Communication from the Commission under Article 138(2) of the EC Treaty on the strengthening of maritime labour standards
Date: 2006-02-15
Institutions: European Commission
Subjects: EU Member State, International Labour Organisation, crew, international convention, labour law, maritime shipping, ratification of an agreement, social partners, worker consultation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.6.2006 
COM(2006) 287 final 

COMMUNICATION FROM THE COMMISSION 

under Article 138(2) of the EC Treaty on the strengthening of 
maritime labour standards 

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COMMUNICATION FROM THE COMMISSION 

under Article 138(2) of the EC Treaty on the strengthening of 
maritime labour standards 

This Communication comes in the wake of the International Labour Organisation (ILO) 2006 
Convention on maritime labour standards (hereafter called the 2006 consolidated Convention) 
which  was  adopted  almost  unanimously  in  Geneva  on  23 February 2006.  That  Convention 
incorporates  the  conventions  and  recommendations  on  maritime  labour  adopted  by  the  ILO 
since 1919 into a single consolidated text to serve as a basis for the first universal Maritime 
Labour Code.  

The Commission has actively supported the work of preparing this instrument from the outset. 
Moreover,  it  obtained  negotiating  directives  by  Council  decision  of  21 April 2005  to  act 
alongside Member States to safeguard the Community acquis during ILO negotiations.  

Now that the Convention has been adopted, the Commission considers it essential to mobilise 
sufficient means to implement it at both Community and national level.  

In  the  Commission’s  view,  it  is  vital  to  consider  the  Community  legislative  framework 
regarding the social standards applicable to seafarers in order to increase the competitiveness 
of  the  maritime  sector,  make  the  profession  more  attractive  and,  in  the  long  term,  preserve 
European  expertise  in  this  area.  Moreover,  it  announced  in  its  2006 work  programme1  a 
communication  on  minimum  maritime  labour  standards  which  will  consider  whether  to 
propose  legislative  measures  aimed  at  strengthening  the  application  of  international  labour 
standards  for  seafarers  in  the  European  Union, possibly by means of an agreement between 
the social partners.  

Underlining  the  importance  of  2006  consolidated  Convention,  this  Communication  seeks  to 
launch the first official phase of consulting the social partners under the procedure provided 
for in Article 138(2) of the Treaty establishing the European Community on the question of 
whether  the  relevant  provisions  of  that  Convention  should  be  incorporated  into  Community 
law. The Commission will subsequently consult the social partners, where appropriate, on the 
content of any proposal put forward under Article 138(3) of the EC Treaty.  

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COM(2005) 531  final  of  28 March 2006:  “Unlocking  Europe’s  full  potential.  Commission  legislative 
and work programme 2006”. 

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I. BENEFITS OF THE CONVENTION 

1. Promoting a universal Maritime Labour Code and innovative methods 

Consolidation  work  began  in 2001  at  the  ILO  with  the  aim  of  drawing  up  a  comprehensive 
and  integrated  international  convention  defining  clear,  simple,  modern  and  universal  social 
labour  standards.  This  revision  of  the  existing  legal  framework  to  make  it  more  effective 
should increase the rate of ratification by the Member States of the ILO. It is important that 
the Member States of the European Union and third countries ratify the Convention as soon as 
possible so that it can be fully effective and lead to the definition of more uniform reference 
rules.  

The  2006  Consolidated  Convention,  which  is  intended  to  replace  almost  all  other  ILO 
maritime conventions, will become very significant  from  a  legal  and  political  point  of  view 
once it has been ratified by individual States, particularly those with a maritime tradition.  

It lays down the labour standards applicable to the crews of vessels with a gross tonnage of 
500 tonnes or more engaged in international voyages or sailing between foreign ports.  

The Convention groups a number of provisions by themes under five different titles and aims 
to  guarantee  decent  living  and  working  conditions  on  board  vessels.  Title 1  defines  the 
minimum  conditions  required  for  maritime  labour,  covering  health,  training,  minimum  age, 
and  recruitment.  The  employment  conditions  set  out  in  Title 2  fix  the  content  of  the 
employment  contract,  working  hours,  wage  protection,  and  the  rights  to  leave,  repatriation 
and compensation in the event of the loss of the vessel. Accommodation on board is covered 
in  Title 3  and  social  protection  in  Title 4.  Title 5  of  the  Convention  also  defines  the 
responsibilities  regarding  application  of  the  Convention,  i.e.  requiring  Flag  States  to  put  in 
place effective arrangements for applying the Convention based on a system of certification, 
and  Port  States  and  States  providing  labour  to  ensure  compliance  with  the  standards  of  the 
Convention by means of appropriate inspections. Each title contains regulations in two sets of 
hierarchical  standards,  Code A  corresponding  to  a  binding  part  and  Code B  a  non-binding 
part, containing provisions aimed at helping with the interpretation of the binding rules.  

The  importance  of  the  Convention  also  lies  in  the  innovative  mechanisms,  from  an  ILO 
perspective,  that  it  uses  to  ensure  that  the  instrument  is  fully  effective.  It  introduces  the 
maritime labour certificate and maritime labour declaration which, unless there is proof to the 
contrary,  attest  to  conformity  with  the  rules  of  the  Convention.  Thus,  a  certificate  will  be 
issued  by  a  State  to  vessels  flying  its  flag  after  verification  that  the  on-board  working 
conditions  conform  to  national  laws  and  the  regulations  arising  from  the  Convention.  A 
declaration will be attached to the certificate outlining the national legislation applicable in a 
predetermined list of areas covered by the Convention. Under these conditions, the system of 
certifications guaranteeing conformity with the Convention can be checked by the Port State 
which  will  be  able,  in  cases  of  doubt,  to  inspect  vessels  (and  detain  them  if  necessary)  not 
only  for  safety  or  environmental  shortcomings  but  also  for  reasons  linked  to  employment 
conditions.  

In order not to penalise those States which have ratified the Convention compared with those 
which  have  not,  the  clause  precluding  more  favourable  treatment  will  ensure  that  vessels 
flying the flag of a State which has not ratified the Convention do not receive more favourable 
treatment than those flying the flag of a State which has ratified it. This clause should prevent 
unfair competition and encourage practically all States to ratify the Convention. 

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Moreover,  the  Convention  creates  an  ad hoc  structure,  the  Special  Tripartite  Commission, 
made up of representatives appointed by the governments of each State which has ratified the 
Convention and representatives of shipowners and seafarers to adapt the text in the light of the 
application of its provisions.  

2. Managing globalisation and guaranteeing fairer conditions of competition 

The  2006  consolidated  Convention  complements  the  three  basic  Maritime  Conventions 
adopted under the aegis of the International Maritime Organisation, the SOLAS Convention 
(safety  of  life  at  sea),  the  MARPOL  Convention  (prevention  of  pollution  of  marine 
environment) and the STCW Convention on the qualifications of seafarers. It constitutes the 
fourth pillar of international regulation of the maritime sector.  

The 2006 consolidated Convention should help to stabilise the maritime transport sector in the 
face  of  global  competition  and  reduce  the  double  gap  between,  firstly,  European  and  third 
country  operators  and,  secondly,  between  the  different  flags  which  favours  de facto  those 
maritime  nations  and  operators  with  the  least  stringent  social  legislation.  There  is  constant 
pressure from the threat of relocation of recruitment of seafarers to the detriment of European 
jobs,  including  in  intra-Community  transport.  It  must  be  acknowledged  that  the  financial 
stakes  are  high,  given  the  vast  economic  and  legal  differences  affecting  labour  costs, 
including wages and social charges, in global maritime transport. 

Moreover, the Commission considers that it is important to normalise the status of seafarer in 
the context of globalisation in order to limit its harmful effects, namely social dumping which 
penalises  seamen  and  shipowners  complying  with  the  rules  in  force,  and  to  define  decent 
working conditions in line with the communication on the social dimension of globalisation 
which  makes  express  reference  to  the  Convention  on  maritime  labour.2  Support  for  the 
ratification and entry into force of the Convention would represent an important contribution 
to  the  Commission’s  commitment  to  promote  decent  labour  standards  worldwide,  as 
presented in its recent communication on the matter.3 

Finally,  as  the  Commission  stressed  in  its  recent  communication  to  the  European  Council4 
“global interdependence gives new opportunities to project European values and interests”. It 
also reaffirmed the importance of the Union helping to promote high standards throughout the 
world, including in the social sphere.  

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COM(2004) 383  final  of  18 May 2004:  “The  social  dimension  of  globalisation  –  the  EU’s  policy 
contribution on extending the benefits to all”. 
COM(2006)  249  final  of  24  May  2006 :  « romoting  decent  work  for  all.  The  EU  contribution  to  the 
implementation of the decent work agenda in the world ». 
COM(2006) 211 final of 10 May 2006: “A citizen’s agenda delivering the results for Europe”. 

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3. Improving maritime safety and the attractiveness of the profession 

The  Commission  had  already  mentioned  the  importance  of  social  standards  and  their 
connection with maritime safety in its communication of 6 April 20015 stressing that 80% of 
maritime accidents were linked to human error. Faced with the many causes of accidents, the 
European Commission considers that it is essential to have minimum global social standards 
in  a  coherent  framework  which  has  hitherto  been  lacking  and  that  a  positive  effect  on 
maritime safety will become apparent once the Convention has entered into force.  
Moreover, a BIMCO survey6 shows that there is a shortage of 17 000 Community seafarers in 
EU 25.  This  calls  for  appropriate  responses  from  the  public  authorities  and  operators  in  a 
strategic  sector  such  as  maritime  transport  which  carries  90%  of  world  trade  and  40%  of 
intra-Community trade.  

Another  human  factor  to  be  taken  into  consideration  is  training.  Efforts  have  been  made 
regarding  qualifications  through  the  recognition  of  training  and  the  incorporation  of  the 
STCW  Convention  into  Community  law.  Qualifications  and  working  conditions  are 
complementary.  The  profession  of  seafarer  must  be  promoted  by  recognising  high-quality 
training  and  making  occupations  more  attractive  through  decent  working  and  living 
conditions.  It  is  essential  to  make  the  maritime  profession  more  attractive  to  counter  this 
downward trend as an employer, which is harmful in the long term for the maritime sector as 
a whole, including activities linked to Port State control. 

To achieve this, it is necessary to combat unfair practices on board ships and establish decent 
working and living conditions for seafarers, whatever the flag of the vessel and the nationality 
of  the  crew.  To  this  extent,  the  Convention  can  help  to  bring  about  more  homogeneous 
employment conditions for the benefit of seafarers. 

II. ROLE OF THE EU IN THE PREPARATION AND IMPLEMENTATION OF THE 
CONVENTION 

1. Dynamic role during preparatory work 

The  Commission  gave  full  support  to  the  ILO  work  from  the  outset,  convinced  of  the 
importance  of  this  attempt  to  eliminate  unfair  competition  and  improve  social  standards  at 
world  level  through  the  introduction  of  universal  minimum  standards.  It  has  followed  this 
major task very closely, assuring, with the Presidency of the Union, regular coordination of 
the positions of the Member States on the provisions of the Convention under the mandate of 
21 April 2005 granted by the Council. It has also made an exceptional financial contribution 
to the ILO and has therefore contributed to the success of the work leading to the adoption of 
the Convention under favourable conditions. This said, this collective success would not have 
been  possible  without  the  individual  commitment  of  the  Member  States  and  the  very  active 
role of the social partners. 

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COM(2001) 188  final  of  6 April 2001:  “Communication  from  the  Commission  to  the  Council  and 
European Parliament on the training and recruitment of seafarers”.  
BIMCO/ISF Manpower 2005 update December 2005. 

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The added value of the EU in the negotiations was recognised at the ILO by third countries 
and the social partners. The Director-General of the ILO emphasised the fact in his statement 
during the maritime session of the International Labour Conference in February 2006. 

However, the Commission regrets the fact that the Member States did not wish to go further 
under  the  mandate  which  also  sought  to  explore  the  possibility  of  presenting  amendments 
during  the  negotiations  on  the  Convention  in  order  to  mention  the  specific  role  of  regional 
economic integration organisations. 

From a legal point of view, the absolute priority was to ensure that the text of the Convention 
and Community law are compatible in order to avoid any obstacle to ratification, particularly 
as  regards  the  coordination  of  social  security  systems,  a  matter  of  exclusive  Community 
competence.  A  safeguard  clause  had  therefore  to  be  adopted  on  social  security  in  order  to 
maintain the Community system for coordinating social security schemes. A Council decision 
authorising ratification of the Convention by the Member States is also required, as was the 
case  for  Convention  185,  given  the  powers  relating  to  the  coordination  of  social  security 
schemes  and  Port  State  control  at  Community  level  on  all  aspects  governed  by  the 
Convention. 

2. Encourage and expedite ratifications 

Continuing  with  its  efforts,  the  Commission  will  endeavour  to  encourage  ratification 
processes to ensure that the Convention enters into force as soon as possible. 

Given that the conditions for entry into force laid down by the 2006 consolidated Convention 
call for 30 States accounting for at least 33% of world tonnage and that the 27 States of the 
EEA  total  28%  of  the  world  fleet,  the  European  Union  can  have  a  motor  effect.  For  this 
reason the Commission will encourage rapid ratification by the Member States. Moreover it 
will make Member States aware of the importance of ratifying this pioneering text. 

3. Improve Community standards 

The  European  Commission  considers  that  the  inclusion  of  the  human  factor  in  the  2006 
consolidated  Convention  which  establishes  a  balance  between  the  obligations  taken  on  by 
shipowners and governments so that seafarers enjoy decent working conditions is of utmost 
importance. The Commission considers that if the relevant provisions of the Convention were 
incorporated  into  Community  law,  the  Community  acquis  on  maritime  safety  would  benefit 
from the means of making competition conditions fairer in the interests of all parties. 

In this case, the 2006 consolidated Convention has many consequences since it covers a wide 
range of factors. The potential effects of the entry into force of the standards laid down by the 
Convention  on  Community  law  are  the  subject  of  an  impact  assessment  which  has  already 
been  launched  by  the  Commission.  Consideration  is  being  given  to  legal  and  institutional 
questions  as  well  as  the  economic  and  social  aspects,  in  terms  of  costs  and  benefits,  which 
will be the subject of an external analysis. The following are among the main questions that 
arise: 

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1. Adapt Community acquis: This step will probably be essential to update the texts directly 
affected by the provisions of the 2006 consolidated Convention (e.g.: Directives 1995/217 and 
1999/958). 

2.  Adopt  additional  texts:  The  question  is  whether  legislation  should  be  adopted  on  those 
areas  governed  by  the  Convention  but  not  covered,  or  only  partly  covered,  at  Community 
level (e.g.: regulation of recruitment agencies, requirement that an employee possess a signed 
contract of employment). 

3. Go beyond the provisions of the Convention: the 2006 consolidated Convention only lays 
down  minimum  standards  and  there  is  nothing  to  exclude  action  at  Community  level  to 
strengthen, complement or extend these standards by means of additional rules not laid down 
by the ILO. 

Other questions should also be tackled such as: 

4. Make Part B of the Convention binding: Following on from point 3, there is the legitimate 
question  of  whether  there  should  be  a  harmonised  and  legally  binding  interpretation  at 
Community  level  to  guarantee  more  uniform  application  of  the  Convention  and  reduce  the 
risks of differences between possible interpretations in the Union. 

5.  Reflect  the  tripartite  structure:  At  institutional  level,  consideration  must  be  given  to  the 
consequences  of  setting  up  the  monitoring  commission  provided  for  by  the  Convention 
(Article XIII).  Given  the  existence  of  this  new  body  and  its  role,  should  there  also  be  a 
specific structure, subordinate to that of the ILO Convention, to reflect the tripartite nature at 
Community level in the framework of the integration of the Convention standards? 

This consultation forms part of the procedure provided for in Article 138 of the Treaty. Before 
presenting  proposals  on  social  policy,  the  Commission  consults  the  social  partners  on  the 
possible direction of Community action. The social partners may, on this occasion, decide to 
initiate  negotiations  with  a  view  to  signing  an  agreement  and  request  the  Commission  to 
propose a Council decision to implement it. Otherwise, the Commission, where appropriate, 
continues its work on the proposal in question. 

The  reference  to  an  agreement  between  the  social  partners  in  the  Commission  work 
programme  for  2006  relates  to  the  precedent  set  by  the  inclusion  of  the  provisions  of  ILO 
Convention 180 on working time through the adoption of the two Directives9. Two directives 
were  necessary  given  that  an  agreement  of  social  partners  could  only  be  implemented  by 
Council  decision  for  matters  defined  by  Articles  137  and  139  of  the  Treaty.  The  social 
partners  are,  of  course,  free  to  determine  the  content  of  their  negotiations  and  of  any 

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Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using 
Community ports and sailing in the waters under the jurisdiction of the Member States, of international 
standards for ship safety, pollution prevention and shipboard living and working conditions (Port State 
control). 
Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning 
the  enforcement  of  provisions  in  respect  of  seafarers  hours  of  work  on  board  ships  calling  at 
Community ports. 
Council  Directive  1999/63/EC  of  21  June  1999  concerning  the  agreement  on  the  organisation  of  the 
working time of seafarers and Directive 1999/95/EC referred to above. 

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autonomous  agreement  but  implementation  by  Council  decision  must  take  account  of  the 
conditions  laid  down  by  Article 139.  The  Commission  considers  that  this  consultation 
procedure could lead to the application of Article 139 of the Treaty which would appear all 
the more justified given the ambitious nature of the 2006 consolidated Convention. 

III. CONCLUSION 

The social partners have already been made aware of all of these questions at regular meetings 
held as part of the social dialogue in the maritime sector. 

This communication constitutes the first phase of consultation provided for in Article 138(2) 
of  the  Treaty.  The  social  partners  are  therefore  requested  to  give  their  response  to  the 
following two questions: 

-  Is  it  necessary  or  advisable  to  develop  the  existing  Community  acquis  by  adapting, 
consolidating or complementing it in accordance with the guidelines set out in part II of this 
Communication or any other arrangements? 

-  Could  the  social  partners  consider  entering  into  negotiations  with  a  view  to  reaching  an 
agreement to be implemented by means of Council decision, in accordance with Article 139 
of the Treaty? 

Where  appropriate,  the  social  partners  will  be  consulted  as  part  of  a  second  phase  on  the 
content of any proposal considered by the European Commission. 

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