Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on manning conditions for regular passenger and ferry services operating between Member States

(presented by the Commission pursuant to Article 250 (2) of the EC Treaty)

EXPLANATORY MEMORANDUM

A. On 29 April 1998, the Commission presented to the Council a communication on a common policy on manning of regular passenger and ferry services operating in and between Member States, with two attached proposals (COM(1998)251 final - 1998/0158 (SYN) et 1998/0159 (SYN)):

- proposal for a Council Regulation (EC) amending Council Regulation (EEC) No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage);

- proposal for a Council Directive on manning conditions for regular passenger and ferry services operating between Member States.

On 2 December 1998, the Economic and Social Committee delivered an unfavourable opinion on the proposal for a Regulation amending Regulation No 3577/92 (maritime cabotage) and a favourable opinion on the proposal for a Directive.

On 12 March 1999, the European Parliament delivered an opinion on a first reading which was unfavourable as regards the proposal for a Regulation amending Regulation No 3577/92 (maritime cabotage) and favourable as regards the proposal for a Directive. This opinion was confirmed on 16 September 1999.

As regards the proposal for a Regulation, the European Parliament did not support the Commission proposal and adopted four amendments (Nos. 1 to 4) relating to Article 1 of the proposed text which amends Article 3 of Regulation (EEC) No 3577/92. Parliament proposed replacing the text proposed by the Commission with a new Article 3a in which the Commission would undertake to assess the economic and social impact of the liberalisation of island cabotage and submit a report to the Council and to the European Parliament by 1 January 2001 at the latest. On the basis of this report, the Commission would present a proposal to the Council and to the European Parliament with a view to the establishment of a definitive system which, at the appropriate time, would be submitted for approval by the Council and the European Parliament before 1 January 2003.

The Commission rejected the four amendments proposed by the European Parliament for the proposal for a Regulation on the basis of the following arguments. As is apparent from Article 3 of Regulation 3577/92, the system applicable to questions of manning is a provisional one. According to the same provision, the definitive system was to be proposed on the basis of a report on the economic and social impact of the liberalisation of island cabotage, to be submitted by the Commission to the Council. On 17 June 1997 the Commission adopted this report which covered, among other things, the anticipated economic and social impact of the liberalisation of island cabotage. This report had concluded that a proposal whereby Member States, as host states, could apply their own rules on the required proportion of Community nationals in the crew to vessels operating regular passenger and ferry services (including mixed passenger and cargo vessels and vessels operating regular cruise services) would be sufficient to ensure that such services met Community standards in the internal market. The report had also concluded that the cargo only cabotage sector is, firstly, linked to the international maritime transport market and, secondly, is not highly labour intensive. Consequently, the Commission did not consider it justified in its proposal to extend application of the rules of the host state to the cargo only cabotage sector.

It should be pointed out in this connection that the Commission is required to submit a report on the application of the Regulation to the Council every two years. It is planning to present a report in 2001 concerning the period 1999-2000 which will analyse the impact of the liberalisation of island cabotage.

As regards the proposal for a Directive, Parliament, although endorsing the proposal as a whole, adopted five amendments (Nos 5 to 9).

Amendment 5 which proposes a more precise definition of the scope of the Directive can be accepted in substance, provided that it is incorporated in a specific article setting out the definitions. The Commission agrees that vessels carrying cargo only should be expressly excluded from the scope of the Directive even where more than 12 drivers accompany their vehicles on this type of vessel.

Amendment 9 which proposes that the Commission should submit a report to the Council on the possible impact of the application of the Directive can also be accepted, subject to a minor change.

However, the remaining amendments to the proposal for a Directive cannot be accepted.

Amendment 6 cannot be accepted because employment contracts are by definition individual and cannot be included in Article 2(1)(b) which covers instruments which have been declared universally applicable. Moreover all Member States have rules on conditions of employment defined in accordance with Article 2(1)(a), 2(1)(b) or 2(5).

Amendment 7 cannot be accepted because the question of whether or not seafarers are allowed to reside permanently on board the vessels where they are employed is not regulated at international level but is a matter for national law. The fact that they are employed on board a vessel operating a regular service does not give seafarers right of residence in a Member State. The Commission proposal does not seek to grant seafarers a right of residence which they do not have under the national laws of the Member States. It should be pointed out moreover that the principle of equal treatment of seafarers who are nationals of third countries and seafarers residing in the host Member State also applies even where the seafarers who are third country nationals reside on board the vessel and do not possess a residence permit in the Member State in which the vessel is registered or the Member State of the closest connection.

Amendment 8 cannot be accepted because the proposal for a Directive relates only to the treatment to be accorded to third country seafarers employed on board vessels operating regular passenger and ferry services. Accordingly, it is not the appropriate instrument on which to base a decision establishing an action programme at European Union level for attracting young people to the maritime profession, including specific training targets, nor a decision to allocate the resources for funding such a programme. The Commission is currently drawing up a communication to the Council and to the European Parliament on the situation regarding the employment and training of seafarers. In that text, the Commission analyses possible actions to attract young people to the maritime profession and improve the quality of training.

B. For these reasons, the Commission has made no changes to its proposal for a Regulation amending Regulation 3577/92 and has amended its proposal for a Directive as follows:

- On the basis of amendment 5, the Commission has introduced a new provision (new Article 1a) which determines the scope of the Directive by setting out the relevant definitions.

- On the basis of amendment 9, the Commission has introduced a new provision (new Article 6a) which lays down that the Commission will have to submit a report to the Council on the application of the Directive.

In addition, the following amendments have been introduced:

- a fourth recital corresponding to the new Article 1a;

- the last line of Article 2(2) has been amended so as to remove the place of residence of the seafarers concerned as a criterion for defining the place with the closest connection. This amendment is in line with a desire to simplify the application of the Directive;

- the first subparagraph of Article 2(5) containing the definition of collective agreements or arbitration awards which have been declared universally applicable has been moved to Article 1a(5) in order to bring together all the definition in this new article;

- the last subparagraph of Article 2(5) has been deleted because it is regarded as redundant and could be misleading. The fact that all the companies concerned are subject to the obligation to apply to third country seafarers the conditions laid down by the collective agreements referred to in Article 2.5 ensures equality of treatment between them;

- a new paragraph 6 has been added to Article 2 laying down that where the conditions referred to in paragraph 2 are governed simultaneously by law and by the applicable collective agreements and the latter provide for more favourable conditions, the Member States shall ensure that the shipping companies in question apply those conditions to seafarers who are nationals of third countries;

- Article 5 has been amended to clearly indicate the Member State responsible for ensuring that shipowners operating regular services between Member States comply with the Directive;

- Article 6 has been amended to change the deadline for the application of provisions by the Member States to comply with the Directive.

1998/0159 (COD)

Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on manning conditions for regular passenger and ferry services operating between Member States

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission [1],

[1] OJ C 213, 9.7.1998, p. 16.

Having regard to the opinion of the Economic and Social Committee [2],

[2] OJ C 40, 15.2.1999, p. 3.

The Committee for the Regions having failed to deliver an opinion within the timelimit laid down by the Council,

,Acting in accordance with the procedure laid down in Article 251 of the Treaty, [3]

[3] OJ C 175, 21.6.1999 p. 440.

Whereas:

(1) 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 [4], as amended by Regulation (EEC) No 3573/90 [5], has rendered all the Treaty rules governing the freedom to provide services applicable to the sphere of maritime transport between Member States.

[4] OJ L 378, 31.12.1986, p. 1.

[5] OJ L 353, 17.12.1990, p. 16.

(2) 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"). The Rome Convention on the law applicable to contractual obligations [6] allows for other arrangements. Community interests and the interests of Member States between whose territories such services are provided also have to be taken into account.

[6] OJ L 266, 9.10.1980, p. 1; consolidated version OJ C 27, 26.1.1998, p. 34.

(3) 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.

(4) The scope of this Directive should be restricted to regular passenger and ferry services, including mixed passenger/cargo services, and should therefore exclude regular cargo services, including those operated by vessels capable of carrying more than 12 drivers.

(5) 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 guaranteeting 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.

(6) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objective of the proposed measures, namely to lay down rules on the working conditions of third 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. This Directive confines itself to the minimum required in order to achieve that objective and does not go beyond what is necessary for that purpose.

(7) It is appropriate to require that third country nationals employed within the abovementioned sectors shall not be treated less favourably than Community residents.

(8) It is appropriate that Member States may provide for a derogation from the obligation to treat third 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.

(9) The competent bodies in the various Member States should cooperate with each other in the application of this Directive.

(10) 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,

HAVE 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 third-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 1a

For the purposes of this Directive:

1. «passenger service» means a maritime transport service carried out by a passenger vessel;

2. «regular service» means a series of sailings organised in such a way as to provide a service linking the same two ports or others,

i) either on the basis of a published timetable

ii) or with a regularity or frequency such as to constitute a recognisable systematic service;

3. «passenger vessel» means a seagoing vessel which carries more than twelve passengers. This includes high-speed craft and vessels or craft carrying both passengers and cargo. This excludes vessels carrying only cargo;

4. «passenger» means any person except:

i) the captain and the members of the crew or other persons employed or occupied, in whatever capacity, on board a vessel for the requirements of that vessel

ii) children under the age of one

and

iii) drivers or co-drivers of commercial road or rail vehicles who travel with their vehicles in their professional capacity;

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

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 third-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 insofar 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 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 .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, 2 and 3 shall not prevent the application of terms and conditions of employment which are more favourable to workers.

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 markets at national level.

6. Where one of the terms and conditions referred to in this article is governed simultaneously by the applicable law and collective agreements and the latter provide for more favourable terms and conditions, the flag Member State or, where appropriate, the Member State of the closest connection within the meaning of Article 2(2), shall ensure that shipping companies operating regular passenger services as defined by Article 1(a) apply those terms and conditions to seafarers who are third-country nationals.

Article 3

1. Member States may, after consulting employers and labour, and in accordance with the traditions and practice 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 third country nationals does not exceed one month within any twelve-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 officers or one or more competent national bodies.

2. Member States shall adopt 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 officers and/or competent bodies referred to in paragraph 1.

Article 5

The flag Member State or, where appropriate, the Member State of the closest connection within the meaning of Article 2(2) shall ensure that the shipowners concerned apply to third-country nationals working on board their vessels the terms and conditions of employment applicable to seafarers resident in that State.

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.

Where the service concerns Member States other than the flag Member States, the maritime authorities of the Member States concerned shall cooperate to ensure compliance with this article, under the conditions laid down in Article 4.

Article 6

Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive within twelve months of its entry into force. They shall forthwith inform the Commission thereof.

They shall apply those provisions no later than 18 months after the entry into force of this Directive.

When Member States adopt these provisions, they 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 6a

The Commission shall submit to the Council and to the European Parliament, in good time, a report on the implementation of this Directive as well as, where appropriate, any proposal deemed necessary.

Article 7

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

Article 8

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President