EN Official Journal of the European Union C 299/153

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and the Council amending Directive 2009/16/EC on port State control’

COM(2012) 129 final — 2012/62 (COD)

and the ‘Proposal for a Directive of the European Parliament and the Council concerning flag State responsibilities for the enforcement of Council Directive 2009/13/EC 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’

COM(2012) 134 final — 2012/65 (COD)

2012/C 299/28

Rapporteur: Dr BREDIMA

On 29 March the European Parliament and on 11 April 2012 the Council decided to consult the European Economic and Social Committee, under Article 100, paragraph 2, of the Treaty on the Functioning of the European Union, on the

Proposal for a Directive of the European Parliament and the Council amending Directive 2009/16/EC on port State control

COM(2012) 129 final — 2012/62 (COD)

and the

Proposal for a Directive of the European Parliament and the Council concerning flag State responsibilities for the enforcement of Council Directive 2009/13/EC 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

COM(2012) 134 final — 2012/65 (COD).

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 25 June 2012.

At its 482nd plenary session, held on 11 and 12 July 2012 (meeting of 11 July), the European Economic and Social Committee adopted the following opinion by 141 votes with 6 abstentions.

1. Conclusions

1.1 The Maritime Labour Convention (MLC) 2006 of the International Labour Organization (ILO) is the first Maritime Labour Code internationally characterised as the "Fourth Pillar" of the leading maritime conventions. The EESC welcomes the proposals aimed at establishing the necessary procedures to ensure its effective implementation by EU Member States acting both as flag States and port States.

1.2 The MLC – the Seafarers' Bill of Rights – aims at ensuring comprehensive worldwide protection of the rights of seafarers and establishing a level playing field for countries and shipowners committed to providing decent working and living conditions and protecting them from unfair competition from substandard ships.

1.3 The EESC reiterates its earlier calls urging the EU to prompt the ratification efforts of the MLC by its Member States. It subscribes to the overarching policy that the EU regulations on labour conditions need to be in line with international regulations, such as the MLC, without prejudice to any higher standards that may exist in the EU.

1.4 The EESC notes that the inspection of living and working conditions of seafarers on board ships requires sufficient numbers of inspectors with enhanced skills. EMSA and the Paris Memorandum of Understanding on Port State Control (MOU) are asked to boost the proper training of inspectors in order to enable them to carry out the MLC control functions by the time the Convention enters into force.

1.5 There may be areas where the current EU Directive 2009/16 and the MLC (and the associated ILO guidelines on port State control) may differ in scope or procedures. The EESC believes that there will be a need to streamline the control and enforcement procedures under both instruments by expanding the implementing powers conferred on the European Commission.

1.6 Compliance and enforcement of the structural requirements for seafarer accommodation, especially in specific sectors of the maritime industry, will pose significant challenges. Port State Control officers should acknowledge flag State provisions regarding equivalent provisions and sanctions of derogations and exemptions, as reflected in the Declarations of Maritime Labour Compliance.

1.7 Some flexibility is necessary when inspecting smaller ships in domestic voyages – in contrast to large ships engaged in international voyages – and guidance through the proposed delegated acts will be needed for the evaluation of deficiencies for further actions.

1.8 The EESC believes that the proposed procedures for port State control officers dealing with complaints related to the MLC that cannot be resolved on board should include a second stage of referring complaints to the shipowner, for due action on his part. This step is consistent with the MLC procedures.

1.9 The EESC asks the European Commission to ensure that the enforcement in third countries of future EU legislation on Labour Supplying States (LSS) will be consistent with the spirit and terms of the MLC.

1.10 The broad definition of "seafarer" could include various personnel on board ships that could be construed as seafarers. The EESC believes that Member States should acknowledge the ILO clarification and associated guidelines when implementing and enforcing the MLC and that the prerogative of flag States to make determinations on this matter should be respected.

1.11 Since the proposed Directive on flag State responsibilities is not precise enough as regards the possibility of the administration delegating the tasks of carrying out inspections or of issuance of certificates to recognised organisations, the EESC assumes that Member States will be able to do so through their transposition acts.

2. Introduction

2.1 The Maritime Labour Convention (MLC) 2006 adopted by the International Labour Organization (ILO) on 23 February 2006 aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers.

2.2 The Convention, called the "Seafarers' Bill of Rights", was designed to achieve near universal ratification due to its blend of firmness on rights and flexibility with respect to implementation of the more technical requirements and due to the advantages granted to the ships of countries that ratify it. It is the fourth pillar of the international regulatory regime for quality shipping, complementing the key Conventions of the International Maritime Organization (IMO), i.e. the International Convention for the Safety of Life at Sea (SOLAS) 1974, the International Convention on Standards of Training, Certification and Watchkeeping (STCW) 1978, and the International Convention for the Prevention of Pollution from Ships (MARPOL) 73/78. It seeks to ensure comprehensive worldwide protection of the rights of seafarers and to establish a level playing field for countries and shipowners committed to providing decent working and living conditions for seafarers, protecting them from unfair competition from substandard ships.

2.3 The MLC minimum standards must be implemented by all countries that ratify it through national standards or requirements. Its enforcement and compliance system needs widespread international cooperation in order to be effective. Since several obligations under the Convention are directed to shipowners and flag states it is important that states with a strong maritime interest ratify the Convention.

3. Summary of the Commission’s proposals

3.1 The proposals underline that Member States and the Commission supported the ILO work for the adoption of the MLC. The EU's keen interest in the entry into force of the Convention has been shown with the Decision 2007/431/EC (1) authorising Member States to ratify the Convention in the interest of the EU.

3.2 The Commission stresses the importance of the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention 2006, endorsed with the Directive 2009/13/EC (2). This Directive has brought European legislation into line with the international standards fixed by the MLC.

3.3 The proposals for a Directive amending Directive 2009/16/EC on port State control (3) and for a Directive concerning flag state responsibilities for the enforcement of Directive 2009/13/EC 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 (4) seek to promote EU policy on maritime professions through the implementation of the MLC 2006. The current initiatives are aimed at establishing the necessary mechanism and procedures to ensure full and effective implementation of the MLC by Member States acting both as flag and port States. Both Directives will enter into force on the date of entry into force of the MLC 2006, allowing for a 12 months period of transposition.

3.4 The proposals to amend the port State control Directive (2009/16/EC): — 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 (e.g. 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 provide for an adequate procedure; and — introduce the new rules on delegated and implementing powers following the entry into force of the Treaty of Lisbon.

3.5 The proposed new Directive on flag State responsibilities: — lays down the obligation for EU flag States to establish mechanisms in order to meet their responsibilities in enforcing Directive 2009/13/EC, — stipulates the professional qualifications and independence of the staff in charge of verifying the matters covered by Directive 2009/13/EC, and — lays down the principles and procedure to be followed by the flag States' competent staff in dealing with complaints on board EU flagged ships.

4. General comments

4.1 The EESC subscribes to the overarching policy that the EU legislation on labour conditions needs to be fully in line with international legislation such as the MLC and the STCW Convention, without prejudice to any higher standards that may exist in the EU.

4.2 The EESC notes that MLC 2006 is not yet binding under international law and relies on implementation by States through their national laws. The ILO guidelines for flag State and port State inspections underline that in all cases, the relevant national laws or regulations or collective bargaining agreements or other measures implementing the MLC in the flag State should be viewed as the authoritative statement of the requirements in the flag State. Furthermore, they recall the flexibility in the implementation of the MLC, namely through national substantial equivalence and the discretion afforded to flag States in their precise implementation measures. Therefore, there will be a need for common interpretation and enforcement of the MLC by EU Member States and by non-EU countries.

4.3 The EESC acknowledges that the adoption of Directive 2009/13/EC implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the MLC 2006 constitutes an outstanding achievement of sectoral social dialogue that should be effected with tangible results. The biggest challenge would be the elimination of causes of seafarer fatigue by control of hours of work and rest.

4.4 The EESC would draw attention to its opinions: — on the Maritime Safety Package No III (5) in which it supported efforts to identify how best to transpose the MLC into EU law. It urged the EU to give a strong boost to ratification efforts of the MLC by promoting ratification by European Economic Area countries and third countries with which there are economic cooperation agreements; — on the EU's maritime policy until 2018 (6) whereby it urged "Member States to ratify the 2006 ILO MLC that will create a level playing field on ships’ conditions and contribute to attracting youngsters to a seafaring career"; — on the Strengthening of Maritime Labour Standards (7) urging EU Member States to ratify the MLC as soon as possible and recommending the development of operational guidelines for flag and port States.

4.5 The EESC would also highlight its opinion on the White Paper on the Single European Transport Area (8) where it noted that "EU Member States are urged to ratify the MLC of ILO to have a level playing field internationally without prejudice to any higher standards that may exist in the EU. EU legislation should be completely in line with international legislation, particularly the MLC, and the Convention on ‧Standards of Training, Certification and Watchkeeping for Seafarers‧ (STCW) of the IMO".

4.6 The proposals meet the stakeholders' expectations as to reinforcing maritime safety, improving shipping quality and establishing fairer conditions of competition between EU and non EU operators and -U flags. Hence, the EESC supports the principle of enforcing the MLC by enhancing EU legislation. The EU action will be conducive to the aims of the Task Force on Maritime Employment and Competitiveness set up by Vice-President Kallas that has recommended the enforcement of the MLC (June 2011).

5. Specific comments

Amendments to Directive 2009/16/EC on port State control

5.1 The EESC believes that the scope of delegated and implementing powers conferred to the Commission should be both expanded to determine in detail harmonised modalities of putting into effect the port State control procedures for the inspection of ships under the terms of the MLC, taking into account the pertinent ILO Guidelines, and streamlined with the scope and procedures of Directive 2009/16.

5.2 The EESC opinion on the Maritime Safety Package No III (9) welcomed "the inclusion of inspection of the working conditions on board, since the human factor often plays an important role in maritime accidents. Inspection of seamen’s on board living and working conditions requires sufficient number of inspectors with enhanced skills in this area". Therefore, proper training of inspectors will be necessary to enable them to carry out the MLC control by the time the Convention enters into force. The EESC calls the European Maritime Safety Agency (EMSA) and the Paris MOU to boost the training of inspectors for MLC purposes.

5.3 The EESC notes that under Article 13(c) of Directive 2009/16/EC on port State control "on each initial inspection of a ship, the competent authority shall ensure that the inspector satisfies himself of the overall condition of the ship, including the hygiene of the ship, including engine room and accommodation". However, according to the ILO Guidelines for port State control officers carrying out inspections under the MLC 2006 the initial, and often the only, inspection is mainly concerned with reviewing the ship’s Maritime Labour Certificate and the Declaration of Maritime Labour Compliance. These documents constitute prima facie evidence that the requirements of this Convention relating to working and living conditions of the seafarers have been met to the extent so certified. There may however be circumstances where a more detailed inspection may be carried out to ascertain the working and living conditions on board the ship. There may be more areas where the current EU Directive 2009/16 and the MLC and the associated ILO guidelines may differ in scope or procedures. Therefore, there will be a need to streamline the control and enforcement procedures under both instruments by expanding the implementing powers conferred on the Commission to establish the appropriate harmonised modalities.

5.4 Compliance and enforcement of the structural requirements for seafarer accommodation, especially in specific sectors of the maritime industry, such as large commercial yachts or smaller ships, will pose significant challenges. The EESC notes that MLC allows flag States, where appropriate, to introduce through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions and to sanction derogations, exemptions or other flexible application of standards of the Convention in consultation with shipowners’ and seafarers’ organisations. Hence, the EESC expects that port State Control officers will base their judgments on acknowledging the flag State decisions, as reflected in the Declarations of Maritime Labour Compliance.

5.5 The MLC recognises that ILO Members need some flexibility to address particular national conditions, especially with respect to smaller ships and ships that do not go on international voyages or specific kinds of ships. Hence, regular inspections for small ships engaged in domestic voyages need not be the same as for large ships engaged in international voyages. Furthermore, the EESC predicts that port State control will face important operational issues as regards more detailed inspections and evaluation of deficiencies for further actions. It believes that such issues should be carefully addressed and reasonably settled through the proposed delegated acts that would take into account prevailing national legislations implementing the MLC.

5.6 The proposed new Article 18a "Complaints related to the Maritime Labour Convention" in paragraph 1 stipulates that when a complaint has not been resolved at the ship-board level the port State control officer should refer the matter to the flag State for proper action on. The EESC believes that the proposed procedures should include a second stage of referring complaints to the shipowner for his proper actions. This step is consistent with the MLC procedures.

On the new Directive on compliance with flag State requirements

5.7 The process of ratification/implementation of the MLC 2006 is, in several EU Member States, already at an advanced stage or has already been completed. The implementation of its requirements on recruitment and placement and the social security protection of seafarers who are nationals of or residents or domiciled in a Labour Supplying State will create important operational issues. The EESC asks the Commission to address this matter urgently and to ensure that the enforcement in third countries of future EU legislation on Labour Supplying States (LSS) will be consistent with the spirit and terms of the MLC.

5.8 The flag States encourage shipowners to establish measures to ensure compliance. Article II of the MLC defines "seafarer" as "any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies". Under this broad definition, charterers' personnel, such as geologists and divers on board vessels operating in the offshore industry, or personnel not employed directly by shipowners, or security guards on board ships under a contractual agreement in order to deter piracy, could be construed as seafarers. The ILO recognises that situations may arise in which a Member may have doubts as to whether or not certain categories of persons who undertake periods of work on board a ship should be regarded as seafarers for the purpose of the Convention provided clarification with Resolution VII of the 94th (Maritime) Session of the International Labour Conference. In any case, and in accordance with Article II, paragraph 3, in the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Convention, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organisations concerned with this question. The EESC believes that Member States should acknowledge the ILO Resolutions and associated guidelines when implementing and enforcing the MLC and that this principle should be firmly upheld.

5.9 With respect to Article 4 "Staff in charge of compliance monitoring" the EESC notes that the ILO Guidelines for port State control officers carrying out inspections under the MLC 2006 have been developed to assist port State administrations to effectively implement their responsibilities under the MLC. In most cases, inspections will involve personnel that are already qualified under the existing international port State control arrangements, developed in connection with the IMO conventions and under regional MOU on port State control. Indeed, this is the case for EU countries operating under the Paris MOU and Directive 2009/16/EC.

5.10 An important aspect of the MLC enforcement will be the issuance by flag State administrations of Maritime Labour Certificates and Declarations of Maritime Labour Compliance. Under Regulation 5.1.1 of the Convention Members may authorise organisations, such as classification societies to carry out inspections or to issue certificates or to do both. This principle is recognised by EU law, namely partly by the Directive 2009/15/EC on "Common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations" and partly by the Directive 2009/21/EC on "Compliance with flag State requirements". Since the proposed Directive is not precise enough as regards to the possibility of the administration delegating tasks to recognised organisations, the EESC assumes that Member States will be able to do so through their transposition acts.

Brussels, 11 July 2012. The President of the European Economic and Social Committee Staffan NILSSON

(1) OJ L 161, 22.6.2007, p. 63-64.

(2) OJ L 124, 20.5.2009, p. 30-50.

(3) COM(2012) 129 final.

(4) COM(2012) 134 final.

(5) OJ C 318, 23.12.2006, p. 195-201.

(6) OJ C 255, 22.9.2010, p. 103.

(7) OJ C 97, 28.4.2007, p. 33.

(8) OJ C 24, 28.1.2012, p. 146.

(9) OJ C 318, 23.12.2006, p. 195-201.