28. 3. 88 Official journal of the European Communities No C 8Q/1 
II 
(Preparatory Acts) 
ECONOMIC AND SOCIAL COMMITTEE 
Opinion on the Communication from the Commission to the Council on the United Nations 
Convention on conditions for registration of ships entitled: Proposal for a Council Decision 
on the common position to be adopted by Member States when signing and ratifying the 
United Nations Convention on conditions for the registration of ships 
(88/C 80/01) 
On 12 October 1987 the Council decided to consult the Economic and Social Committee, under 
Article 84 of the Treaty establishing the European Economic Community, on the above-mentioned 
proposal. 
The Section for Transport and Communications, which was responsible for preparing the 
Committee's work on the subject adopted its Opinion on 13 January 1988 in the light of the report 
by Mr Whitworth. 
At its 252nd Plenary Session (meeting of 27 January 1988) the Economic and Social Committee 
adopted the following Opinion by large majority and one abstention. 
1. Introduction and background 
1.1. The history of the United Nations Convention on 
Conditions for the Registration of Ships is both protracted 
and complex. The Convention was adopted, by unanimous 
decision of a United Nations Conference of Plenipoten­
tiaries in February 1986, following a series of detailed 
negotiating conferences (totalling 19 weeks in all), which 
began in 1982. The objective was to develop international 
legislation designed to ensure or strengthen the 'genuine 
link between a State and ships flying its flag' in order to 
permit a flag State 'to exercise effectively its jurisdiction 
and control over such ships with regard to identification 
and accountability of shipowners and operators, as well as 
with regard to administrative, technical, economic and 
social matters'. The Convention applies to all sea-going 
vessels used in international trade above 500 gross tonnes. 
1.2. Very briefly, the main provisions of the Convention 
are designed to: 
(a) set out the responsibilities of national maritime 
administrations regarding a number of matters relating 
to jurisdiction and control over ships registered in the 
flag State; 
(b) require the maintenance of a national register of ships 
and documentation regarding the identity of the owner 
or operators or other accountable persons; (c) specify the degree to which nationals should be required 
to participate in the ownership and/or manning of 
ships; 
(d) define the role of the flag State, including the degree of 
participation by nationals, regarding the management 
of shipowning companies and ships; 
(e) make other more detailed provisions relating to the 
conditions under which ships may be bareboat char­
tered, to joint ventures between shipping companies of 
different countries, and to the protection of the interests 
of labour-supplying countries. 
1.3. The Convention was opened for signature from 1 
May 1986 to end-April 1987 and is now open for accession 
only. It will enter into force 12 months after the date on 
which not less than 40 States, the combined tonnage of 
which amounts to at least 25 % of world tonnage, have 
acceded. So far, only 12 countries with 6,7 % of world 
tonnage have indicated their intention to accede and none 
of these are Member States of the Community. 
1.4. The main focus of the Community position during 
the negotiations in Geneva was the insistence by the 
Commission on a clause designed to ensure compatibility 
between the provisions of the Treaty of Rome on the free 
No C: 80/2 Official Journal of the European Communities 28. 3. 88 
movement of labour and capital with Articles 8 and 9 of the 
Convention (relating to the ownership and manning of 
ships). This proposal was not acceptable to the other 
political groups within the United Nations Conference, nor 
to certain non-Community members of the OECD Group. 
Moreover, at that time, a number of Member States 
themselves considered the Commission's proposal unne­
cessary, provided a proposed Article preventing all 
reservations was excluded from the Convention. This was 
in fact ultimately achieved. After much debate between the 
Commission and the Member States on the subject, 
agreement was reached that Member States could sign the 
Final Act of the Diplomatic Conference without the 
inclusion of a Community clause; and that the country then 
holding the Presidency of the Community should make a 
declaration at the final session of the Conference, 
indicating that Member States could only accede to the 
Convention in conformity with their obligations under the 
Treaty of Rome. This was duly done. 
2. The present proposal 
2.1. Immediately following the adoption of the Conven­
tion, as indicated in paragraph 3 of the Commission's 
communication of 25 September 1986, the Commission 
sent a letter to the Member States restating its view that it 
would be 'contrary to the obligations of the Member States 
under the EEC Treaty for them to sign or ratify the 
Convention without an appropriate reservation'. The 
communication goes on to explain the problem of 
incompatibility between Articles 8 (ownership), 9 (man­
ning), and 10 (role of flag States in management) with the 
specific Articles of the Treaty. The Commission concludes 
that Member States can only comply with their obligations 
under Community law if they make a common reservation 
on signature and ratification. It considers the risk of 
objection by other signatory states, but dismisses it as 
neither serious nor avoidable. 
2.2. Consequently, the Commission proposes that 
Member States shall, when signing and ratifying the 
Convention, make the following reservation: 
'(The Member State concerned) will apply Articles 8, 9 
and 10 in conformity with its obligations under the 
Freaty establishing the European Economic Com­
munity and in particular with those requiring equal 
treatment of the nationals of the Member States of the 
Community.' 
2.3. It is important to note that the Commission does 
not appear to seek to advise on any other aspects of the 
Convention, or indeed on whether individual Member 
States should sign and ratify. The sole questions at issue would appear to be whether — and, if so, in what form — a 
common reservation is necessary. 
3. General comments 
3.1. Nevertheless, the Committee believes that the 
matter should be viewed against the background of that 
part of its Opinion on the Commission Memorandum 
'Progress towards a Common Transport Policy — 
Maritime Transport' adopted at its 237th Plenary Session 
on 21 May 1986 dealing with Open Registers. The relevant 
paragraph of that Opinion reads as follows: 
'The Committee recognizes that flags of convenience 
are not necessarily synonymous with substandard 
operations and believes that all vessels regardless of flag 
should be made subject to more stringent port State 
control. The Committee believes that it is essential that 
greater transparency and accountability of ownership 
of all vessels should be achieved and that the link 
between the flag State and vessels should be tightened, 
thus enabling the flag State to identify ownership and 
financial responsibility and to improve the implemen­
tation of international agreements on safety and social 
standards. 
The Committee notes that the United Nations have 
recently adopted a Convention containing detailed 
requirements for registration of vessels which go some 
way to achieve these objectives.' (') 
3.2. The Committee does not feel it necessary to make a 
value judgement in the context of the current proposal for a 
Council Decision on whether the terms of the Convention 
adequately meet the criteria laid down in its earlier 
Opinion. It notes that the question of accession is a matter 
for individual Member States. However, it is not aware that 
any degree of enthusiasm for accession has been expressed 
within the Community and it notes that some interests at 
least believe that the measures in the Convention designed 
to strengthen the link between the flag State and the vessels 
on its registry are less than adequate. 
3.3. Nevertheless, the objectives of the Convention are 
broadly consistent with those which the Committee 
identified in 1986; and the Convention was the only 
outcome that could be achieved among the various 
positions in the United Nations forum over four years of 
discussion, negotiation and compromise. 
(') OJ No C 207, 18. 8. 1986, p. 31. 
28. 3. 88 Official Journal of the European Communities No C 80/3 
4. Specific comments 
4.1. The reason underlying the Commission's proposal 
for a common reservation is its belief that the provisions of 
Articles 8, 9 and 10 of the Convention (dealing respectively 
with ownership, manning and the role of the flag State in 
respect of management) are incompatible with the 
provisions of the Treaty in regard to non-discrimination on 
the grounds of nationality (Article 7), the free movement of 
workers (Articles 48 to 51), the right of establishment 
(Articles 52 to 58) and the free movement of capital 
(Articles 67 to 73). 
4.2. These are fundamental provisions which lie at the 
root of the whole concept of the Community and it is 
essential that they should be safeguarded. 
4.3. It may be noted in passing that the question of 
incompatibility would not have arisen, had there been in 
existence already a Community instrument governing 
registration issues. 
4.4. However, it is at least arguable that incompatibility 
does not or need not arise. This could well be the case if, on 
the one hand, the nationality provisions in the legislation of 
Member States applicable to the areas covered by the 
Articles of the Convention in question were sufficiently 
broad to be consistent with the relevant Articles of the 
Treaty and, on the other, the provisions of the Convention 
relating to the concepts of nationality and establishment 
may legitimately be applied in accordance with the Articles 
of the Treaty in question. The former is a matter for the 
Member States, while in regard to the latter the Commis­
sion points out in paragraph 7 of its Communication that 
Articles 8, 9 and 10 of the Convention are capable of being 
applied in conformity with Community law (even though 
the Commission believes that this should be achieved by 
means of a reservation). 
4.5. The Committee questions whether it is logical for 
the Commission to argue, as it does, that, on the one hand, 
it is possible for an International Convention to be 
implemented consistently with Community law but that, 
on the other, to do so would be incompatible with 
Community law apparently or otherwise. 
4.6. A broader, but no less relevant, consideration in this 
context is the possible implication external to the 
Community of a common reservation or any other form of 
declaration expressed by Member States at the time of 
accession to the Convention. The Commission admits in 
paragraph 11 of its Communication that there would be a 
risk of objection. In the light of the rejection by other 
groups within the United Nations Conference of a clause 
focussing on the special position of the Community, an 
objection to a common reservation is by no means unlikely. 
The Committee believes that it would be unfortunate for the Community to put itself in a position where its stance in 
relation to the Convention could become a matter for 
objection by other States, and that such a situation should 
be avoided if at all possible. On the other hand, if it were to 
be decided that a reservation were necessary, it might be 
appropriate for the likelihood of objections to be explored 
through diplomatic contacts with non-Community coun­
tries. 
4.7. The Commission has reported that in the course of 
the discussions of its proposal with the Council of 
Ministers' Working Party on Transport questions some 
degree of reticence over the common reservation has been 
expressed by some Member States and it has been suggested 
that it would be sufficient for the Council to make a 
statement — not necessarily linked to the timing of 
accession — to the effect that Member States acceding to 
the Convention would apply the Convention in conformity 
with their obligations under the Treaty. This would be 
totally consistent with the statement made at the final 
session of the United Nations Conference. Further, if the 
Commission is not content to leave the manner of 
implementation to Member States, it could give some form 
of guidance to them on this subject. 
5. Conclusions 
5.1. Although the Convention goes some way to meet 
the objectives in regard to Open Registers identified by the 
Committee in 1986, opinions do differ about the adequacy 
or otherwise of certain of its more important provisions. 
5.2. The points at issue in the context of the Com­
mission's communication — incompatibility between the 
Convention and the Treaty and the necessity or otherwise 
of a common formal reservation — are essentially of a 
relatively narrow legal nature. In the final analysis they are 
for determination on legal advice and it is important that 
the Commission should reach a definitive position in this 
respect. Nevertheless, the element of incompatibility is 
questionable and the risk of objection to a Community 
reservation is apparent. 
5.3. Further, the Committee considers that there is a 
degree of inconsistency between the Commission's con­
tinued insistence on a common reservation and the fact that 
the Member States unanimously supported the adoption of 
the Convention in 1986 without the inclusion of a 
Community clause. 
No C 80/4 Official Journal of the European Communities 28. 3. 88 
qualification in this respect should, however, be expressed 
in the minimum terms necessary to register this overriding 
obligation, and for that purpose alone. 
The Chairman 
of the Economic and Social Committee 
Alfons MARGOT 
Opinion on the proposal for a Council Directive amending for the ninth time Directive 
73/241/EEC on the approximation of the laws of the Member States relating to cocoa and 
chocolate products intended for human consumption (]) 
(88/C 80/02) 
On 15 January 1988 the Council decided to consult the Economic and Social Committee, under 
Article 100 A of the Treaty establishing the European Economic Community, on the above-
mentioned proposal. 
The Section for Agriculture and Fisheries, which was responsible for preparing the Committee's 
work on the subject, adopted its Opinion on 7 January 1988 in the light of the oral report by Mr 
Gardner. 
At its 252nd Plenary Session (meeting of 27 January 1988) the Economic and Social Committee 
adopted the following Opinion unanimously: 
1. The Committee approves the proposal. 
2. It regards this as a holding measure to safeguard the use of 'chocolate a la taza' and 'chocolate 
familiar a la taza' in Spain. 
3. The Commission should regulate the matter in a permanent manner as soon as possible. 
4. The product will need to comply with the provisions of the labelling Directive (79/112/EEC) 
particularly for the ingredient list, the appropriate designation in other countries and the conditions 
of use. 
Done at Brussels, 27 January 1988. 
The Chairman 
of the Economic and Social Committee 
Alfons MARGOT 5.4. On the substance of the matter, there can be no 
question that all Member States acceding to the Conven­
tion must apply its provisions in a manner consistent with 
their obligations under the Treaty. The form of any 
Done at Brussels, 27 January 1988. 
(!) OJ NoC 16, 21.1.1988, p. 11.