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)
Date: 2000-07-13
Institutions: European Commission
Subjects: carriage of passengers, freedom to provide services, maritime cabotage, transport regulations, working conditions

C 337 E/214

EN

Official Journal of the European Communities

28.11.2000

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 (1)

(2000/C 337 E/35)

(Text with EEA relevance)

COM(2000) 437 final (cid:16) 1998/0159(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 13 July 2000)

(1) OJ C 213, 9.7.1998, p. 17.

INITIAL PROPOSAL

AMENDED PROPOSAL

THE COUNCIL OF THE EUROPEAN UNION,

THE EUROPEAN PARLIAMENT AND 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 Treaty establishing the European
Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Unchanged

Having regard to the opinion of
Committee (1),

the Economic and Social

Acting in accordance with the procedure laid down in Article
189c of
in cooperation with the European
Parliament (2),

the Treaty,

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

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

Unchanged

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

(2) Manning conditions

for

services

the vessel

the provision of

in
regular passenger and ferry services between Member
States are normally the responsibility of the State of regis-
tration of
9flag State:). The Rome
Convention on the law applicable to contractual obli-
gations (5) 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.

(the

___________
(1) OJ C 40, 15.2.1999, p. 3.
(2) OJ C 175, 21.6.1999, p. 440.
(3) OJ L 378, 31.12.1986, p. 1.
(4) OJ L 353, 17.12.1990, p. 16.
(5) OJ L 266, 9.10.1980, p. 1; consolidated version (OJ C 27, 26.1.1998,

p. 34).

___________
(2) OJ C 175, 21.6.1999 p. 440.

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Official Journal of the European Communities

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INITIAL PROPOSAL

AMENDED PROPOSAL

(3) The principle that shipping companies established outside
receive more favourable
than shipping companies established in the

the Community should not
treatment
territory of a Member State should be upheld.

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

services,

ferry

and

(5) The special characteristics of

the market

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

social

for

Unchanged

(6) In accordance with the principles of subsidiarity and
proportionality as set out in Article 3 B 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
the provisions required, be better achieved by the
of
Community. This Directive
to the
minimum required in order to achieve that objective
and does not go beyond what
is necessary for that
purpose.

confines

itself

(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
by
provisions
the
Community. This Directive
to the
minimum required in order to achieve that objective
and does not go beyond what
is necessary for that
purpose.

achieved
itself

required,

confines

better

be

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

Unchanged

(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
the provisions

imposed in the event of a breach of
adopted for the implementation of this Directive,

C 337 E/216

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Official Journal of the European Communities

28.11.2000

INITIAL PROPOSAL

AMENDED PROPOSAL

ADOPTED THIS DIRECTIVE:

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Unchanged

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.

of

a Member

The provisions of

2.
this Directive shall also apply to
the
State
nationals
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
in that Member
their vessels are registered, and fly its flag,
State in accordance with its legislation.

established

outside

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.

2.

9passenger
carried out by a passenger vessel;

service: means a maritime transport

service

9regular 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.

9passenger 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.

9passenger: means any person except:

(i) the captain and the members of
the crew or other
in whatever capacity,
persons employed or occupied,
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;

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INITIAL PROPOSAL

AMENDED PROPOSAL

5.

9collective 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

Unchanged

shall ensure that, whatever

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

third-country

States

shall

(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 and of the place of residence of
the seafarers concerned.

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.

The terms and conditions of employment referred to in

3.
paragraph 1 shall cover the following matters:

Unchanged

(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

and
conditions of employment of pregnant women or women
who have recently given birth, of children and of young
people;

terms

(f) equality of

treatment
provisions on non-discrimination;

for men and women and other

(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.

Paragraphs 1, 2 and 3 shall not prevent the application of
employment which are more

and conditions of

4.
terms
favourable to workers.

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Official Journal of the European Communities

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INITIAL PROPOSAL

AMENDED PROPOSAL

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.

Deleted

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

Unchanged

(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.

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.

Deleted

and the

agreements

6. Where one of the terms and conditions referred to in this
article is governed simultaneously by the applicable law and
collective
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.

latter provide

Article 3

Unchanged

1. Member States may, after consulting employers and
labour, and in accordance with the traditions and practice of
to apply the provisions of
each Member State, decide not
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.

services as

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
for vessels
chartered in to compensate for an acute shortage of capacity
on a ferry route which has arisen owing to unforeseen circum-
stances. For derogations exceeding two months, prior author-
isation by the Commission shall be required.

referred to under Article 1(1)

3. Member States shall
delay of derogations pursuant
circumstances on which they are based.

inform the Commission without
the
to paragraph 2 and of

Article 4

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

in accordance with national

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INITIAL PROPOSAL

AMENDED PROPOSAL

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

Mutual administrative assistance shall be provided free of
charge.

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

Article 5

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.

Unchanged

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

Article 6

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

Member States shall adopt the laws, regulations and adminis-
trative 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 with effect from 1 January
2000.

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
their official publication. The
procedure for such reference shall be adopted by Member
States.

time of

the

Unchanged

Article 6a

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

Article 7

Unchanged

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

This Directive is addressed to the Member States.

Article 8