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
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 139(2) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
Management and labour, hereinafter referred to as ‘the social partners’, may, in accordance with Article 139(2) of the Treaty, request jointly that agreements concluded by them at Community level be implemented by a Council decision on a proposal from the Commission.
(2)
On 23 February 2006, the International Labour Organisation adopted the Maritime Labour Convention, 2006, desiring to create a single, coherent instrument embodying as far as possible all up-to-date standards of existing international maritime labour Conventions and Recommendations, as well as the fundamental principles to be found in other international labour conventions.
(3)
The Commission has consulted management and labour, in accordance with Article 138(2) of the Treaty, on the advisability of developing the existing Community acquis by adapting, consolidating or supplementing it in view of the Maritime Labour Convention, 2006.
(4)
On 29 September 2006 the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) informed the Commission of their wish to enter into negotiations in accordance with Article 138(4) of the Treaty.
(5)
On 19 May 2008, the said organisations wishing to help create of a global level playing field throughout the maritime industry, concluded an Agreement on the Maritime Labour Convention, 2006, hereinafter referred to as ‘the Agreement’. This Agreement and its Annex contain a joint request to the Commission to implement them by a Council decision on a proposal from the Commission, in accordance with Article 139(2) of the Treaty.
(6)
The Agreement applies to seafarers on board ships registered in a Member State and/or flying flag of a Member State.
(7)
The Agreement amends the European Agreement on the organisation of working time of seafarers concluded in Brussels on 30 September 1998 by the European Community Shipowners’ Associations (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST).
(8)
For the purpose of Article 249 of the Treaty, the appropriate instrument for implementing the Agreement is a directive.
(9)
The Agreement will enter into force simultaneously with the Maritime Labour Convention, 2006, and the social partners wish the national measures implementing this Directive to enter into force not earlier than on the date of entry into force of the said Convention.
(10)
For any terms used in the Agreement and which are not specifically defined therein, this Directive leaves Member States free to define them in accordance with national law and practice, as is the case for other social policy Directives using similar terms, provided that those definitions respect the content of the Agreement.
(11)
The Commission has drafted its proposal for a Directive, in accordance with its Communication of 20 May 1998 on adapting and promoting the social dialogue at Community level, taking into account the representative status of the signatory parties and the legality of each clause of the Agreement.
(12)
The Member States may entrust management and labour, at their joint request, with the implementation of this Directive, as long as the Member States take all the necessary steps to ensure that they can at all times guarantee the results imposed by this Directive.
(13)
The provisions of this Directive should apply without prejudice to any existing Community provisions being more specific and/or granting a higher level of protection to seafarers, and in particular those included in Community legislation.
(14)
Compliance with the general principle of employer responsibility as provided for in Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (1), and in particular in its Article 5(1) and (3), should be ensured.
(15)
This Directive should not be used to justify a reduction in the general level of protection of workers in the fields covered by the Agreement annexed to it.
(16)
This Directive and the Agreement lay down minimum standards. The Member States and/or the social partners should be able to maintain or introduce more favourable provisions.
(17)
The Commission has informed the European Parliament and the European Economic and Social Committee, in accordance with its communication of 14 December 1993 concerning the application of the Agreement on Social Policy, by sending them the text of its proposal for a Directive containing the Agreement.
(18)
This instrument complies with the fundamental rights and principles set out in the Charter of Fundamental Rights of the European Union and in particular with Article 31 thereof which provides that all workers have the right to healthy, safe and dignified working conditions, to a limit on their maximum working time and to weekly and daily rest periods and an annual period of paid leave.
(19)
Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(20)
In accordance with paragraph 34 of the Interinstitutional Agreement on better law-making (2), Member States will be encouraged to draw up, for themselves and in the interest of the Community, their own tables which will, as far as possible, illustrate the correlation between this Directive and the transposition measures and to make them public.
(21)
Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST) (3) containing the European Agreement on the organisation of working time of seafarers in its Annex should therefore be amended accordingly.
(22)
The implementation of the Agreement contributes to achieving the objectives under Article 136 of the Treaty,
HAS ADOPTED THIS DIRECTIVE:
Article 1
This Directive implements the Agreement on Maritime Labour Convention, 2006, concluded on 19 May 2008 between the organisations representing management and labour in the maritime transport sector (European Community Shipowners’ Associations, ECSA and European Transport Workers’ Federation, ETF) as set out in the Annex.
Article 2
The Annex to Council Directive 1999/63/EC is amended as follows:
1.
in Clause 1, the following point 3 shall be added:
‘3.
In the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Agreement, the question shall be determined by the competent authority in each Member State after consultation with the shipowners’ and seafarers’ organisations concerned with this question. In this context due account shall be taken of the Resolution of the 94th (Maritime) Session of the General Conference of the International Labour Organisation concerning information on occupational groups.’;
2.
in Clause 2, points (c) and (d) shall be replaced by the following:
‘(c)
the term “seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Agreement applies;
(d)
the term “shipowner” means the owner of the ship or another organisation or person, such as the manager, agent or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Agreement, regardless of whether any other organisation or persons fulfil certain of the duties or responsibilities on behalf of the shipowner.’;
3.
Clause 6 shall be replaced by the following:
‘1.
Night work of seafarers under the age of 18 shall be prohibited. For the purposes of this Clause, “night” shall be defined in accordance with national law and practice. It shall cover a period of at least nine hours starting no later than midnight and ending no earlier than 5 a.m.
2.
An exception to strict compliance with the night work restriction may be made by the competent authority when:
(a)
the effective training of the seafarers concerned, in accordance with established programmes and schedules, would be impaired; or
(b)
the specific nature of the duty or a recognised training programme requires that the seafarers covered by the exception perform duties at night and the authority determines, after consultation with the shipowners’ and seafarers’ organisations concerned, that the work will not be detrimental to their health or well-being.
3.
The employment, engagement or work of seafarers under the age of 18 shall be prohibited where the work is likely to jeopardise their health or safety. The types of such work shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organisations concerned, in accordance with relevant international standards.’;
4.
Clause 13 shall be replaced by the following:
‘1.
Seafarers shall not work on a ship unless they are certified as medically fit to perform their duties.
2.
Exceptions can only be permitted as prescribed in this Agreement.
3.
The competent authority shall require that, prior to beginning work on a ship, seafarers hold a valid medical certificate attesting that they are medically fit to perform the duties they are to carry out at sea.
4.
In order to ensure that medical certificates genuinely reflect seafarers’ state of health, in light of the duties they are to perform, the competent authority shall, after consultation with the shipowners’ and seafarers’ organisations concerned, and giving due consideration to applicable international guidelines, prescribe the nature of the medical examination and certificate.
5.
This Agreement is without prejudice to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended (STCW). A medical certificate issued in accordance with the requirements of STCW shall be accepted by the competent authority, for the purpose of points 1 and 2 of this Clause. A medical certificate meeting the substance of those requirements, in the case of seafarers not covered by STCW, shall similarly be accepted.
6.
The medical certificate shall be issued by a duly qualified medical practitioner or, in the case of a certificate solely concerning eyesight, by a person recognised by the competent authority as qualified to issue such a certificate. Practitioners must enjoy full professional independence in exercising their medical judgement in undertaking medical examination procedures.
7.
Seafarers that have been refused a certificate or have had a limitation imposed on their ability to work, in particular with respect to time, field of work or trading area, shall be given the opportunity to have a further examination by another independent medical practitioner or by an independent medical referee.
8.
Each medical certificate shall state in particular that:
(a)
the hearing and sight of the seafarer concerned, and the colour vision in the case of a seafarer to be employed in capacities where fitness for the work to be performed is liable to be affected by defective colour vision, are all satisfactory; and
(b)
the seafarer concerned is not suffering from any medical condition likely to be aggravated by service at sea or to render the seafarer unfit for such service or to endanger the health of other persons on board.
9.
Unless a shorter period is required by reason of the specific duties to be performed by the seafarer concerned or is required under STCW:
(a)
a medical certificate shall be valid for a maximum period of two years unless the seafarer is under the age of 18, in which case the maximum period of validity shall be one year;
(b)
a certification of colour vision shall be valid for a maximum period of six years.
10.
In urgent cases the competent authority may permit a seafarer to work without a valid medical certificate until the next port of call where the seafarer can obtain a medical certificate from a qualified medical practitioner, provided that:
(a)
the period of such permission does not exceed three months; and
(b)
the seafarer concerned is in possession of an expired medical certificate of recent date.
11.
If the period of validity of a certificate expires in the course of a voyage, the certificate shall continue in force until the next port of call where the seafarer can obtain a medical certificate from a qualified medical practitioner, provided that the period shall not exceed three months.
12.
The medical certificates for seafarers working on ships ordinarily engaged on international voyages must as a minimum be provided in English.
13.
The nature of the health assessment to be made and the particulars to be included in the medical certificate shall be established after consultation with the shipowners’ and seafarers’ organisations concerned.
14.
All seafarers shall have regular health assessments. Watchkeepers suffering from health problems certified by a medical practitioner as being due to the fact that they perform night work shall be transferred, wherever possible, to day work to which they are suited.
15.
The health assessment referred to in points 13 and 14 shall be free and comply with medical confidentiality. Such health assessments may be conducted within the national health system.’;
5.
Clause 16 shall be replaced by the following:
‘Every seafarer shall be entitled to paid annual leave. The annual leave with pay entitlement shall be calculated on the basis of a minimum of 2,5 calendar days per month of employment and pro rata for incomplete months. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’.
Article 3
1. Member States may maintain or introduce more favourable provisions than those laid down in this Directive.
2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields covered by this Directive. This shall be without prejudice to the rights of Member States and/or management and labour to lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this Directive, provided always that the minimum requirements laid down in this Directive are complied with.
3. The application and/or interpretation of this Directive shall be without prejudice to any Community or national provision, custom or practice providing for more favourable conditions for the seafarers concerned.
4. The provision of Standard A4.2 point 5(b) shall not affect the principle of responsibility of the employer as provided for in Article 5 of Directive 89/391/EEC.
Article 4
Member States shall determine what penalties are applicable when national provisions enacted pursuant to this Directive are infringed. The penalties shall be effective, proportionate and dissuasive.
Article 5
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive or shall ensure that management and labour have introduced the necessary measures by agreement, not later than 12 months after the date of entry into force of this Directive.
2. When Member States adopt provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. They shall forthwith communicate to the Commission the text of those provisions.
3. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 6
The application of the principle of substantial equivalence mentioned in the preamble of the Agreement is without prejudice to the obligations of the Member States emanating from this Directive.
Article 7
This Directive shall enter into force on the date of entry into force of the Maritime Labour Convention, 2006.
Article 8
This Directive is addressed to the Member States.
Done at Brussels, 16 February 2009.