Proposal for a Council Directive concerning the enforcement of seafarers' hours of work on board ships using Community ports (1999/C 43/04) (Text with EEA relevance) COM(1998) 662 final - 98/0321(SYN)

(Submitted by the Commission on 24 November 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,

(1) Whereas Community action in the field of social policy aims, inter alia, at improving the health and safety of workers in their working environment;

(2) Whereas Community action in the field of maritime transport aims, inter alia, at improving shipboard living and working conditions of seafarers, safety at sea and the prevention of pollution caused by maritime accidents;

(3) Whereas the International Labour Organisation Conference adopted during its 84th session of 8 to 22 October 1996 the Convention concerning seafarers' hours of work and the manning of ships, 1996 (ILO No 180) and the Protocol to the Merchant Shipping (Minimum Standards) Convention, 1976;

(4) Whereas, Council Directive . . ./. . ./EC hereinafter called 'MWT Directive`, adopted under Article 4(2) of the Agreement on social policy aims to put into effect the European Agreement on the organisation of working time of seafarers concluded on 30 September 1998 between the social partners, hereinafter referred to as 'the Agreement`; whereas the content of the Agreement reflects certain provisions of ILO Convention No 180 concerning seafarers' hours of work and the manning of ships; whereas this Agreement applies to seafarers on board every seagoing ship, whether publicly or privately owned, which is registered in the territory of any Member State and is ordinarily engaged in commercial maritime operations;

(5) Whereas the purpose of this Directive is to apply the provisions of the MWT Directive which reflect the provisions of ILO Convention No 180 to any ship calling at a port of a Member State, irrespective of the flag it flies; whereas however the MWT Directive includes requirements which are not to be found in the ILO Convention No 180 and should not therefore be enforced on board ships not flying the flag of a Member State;

(6) Whereas the MWT Directive applies to seafarers on board every seagoing ship registered in the territory of a Member State; whereas Member States should monitor compliance with the provisions of this Directive by ships registered in their territory;

(7) Whereas, in order to protect safety and to avoid distortions of competition, Member States should be allowed to verify compliance with the relevant provisions of the MWT Directive by all sea-going vessels calling at their ports, irrespective of the State in which they are registered;

(8) Whereas, in particular, ships flying the flag of a State which is not a party to ILO Convention No 180 or the Protocol to Convention ILO No 147 should not receive a more favourable treatment than those flying the flag of a State which is a Party to these or one of these Conventions;

(9) Whereas, for the control of the effective application and enforcement of the MWT Directive, it is necessary that Member States carry out inspections on board ships, notably after having received a complaint by the master, a crew member, or any person or organisation with a legitimate interest in the safe operation of the ship, shipboard living and working conditions or the prevention of pollution;

(10) Whereas for the purpose of this Directive, Member States, on their own initiative, may designate, as appropriate, Port State Control inspectors to carry out inspections on board vessels calling at Community ports.

(11) Whereas the evidence that a ship does not comply with the requirements of the MWT Directive may be obtained after verification of the shipboard working arrangements and seafarers' records of hours of work or hours of rest, or when the inspector has a reasonable belief that seafarers are excessively fatigued.

(12) Whereas, in order to rectify any conditions on board a ship which are clearly hazardous to safety or health, the competent authority of the Member State in whose port the ship has called may impose a prohibition to leave the port until the deficiencies found have been rectified or the crew is sufficiently rested.

(13) Whereas, since the MWT Directive reflects the provisions of the ILO Convention No 180, verification of compliance by ships registered in the territory of a third State with the provisions of that Directive could only take place once this Convention has entered into force;

(14) Whereas, since the Agreement on social policy does not apply to the United Kingdom, the MWT Directive is not legally binding on that Member State; whereas however, Directive . . ./. . ./EC of . . . . 199. has extended the provisions of the Directive implementing the European Agreement to the United Kingdom,

HAS ADOPTED THIS DIRECTIVE:

Article 1 Purpose and scope

1. The purpose of this Directive is to provide a mechanism for the verification and enforcement of compliance by ships calling at ports of Member States with the MWT Directive in order to improve maritime safety, working conditions and the health and safety of seafarers on board ships.

2. For the purpose of this Directive, the provisions of the MWT Directive are applicable to ships registered in a Member State and to ships not registered in the territory of or not flying the flag of a Member State, with the exception, for the latter, of:

- the requirements maintained or introduced by the Member States which are more favourable than those laid down in ILO Convention No 180,

- Clauses 13 to 16 of the European Agreement attached to the MWT Directive.

Article 2 Definitions

For the purpose of this Directive,

(a) 'ship`: means any seagoing vessel registered in a Member State in accordance with the MWT Directive, as well as any seagoing vessel to which the ILO Convention No 180 applies, flying a flag other than that of the port State;

(b) 'competent authority`: means the competent authorities designated by the Member States to perform functions under this Directive;

(c) 'competent authority`: means the competent authorities designated by the Member States to perform functions under this Directive;

(d) 'complaint`: means information submitted by a member of the crew, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the ship, including an interest in safety or health hazards to its crew.

Article 3 Enforcement

Without prejudice to Article 1(2) if a Member State in whose port a ship calls voluntarily in the normal course of its business or for operational reasons receives a complaint or obtains evidence that the ship does not conform to the standards referred to in the MWT Directive, it shall prepare a report addressed to the government of the country in which the ship is registered and shall take measures necessary to rectify any conditions on board which are clearly hazardous to the safety or health of seafarers.

Article 4 Means to obtain evidence of non-compliance

In determining whether there is evidence that a ship does not conform to the standards laid down in the MWT Directive, as referred to in Article 3, the Member State in whose port the ship calls shall conduct an investigation on board whether:

- a table with the shipboard working arrangements has been established in the working language or languages of the ship and in English according to the model format reproduced in Annex I, or in an alternative equivalent format, and is posted on board in an easily accessible place,

- seafarers' records of hours of work or hours of rest have been established in the working language or languages of the ship and in English according to the model format reproduced in Annex II, or in an alternative equivalent format, and are kept on board and have been endorsed at appropriate intervals by the competent authority of the State where the ship is registered.

When there are indications that seafarers on board a ship calling at a port of a Member State are unduly fatigued, as a result of excessive working hours or insufficient hours of rest, the inspector may decide, using his professional judgement, that the ship does not substantially conform to the requirements of the MWT Directive.

Article 5 Rectification of deficiencies

When, pursuant to Articles 3 and 4, a Member State has received a complaint or obtained evidence that a ship does not conform to the standards referred to in the MWT Directive, it shall take the necessary measures to ensure that any conditions on board which are clearly hazardous to safety or health of seafarer are rectified.

Such measures may include a prohibition to leave the port until deficiencies found have been rectified or the seafarers are sufficiently rested.

Article 6 Follow-up procedures

1. In the event that a ship is prohibited to leave the port pursuant to Article 5, the competent authority of the Member State shall inform the master, the owner or operator, the administration of the flag, State or the State where the ship is registered or the Consul, or in his absence the nearest diplomatic representative of the State, of the results of the inspections, of any decisions taken by the inspector, and of corrective actions required, if necessary.

2. When carrying out an inspection under this Directive, all possible efforts should be made to avoid a ship being unduly delayed. If a ship is unduly delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue delay the burden of the proof shall lie with the owner or operator of the ship.

Article 7 Right of appeal

1. The owner or the operator of the ship or his representative in the Member State shall have a right of appeal against a detention decision taken by the competent authority. An appeal shall not cause the detention to be suspended.

2. Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation.

3. The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal.

Article 8 Administrative cooperation

Member States shall make provisions for cooperation between their relevant authorities and the relevant competent authorities of other Member States to ensure the effective application of this Directive and shall notify the Commission of those provisions.

Article 9 No more favourable treatment clause

When inspecting a ship registered in the territory of or flying the flag of a State which has not ratified the ILO Convention No 180 or the Protocol to ILO Convention No 147, Member States shall, once these instruments are in force, ensure that the treatment given to such ships and their crew is no more favourable than that given to a ship registered into the territory of or flying the flag of a State which is a Party to these or one of these Convention.

Article 10 Final provisions

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 30 June 2001.

2. By way of derogation to paragraph 1, this Directive shall not apply to the United Kingdom until the implementation date referred to in Directive . . ./. . ./EC which extends the provisions of the European Agreement to the United Kingdom.

3. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such a reference shall be laid down by Member States.

4. The Member States shall immediately notify to the Commission all provisions of domestic law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.

Article 11 Non-Member States vessels

The requirements of this Directive shall apply to vessels not registered in the territory of or not flying the flag of a Member State only three months after the date of entry into force of the Convention concerning Seafarers' Hours of Work and the Manning of Ships, 1996 (ILO No 180) and of the date of entry into force of the Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976.

Article 12 Entry into force

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

Article 13 Addressees

This Directive is addressed to the Member States.

ANNEX I

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ANNEX II

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