WRITTEN QUESTION E-2433/98

by Bartho Pronk (PPE) and Petrus Cornelissen (PPE) to the Commission

(30 July 1998)

Subject: Exclusion of merchant seamen from EU directives

Merchant seamen are excluded from a large number of directives in the social security field, particularly those concerning employment."

The following directives are some of those involved:

77/187/EEC(1) Safeguarding of employees' rights in the event of transfers of undertakings

80/987/EEC(2) Protection of employees in the event of the insolvency of their employer (certain national exemptions where crews are covered by other forms of guarantee)

75/129/EEC(3) Collective redundancies

94/45/EC(4) European Works Councils in Community-scale undertakings and groups of undertakings (option for Member States not to apply the Directive to Merchant Navy crews).

In the Working Time Directive, a special procedure is followed in order to include merchant seamen within the scope of that Directive.

They all prompt the following questions:

1. Does not the Commission feel that it is unfair to exclude merchant seamen from social security directives?

2. What are the reasons for their exclusion?

3. Would the Commission be prepared to take action, similar to the procedure in the Working Time Directive, to put an end to the exclusion of merchant seamen from other Directives?

4. In this connection, does the Commission see any possibility of making use of the Social Protocol?

Answer given by Mr Flynn on behalf of the Commission

(11 September 1998)

The crews of sea-going vessels are excluded from the scope of certain directives owing to the very special nature of the maritime sector.

As regards Directive 77/187/EEC on the safeguarding of employees' rights in the event of transfers of undertakings, the Commission is of the opinion that the benefits of Community law should apply as broadly as possible to workers on sea-going vessels. In its initial(5) and amended(6) proposals to amend Directive 77/187/EEC, the Commission therefore considered that there was no justification for excluding the crews of sea-going vessels from the protection provided by the Directive and proposed that only the consultation procedure should not be imposed in respect of sea-going vessels, thus ensuring the flexibility needed by undertakings in the maritime sector.

On 29 June 1998 the Council adopted Directive 98/50/EC amending Directive 77/187/EEC(7). The amended Directive still does not apply to sea-going vessels, but the Council recorded a statement in the minutes, expressing the importance it attached to allowing all workers to benefit from appropriate minimum standards of employment protection which take account of the specific requirements of the different branches and industrial activities and calling on the Commission to reexamine the situation and present a suitable proposal to take account of the nature of sea transport.

Directive 80/987/EEC (insolvency) does not contain any general exclusions of employee categories. However, it does allow Member States to exclude from its scope, by way of exception, claims by certain categories of employee, by virtue of the special nature of employment contracts or employment relationships or the existence of other forms of guarantee offering protection equivalent to that resulting from the Directive. The categories of employee whose claims may be excluded are listed in the Annex to the Directive. Three Member States (Greece, Italy and the United Kingdom) have made use of this possibility to exclude crews of sea-going vessels. The possibility of exclusion from the scope of Directive 80/987/EEC is thus dependent on specific conditions.

Article 1(5) of Directive 94/45/EC (European works councils) allows Member States not to apply the Directive to merchant navy crews. To date, only Sweden and Italy (and Norway, as part of the European Economic Area) have made use of this possibility. Throughout the discussions leading up to the adoption of this Directive, the Commission had always opposed this option, but it was adopted as part of the final compromise. Nevertheless, it will be the subject of new discussions in connection with the revision of Directive 94/45/EC.

Directive 75/129/EEC (collective redundancies) excludes from its scope, in accordance with Article 1(2)(c), the crews of sea-going vessels. Some Member States (including Spain, France and the Netherlands) apply all national measures transposing the Directive to crews of sea-going vessels. However, in the other Member States, these workers are not completely protected against collective redundancies, as special legislation applies. When the Directive was reviewed in 1992, the Commission wanted the crews of sea-going vessels to be included in the scope of the Directive, but this was not included in the final compromise.

Regarding exclusion of sea transport and sea fishing from the scope of Directive 93/104/EC concerning certain aspects of the organisation of working time(8), the Commission, in the second document addressed to the social partners, announced its plans to extend the scope of the Directive to cover non-mobile workers, to apply certain provisions of the Directive to mobile workers, and, if necessary, to guarantee mobile workers adequate protection in terms of daily and weekly rest periods.

(1) OJ L 61, 5.3.1977, p. 26.

(2) OJ L 283, 20.10.1980, p. 23.

(3) OJ L 48, 22.2.1975, p. 29.

(4) OJ L 254, 30.9.1994, p. 64.

(5) COM(94) 300 final.

(6) OJ C 124, 21.4.1997.

(7) OJ L 201, 17.7.1998.

(8) OJ L 307, 13.12.1993.