Proposal for a Council Decision authorising Member States to ratify, in the interests of the European Community, the Work in Fishing Convention, 2007, of the International Labour Organisation (Convention 188)
Date: 2008-05-27
Institutions: European Commission
Subjects: EU Member State, International Labour Organisation, fishing industry, international convention, labour law, ratification of an agreement, working conditions

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 27.5.2008 
COM(2008) 320 final 

2008/0107 (CNS) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to ratify, in the interests of the European Community, the 
Work in Fishing Convention, 2007, of the International Labour Organisation 
(Convention 188) 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

The  Convention  No.188  on  work  in  the  fishing  sector  of  the  International  Labour 
Organisation (hereinafter called the ILO) was adopted in June 2007 by the ninety-sixth 
session of the International Labour Conference (hereinafter called 'Convention 188'). 

The  adoption  of  Convention  188  became  necessary  after  the  adoption  of  the  ILO 
consolidated  Maritime  Labour  Convention  (hereinafter  called  'the  MLC')  in  February 
20061. The MLC excluded the fishing sector from its scope of application. In 2003, the 
ILO  Office  and  the  ILO  tripartite  constituents  (governments,  employers,  workers) 
began working in 2003 on an updated and comprehensive international labour standard 
for the fishing sector that would provide appropriate protection for fishers around the 
globe and be widely ratified.  

Convention  188  is  aimed  at  establishing  minimum  international  standards  for  the 
fishing  sector.  Therefore  it  revises  the  Minimum  Age  (Fishermen)  Convention,  1959 
(No.  112),  the  Medical  Examination  (Fishermen)  Convention,  1959  (No.  113),  the 
Fishermen's  Articles  of  Agreement  Convention,  1959 
the 
Accommodation  of  Crews  (Fishermen)  Convention,  1966  (No.  126);  it  also  covers 
other  important  issues  such  as  health  and  safety  at  work,  manning  and  hours  of  rest, 
crew list, repatriation, recruitment and placement, social security and compliance and 
enforcement.  

(No.  114),  and 

Convention  188  is  accompanied  by  Recommendation  199  on  work  in  the  fishing 
sector, which was adopted by the International Labour Conference of June 2007.  

The  ultimate  aim  of  the  2007  Convention  is  to  achieve  and  maintain  a  level  playing 
field  in  the  fishing  sector  by  fostering  the  promotion  of  decent  living  and  working 
conditions for fishers and fairer conditions of competition in the world and thereby to 
remedy the low rate of ratification of many conventions in the field of maritime labour. 

The  EU  was  very  much  involved  in  the  negotiations  and  in  the  finalisation  of 
Convention 188 through EU coordination. The consistency and compatibility between 
the ILO provisions and the Community acquis was followed-up in the EU coordination 
during the discussions in 2004, 2005 and 2007. This was particularly relevant for some 
areas  of  the  Convention  that  fall  within  the  Community's  exclusive  competence, 
namely the coordination of social security schemes that flows from Regulation (EEC) 
No 1408/71 of the Council of 14 June 1971 on the application of social security system 
schemes  to  employed  persons  and  their  families  moving  within  the  Community 
adopted  pursuant  to  Article  42  of  the  EC  Treaty.  Articles  13(2)(c)  and  14  b  of 
Regulation (EEC) No 1408/71 create specific provisions for seafarers and fishers.  

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The Council authorised the Member states to ratify the MLC by Decision 2007/431/EC of 7 June 2007 
(OJ L 161, 22.6.2007, p. 63). 

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The  application  of  Regulation  (EEC)  No  1408/71  was  extended  to  third  country 
nationals  by  Regulation  (EC)  No  859/2003  of  14  May  2003.  This  Regulation  lays 
down the rules applicable to third country nationals and provides them with the same 
social  security  protection  rights  as  EU  nationals  when  moving  within  the  European 
Union.  Regulation  (EEC)  No  1408/71  will  be  replaced  in  due  course  by  Regulation 
(EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on 
the  coordination  of  social  security  systems,  once  the  new  draft  Implementing 
Regulation is adopted.  

In the ILO text, both the flag state and the state of residence have responsibilities, but 
for different areas of social security coverage, whereas under EC law, the flag state is, 
as  a  rule,  designated  as  the  country  whose  social  security  legislation  should  apply 
pursuant to Regulations (EEC) No 1408/71 and (EC) No 883/2004. 

To  regulate  potential  conflicts  of  law  between  the  2007  Convention  and  the  EC  law 
acquis on the coordination of social security schemes, a safeguard clause was included 
in the text (Art. 37). The aim of this clause is to safeguard and ensure the precedence of 
EC law on the coordination of social security schemes in cases where the Convention 
leads to an outcome which differs from the relevant EC rules. 

In accordance with the AETR case law of the Court of Justice on external competence, 
Member  States  are  not  able  to  ratify  the  2007  Convention  without  Community 
authorisation  as  its  provisions  concerning  the  coordination  of  social  security  regimes 
affect the exercise of the Community's exclusive competence in this area. 

In  this  context,  and  in  order  to  ensure  compliance  with  the  sharing  of  competences 
between  the  Community  and  Member  States  as  laid  down  by  the  Treaty,  the 
Commission  proposes  that  the  Council  should  authorise  the  Member  States  to  ratify 
Convention 188 in the interests of the Community. 

•  General context 

Convention  188  is  in  line  with  the  mandate  of  the  ILO,  which  includes  the 
establishment  of  international  labour  standards  for  the  fishing  sector  with  a  view  to 
promoting  decent  work  for  fishers.  Convention  188  takes  into  account  the  fact  that 
fishers,  given  the  specific  nature  of  the  sector  and  its  specific  working  and  living 
conditions, need special protection. 

The Convention sets out nine  separate groups of standards: (I)  definitions and  scope, 
(II) general principles, (III) minimum requirements for work on board fishing vessels, 
(IV)  conditions  of  service,  (V)  accommodation  and  food,  (VI)  medical  care,  health 
protection and social security, (VII) compliance and enforcement, (VIII) amendment of 
the Annexes I, II and III and (IX) Final provisions.  

For its implementation, Convention 188 requires both flag States and port States to put 
in place a compliance and enforcement system. The Convention also lays down a "no 
more  favourable  treatment"  clause  to  ensure  that  the  ships  of  States  that  have  not 
ratified the Convention do not receive more favourable treatment than fishing vessels 
flying the flag of a State that has ratified it.  

There is a substantial Community acquis deriving from Articles 42, 71, 137 and 138 of 

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the Treaty on a wide range of issues covered by the MLC. Issues of shared competence 
affected  by  the  2007  Convention  form  the  bulk  of  the  text's  provisions.  Community 
competence  has  been  exercised  inter  alia  in  fields  such  as  labour  law,  working 
conditions,  safety  and  health  protection,  accommodation  and  the  safety  requirements 
for the construction and maintenance of fishing vessels. The EU Fisheries Partnership 
Agreements (FPA) with third countries also contain a social clause that refers to ILO 
standards. 

The  EU's  Blue  Book  for  maritime  policy  (An  integrated  maritime  policy  for  the 
European  Union)  supports  the  ratification  and  application  of  international  labour 
conventions for the maritime sectors including Convention 188.  

•  Existing provisions covered by the proposal 

There are no existing provisions in the area covered by the proposal. 

•  Consistency with the other policies and objectives of the Union 

Not applicable 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Not relevant 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

Not relevant.  

Therefore, there is no need to consider several options. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The  application  of  Community  rules  in  areas  covered  by  Convention  188  should  be 
preserved  and  a  clear  signal  should  be  given  to  the  rest  of  the  world  regarding  the 
importance  that  the  Community  attaches  to  Convention  188  and  to  the  working  and 
living conditions of fishers. 

Unlike  other  international  fora,  the  ILO's  operating  rules  do  not  include  a  process  of 
formal  signature  before  ratification.  In  the  ILO  context,  signature  is  replaced  by  a 
voting procedure leading to adoption, which is equivalent to signature. The Convention 
under consideration was adopted by a vote on 14 June 2007 at the International Labour 
Conference,  but  has  yet  to  enter  into  force.  Even  if  only  States  may  accede  to  the 

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Convention,  it  remains  the  case  that  the  Commission  on  behalf  of  the  European 
Community  was  closely  involved  in  the  preparation  and  negotiations  through  the 
European Union coordination.  

Given the tripartite nature of the ILO, governments, employers' and workers' delegates 
took  part  in  the  negotiations  and  voted  for  the  adoption  of  Convention  188.  The 
Commission  also  facilitated  EU  coordination  by  organising,  in  cooperation  with  the 
EU  presidency,  meetings  of  Member  States'  experts  and  consultations  with  EU  and 
international  social  partners.  The  Commission  was  present  as  an  active  observer.  It 
should be noted that it is necessary for this Convention to enter into force at the earliest 
opportunity. 

In  view  of  the  fact  that  competence  for  coordination  of  social  security  schemes  lies 
with the Community, Member States cannot ratify the Convention without Community 
authorisation.  The  Commission  proposes  that  the  Council  should  authorise  Member 
States to ratify Convention 188 in the interests of the Community. 

The proposed Decision will therefore enable and encourage Member States to take all 
the steps necessary for ratification without further delay. 

•  Legal basis 

Article 42 of ECT 

•  Subsidiarity principle 

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  Therefore  the 
subsidiarity principle does not apply. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

Not relevant 

Not relevant 

•  Choice of instruments 

Proposed instruments: other 

Other means would not be adequate for the following reason(s). 

Not relevant and not adequate 

4. 

BUDGETARY IMPLICATION 

The proposal has no implications for the Community budget. 

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5. 

ADDITIONAL INFORMATION 

•  Detailed explanation of the proposal 

Not relevant 

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2008/0107 (CNS) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to ratify, in the interests of the European Community, the 
Work in Fishing Convention, 2007, of the International Labour Organisation 
(Convention 188) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
42 in conjunction with the first sentence of the first subparagraph of Article  300(2) and the 
first subparagraph of Article 300(3) thereof, 

Having regard to the proposal from the Commission2, 

Having regard to the opinion of the European Parliament3, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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Convention No. 188 of the International Labour Organisation (hereinafter referred to 
as  'the  Convention'  and  'the  ILO'  respectively)  on  work  in  the  fishing  sector  was 
adopted  on  14  June  2007  by  the  maritime  session  of  the  International  Labour 
Conference of the ILO, which convened in Geneva and at which all EU Member states 
delegations voted in favour of the adoption4. 

The Convention represents a major input to the fishing sector at international level in 
promoting decent work for fishers and fairer competition conditions for fishing vessel 
owners and it is therefore desirable that its provisions should be implemented as soon 
as possible. 

The  Commission,  the  Council  and  the  European  Parliament  are  promoting  the 
ratification of international labour conventions that are classified by ILO as up-to-date 
as  a  contribution  to  the  EU's  efforts  to  promote  decent  work  for  all  in  the  EU  and 
outside the EU5. 

Article  19,  paragraph  8,  of  the  ILO  Constitution  states  that  “in  no  case,  shall  the 
adoption of any Convention or Recommendation by the Conference, or the ratification 
of  any  Convention  by  any  Member,  be  deemed  to  affect  any  law,  award,  custom  or 

OJ C p 
OJ C p. 
ILO, International Labour Conference, Provisional Record, Ninety-sixth Session, Geneva, 2007 nr. 12 
and nr. 25 
COM(2006) 249 final and Sec(2006) 643; Council Conclusions of 30 November - 1 December 2006, 
2767th meeting; European Parliament resolution of 23 May 2007 on promoting decent work for all. 

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agreement  which  ensures  more  favourable  conditions  to  the  workers  concerned  than 
those provided for in the Convention or Recommendation".  

(5) 

Some provisions of the Convention fall within the Community’s exclusive competence 
as regards the coordination of social security schemes.  

(6) 

The Community cannot ratify the Convention, as only states can be parties thereto. 

(7) 

The  Council  should  therefore  authorise  the  Member  States  that  are  bound  by  the 
Community rules on the coordination of social security schemes based on Article 42 
of  the  Treaty  to  ratify  the  Convention  in  the  interests  of  the  Community,  under  the 
conditions laid down in this Decision, 

HAS ADOPTED THIS DECISION:  

Article 1 

Member  States  are  hereby  authorised  to  ratify,  for  the  parts  falling  under  Community 
competence, the Work in Fishing Convention, 2007, of the International Labour Organisation, 
adopted on 14 June 2007. 

Article 2 

Member States should make efforts to take the necessary steps to deposit their instruments of 
ratification of the Convention with the Director-General of the International Labour Office as 
soon as possible, preferably before 31 December 2012. The Council will review the progress 
of the ratification before January 2012. 

Article 3 

This Decision is addressed to the Member States in accordance with the Treaty establishing 
the European Community.  

Done at Brussels,  

For the Council 
The President 

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