Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2009/16/EC on port State control
Date: 2012-03-23
Institutions: European Commission
Subjects: EU Member State, administrative check, crew, harbour installation, international convention, maritime safety, vessel, working conditions

EUROPEAN COMMISSION 

Brussels, 23.3.2012  
COM(2012) 129 final 

2012/0062 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Directive 2009/16/EC on port State control 

(Text with EEA relevance) 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The  Maritime  Labour  Convention  (MLC),  2006  was  adopted  by  the  International  Labour 
Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to 
international  shipping  and  covers  essential  matters  such  as  the  minimum  requirements  for 
seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of 
the  MLC),  accommodation,  recreational  facilities,  food  and  catering  (title  III  of  the  MLC), 
health  protection,  medical  care,  welfare  and  social  security  protection  (title  IV)  and 
compliance  and  enforcement  (title  V)  in  order  to  guarantee  decent  working  and  living 
conditions  on  board  ships,  as  well  as  procedures  to  implement  these  provisions.  The 
Convention  can  be  considered  as  the  first  maritime  labour  code  for  more  than  1.2  million 
seafarers worldwide, as well as for shipowners and maritime nations around the world.  

The  EU  Member  States  and  the  Commission  have  supported  the  ILO  work  on  this  matter 
from the outset. The EU sees a valuable input in the MLC which aims at establishing a level 
playing field in the worldwide maritime industry by setting common minimum standards for 
all  flags  and  seafarers.  In  this  respect,  the  EU  has  already  adopted  Council  Decision 
2007/431/EC  of  7  June  2007  authorising  Member  States  to  ratify,  in  the  interest  of  the 
European  Community,  the  Maritime  Labour  Convention,  2006,  of  the  International  Labour 
Organisation1.  Some  Member  States  have  already  ratified  it  (Spain,  Bulgaria,  Luxembourg, 
Denmark,  Latvia,  the  Netherlands)  and  others  are  about  to  do  so.  On  the  substance,  the 
Member States national legislations are generally more protective and detailed than the ILO 
standards. To maintain the consistency between the international and national standards and to 
ratify the Convention, an extensive and time consuming screening of the national legislations 
is the prerequisite.  

At this stage, 22 countries  have  ratified the  MLC  representing  more  than  45%  of  the  world 
fleet  tonnage  while  30  ratifications  and  33%  of  the  world  fleet  tonnage  are  required  by  the 
MLC to enter into force.  

The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the 
Agreement  concluded  by  the  European  Community  Shipowners’  Associations  (ECSA)  and 
the  European  Transport  Workers’  Federation  (ETF)  on  the  Maritime  Labour  Convention, 
2006, and amending Directive 1999/63/EC2. Directive 2009/13/EC constitutes an outstanding 
achievement of the sectoral social dialogue. 

To  this  end  it  is  foreseen,  on  the  one  hand,  to  require  Member  States  to  apply  Directive 
2009/13/EC when they wield their powers as flag States. As things stand, through Directive 
2009/13/EC, European legislation has been put in line with the international standards fixed 
by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers 
contained in its Titles I, II, III and IV above mentioned.  

However, the European social partners, wishing to implement their agreement by means of a 
Council decision on the basis of Article 155 TFEU, do not have the power to include in their 

1 
2 

OJ L 161, 22.06.2007, p.63 
OJ L 124, 20.05.2009, p.30 

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Agreement  the  enforcement  provisions  contained  in  Title  V  of  the  MLC  and  asked  the 
Commission to act in this respect. The present initiative aims precisely to do so on the port 
State responsibilities.  

This initiative is part of the EU policy on the maritime professions. In fact, as stated by the 
Commission  in  its  Communication  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  -  Strategic  goals  and 
recommendations  for  the  EU's  maritime  transport  policy  until  20183,  there  is  a  genuine  EU 
interest in enhancing the attractiveness of the maritime professions to Europeans by means of 
actions that involve, where appropriate, the Commission, the Member States and the industry 
itself.  This  fully  applies  to  the  implementation  of  the  MLC  which  considerably  improves 
working  and  living  conditions  on  board  ships.  The  Communication  underlines  that  the 
agreement  between  EU  social  partners  on  the  implementation  of  key  elements  of  this 
Convention demonstrates the wide support within the industry in this field and that, therefore, 
action of the EU and its Member States should aim to: 

– move towards rapid ratification of the MLC by Member States and the early adoption of the 
Commission’s  proposals  based  on  the  social  partners'  agreement  for  implementing  its  key 
elements in EU law; 

– ensure the effective enforcement of the new rules by means of adequate measures, including 
flag and port State control requirements.4 

The  White  Paper  on  the  Roadmap  to  a  Single  European  Transport  Area  –  Towards  a 
competitive  and  resource  efficient  transport  system5  highlights  the  importance  of  a  social 
agenda  for  the  maritime  transport  to  both  promote  jobs  and  enhance  safety  and  the  Staff 
Working  Document  accompanying  the  White  Paper  foresees  a  proposal  to  ensure  effective 
enforcement of the MLC. 

This  proposal  is  closely  associated  with  the  Proposal  for  a  Directive  of  the  European 
Parliament and of the Council concerning the flag State responsibilities for the enforcement of 
Directive 2009/13/EC.  

1.1. 

The Maritime Labour Convention 

As  generally  acknowledged  and  explicitly  stated  by  the  ILO,  the  shipping  industry  is  “the 
world’s first genuinely global industry” which “requires an international regulatory response 
of an appropriate kind – global standards applicable to the entire industry”.  

The  MLC,  adopted  in  2006,  provides  comprehensive  rights  and  protection  at  work  for  all 
seafarers regardless of their nationality and the flag of the ship. 

The  MLC  aims  to  both  achieve  decent  working  conditions  for  seafarers  and  secure  fair 
competition for quality shipowners. It sets out seafarers' rights to decent conditions of work 
on  a  wide  range  of  subjects,  and  has  been  designed  to  be  globally  applicable,  easily 
understandable,  updatable  and  uniformly  enforced.  It  has  also  been  designed  to  become  a 
global  instrument  known  as  the  "fourth  pillar"  of  the  international  regulatory  regime  for 
quality  shipping,  complementing  the  three  key  Conventions  of  the  International  Maritime 

3 
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5 

COM(2009) 8 
See paragraph 3 of the Communication.  
COM (2011) 144 final 

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Organization  (IMO):  the  International  Convention  for  the  Safety  of  Life  at  Sea  (SOLAS 
Convention), the International Convention on Standards of Certification, Training and Watch 
keeping (STCW Convention) and the International Convention for the Prevention of Pollution 
from Ships (MARPOL Convention).  

It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for 
seafarers  to  work  on  board  a  ship;  Title  2  on  conditions  of  employment;  Title  3  on 
accommodation,  recreational  facilities,  food  and  catering;  Title  4  on  health  protection, 
medical care, welfare and social security protection.  

Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: 
the ship, the company, the flag State, the port State, the labour supplying State and the ILO 
system for a global and uniform compliance and verification. Indeed, together with a sound 
corpus of rules, a more effective enforcement and compliance system was needed in order to 
eliminate  substandard  ships  for  the  sake  of  ship  safety  and  security  and  environmental 
protection.  

Therefore  the  EU  has  to  provide  means,  through  flag  State  and  port  State  control  to  ensure 
that the relevant MLC maritime labour standards are applied on board all ships calling at EU 
ports, regardless of the nationality of the seafarers. 

The enforcement of the MLC standards through flag State and port State control has also to be 
seen as a way to limit social dumping, which deteriorates working conditions on board, and 
penalises shipowners offering decent working conditions complying with the ILO rules.  

1.2. 

The MLC Port State control responsibilities 

The  responsibility  for  ensuring  that  ships  comply  with  the  provisions  of  the  relevant 
instruments rests upon the owners, masters and the flag States. However, some flag States fail 
to properly enforce such provisions. They therefore fail to fulfil their commitments contained 
in agreed international legal instruments or are being too lax in applying shipping standards 
and subsequently some ships are sailing in an unsafe condition, threatening the lives as well 
as the marine environment. In reaction to this matter of fact, this has led to the establishment 
of port state control.  

Port  States,  as  a  system  of  harmonised  inspection  procedures,  can  exercise  jurisdiction  on 
those vessels calling at their ports and constitute a “safety net” to catch substandard ships with 
the  main  objective  of  their  eventual  elimination.  In  this  context,  it  is  imperative  to  develop 
close co-operation between flag States and port States. 

As  things  stand,  there  are  already  port  State  control  inspections  covering  social  standards 
based on ILO conventions  in particular under the  Merchant  Shipping (Minimum Standards) 
Convention, 1976 (ILO Convention No. 147) which refers to: 

_ Minimum Age Convention, 1973 (No. 138); 
_ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); 
_ Minimum Age (Sea) Convention, 1920 (No. 7); 
_ Medical Examination (Seafarers) Convention, 1946 (No. 73); 
_ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); 
_ Accommodation of Crews Convention (Revised), 1949 (No. 92); 
_ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); 

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_ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) 
- Seamen's articles of agreement Convention, 1926 (No 22) 
- Repatriation of Seamen Convention, 1926 (No 23) 
- Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) 
- Right to Organize and Collective Bargaining Convention, 1949 (No 98) 

These  conventions  have  been  consolidated  into  the  MLC,  2006,  but  they  are  still  in  force, 
since some parties might be willing to continue applying them without ratifying the MLC. 

The  MLC  contains  provisions  on  port  State  control,  requiring  compliance  checks  with  its 
requirements  on  foreign  ships  calling  at  State  parties'  ports.  Port  States  intervene  as  the 
second  line  of  defence  to  enforce  the  MLC  and  to  contribute  to  eliminating  substandard 
shipping. The Convention also contains a "no more favourable treatment” clause. Under this 
clause,  each  State-party  shall  implement  its  responsibilities  under  the  Convention  in  such  a 
way  so  as  to  ensure  that  the  ships  that  fly  the  flag  of  any  State  that  has  not  ratified  the 
Convention do not receive more favourable treatment than the ships that fly the flag of any 
State  that  has  ratified  it.  This  clause  should  encourage  uniformity  in  connection  with 
inspections and effectively contribute to a sound level-playing field for shipping.  

In practice, the MLC defines a specific and simple procedure. An initial inspection is carried 
out to check the documents delivered by the flag State (the maritime labour certificate and a 
declaration of maritime labour compliance) and to make a tour of the ship to get an overview 
of the crew and ship’s condition including engine room and accommodation and see whether 
they meet the appropriate standards. Depending on the professional judgement of port State 
control inspectors identifying clear grounds that ships conditions do not meet the international 
standards,  more  detailed  inspections  can  be  performed,  especially  in  cases  where  the 
deficiencies  would  constitute  clear  hazard  to  the  safety,  health  or  security  of  seafarers  as 
required by the MLC.  

All complaints regarding conditions on board will be investigated thoroughly and action will 
be taken as deemed necessary by the port State control officer. If necessary, the ship will be 
detained until appropriate corrective action is taken. 

ILO, like IMO, is an international rule-maker with a universal impact by means of continuous 
system of international conventions, rules, codes and recommendations. However, ILO has no 
direct authority on board of the ships and further legislation was needed at EU and national 
level.  

1.3 

Current EU legislation  

1.3.1  Directive 2009/16/EC on Port State control6 

At EU level, Directive 2009/16/EC aims at helping to drastically reduce substandard shipping 
by means of:  

(a) increasing compliance with international and relevant EU legislation on maritime safety, 
maritime  security,  protection  of  the  marine  environment  and  on-board  living  and  working 
conditions of ships of all flags;  

6 

OJ L131, 28.5.2009, p.57 

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(b)  establishing  common  criteria  for  inspecting  ships  by  the  port  State  and  harmonising 
procedures on inspection and detention, building upon the expertise and experience under the 
Paris Memorandum of Understanding (Paris MoU7);  

(c)  implementing  within  the  EU  a  port  State  control  system  based  on  the  inspections 
performed  within  the  Union  and  the  Paris  MoU  region,  aiming  to  inspect  all  ships  with  a 
frequency depending on their risk profile, with ships posing a higher risk being subject to a 
more detailed inspection carried out at more frequent intervals.  

1.3.2  Directive 2009/13/EC 

Following the agreement between the EU social partners, Directive 2009/13/EC implements 
certain standards of the MLC within Union law. Its annex, in particular, has incorporated the 
relevant elements of Titles 1, 2, 3 and 4 of the MLC on the minimum requirements to work on 
board ships (medical certificate, minimum age, training and qualifications), the conditions of 
employment (seafarer's employment agreements, repatriation, compensation for the ship's loss 
or  foundering,  manning  level,  career  and  skill  development  and  opportunities  for  seafarers' 
employment),  provisions  on  accommodation,  recreational  facilities,  food  and  catering,  the 
provisions on health protection, medical care and welfare including the shipowners' liability 
and  access  to  shore  based  facilities  and  lastly  the  provisions  on  onboard  complaint 
procedures.  

Except  as  expressly  provided  otherwise,  Directive  2009/13/EC  applies  to  all  ships  whether 
publicly  or  privately  owned,  ordinarily  engaged  in  commercial  activities,  other  than  ships 
engaged  in  fishing  or  in  similar  pursuits  and  ships  of  traditional  build  such  as  dhows  and 
junks.  

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES  

The  EU  Member  States  actively  took  part  in  the  MLC  negotiations  together  with  the 
Commission  which  organised  the  co-ordination  of  the  EU  positions.  All  EU  member  States 
adopted the MLC in 2006.  

In addition, a fully fledged public consultation offered an opportunity for Member States and 
stakeholders to express their views in June 2011.  

There was a  general consensus  on  the  need  for updating the legislation related  to  flag State 
and port State in order to enforce the MLC requirements.  

The  specific  positive  effects  which  were  underlined  were  reinforcing  maritime  safety, 
improving quality shipping, making the conditions of competition fairer between EU and non 
EU operators and between EU and non EU flags.  

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The  organisation  consists  of  27  participating  maritime  Administrations  and  covers  the  waters  of  the 
European  coastal  States  and  the  North  Atlantic  basin  from  North  America  to  Europe.  The  current 
member  States  of  the  Paris  MoU region  are  Belgium, Bulgaria,  Canada,  Croatia,  Cyprus,  Denmark, 
Latvia, 
Estonia, 
Lithuania, Malta, Netherlands,  Norway,  Poland,  Portugal,  Romania,  Russian  Federation,  Slovenia, 
Spain, Sweden, United Kingdom. 

Iceland, Ireland, 

Germany, 

Finland, 

Greece, 

France, 

Italy, 

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Stakeholders  also  mentioned  the  better  job  quality  for  all  seafarers,  namely  EU  seafarers 
working on board EU flagged vessels, EU seafarers working on board non EU flagged ships, 
even beyond the EU, for non EU seafarers working on board non EU flagged ships. 

The Task Force on Maritime Employment and Competitiveness, an independent body set up 
by Vice-President Siim Kallas in July 2010, which finalised its work in June 2011 and issued 
a Report8 containing policy recommendations on how to promote the seafaring profession in 
Europe has recommended the enforcement of the MLC. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1 

The content of the Proposal 

3.1.1 

Amendment of the Port State Control Directive 

While Directive 2009/16/EC already refers to MLC (recital 5) and to ILO standards (Annex 
IV), it needs to be updated to take into account the new documents and arrangements brought 
in by the MLC.  

Thus, the proposal amends the port State control Directive in order to: 

-  include  the  maritime  labour  certificate  and  the  declaration  of  maritime  labour  compliance 
among the documents to be checked by inspectors; 

-  extend  the  scope  of  inspections  to  new  items  (for  ex,  the  existence  of  an  adequate  labour 
contract signed by both parties for each seafarer with the required clauses in the contract); 

- extend the scope of investigation in case of complaints and foresee the adequate procedure.  

3.1.2  Detailed explanations of the proposal 

Article 1 contains all the amendments to be brought in to Directive 2009/16 in order to align it 
to the MLC requirements.  

A number of articles of the current Directive 2009/16/EC (articles 2;19) and annexes I; IV; V; 
X  needed  to  be  complemented  to  both  make  reference  to  the  MLC  among  the  list  of 
international conventions and to mention the new documents deriving from the MLC, namely 
the maritime labour certificate and the declaration of maritime labour compliance.  

On the  substance, provisions on handling of complaints have been set up by the MLC with 
specific procedures to follow and which are slightly different from the provisions of Directive 
2009/16 applicable to a wider range of matters than social standards. The objective is not to 
change the current system of complaint defined in Directive 2009/16 but to complement it by 
a procedure fitted to the complaints related to the MLC. Thus, specific provisions have been 
inserted in the proposal (Article 1 (7)).  

8 

Published on 20 July 2011: http://ec.europa.eu/transport/maritime/seafarers/doc/2011-06-09-tfmec.pdf 

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Besides, there are amendments related to the fact that Directive 2009/16/EC is being amended 
for the first time after the entry into force of the Treaty of Lisbon; the new rules on delegated 
and implementing powers needed to be introduced.  

3.1.3 

Explanatory documents accompanying the notification of transposition measures 

Further  to  Joint  Political  Declarations  (OJ  2011/C  369/02;  OJ  2011/C  369/03),  the 
Commission is now considering the need for explanatory documents on a case by case basis. 
By  virtue  of  proportionality,  explanatory  documents  have  not  been  deemed  justified  in  the 
present  proposal  since  it  modifies  only  a  limited  number  of  legal  obligations  of  an  existing 
directive. Thus, the present proposal does not include the recital on explanatory documents. 

3.2 

Legal basis 

Article 100(2) of the Treaty on the Functioning of the European Union 

3.3 

Subsidiarity principle 

Harmonised  rules  on  enforcement  across  the  EU  should  contribute  to  establishing  a  level 
playing  field  in  order  to  both  avoid  distortions  of  competition  in  the  internal  market  at  the 
expense  of  maritime  safety  and  to  ensure  decent  working  and  living  conditions  for  all 
seafarers  regardless  of  their  nationality.  In  particular  the  experience  of  port  State  control  at 
EU  level  has  proved  efficient  to  ensure  better  surveillance  of  ships  calling  at  EU  ports  by 
pooling resources and exchanging information. 

3.4 

Proportionality principle 

The enforcement of the MLC by means of port State control subject to EU rules appears to be 
the most effective way of ensuring compliance with that Convention by using existing tools.  

3.5 

Choice of instruments 

In a context of minimum standards to be implemented by Member States by measures in their 
own national systems and in the field of shared competences, the appropriate instrument is a 
directive.  

3.6 

Entry into force 

This  Directive  shall  enter  into  force  on  the  date  of  entry  into  force  of  the  Maritime  Labour 
Convention, 2006.  

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2012/0062 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Directive 2009/16/EC on port State control 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee1,  

Having regard to the opinion of the Committee of the Regions2,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

On  23  February  2006,  the  International  Labour  Organisation  adopted  the  Maritime 
Labour  Convention,  2006  (the  Convention),  desiring  to  create  a  single,  coherent 
instrument  embodying  as  far  as  possible  all  up-to-date  standards  of  existing 
international  maritime  labour  Conventions  and  Recommendations,  as  well  as  the 
fundamental principles to be found in other international labour conventions. 

Council  Decision  2007/431/EC  of  7  June  20073has  authorised  the  Member  States  to 
ratify the Convention. Member States should ratify it as soon as possible. 

The Convention sets out maritime labour standards for all seafarers regardless of their 
nationality and of the flag of the ships. 

An important part of the Standards of the Convention are implemented within EU law 
by  means  of  Council  Directive  2009/13/EC  of  16  February  2009  and  Directive 
1999/63/EC. Those standards of the Maritime Labour Convention which are covered 

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2 
3 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 161, 22.6.2007, p. 63 

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(5) 

(6) 

(7) 

(8) 

(9) 

by  the  scope  of  Directive  2009/13/EC  and/or  Directive  1999/63/EC  should  be 
implemented by the Member States in line with the mentioned Directives. 

The Convention contains enforcement provisions defining the responsibilities of port 
States.  In  order  to  protect  safety  and  to  avoid  distortions  of  competition,  Member 
States should be allowed to verify compliance with the provisions of the Convention 
by any ship calling at their ports, irrespective of the State in which they are registered. 

Port  State  control  is  governed  by  Directive  2009/16/EC  of  the  European  Parliament 
and of the Council of 23 April 2009 on port State control4, which should include the 
Convention  among  the  conventions  whose  implementation  is  verified  by  Member 
States' authorities in Union ports.  

The  rules  of  the  Union  should  also  reflect  the  procedures  set  out  in  the  Convention 
with regard to the handling of complaints relating to the matters it deals with.  

In  order  to  ensure  uniform  conditions  for  its  implementation,  Directive  2009/16/EC 
should be amended in order to confer implementing powers on the Commission. The 
Commission should be entitled to adopt implementing acts for the use of a harmonised 
electronic  format  for  the  reporting  and  follow-up  of  such  complaints  by  port  State 
authorities,  as  well  as  for  the  establishment  of  the  ship  risk  profile  criteria  based  on 
article  10  of  Directive  2009/16/EC.  This  is  in  fact  a  highly  technical  exercise  to  be 
carried out in the framework of the principles and criteria which have been established 
by  that  Directive.  Those  powers  should  be  exercised  in  accordance  with  Regulation 
(EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 
laying  down  the  rules  and  general  principles  concerning  mechanisms  for  control  by 
Member States of the Commission’s exercise of implementing powers5.  

The  power  to  adopt  acts  in  accordance  with  Article  290  of  the  Treaty  on  the 
Functioning of the European Union should be delegated to the Commission in respect 
of  amendments  to  Annex  VI  to  Directive  2009/16/EC  containing  the  list  of  the 
'Instructions'  adopted  by  the  Paris  MOU,  with  a  view  to  keeping  the  procedures 
applicable  and  enforceable  in  the  territory  of  the  Member  States,  in  line  with  those 
agreed  upon  at  international  level.  The  possibility  for  the  Commission  to  swiftly 
update those procedures would contribute to achieving a global level-playing field for 
shipping.  It  is  of  particular  importance  that  the  Commission  should  carry  out 
appropriate  consultations  during  its  preparatory  work,  including  at  expert  level.  The 
Commission,  when  preparing  and  drawing-up  delegated  acts,  should  ensure  a 
simultaneous,  timely  and  appropriate  transmission  of  relevant  documents  to  the 
European Parliament and Council. 

(10)  Part  of  the  obligations  contained  in  this  Directive  will  not  be  applicable  to  Member 
States without sea shores and sea ports. Consequently, the only obligations which will 
be applicable to Austria, the Czech Republic, Hungary, Luxembourg and Slovakia are 
those  obligations  concerning  ships  flying  the  flag  of  those  Member  States,  without 
prejudice  to  Member  States'  duty  of  cooperation  to  ensure  continuity  between 
maritime and other modal traffic management services. 

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5 

OJ L131, 28.5.2009, p. 57. 
OJ L 55, 28.2.2011, p. 13. 

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(11)  Since the objectives of this Directive cannot be sufficiently achieved by the Member 
States  and  can  therefore,  by  reason  of  the  scale  or  effects  of  the  action,  be  better 
achieved  at  Union  level,  the  Union  may  adopt  measures,  in  accordance  with  the 
principle  of subsidiarity  as  set out  in Article 5 of the Treaty. In accordance  with the 
principle  of  proportionality,  as  set  out  in  that  Article,  this  Directive  does  not  go 
beyond what is necessary in order to achieve those objectives.  

(12)  Directive 2009/16/EC should therefore be amended accordingly. 

(13)  This  Directive  should  enter  into  force  on  the  same  date  as  the  Maritime  Labour 

Convention.  

HAVE ADOPTED THIS DIRECTIVE: 

Article 1  

Amendments to Directive 2009/16/EC  

Directive 2009/16/EC is amended as follows: 

(1) 

Article 2 is amended as follows: 

(a) 

in point 1, the following point (i) is added: 

'(i) the Maritime Labour Convention, 2006;' 

(b) 

in point 3, the following words are added at the end of the sentence:  

'or its up-to-date version'.  

(c) 

in point 18, the following words are added at the end of the sentence: 

'in its up-to-date version.'  

(d) 

in point 21, the following words are added at the end of the sentence: 

'in its up-to-date version.'  

(e) 

the following points 23 and 24 are added:  

'(23) "Maritime labour certificate" means the certificate referred to in Regulation 5.1.3 of the 
Maritime Labour Convention.'  

(24)  "Declaration  of  maritime  labour  compliance"  means  the  declaration  referred  to  in 
Regulation 5.1.3 of the Maritime Labour Convention.' 

(f) 

the following paragraph is added: 

'All the references to the Conventions referred to in this Directive, including for certificates 
and  other  documents,  shall  be  deemed  to  be  references  to  those  Conventions  in  their  up-to-
date versions'.  

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(2) 

In Article 3, the following paragraph 5 is added:  

"5.  The  application  and/or  interpretation  of  this  Directive  shall  under  no  circumstances 
constitute  grounds  for  justifying  a  reduction  in  the  general  level  of  protection  of  workers 
under Union social legislation." 

(3) 

In Article 8, paragraph 4 is deleted. 

(4) 

In Article 10, paragraph 3 is replaced by the following: 

'3.  Implementing  powers  shall  be  conferred  on  the  Commission  to  establish  the 
methodology  for  assessing  generic  and  historical  risk  parameters  provided  for 
therein.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 31(3).' 

(5) 

In Article 14, paragraph 4 is replaced by the following:  

'4. The scope of an expanded inspection, including the risk areas to be covered, is set 
out  in  Annex  VII.  Implementing  powers  shall  be  conferred  on  the  Commission  to 
determine  the  detailed  features  to  be  checked  in  the  risk  areas  indicated  in  this 
Annex.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 31(3)'.  

(6) 

In Article 15, paragraph 4 is replaced by the following:  

'4. Implementing powers shall be conferred on the Commission to determine in detail 
harmonised  modalities  of  putting  into  effect  the  procedures  described  in  the 
Instructions referred to in Annex VI, including with respect to the checks referred to 
in  paragraph  2.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 31(3).'  

(7) 

The following Article 18a is inserted : 

'Article 18a  

Complaints related to the Maritime Labour Convention  

1. 

2. 

Where  a  complaint  related  to  matters  covered  by  the  Maritime  Labour  Convention 
has  not  been  resolved  at  the  ship-board  level,  the  port  State  control  officer  shall 
forthwith  notify  the  flag  State,  seeking,  within  a  prescribed  deadline,  advice  and  a 
corrective plan of action. A report of the inspection shall be transmitted by electronic 
means to the inspection database referred to in Article 24.  

In  order  to  ensure  uniform  conditions  for  the  implementation  of  this  Article, 
implementing powers shall be conferred on the Commission regarding the setting up 
of  a  harmonised  electronic  format  and  procedure  for  the  reporting  of  follow-up 
actions  taken  by  Member  States.  Those  implementing  acts  shall  be  adopted  in 
accordance with the examination procedure referred to in Article 31(3). 

(8) 

In Article 19, the following paragraph is added: 

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'11.  On  matters  covered  by  the  Maritime  Labour  Convention,  the  competent 
authority  shall  also  inform  forthwith  the  appropriate  shipowners  and  seafarers' 
organisations in the port State in which the inspection was carried out.'. 

(9) 

In Article 23, paragraph 5 is replaced by the following: 

'5.  Implementing  powers  shall  be  conferred  on  the  Commission  to  establish 
harmonised  forms  for  the  reporting  of  anomalies  by  pilots  and  port  authorities  and 
the recording of follow-up actions, the procedures to be followed, and the modalities 
and  technical  media  to  be  used.  Those  implementing  acts  shall  be  adopted  in 
accordance with the examination procedure referred to in Article 31(3).' 

(10) 

In Article 27, the second paragraph is replaced by the following: 

''Implementing  powers  shall  be  conferred  on  the  Commission  to  establish  the 
modalities  of  publication of the  information referred to in the above paragraph, the 
criteria  for  aggregating  the  relevant  data  and  the  frequency  of  updates.  Those 
implementing  acts  shall  be  adopted  in  accordance  with  the  advisory  procedure 
referred to in Article 31(2).'  

(11)  The following Articles 30a and 30b are inserted  

'Article 30a  

Delegated acts 

The Commission shall be empowered to adopt delegated acts in accordance with Article 30b, 
concerning amendments to Annex VI to this Directive, in order to add to the list set out in that 
Annex  further  instructions  relating  to  port  State  control  adopted  by  the  Paris  MOU 
Organisation.  

Article 30b  

Exercise of the delegation 

1. 

2. 

3. 

The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 
conditions laid down in this Article.  

The  delegation  of  power  referred  to  in  Article  30a  shall  be  conferred  on  the 
Commission for an indeterminate period of time from the date of entry into force of 
this Directive. 

The delegation of power referred to in Article 30a may be revoked at any time by the 
European Parliament or by the Council. A decision of revocation shall put an end to 
the  delegation  of  the  power  specified  in  that  decision.  It  shall  take  effect  the  day 
following  the  publication  of  the  decision  in  the  Official  Journal  of  the  European 
Union  or  at  a  later  date  specified  therein.  It  shall  not  affect  the  validity  of  any 
delegated acts already in force.  

4. 

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council. 

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5. 

A  delegated  act  adopted  pursuant  to  Article  30a  shall  enter  into  force  only  if  no 
objection  has  been  expressed  either  by  the  European  Parliament  or  the  Council 
within a period of 2 months of notification of that act to the European Parliament and 
the Council or if, before the expiry of that period, the European Parliament and the 
Council  have  both  informed  the Commission  that  they  will  not  object.  That  period 
shall  be  extended  by  2  months  at  the  initiative  of  the  European Parliament  or  the 
Council. 

(12)  Article 31 is replaced by the following: 

'Article 31 

Committee 

1.  The  Commission  shall  be  assisted  by  the  Committee  on  Safe  Seas  and  the 
Prevention  of  Pollution  from  Ships  (COSS)  established  by  Article  3  of  Regulation 
(EC)  No  1406/2002  of  the  European  Parliament  and  the  Council.  That  Committee 
shall be a committee withing the meaning of Regulation (EU) No 182/2011. 

2.  Where  reference  is  made  to  this  paragraph,  Article  4  of  Regulation  (EU)  No 
182/2011 shall apply.  

3.  Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  No 
182/2011 shall apply.  

4.  Where,  in  the  cases  laid  down  in  paragraphs  2  and  3  above,  the  opinion  of  the 
committee is to be obtained by written procedure, that procedure shall be determined 
without result when, within the time-limit for delivery of the opinion, the chair of the 
committee so decides or a simple majority of committee members so request.'. 

(13)  Article 32 is repealed.  

(14) 

In point II 2B of Annex I, the following indents are added : 

'-  Ships  flying  the  flag  of  a  State  which  has  not  ratified  one  or  more  of  the 
Conventions listed under Article 2 point 1.'; 

'-  Ships  whose  documentation  shows  no  evidence  that  an  agreed  plan  of  action  to 
rectify  non  conformities  as  referred  to  in  Standard  A5.2.1(6)  of  the  MLC  has  been 
implemented.'.  

(15) 

In Annex IV, the following points 45 and 46 are added: 

'45. Maritime labour certificate (see ILO Maritime Labour Convention (MLC)) ; 

46. Declaration of labour compliance (ILO MLC)'. 

(16) 

In Annex V point A, the following points 16, 17 and 18 are added: 

'16.  The  MLC  required  documents  are  not  produced  or  maintained  or  are  falsely 
maintained  or  the  documents  produced  do  not  contain  the  information  required  by 
the MLC or are otherwise invalid. 

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17.  The  working  and  living  conditions  on  the  ship  do  not  conform  to  the 
requirements of the MLC. 

18.  The  ship  has  changed  flag  for  the  purpose  of  avoiding  compliance  with  the 
MLC.' 

(17) 

In point 3.10. of Annex X, the following points 8 and 9 are added: 

'8. The conditions on board are clearly hazardous to the safety, health or security of 
seafarers; 

'9. The non conformity constitutes a serious or repeated breach of the requirements of 
the MLC (including seafarer's rights). 

Article 2  

Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary to comply with this Directive not later than 12 months after the date of entry into 
force of this Directive. They shall forthwith communicate to the Commission the text of those 
provisions. When Member States adopt those provisions, they shall contain a reference to this 
Directive  or  shall  be  accompanied  by  such  reference  on  the  occasion  of  their  official 
publication. The methods of making such reference shall be laid down by Member States.  

Member  States  shall  communicate  to  the  Commission  the  text  of  the  main  provisions  of 
national law which they adopt in the field covered by this Directive.  

Article 3  

Entry into force 

This  Directive  shall  enter  into  force  on  the  date  of  entry  into  force  of  the  Maritime  Labour 
Convention, 2006.  

Article 4  

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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