Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Reassessing the regulatory social framework for more and better seafaring jobs in the EU (first phase consultation of the social partners at Community level provided for in Article 138(2) of the Treaty)
Date: 2007-10-10
Institutions: European Commission
Subjects: European Works Council, collective dismissal, crew, employer, financial solvency, fisherman, labour law, occupational health, social legislation, working conditions

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 10.10.2007 
COM(2007) 591 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Reassessing the regulatory social framework for 
more and better seafaring jobs in the EU 

(first phase consultation of the social partners at Community level provided for in 
Article 138(2) of the Treaty) 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Reassessing the regulatory social framework for 
more and better seafaring jobs in the EU 

(first phase consultation of the social partners at Community level provided for in 
Article 138(2) of the Treaty) 

1. 

INTRODUCTION  

The Green Paper “Towards a future maritime policy for the Union”1 raised the issue 
of  the  exclusion  of  maritime  sectors  from  parts  of  the  European  labour  and  social 
legislation and of its reassessment in close cooperation with the social partners.  

In the context of other actions aimed at enhancing the social dimension of maritime 
Europe2  and  promoting  the  competitiveness  of  the  EU  maritime  sector,  taking  into 
account the demands of the stakeholders and in particular of the European Parliament 
and European Economic and social Committee, the Commission wishes to examine 
whether  current  Community  legislation  ensures  appropriate  levels  of  protection  to 
seafaring  workers  and  if  improving  them  could  render  EU  maritime  sector  more 
attractive for job seekers3 without undermining its competitiveness. 

The  present  Communication  reviews  the  pertinent  legislation  in  order  to  identify 
exclusions or derogations affecting workers in maritime professions and difficulties 
of interpretation of this legislation. It seeks to determine, against the background of 
the already extensive body of international conventions and standards, to what extent 
action may be needed to improve legal protection for maritime professions in the EU. 
Finally, it launches a consultation of the social partners in the light of Article 138(2) 
of the Treaty, on the possible orientations of Community action.  

The  focus  on  the  regulatory  framework  inevitably  narrows  the  scope  of  analysis  to 
those  professions  subject  to lower levels of protection  under EU law, and/or  where 
major problems have been detected, i.e. workers in the shipping and fisheries sector. 

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COM(2006) 275, 7.6.2006. 
E.g.  a  Communication  on  Ports  Policy  will  be  adopted  in  the  context  of  a  maritime  policy  with  a 
chapter addressing working conditions and social dialogue in ports. 
The  European  Parliament  in  Resolution  of  11  July  2007  (2007/2023(INI)),  "requests  that  all  workers 
have access to the same level of protection and that certain groups are not excluded by default from the 
broadest  level  of  protection,  such  as  is  currently often  the  case for seafarers,  workers  on  vessels  and 
offshore  workers".  The  European  Economic  and  Social  Committee  "notes  the  exclusion  of  fishermen 
and  seafarers  from  European  social  legislation  on  a  number  of  issues  (eg:  the  Directive  on  collective 
redundancies, on transfer of undertakings, on information/consultation and for posting of workers in the 
framework  of  the  provision  of  services).  Irrespective  of  the  reasons  behind  these  exclusions,  it  is 
important to put an end to that discrimination where appropriate. It, therefore, invites the Commission 
to reassess these exclusions in close cooperation with social partners" (paragraph 1.7 of TEN/255 CESE 
609/2007, 3 April 2007). 

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The economic and social importance of the issue at stake is very significant. In 2005, 
the  total  number  of  seafarers  from  EU-27  countries  was  estimated  at  204 4004  and 
the  number  of  fishermen  employed  in  EU-25  was  of  approx.  190 000  –  195 000. 
Several contributions to the consultation have confirmed shortage of qualified staff to 
man European vessels. 

2. 

INTERNATIONAL FRAMEWORK 

Most  maritime  sectors  operate  in  a  highly  globalised  context.  The  increasing 
economic globalisation and the internationalisation of the workforce, combined with 
sometimes  insufficient  enforcement,  have  eroded  the  effectiveness  of  the  existing 
international standards and affected maritime safety at global level, contributing to a 
strong increase in inequalities in living and working conditions of maritime workers. 
The  EU  is  strongly  pushing  efforts  in  global  fora  to  strengthen  the  international 
regulatory regime. This has resulted in the successful adoption of the ILO Maritime 
Labour Convention, 20065, and of the ILO Work in Fishing Convention, 20076. 

The  new  international  standards  introduced  by  these  Conventions  are  relevant  for 
updating and completing EU internal and external policies including social standards 
as  they  consolidate  and  update  existing  international  law  in  a  very  wide  range  of 
fields, providing for a comprehensive set of rules on compliance and enforcement. 

The implementation of provisions of the ILO Maritime Labour Convention, 2006, on 
compliance and enforcement is crucial for the creation of a global level playing field 
in maritime transport. It should also be noted that the third maritime safety package 
reviews some rules of port state control to reinforce this control in respect of labour 
standards, including the treatment of complains formulated by the crew7. 

The Council adopted a Decision on 7 July 2007 authorising Member States to ratify 
ILO Maritime Labour Convention, 2006 in the interests of the European Community, 
preferably before 31 December 20108. 

The Commission also plans to present a proposal for a Council decision authorising 
and  encouraging  prompt  ratification  by  EU  Member  States  of  the  ILO  Work  in 
Fishing Convention, 20079.  

In  recent  years  the  ILO  and  IMO  have  also  taken  initiatives  to  improve  security 
standards.  In  2003  the  ILO  adopted  Convention  No  185  updating  the  seafarers' 

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Bimco/ISF Manpower Studies 1995-2005. 
The  Maritime  Labour  Convention,  2006,  aims  to  become  the  “fourth  pillar”  of  the  international 
regulatory  regime  for  quality  shipping,  complementing  the  key  Conventions  of  the  International 
Maritime  Organisation  (IMO)  It  “consolidates”  and  updates  the  existing  international  law  (68 
instruments) , with the exception of the recent seafarers identity document convention (No 185) and the 
seafarers pensions convention (No 71). 
This  convention  revises  four  existing  conventions  and  complements  them  with  other  provisions,  for 
example, on health and safety at work and on compliance and enforcement including a valid compliance 
document, inspection and both flag-state and port-state control. 
COM(2005) 588, 23.11.2005. 
OJ L 161, 22.6.2007. 
Both the 2006 and the 2007 ILO conventions affect exclusive EC competences. 

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identity document (seafarers' ID – Convention No 108) to facilitate shore leave and 
transit for seafarers. The Council authorised the EU Member States to ratify it10, and 
the Commission has also been encouraging them to ratify and implement it.  

The  EC  Fishing  Partnership  Agreements  (FPA)  with  developing  countries  also 
promote decent working and living conditions by including social clauses. 

3. 

EU  LEGISLATION  ON  WORKING  CONDITIONS  AND 
CONSULTATION 

INFORMATION  AND 

Four situations exist as regards the coverage of seafarers and/or fishermen by the EU 
legislation  on  working  conditions  and  the  information  and  consultation  of  workers 
(hereinafter "IC"): 

•  Non-exclusion  (i.e.  lack  of  specific  provisions  or  derogations).  In  directives  on 
fixed-term  work,  part-time  work,  health  and  safety  of  workers  on  fixed-term  or 
temporary  agency  contracts,  information  on  the  conditions  applicable  to  the 
employment contract or relationship and the participation of workers in European 
Companies and European Cooperatives. 

•  Specific  legislation  or  general  instruments  containing  specific  provisions.  In  the 
Directive  on  organisation  of  working  time  (while  the  main  Directive11  excludes 
seafarers  from  its  scope  of  application,  it  also  provides  for  a  specific  regulation 
concerning  fishermen)  or  the  Directive  on  the  work  of  young  people12  (with 
differentiated specific possibilities of derogation concerning the sector). 

•  The  possibility  for  Member  States  to  introduce  exclusions  in  their  national 
legislation when transposing directives. In the European Works Council Directive 
(the Directive on information and consultation and the Directive on protection of 
employees in case of insolvency).  

•  Exclusion  from  the  scope  of  application.  In  the  Directive  on  collective 

redundancies, transfer of undertakings and posting of workers. 

The directives falling under the last two situations call for a more detailed analysis.  

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11 

12 

Council Decision of 14 April 2005 (OJ L 136, 30.5.2005, p. 1). The new Community border code of 15 
March 2006, contains a reference to this convention. 
Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning 
certain aspects of the organisation of working time. 
Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work; Member States 
may  under  certain  conditions  authorise night  work  and  make derogations  from  the  rules  on daily  and 
weekly rest in relation to adolescents working i.a. in the shipping sector (Articles 9.2 and 10.4). 

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a)  Council  Directive  2002/74/EC13-  Protection  of  employees  in  the  event  of  the 
insolvency of their employer 

Article  1(2)  allows  Member  States  to  exclude  claims  by  certain  categories  of 
employees  from  its  scope  to  the  extent  that  other  forms  of  guarantee  exist  which 
provide  adequate  protection  for  employees  in  the  event  of  the  insolvency  of  their 
employers.  While  this  provision  does  not  make  specific  reference  to  the  seafaring 
professions, Member States might use this possibility regarding them.  

Article 1(3) allows Member States that already excluded share-fishermen from their 
equivalent national legislation when the Directive entered into force to maintain such 
exclusion.  

Only  six  Member  States14  used  exclusion  possibilities  under  Articles  1(2)  and/or 
1(3)(b)  of  the  Directive.  It  should  be  reassessed  whether  the  exclusions  remain 
justified  in  case  of  these  Member  States,  and  whether  other  forms  of  protection 
afforded in such cases have indeed proved to be equivalent.  

b) Council Directive 94/45/EC15 - European Works Councils 

This Directive does apply to crews of fishing vessels falling within its general scope 
of  application.  However,  Article  1(5)  states  that  "Member  States  may  provide  that 
this directive shall not apply to merchant navy crews".  

One reason for such a derogation16 was that in general these crews work at a great 
distance from one another and from the management, thus making it very difficult to 
bring them together for consultation. 

Six Member States have made use of this provision17. In two others18, the exclusion 
is due to the fact that specific legislation exists, while in three other Member States19 
there are mechanisms to adapt the implementing legislation to seafarers. 

The  option  to  exclude  merchant  navy  crews  needs  to  be  re-examined,  as:  (i)  the 
highly internationalised workforce needs transnational information and consultation 
procedures, (ii) the majority of the Member States make no use of this option, (iii) 
the  provisions  of  the  Directive  are  flexible  (the  information  and  consultation 
mechanisms are negotiated in order to adapt them to company characteristics). 

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15 

16 

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18 
19 

Directive  2002/74/EC  of  the  European  Parliament  and  the  Council  of  23  September  2002  amending 
Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the 
protection of employees in the event of the insolvency of their employer. 
EL, IT, HU, MT, SK, UK. 
Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council 
or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the 
purposes of informing and consulting employees (OJ L 254, 30.9.1994, p. 64). 
See Working paper 15 of the working party that prepared the transposition of the 94/45/EC directive. 
However it was also stated that "it would seem adequate not to exclude crews of ferry boats covering 
only smaller distances". The exclusion was not provided for in either the proposal of the Commission 
COM(94) 134 or the amended proposal COM(94) 228.  
CY, EE, EL, HU, IT, LV. 
LT, MT. 
DK, NL, UK. 

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Nevertheless the specific working patterns of seafarers will always need to be taken 
into  account.  One  possible  option  is  to  change  the  existing  possibility  of  exclusion 
into  an  authorisation  to  adapt  the  national  provisions  to  the  specific  situation  of 
merchant navy crews, particularly long-haul crew members, as some Member States 
do already. 

c) Directive 2002/14/EC20 - Information and consultation 

Under  Article  3(3),  "Member  States  may  derogate  from  this  Directive  through 
particular provisions applicable to the crews of vessels plying the high seas".  

The  reasons  raised  by  the  Member  States  to  justify  the  exclusion  were  similar  to 
those  regarding  Directive  94/45/EC:  the  difficulty  in  applying  information  and 
consultation procedures on board ships operating far away from an undertaking's seat 
and the fact that seafarers' contracts are frequently short-term.  

Here however the exclusion is not unconditional in that it obliges Member States to 
provide for "particular provisions". It thus cannot take the form of a simple absence 
of  regulation  or  imply  a  different  level  of  protection.  Eight  Member  States21  made 
use  of  the  option  under  Article  3(3),  but  only  three  of  them22  introduced  particular 
provisions  applying  to  crews  falling  within  the  scope  of  the  derogation.  The 
Commission  will  examine  the  legal  conformity  of  such  particular  provisions  in  a 
forthcoming report on the implementation of this Directive. 

d) Council Directive 98/59/EC23 - Collective redundancies  

Article 1(2)(c) of the Directive states that it does not apply to the crews of seagoing 
vessels. 

in  1991, 

In the explanatory memorandum attached to its proposal for the revision of Directive 
75/129/EEC24 
information, 
the  Commission  considered 
consultation and notification requirements laid down in this Directive are in no way 
incompatible with the special nature of the contract of employment or employment 
relationships of the crews of sea-going vessels. Their exclusion from the protection 
provided by the Directive is not justifiable, unless they are covered by other forms of 
guarantee offering them protection equivalent to that resulting from the Directive". 

that  "the 

The reference to other forms of guarantee offering equivalent protection was opposed 
during the discussions in the Council. 

Therefore, there are reasonable grounds for re-examining the terms under which the 
Directive deals with the protection of the rights of crews of sea-going vessels25. 

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23 

24 
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Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a 
general framework for informing and consulting employees in the European Community. 
CY, DE, DK, EL, FR, MT, RO, UK.  
DE, DK, UK. 
Council  Directive  98/59/EC  of  20  July  1998  on  the  approximation  of  the  laws  of  the  Member  States 
relating to collective redundancies (OJ L 225, 12.8.1998, p. 16).  
COM(91) 292. 
E.g. ES, FR, LT, EE, CZ, SI, PL already do not make use of this exclusion. 

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e) Council Directive 2001/23/EC26 - Transfers of undertakings  

Article 1(3) of the Directive excludes sea-going vessels in general. 

Neither the original Commission proposal (COM(74) 351) nor the amended proposal 
of 25 July 1975 (COM(75) 429) contained any specific reference to seagoing vessels. 
However,  as  adopted  on  14  February  1977  (Directive  77/187/EEC),  the  Directive 
contained  already  the  exclusion  which  appears  to  have  been  prompted  by  a  similar 
exclusion in the collective dismissals directive. 

The  Commission  considered  in  1994  in  its  proposal  for  revision  of  Directive 
77/187/EEC27  that  seagoing  vessels  could  be  excluded  from  the  information  and 
consultation rights granted by the Directive but not from its fundamental provisions, 
i.e., the maintaining of the employees' rights existing at the moment of the transfer. 
This position was not accepted, however, by the Council. 

On  the  face  of  it,  there  does  not  seem  to  be  any  specific  reason  to  maintain  this 
exclusion. In particular, the provisions of the Directive for safeguarding employees' 
rights  do  not  appear  to  be  incompatible  with  the  special  nature  of  the  employment 
contracts  or  relationships  on  sea-going  vessels.  As  to  information  and  consultation 
rights,  the  approach  should  be  consistent  with  that  to  be  adopted  for  Directives 
2002/14/EC and 98/59/EC. 

It  is  worth  noting  considerable  number  of  Member  States28,  including  some  of  the 
largest  shipping  countries,  have  not  chosen  to  exclude  seagoing  vessels  from  the 
scope of national legislation implementing the Directive. It is therefore obvious that 
this issue requires further attention. 

f) Directive 96/71/EC29 - Posting of workers  

Article  1(2)  of  Directive  96/71/EC  provides:  "this  directive  shall  not  apply  to 
merchant navy undertakings as regards seagoing personnel". 

Posted  workers  are  defined  in  the  Directive  as  workers  who,  for  a  limited  period, 
carry out work in the territory of a Member State other than the State in which they 
normally work. Strictly speaking, seagoing personnel on a vessel plying in the high 
seas  are  not  to  be  considered  as  being  posted  "to  the  territory  of  another  Member 
State"30.  

In  a  previous  report  on  the  implementation  of  this  Directive31  the  Commission 
recognised that "this exclusion is considered justified by the vast majority of Member 

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30 

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Council  Directive  2001/23/EC  of  12  March  2001  on  the  approximation  of  the  laws  of  the  Member 
States  relating  to  the  safeguarding  of  employees'  rights  in  the  event  of  transfers  of  undertakings, 
businesses or parts of undertakings or businesses (OJ L 82, 22.3.2001, p. 16).  
COM(94) 300 .  
AT, CZ, DE, EE, ES, HU, IT, LT, PL, PT, SE, UK. 
Directive 96/71/EC  of  the European Parliament  and of  the  Council  of 16  December  1996  concerning 
the posting of workers in the framework of the provision of services. 
The  application  of  the  law  of  the  flag  is  generally  based  on  the  notion  of  nationality  of  a  vessel  (by 
analogy with the nationality of individuals) rather than assimilation to the territory.  
COM(2006) 159. 

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States, given the specific nature of the itinerant work done by this group of workers 
and  the  practical  difficulties  associated  with  monitoring  them".  However,  "the 
exclusion  of  these  undertakings  from  the  scope  of  the  Directive  does  not  exempt 
them  from  the  application  of  the  rules  of  private  international  law  (Rome 
Convention)"32. 

In  conclusion,  the  definition  of  posting  contained  in  Directive  96/71/EC  does  not 
seem  to  be  applicable  to  seagoing  personnel.  The  existing  exclusion  appears  to 
reflect this reality and therefore to be justified. 

4. 

EU HEALTH AND SAFETY LEGISLATION  

EU  legislation  on  health  and  safety  at  work  applies  to  "all  sectors  of  economic 
activity, both public and private"33. Therefore workers in the maritime sector benefit 
from the same levels of protection as workers in other sectors. 

Out  of  28  directives  governing  this  field,  only  two  do  not  apply  to  the  maritime 
sector: 

•  Council  Directive  89/654/EEC  of  30  November  1989  concerning  the  minimum 

safety and health requirements for the workplace34; 

•  Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health 

requirements for work with display screen equipment35.  

Directive  89/654/EEC  does  not  apply  to  means  of  transport  used  outside  the 
undertaking and/or the establishment, or to workplaces inside means of transport and 
fishing  boats.  The  reason  for  this  exclusion  was  that  these  were  particular 
workplaces,  different  from  workstations  in  the  premises  of  undertakings  and/or 
establishments, and as such should be subject to specific regulation.  

Moreover, the fishing sector being relatively accident prone, a special instrument was 
needed to tackle the specific risks and to promote the occupational health and safety 
of fishermen. For these reasons, the Council adopted Directive 93/103/EEC defining 
the minimum safety and health requirements for work on board fishing vessels. 

International  agreements  and  conventions  are  relevant  to  specify  health  and  safety 
requirements  to  be  met  by  sea-going  vessels.  In  this  respect,  the  ILO  Maritime 
Labour  Convention,  2006  and  the  ILO  Work  in  Fishing  Convention,  2007  will  be 
particularly  significant.  However,  it  should  be  underlined  that  the  Community 
provides efficient legal means to complement these international instruments where 
it  is  useful.  Binding  international  codes  and  agreements  sometimes  contain  more 
stringent and/or specific provisions than the EU health and safety at work legislation, 
and their application is expressly provided for in some directives. In these cases, it is 

32 
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34 
35 

Report by the Working Party on the transposition of the Directive concerning the posting of workers. 
Article  2(1)  of  Council  Directive  89/391/EEC  of  12  June  1989  on  the  introduction  of  measures  to 
encourage improvements in the safety and health of workers at work (OJ L 183, 29.6.1989, p. 1). 
OJ L 393, 30.12.1989, p. 1. 
OJ L 156, 21.6.1990, p. 14. 

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expressly stated that the provisions of the relevant directives apply without prejudice 
of  such  agreements  and  codes.  In  case  of  Directive  1999/92/EC36,  the  sector  in 
question is fully covered by such international agreements. 

Accordingly the Commission committed itself in the Community strategy 2007-2012 
on  health  and  safety  at  work37  to  promoting  health  and  safety  at  international  level 
and  to  strengthening  its  cooperation  with  ILO,  WHO  and  other  international 
organisations for the establishment of higher levels of protection globally.  

Two directives apply specifically to the maritime sector: 

•  Directive  92/29/EEC  of  31  March  1992  on  the  minimum  safety  and  health 

requirements for improved medical treatment on board vessels38; 

•  Directive  93/103/CE  of  23  November  1993  concerning  the  minimum  safety  and 

health requirements for work on board fishing vessels39. 

Directive  93/103/CE  applies  only  to  new  fishing  vessels  (building  contract  placed 
after 23 November 1995) with a length between perpendiculars of 15 m or over and 
to existing fishing vessels with a length between perpendiculars of 18 m or over. A 
Report  of  the  Commission  on  the  practical  implementation  of  the  provisions  of 
Directive 93/103/EC providing a thorough analysis of its impact on the protection of 
the health and safety of European fishermen and identifying the needs for action is 
due for adoption in 2008. 

The  exclusion  of  small  vessels  from  the  Directive  is  justified  on  the  basis  of  the 
serious  economic  impact,  including  additional  administrative  burden,  which  the 
adoption of the Directive would have for small vessels. 

However, there is still a need to remedy the persistently high level of work accidents 
in fishing. In particular, good practices, taking into account the specific nature of the 
work on board small fishing vessels, should be disseminated and practical guidance 
should  be  provided  to  both  employers  and  workers  in  order  to  promote  safer  work 
practices. 

5. 

FREE MOVEMENT OF WORKERS AND COORDINATION OF SOCIAL SECURITY SYSTEMS 

5.1. 

Free movement of workers 

Free  movement  of  workers  within  the  EU  is  one  of  the  fundamental  freedoms 
guaranteed by Community law. According to settled case law, the provisions in the 
EC  Treaty  on  the  free  movement  of  workers  are  also  applicable  to  maritime 

36 

37 

38 
39 

Directive  1999/92/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  1999  on 
minimum  requirements  for  improving  the  safety  and  health  protection  of  workers  potentially  at  risk 
from explosive atmospheres (OJ L 23, 28.1.2000, p. 57). 
Communication from the Commission to the European Parliament, the Council, the European Economic 
and Social Committee and the Committee of the Regions - Improving quality and productivity at work: 
Community strategy 2007-2012 on health and safety at work - COM(2007) 62, p. 14. 
OJ L 113, 30.4.1992, p. 19. 
OJ L 307, 13.12.1993, p. 1. 

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transport.  Even  if  the  activities  are  carried  out  outside  the  territory  of  the 
Community, the provisions continue to apply to the worker concerned provided that 
the  legal  employment  relationship  can  be  located  within  the  territory  of  the 
Community or retains a sufficiently close link with that territory40. 

5.2. 

Coordination of social security schemes 

Community legislation on social security provides that workers and members of their 
families  do  not  lose  their  social  security  protection  when  moving  within  the 
Community  and  ensures  that  the  basic  principles  of  equality  of  treatment  and  non-
discrimination  are  respected  by  the  Member  States  when  applying  their  national 
social security rules. 

The  relevant  legislation  is  laid  down  in  Regulation  (EEC)  No  1408/71  and  its 
implementing  Regulation  (EEC)  No  574/72.  These  rules  provide  for  the  simple 
coordination  of  the  social  security  systems  of  the  Member  States.  For  seafarers, 
Regulation  (EEC)  No  1408/71  contains  specific  rules  concerning  the  legislation 
applicable.  An  EU  national  who  is  working  on  board  a  vessel  flying  the  flag  of  a 
Member State is in principle subject to the legislation of that State. However, if the 
person concerned is working on board a vessel flying the flag of a Member State and 
remunerated  for  such  employment  by  an  undertaking  that  is  registered  or  has  its 
place of business in another Member State, the person is subject to the legislation of 
the latter, provided that he or she is resident in that State41.  

The provisions of Regulation (EEC) No 1408/71 also apply to third-country nationals 
provided that they are legally resident in the territory of a Member State and are in a 
situation  that  is  not  confined  in  all  respects  within  a  single  Member  State  (see 
Regulation (EC) No 859/2003).  

However, these Community rules can only ensure a very partial protection of rights 
in the case of seafarers as: (i) they only apply to social security schemes of countries 
within  the  EU  and  EEA  plus  Switzerland;  (ii)  third-country  nationals  who  are 
working  on  a  vessel  flying  the  flag  of  a  Member  State,  but  who  are  not  legally 
resident  in  the  Community  or  who  are  not  in  a  cross-border  situation  as  defined  in 
Regulation (EC)  No 859/2003, are not  covered by this Community legislation. The 
question  of  whether  or  not  they  are  entitled  to  social  security  coverage  under  the 
national  legislation  to  which  they  are  subject  is  solely  a  matter  for  the  Member 
State(s) concerned. 

Furthermore, the material scope of these rules is confined to social security schemes 
set  up  by  national  legislation.  Exemptions  apply  to  non-statutory  complementary 
insurance  schemes  or  special  schemes  for  self-employed  persons42  and  collective 
agreements unless such agreements are rendered compulsory by national legislation. 
In  the  maritime  and  fishing  sector,  social  security  coverage  is  often  part  of  the 

40 
41 

42 

See e.g. Case 9/88 Lopes da Veiga, ECR (1989) 2989, Par. 15. 
See Article 13(2)(c) and Article 14(b)(4). Unchanged in the new Regulation (EC) No 883/2004, which 
replaces Regulation (EEC) No 1408/71.  
Under  Regulation  (EC)  No  883/2004,  special  schemes  for  self-employed  persons  lose  their  special 
status  and  will  also  be  covered  by  the  Regulation  if  they  are  rendered  compulsory  by  national 
legislation.  

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employment  contract  and  ensured  by  an  international  private  insurance  scheme. 
Workers can only invoke the provisions of Regulation (EEC) No 1408/71 where they 
are  covered  by  statutory  insurance  under  the  national  legislation  to  which  they  are 
subject.  Thus,  they  can  be  faced  with  gaps  in  their  social  security  rights.  This  is 
particularly the case for the acquisition of pension rights. 

The  ILO  Maritime  Labour  Convention,  2006  contains  provisions  on  the  minimum 
level  of  social  security  protection  that  each  Member  under  its  national  law  must 
provide to seafarers that are ordinarily resident in its territory. According to the ILO 
Maritime  Labour  Convention,  2006,  this  protection  should  not  be  less  favourable 
than  that  enjoyed  by  shore-workers  resident  in  its  territory.  Similar  provisions  are 
envisaged  in  the  ILO  Work  in  Fishing  Convention,  2007.  Once  in  force,  they  will 
ensure  certain  level  of  social  security  protection  for  workers  in  this  sector.  Further 
gains could be achieved by increasing the number of international agreements with 
third countries that include social clauses and equal treatment clauses. 

6. 

THE ROLE OF SOCIAL DIALOGUE  

The  sectoral  committees  for  maritime  transport  and  sea  fishing  have  regularly 
addressed topics with a view to improving safety and well-being on board.  

Both committees have a long-standing commitment to decent working conditions in 
the context of globalisation and compliance with international legislative instruments 
for seafarers. The European social partners take an active part in the ILO and IMO, 
thereby contributing to a stronger European position and are very much committed in 
the follow up and implementation of the relevant international instruments.  

In  the  maritime  transport  sector,  the  social  partners  are  negotiating  in  view  of 
reaching a European agreement transposing relevant provisions of the ILO Maritime 
launched  following  a 
Labour  Convention,  2006.  These  negotiations  were 
Commission's consultation of the social partners under Article 138(2) of the Treaty, 
launched in June 2006. If an agreement is reached and the social partners so request, 
a  proposal  for  a  directive  on  the  basis  of  Article  139  ECT  will  be  envisaged. 
Furthermore, a proposal for a directive concerning the enforcement of provisions in 
respect of maritime labour standards on board ships flying Community flags and all 
those  calling  at  Community  ports  could  also  be  envisaged.  Such  instrument  will 
allow  for  a  uniform  application  of  the  ILO  Maritime  Labour  Convention,  2006  by 
Member  States  to  all  ships,  including  those  under  third  country  flag  following  the 
entry into force of ILO Maritime Labour Convention, 2006 in line with the principle 
of the no more favourable treatment vis-à- vis non ratifying countries. 

The  integration  of  international  standards  within  EU  law  would  promote  a  level 
playing field. The Commission invites therefore the social partners in the sea fishing 
sector  to  examine  the  possibilities  of  a  joint  initiative  to  promote  the  application 
within the EU of the provisions of the recent ILO Work in Fishing Convention, 2007. 

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7. 

CONCLUSIONS 

The  Commission  will  continue  to  work  towards  strengthening  the  international 
regulatory  regime,  in  particular  by  promoting  the  ratification  and  enforcement  of 
international  standards  and  through  international  agreements  with  third  countries 
including social clauses and equal treatment clauses. 

The  Commission  is  also  committed  to  improving  the  Community  legal  framework 
for workers in the seafaring professions. The analysis in the present Communication 
indicates that their exclusion from the scope of some directives might not be entirely 
justified  insofar  as  they  do  not  appear  to  contribute  to  the  application  of  specific 
solutions, more adapted to the concrete situation of such workers. 

Of particular concern are the rights of seagoing workers to protection in the case of 
insolvency of their employer or transfer of undertakings, where a coherent approach 
should be promoted in order to enable them to exercise their rights effectively both at 
national  level  and  in  Community-scale  undertakings.  The  existing  exclusions  from 
the scope of the Directives regarding information and consultation also merit review. 

Where  sufficiently  strong  reasons  exist  to  maintain  the  existing  exclusions  or 
derogations, consideration should be given to whether specific EU legislation for the 
sector would be the most appropriate solution  to guarantee to seafaring professions 
the same level of protection enjoyed by other workers under the general directive.  

In that case, the particular legal conditions applying in the Member States need to be 
examined in order to make sure that the seagoing professions enjoy adequate levels 
of  protection,  particularly  in  the  cases  of  conditional  exclusions,  which  oblige 
Member  States  to  establish  more  specific  regulation  or  alternative  guarantees, 
ensuring the same level of protection. 

Any future proposals concerning the reassessment of exclusions and/or derogations 
applicable  to  maritime  sectors  would  be  considered  on  the  basis  of  a  thorough 
analysis  of  their  impact  on  the  competitiveness  of  the  EU  seafaring  industry. 
Moreover, account would be taken of the international standards and their interaction 
with EU rules. 

Against this background, the social partners are requested to respond to the following 
questions: 

1.  Do you share the Commission's analysis of the justifications for the exclusions 

and derogations from EU labour legislation concerning seafaring professions? 

2. 

3. 

Should the elimination of the exclusions that are no longer justified lead to the 
inclusion of seafaring professions within the general scope of application of the 
relevant directives? Which should be the priorities for action in this respect? 

In the case of exclusions that you consider justified due to the particularities of 
the  sector  or  other  reasons,  is  an  equivalent  level  of  protection  for  seafaring 
professions  guaranteed  by  other  means?  Do  you  consider  that  specific 
regulation within the relevant directive or a specific legal instrument of EU law 
for the seafaring professions could be warranted? 

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4.  What  means  do  you  find  more  appropriate  in  order  to  enhance  health  and 

safety on board, in particular on small fishing vessels? 

5. 

Taking  into  account  the  division  of  legal  responsibilities  between  the 
Community  and  Member  States  as  regards  social  security,  what  means  of 
action do you consider more appropriate in order to improve the social security 
protection of workers in seagoing professions? 

************* 

This Communication constitutes the first phase of consultation provided for in Article 138(2) 
of  the  Treaty.  If,  after  the  consultation,  the  Commission  considers  Community  action 
advisable, it will consult the social partners on any proposal, as provided for by Article 138(3) 
of the Treaty.  

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