13/EC
- 3.1 The content of the Proposal
- 3.1.1 Amendment of the Port State Control Directive
- 3.1.2 Detailed explanations of the proposal
- 3.1.3 Explanatory documents accompanying the notification of transposition measures
- 3.2 Legal basis
- 3.3 Subsidiarity principle
- 3.4 Proportionality principle
- 3.5 Choice of instruments
- 3.6 Entry into force
The EU Member States actively took part in the MLC negotiations together with the Commission which organised the co-ordination of the EU positions. All EU member States adopted the MLC in 2006.
In addition, a fully fledged public consultation offered an opportunity for Member States and stakeholders to express their views in June 2011.
There was a general consensus on the need for updating the legislation related to flag State and port State in order to enforce the MLC requirements.
The specific positive effects which were underlined were reinforcing maritime safety, improving quality shipping, making the conditions of competition fairer between EU and non EU operators and between EU and non EU flags.
Stakeholders also mentioned the better job quality for all seafarers, namely EU seafarers working on board EU flagged vessels, EU seafarers working on board non EU flagged ships, even beyond the EU, for non EU seafarers working on board non EU flagged ships.
The Task Force on Maritime Employment and Competitiveness, an independent body set up by Vice-President Siim Kallas in July 2010, which finalised its work in June 2011 and issued a Report[8] containing policy recommendations on how to promote the seafaring profession in Europe has recommended the enforcement of the MLC.
While Directive 2009/16/EC already refers to MLC (recital 5) and to ILO standards (Annex IV), it needs to be updated to take into account the new documents and arrangements brought in by the MLC.
Thus, the proposal amends the port State control Directive in order to:
- include the maritime labour certificate and the declaration of maritime labour compliance among the documents to be checked by inspectors;
- extend the scope of inspections to new items (for ex, the existence of an adequate labour contract signed by both parties for each seafarer with the required clauses in the contract);
- extend the scope of investigation in case of complaints and foresee the adequate procedure.
Article 1 contains all the amendments to be brought in to Directive 2009/16 in order to align it to the MLC requirements.
A number of articles of the current Directive 2009/16/EC (articles 2;19) and annexes I; IV; V; X needed to be complemented to both make reference to the MLC among the list of international conventions and to mention the new documents deriving from the MLC, namely the maritime labour certificate and the declaration of maritime labour compliance.
On the substance, provisions on handling of complaints have been set up by the MLC with specific procedures to follow and which are slightly different from the provisions of Directive 2009/16 applicable to a wider range of matters than social standards. The objective is not to change the current system of complaint defined in Directive 2009/16 but to complement it by a procedure fitted to the complaints related to the MLC. Thus, specific provisions have been inserted in the proposal (Article 1 (7)).
Besides, there are amendments related to the fact that Directive 2009/16/EC is being amended for the first time after the entry into force of the Treaty of Lisbon; the new rules on delegated and implementing powers needed to be introduced.
Further to Joint Political Declarations (OJ 2011/C 369/02; OJ 2011/C 369/03), the Commission is now considering the need for explanatory documents on a case by case basis. By virtue of proportionality, explanatory documents have not been deemed justified in the present proposal since it modifies only a limited number of legal obligations of an existing directive. Thus, the present proposal does not include the recital on explanatory documents.
Article 100(2) of the Treaty on the Functioning of the European Union
Harmonised rules on enforcement across the EU should contribute to establishing a level playing field in order to both avoid distortions of competition in the internal market at the expense of maritime safety and to ensure decent working and living conditions for all seafarers regardless of their nationality. In particular the experience of port State control at EU level has proved efficient to ensure better surveillance of ships calling at EU ports by pooling resources and exchanging information.
The enforcement of the MLC by means of port State control subject to EU rules appears to be the most effective way of ensuring compliance with that Convention by using existing tools.
In a context of minimum standards to be implemented by Member States by measures in their own national systems and in the field of shared competences, the appropriate instrument is a directive.
This Directive shall enter into force on the date of entry into force of the Maritime Labour Convention, 2006.