Proposal for a Council Directive on manning conditions for regular passenger and ferry services operating between Member States (98/C 213/10) (Text with EEA relevance) COM(1998) 251 final - 98/0159(SYN)

(Submitted by the Commission on 3 June 1998)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 84(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure laid down in Article 189c of the Treaty, in cooperation with the European Parliament,

Whereas Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (1) as amended by Regulation (EEC) No 3573/90 (2), has rendered all the Treaty rules governing the freedom to provide services applicable to the sphere of maritime transport between Member States;

Whereas manning conditions for the provision of services in regular passenger and ferry services between Member States are normally the responsibility of the State of registration of the vessel (the flag State); whereas the Rome Convention on the law applicable to contractual obligations (3) allows for other arrangements; whereas Community interests and the interests of Member States between whose territories such services are provided also have to be taken into account;

Whereas the principle that shipping companies established outside the Community should not receive more favourable treatment than shipping companies established in the territory of a Member State should be upheld;

Whereas the special characteristics of the market for regular passenger and ferry services between Member States call for measures to ensure the proper functioning of the single market by guaranteeing that the terms and conditions of employment of seafaring personnel will be in line with the level of social standards generally applicable in the Community;

Whereas, in accordance with the principles of subsidiarity and proportionality as set out in Article 3b of the Treaty, the objectives of the proposed measures, namely to lay down rules on the working conditions of non-member-country nationals employed on ferries operating between Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of scale and effects of the provisions required, be better achieved by the Community; whereas this Directive confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose;

Whereas it is appropriate to require that non-member-country nationals employed within the abovementioned sectors shall not be treated less favourably than Community residents;

Whereas it is appropriate that Member States may provide for a derogation from the obligation to treat non-member-country seafarers as Community residents on regular passenger and ferry services between Member States for labour contracts of an extremely short duration or in the event of an acute shortage of ferry capacity due to unforeseen circumstances;

Whereas competent bodies in different Member States should cooperate with each other in the application of this Directive;

Whereas each Member State should determine the penalties to be imposed in the event of a breach of the provisions adopted for the implementation of this Directive,

HAS ADOPTED THIS DIRECTIVE:

Article 1

1. This Directive shall apply to nationals of Member States and to shipping companies established in a Member State which provide regular passenger and ferry services, including mixed passenger/cargo services, between ports situated in different Member States.

2. The provisions of this Directive shall also apply to nationals of a Member State established outside the Community and to shipping companies established outside the Community and controlled by nationals of a Member State, providing the services referred to in paragraph 1, if their vessels are registered, and fly its flag, in that Member State in accordance with its legislation;

3. This Directive shall apply to the extent that the nationals and shipping companies referred to in paragraphs 1 and 2 employ non-member-country nationals on board the vessels used for the services referred to under paragraph 1.

4. Shipping companies established outside the Community, other than those referred to in paragraph 2, shall not be given more favourable treatment than the nationals and shipping companies referred to in paragraphs 1 and 2.

Article 2

1. Member States shall ensure that, whatever the law applicable to the employment relationship, the nationals and shipping companies referred to in Article 1(1) and (2), operating regular passenger and ferry services between Member States shall guarantee non-member-country nationals employed on board ships used for such services, the terms and conditions of employment as laid down:

(a) by law, regulation or administrative provision, and/or

(b) by collective agreements or arbitration awards which have been declared universally applicable in so far as they apply to the activities referred to in Article 1(1),

which are applicable to the residents of the Member State of registration of the vessel.

2. If the vessel used is not registered in a Member State, the terms and conditions of employment referred to in paragraph 1 shall be those applicable to the residents of one of the Member States between whose ports the service is provided and with which the service has the closest connection. The closest connection shall be determined on the basis of the place from which the service is effectively managed and of the place of residence of the seafarers concerned.

3. The terms and conditions of employment referred to in paragraph 1 shall cover the following matters:

(a) maximum work periods and minimum rest periods;

(b) minimum annual paid holiday;

(c) the minimum rates of pay, including overtime rates;

(d) health, safety and hygiene at work;

(e) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;

(f) equality of treatment for men and women and other provisions on non-discrimination;

(g) measures for the repatriation of seafarers and the payment of outstanding salary and social contributions in the event of the insolvency of their employer.

4. Paragraphs 1 and 2 shall not prevent the application of terms and conditions of employment which are more favourable to workers.

5. Collective agreements or arbitration awards which have been declared universally applicable means those which are to be observed by all shipping companies concerned at national level.

In the absence of a system for declaring collective agreements or arbitration awards to be universally applicable, Member States shall base themselves on:

(a) collective agreements or arbitration awards which are generally applicable to all shipping companies as referred to in Article 1(1) and (2), and/or

(b) collective agreements which have been concluded by the most representative employers' and labour organisations in the relevant market at national level.

The second subparagraph shall be subject to the condition that the application of those agreements or awards to the shipping companies referred to in Article 1(1) and (2) ensures equality of treatment on matters listed in paragraph 3 of this Article between all shipping companies concerned.

Article 3

1. Member States may, after consulting employers and labour, and in accordance with the traditions and practices of each Member State, decide not to apply the provisions of points (b) and (c) of Article 2(3), when the length of the employment period of the non-member-country nationals concerned does not exceed one month within any 12-month period.

2. Member States may grant for a period of two months a derogation from points (b) and (c) of Article 2(3), to a provider of services as referred to under Article 1(1) for vessels chartered-in to compensate for an acute shortage of capacity on a ferry route which has arisen owing to unforeseen circumstances. For derogations exceeding two months, prior authorisation by the Commission shall be required.

3. Member States shall inform the Commission without delay of derogations pursuant to paragraph 2 and of the circumstances on which they are based.

Article 4

1. For the purpose of implementing this Directive, Member States shall, in accordance with national legislation and/or practice, designate one or more liaison offices or one or more competent national bodies.

2. Member States shall make provisions for cooperation between the public authorities which, under national legislation, are responsible for monitoring the terms and conditions of employment referred to in Article 2.

Mutual administrative assistance shall be provided free of charge.

3. Each Member State shall notify the other Member States and the Commission of the liaison offices and/or competent bodies referred to in paragraph 1.

Article 5

Member States shall determine the penalties applicable to infringements of the national provisions implementing this Directive and shall take all measures necessary to ensure that those provisions are enforced. The penalties thus laid down shall be effective, proportionate and dissuasive. Member States shall notify the provisions to the Commission by the date mentioned in Article 6 and shall notify it of any subsequent amendments to them without delay.

Article 6

Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 1999 at the latest. They shall forthwith inform the Commission thereof.

They shall apply those provisions with effect from 1 January 2000.

When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

Article 7

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.

Article 8

This Directive is addressed to the Member States.

(1) OJ L 378, 31.12.1986, p. 1.

(2) OJ L 353, 17.12.1990, p. 16.

(3) OJ L 266, 9.10.1980, p. 1; consolidated version: OJ C 27, 26.1.1998, p. 34.