COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on seafarers amending Directives 2008/94/EC, 2009/38/EC, 2002/14/EC, 98/59/EC, 2001/23/EC
Date: 2013-11-18
Institutions: European Commission
Subjects: European Works Council, collective dismissal, crew, financial solvency, labour law, transfer of businesses, worker information













EUR-Lex - 52013SC0462 - EN











|



52013SC0462

COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on seafarers amending Directives 2008/94/EC, 2009/38/EC, 2002/14/EC, 98/59/EC, 2001/23/EC /* SWD/2013/0462 final */









TABLE OF CONTENTS
1........... PROCEDURAL ISSUES AND
CONSULTATION OF INTERESTED PARTIES....... 3
1.1........ Background.................................................................................................................... 3
1.2........ Policy context................................................................................................................. 5
1.3........ Consultation and expertise.............................................................................................. 6
1.4........ Impact Assessment Board............................................................................................ 10
2........... PROBLEM DEFINITION........................................................................................... 10
2.1........ Scope of exclusions and
terminology............................................................................. 12
2.2........ Situation in Member States........................................................................................... 13
2.3........ Data on seafarers.......................................................................................................... 20
2.4........ A regulatory failure?...................................................................................................... 23
2.4.1..... Employer Insolvency Directive...................................................................................... 24
2.4.2..... European Works Council Directive............................................................................... 24
2.4.3..... Information and Consultation
Directive.......................................................................... 25
2.4.4..... Collective Redundancies Directive................................................................................. 26
2.4.5..... Transfer of Undertakings Directive................................................................................ 26
2.4.6..... Posting of Workers....................................................................................................... 27
2.5........ The EU right to act and
subsidiarity............................................................................... 28
2.6........ Baseline scenario.......................................................................................................... 28
3........... OBJECTIVES............................................................................................................. 29
3.1........ General objectives........................................................................................................ 29
3.2........ Specific objectives........................................................................................................ 29
3.3........ Consistency with other EU
policies and horizontal objectives......................................... 30
4........... POLICY OPTIONS.................................................................................................... 30
4.1........ Policy option A: no EU action....................................................................................... 30
4.2........ Policy option B: no
legally-binding measures.................................................................. 30
4.3........ Policy option C: a derogation
subject to the guarantee of an equivalent level of protection 31
4.4........ Policy option D: suppress the
exclusions in all Directives................................................ 31
4.5........ Policy option E: adapt the rules
to the specificities of the sector...................................... 31
4.6........ Policy option F: suppression of
the exclusions for the fisheries sector only....................... 31
4.7........ Preliminary screening of the
options............................................................................... 32
4.8........ Options retained for the Impact
Assessment.................................................................. 32
4.9........ SME Test..................................................................................................................... 33
4.9.1..... Preliminary assessment of
businesses likely to be affected.............................................. 33
4.9.2..... Consultation with SMEs
representatives........................................................................ 34
4.9.3..... Measurement of the impact on SMEs............................................................................ 34
4.9.4..... Alternative options and mitigating
measures................................................................... 34
5........... ANALYSIS OF IMPACTS......................................................................................... 35
5.1........ The risk of flagging out and its
link with competitiveness................................................. 35
5.2........ The experience in Member States................................................................................. 36
5.3........ Insolvency Directive...................................................................................................... 37
5.3.1..... Who is affected by the exclusion?.................................................................................. 37
5.3.2..... Economic and social impacts......................................................................................... 37
5.4........ European Works Council Directive............................................................................... 38
5.4.1..... Who is affected by the exclusion?.................................................................................. 38
5.4.2..... Economic and social impacts......................................................................................... 38
5.5........ Information and Consultation
Directive.......................................................................... 41
5.5.1..... Who is affected by the exclusion?.................................................................................. 41
5.5.2..... Economic and social impacts......................................................................................... 41
5.6........ Collective Redundancies Directive................................................................................. 42
5.6.1..... Who is affected by the exclusion?.................................................................................. 42
5.6.2..... Economic and social impacts......................................................................................... 43
5.7........ Transfer of Undertakings
Directive................................................................................ 44
5.7.1..... Who is affected by the exclusion?.................................................................................. 44
5.7.2..... Economic and social impacts......................................................................................... 44
5.8........ Posting of Workers Directive........................................................................................ 45
5.8.1..... Who is affected by the exclusion?.................................................................................. 45
5.8.2..... Economic and social impacts......................................................................................... 45
6........... COMPARING THE OPTIONS.................................................................................. 45
6.1........ Insolvency Directive...................................................................................................... 46
6.2........ European Works Council Directive............................................................................... 48
6.3........ Information and Consultation
Directive.......................................................................... 50
6.4........ Collective Redundancies Directive................................................................................. 50
6.5........ Transfer of Undertakings
Directive................................................................................ 51
6.6........ Posting of Workers Directive........................................................................................ 52
6.7........ Ranking of the options and their
cost............................................................................. 53
7........... MONITORING AND EVALUATION....................................................................... 56
8........... Annexes....................................................................................................................... 58
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT
Accompanying the document
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on seafarers amending Directives
2008/94/EC, 2009/38/EC, 2002/14/EC, 98/59/EC, 2001/23/EC
1.           PROCEDURAL
ISSUES AND CONSULTATION OF INTERESTED PARTIES
Lead DG: EMPL
Associated DG: MARE
1.1.        Background
Over the years, the European Union has adopted
a substantial number of directives in the field of labour law, essentially
aiming at ensuring that the creation and the completion of the Single Market
did not lead to a lowering of labour standards or distortions in competition
and at improving the living and working conditions in Europe, in accordance
with the objectives of the social policy as enshrined in Article 151 TFEU.
The EU labour law directives are generally
applicable to all sectors of activity and all categories of workers.
Nevertheless, seafarers[1]
are excluded or can be excluded from the scope of six directives[2], without any express
justification. The Directives concerned are the following:
·              
Directive 2008/94/EC[3] relating to the protection of
employees in the event of the insolvency of their employer (hereafter referred
to as "the Employer Insolvency Directive");
·              
Directive 2009/38/EC[4] on the establishment of
European Works Council (hereafter referred to as the "European Works
Council Directive");
·              
Directive 2002/14/EC[5] establishing a general
framework for informing and consulting employees (hereafter referred to as the
"Information and Consultation Directive");
·              
Directive 98/59/EC[6] on the approximation of the
laws of the Member States relating to collective redundancies (hereafter
referred to as the "Collective Redundancies Directive");
·              
Directive 2001/23/EC[7] relating to the safeguarding of
employees' rights in the event of transfers of undertakings (hereafter referred
to as the "Transfer of Undertakings Directive");
·              
Directive 96/71/EC[8] concerning the posting of
workers in the framework of the provision of services (hereafter referred to as
the "Posting of Workers Directive").
According to the Insolvency Directive,
Member States need to establish guarantee institutions that guarantee payment
of employee's outstanding claims resulting from contracts of employment or
employment relationships.
The Directive provides that wherever such
provision already exists in national legislation, Member States may continue to
exclude from its scope share fishermen. Other categories of seafarers, notably
within the merchant navy, are covered by the Directive.
The European Works Council Directive
aims at improving the right to information and to consultation of employees in
Community-scale undertakings. To that end, it provides for the setting up of a
European Works Council in undertakings with at least 1000 employees within the
Member States and at least 150 employees in each of at least two Member states.
Article 1(7) of the Directive reads as follows:
"Member States may provide that this Directive shall not apply to merchant
navy crews". The Directive therefore applies to fishing vessels, but not
to the merchant navy.
The Information and Consultation Directive
establishes a general framework for the right to information and consultation
of employees in European companies. The Directive applies, depending on the
choice of the Member State, to undertakings employing at least 50 or to
establishments employing at least 20 employees in any one Member State.
In its Article 3(3), the Directive states that
"Member States may derogate from this Directive through particular
provisions applicable to the crews of vessels plying the high seas".
The Collective Redundancies Directive
sets the procedures to be applied by any employer contemplating collective
redundancies. The employer must start consultation with the workers'
representatives in due time to reach an agreement. The Directive establishes
the minimal information to be given to workers' representatives to enable them
to make constructive proposals. It provides that projected collective
redundancies cannot take effect earlier than 30 days after their notification
to the competent authority.
In its Article 1(2)c), the Directive lays down
that it does not apply to the crews of seagoing vessels.
The Transfer of Undertakings Directive
aims at protecting employees in the event of a change of employer, in
particular, to ensure that their rights are protected. It provides that the
transferor's rights and obligations arising from the contract of employment are
transferred to the transferee and that the transferee is bound by the terms and
conditions agreed in any applicable collective agreement.
Article 1(3) of the Directive provides that it
does not apply to "seagoing vessels".
Finally, the Posting of Workers Directive
seeks to ensure adequate balance between the protection of workers' rights and
the free provision of services. Posted workers, defined as workers who, for a
limited period, carry out work in the territory of another member State, will
benefit, at the very least, from the conditions of employment applicable in the
host Member State, concerning minimum rate of pay, including overtime rates,
maximum work periods and rest periods, minimum paid annual holidays, conditions
of the supply of workers by temporary employment undertakings, rules on health
and safety at work, working conditions of pregnant women and young people.
Article 1(2) of the Directive lays down that it
does not apply to merchant navy undertakings as regards seagoing personnel.
1.2.        Policy
context
In 2006, the Commission has issued a Green
Paper[9]
entitled "Towards a Future Maritime Policy for the Union: A European
vision for the oceans and seas", launching a comprehensive consultation
and analysis of how Europe relates to the sea.
Building on this consultation, the Commission
has adopted in October 2007 a Communication[10]
on An Integrated Maritime Policy for the European Union. This Communication laid
the foundation for the tools necessary for an Integrated Maritime Policy and
set out the main actions the Commission would pursue during the current
mandate.
One of the aims of the Integrated Maritime
Policy is to increase the number and quality of maritime jobs for European
citizens, taking into account that seafarers' experience is key also for
shore-based jobs.
The European Parliament Resolution of 11 July
2007[11]
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[12] noted the exclusion of
fishermen and seafarers from European social legislation on a number of areas
and it underlined that, irrespective of the reasons behind these exclusions, it
was important to put an end to that discrimination where appropriate. It
therefore invited the Commission to reassess these exclusions in close
cooperation with social partners.
The General Affairs and External Relations
Council meeting of 16 November 2009[13]
acknowledged the progress achieved in the field of the integrated maritime
policy and called on the Commission to maintain the momentum behind it. It
pointed to the need to enhance a solid social dimension for maritime
activities.
1.3.        Consultation
and expertise
A broad consultation and evidence gathering
process carried out within the scope of the present impact assessment allowed
all interested parties (the social partners at EU level and the Member States)
to express their views concerning the analysed options and measures to be
proposed.
Green Paper
Chapter 2.5 of the 2006 Green Paper deals with
the issue of the declining number of European seafarers, mostly merchant marine
officers, which affects all Member States. It notably states that the objective
for Europe should be to have quality ships, manned by highly skilled employees,
working under the best conditions.
The Green Paper therefore asks: "how can
the decline in the number of Europeans entering certain maritime professions be
reversed and the safety and attractiveness of jobs ensured?" and "how
can better working conditions, wages and safety be combined with sectoral
competitiveness?"
In its 2007 Communication[14], the Commission draws some
conclusions from the consultation launched with the Green Paper. On the issue
of jobs in the maritime sector, it states that "there are divergences on
whether, and which, exclusions concerning maritime sectors in EU social
legislation are justified, but there is agreement on the need to contribute to
a global level playing field for the sector and the role that EU legislation
can play in this context".
Communication on an Integrated Maritime
Policy
Following this consultation, in its 2007
Communication[15]
on an Integrated Maritime Policy for the European Union, the Commission has
announced that it would reassess, in close cooperation with social partners,
the exclusion affecting maritime sectors in EU labour legislation.
First-stage consultation of European social
partners
The detailed outcome of the consultation can be
found in Annex 3.
In October 2007, the Commission adopted a
Communication[16]
launching the first stage consultation of European social partners as provided
for in Article 154 TFEU. The Commission asked the European social partners for
their views on how to proceed on this issue.
The first consultation showed that the social
partners in the maritime transport sector had differing views on the need to do
away with the existing exclusions. While the employees (ETF) were in favour of
suppressing all exclusions, the employers (ECSA) considered that the reasons
for introducing them, which were linked to the specificities of the maritime
transport sector, remained valid and that the exclusions should therefore be
maintained.
For their part, concerning the fishery sector,
both sides of the industry were in favour of doing away with some of the
existing exclusions. 
Second-stage consultation of European social
partners
In April 2009, the Commission launched the
second-stage consultation of the European social partners. ECSA underlines that
the maritime sector is already well regulated and recalled the adoption of the
Directive implementing the social partners' agreement on the maritime labour
convention. ECSA did not believe that a straight removal of any of the existing
exclusions or derogations was justified, but would be prepared to discuss other
possible ways ahead. 
On the other hand, ETF reiterated its views
that the current exclusions or derogations were unjustified and that there was
no compelling reason to exclude seafarers from the provisions of the
Directives. ETF considered that the exclusions and derogations should be suppressed,
but with certain nuances for the Directive on Posting of Workers. 
Contrary to the maritime sector, the social
partners of the fishing sector sent to the Commission a joint reply, agreed
within the Sectoral Social Dialogue Committee (SSDC). The SSDC did not take
position regarding European Works Councils and Posting of Workers, but it
supported the elimination of all the other exclusions in force or the
establishment of equivalent specific provisions.
Responses by the Member States
A detailed questionnaire was sent to all Member
States. Replies were received from 20 Member States[17]. A detailed overview of the
responses can be found in Annex 3 of the report. detailed in the Annex dealing
with the consultations of stakeholders (see Annex 3).
The replies can be summarized by underlying
that Member States having made the option to apply the provisions of the
Directives to seafarers are unanimous concerning the estimation that this does
not appear to represent significant additional costs compared to on-shore companies.
None of these Member States is aware of any negative impact, notably in case of
the sale of a vessel.
On the contrary, Member States having made use
of the exclusions and derogations unanimously argue that they should be
maintained and that the application of the Directives to the maritime sector
would have important additional costs. The Member States at stake do not give
any indication as for the quantification of the additional costs.
Inter-service group meeting on the
Integrated Maritime Policy
The Group was set up in April 2005 by DG MARE
to contribute to the production of the report on the consultation period on the
Green Paper on Maritime Policy and the related action plan, subsequently
adopted in October 2007.
In July 2010, the Inter-service group discussed
the draft final report of the external consultant[18] (the MRAG study) in view of
the preparation of the Impact Assessment.
An early draft of the present Impact Assessment
Report has been discussed with the Inter-service Group on 19 April 2012. A
meeting was also organised on 22 March 2012 with DGs and Services more closely
concerned by the initiative (invited: MARE, MOVE, ENTR, JUST, EUROSTAT, SG,
LS). A draft Impact Assessment Report was discussed, as well as the areas for
more detailed contribution from each service.
Task Force on maritime employment and
competitiveness
In its Communication on the Strategic goals and
recommendations for the EU's maritime transport policy until 2018[19], the Commission established a
Task Force on maritime employment and competitiveness entrusted to contribute
with valuable input and recommendations on how to combine the competitiveness
of European fleets with a strengthened seafaring profession in Europe. The Task
Force is chaired by Sir Robert Coleman, former Director General of Transport at
the European Commission and is composed by 12 additional members drawn from
three groups: a group familiar with seafarers' concerns, a group familiar with
shipowners' concerns and a group familiar with the concerns of the broader
maritime cluster.
The Task Force delivered its report in July
2011[20].
On the issue of exclusion of seafarers from certain labour law Directives, the
Task Force underlines that "in some cases Member States had not taken
advantage of the provisions, casting doubt on their necessity". It also
notes that "important evolutions have occurred since the provisions were
adopted, notably as regards communications technology, which might now make
information and consultation requirements more practical. Elimination of the
exclusions or the application of requirements adapted to the special
circumstances of employment at sea would help to eliminate the impression that
seafarers are less well protected by European Union labour law than other
employees which may contribute to a lack of interest in maritime careers".
The Task Force therefore concludes that
"the elimination or adaption of the existing exclusions should be
considered" for four of the six Directives concerned: the Insolvency
Directive, the Works Council Directive, the Information and Consultation
Directive and the Transfer of Undertakings Directive.
External expertise
The Commission has launched a call for tenders
for a study aimed at supporting the preparation of an impact assessment
concerning the possible review of the current exclusions of seafaring workers
from the scope of EU labour law.
The Study has been carried out by a consortium
led by MRAG Limited. The final report[21]
was delivered in December 2010. It will be mentioned hereafter as "the
MRAG Study".
1.4.        Impact
Assessment Board
The Impact Assessment Board (IAB) examined this
Impact Assessment and issued an opinion on 22 June 2012. The recommendations
for improvement have been taken into consideration. 
The problem definition has been refocused and
better explained, as well as supported with further anecdotal evidence
(sections 2 and 5). Additional stakeholder's views have also been included.
The intervention logic has been strengthened by
designing sub-options which address the full set of problem drivers and
correspond to the improved policy objectives (section 5.6.2; 5.7.2, 6.4 and 6.5).Option
F has been further explained. 
The presentation of options has been improved
by further explaining the applicability of the proposed policy options to both
merchant navy and fisheries (on the grounds of fundamental rights). The
analysis of costs resulting from the policy options has been improved and its
accuracy improved. Overall comparative cost of the proposed policy mix has been
estimated by comparison with other options possible (Section 6.7). The impact
on competitiveness has been assessed using the risk of flagging-out as
indicator (see 5.1).
The section concerning future monitoring and
evaluation has been improved providing for more operational and time specific
arrangements (section 6).Statistical information concerning maritime employment
is incomplete and usually incomparable throughout the Member States. This is
reflected in this document. However, the best efforts have been made to further
consolidate the statistical instruments used.
2.           PROBLEM
DEFINITION
The EU labour law directives are generally
applicable to all sectors of activity and all categories of workers, although
some adaptations have been introduced to address specific situations[22].
Nevertheless, the maritime sector or a part of
it is excluded or can be excluded from the scope of six directives. 
The existence and/or possibility of introducing
exclusions may prevent or limit the possibility for seafarers to fully enjoy
their right to information and consultation, and the right to working
conditions which respect workers' health, safety and dignity, both of which are
enshrined in the Charter of Fundamental Rights of the European Union in Article
27 and Article 31. 
Table 0: Fundamental rights concerned and
their relevance per directive 
 Directive || Article 27 || Article 31 
 Employer Insolvency || NO || YES 
 European Works Council || YES || YES 
 Information & Consultation || YES || YES 
 Collective Redundancies || YES || YES 
 Transfer of Undertakings || YES || YES 
 Posting of Workers || NO || YES 
The Directives at stake do not provide an
express justification for the exclusions, which were not proposed by the
Commission or justified explicitly either during the preparatory works or in
the text of the directives.. Nevertheless, it can be assumed that the itinerant
nature of vessels was seen as an obstacle to the application of the rules on
information and consultation of workers, which are part of all the directives
concerned, with the exception of the Insolvency Directive and the Posting of
Workers Directive. It can be assumed that some Member States in the Council may
have invoked the difficulty to communicate with vessels plying the high seas as
a reason for the possibility to derogate from general rules, particularly on
information and consultation. Currently, with the evolutions in terms of
communications technology, this cannot be seen as a reason for the exclusion[23].
A different treatment of workers from a given
sector, if not justified by objective reasons, may prevent these workers to
enjoy their rights which are enshrined in the Charter of Fundamental rights of
the European Union. It is therefore necessary to assess whether objective
reasons can justify the different treatment of seafarers and, if not, to
propose measures that would apply the same or equivalent rights to those
enjoyed by on-shore workers. 
Furthermore, as underlined by the Commission
previously, the number of EU national seafarers is steadily decreasing and this
could be problematic for the future, notably because experience off-shore is
essential for certain shore-based jobs. Although this could be the consequence
of different factors such as isolation from friends and family, workload
including short turn-around times, and the social environment on board (cultural
and language difficulties), the perception that seafarers do not benefit of the
same level of protection as other employees in the EU may reduce the
attractiveness of maritime careers for EU citizens and especially young
students[24].
This contributes to the perception of seagoing work as an "excluded
sector" subject to its own rules or no rules at all Doing off with those
exclusions would also improve the overall perception of working conditions in
the maritime sector throughout the EU. This has been confirmed by stakeholders
including the Task Force on Maritime employment and competitiveness.
A recent study[25]
carried out in the context of the preparation of the Task Force on Maritime
Employment and Competitiveness (see point 1.2) looked at the balance between
supply and demand of seafarers in Europe. The situation in OECD countries is
serious, with a gap of 45,000 officers and of 145,000 ratings between supply
and demand. It estimates that the gap will grow for OECD countries in the next
ten years up to 70,000 officers and 221,000 ratings.
2.1.        Scope
of exclusions and terminology
The universe of workers excluded from the six directives
is different from one directive to another. The different scope of the
exclusions makes it difficult to quantify the number of persons affected, since
in some cases all seafarers will be concerned (merchant navy and fishermen), in
others only the merchant navy, and in one case only share fishermen.
Furthermore, not all the terms used are defined
in the relevant directives, their interpretation being left to the national
authorities. In order to take these national interpretations into account as
much as possible the Commission requested the Member States, by means of a
questionnaire, to provide it with information which it used in the elaboration
of this document. 
The terms used in the present document should
be interpreted as defined in the directives, even though, in some cases,
additional definitions deriving from international law and/or practice are
provided in footnotes. 
The table below gives an overview of the
sectors of activity covered by the exclusions.
Table 1: Overview of the scope of exclusions
and derogations
 Directive || Fishermen excluded? || Merchant navy excluded? 
 Employer Insolvency || Yes, share fishermen || No 
 European Works Council || No || Yes, 
 Information & Consultation || Yes, fishermen plying the high seas || Yes, crews plying the high seas 
 Collective Redundancies || Yes, seagoing vessels || Yes, seagoing vessels 
 Transfer of Undertakings || Yes, seagoing vessels || Yes, seagoing vessels 
 Posting of Workers || No || Yes, seagoing personnel 
2.2.        Situation
in Member States
The directives at stake allow Member States to
exclude seafarers, but do not impose that Member States do so. It is therefore
important to assess how Member States have used this faculty. Although almost
all member States excluded seafarers from the scope of the Posting of Workers
Directive, the situation is different from a Member State to another as far as
the other Directives are concerned. 
Table 2: Implementation at national level
 MS || Exclusion from Directives on 
 Insolvency || EWC || Information & consultation || Collective redundancies || Transfer of undertakings || Posting of workers 
 AT ||   ||   ||   ||   ||   ||   
 BE ||   ||   ||   || X ||   || X 
 BU ||   ||   ||   ||   ||   || X3 
 CY || X || X || X || X || X || X 
 CZ ||   ||   ||   ||   ||   ||   
 DE ||   ||   || X1 || X ||   || X3 
 DK ||   || X1 ||   || X || X || X 
 EE ||   || X ||   ||   ||   || X3 
 EL || X || X3 || X1 || X || X || X 
 ES ||   ||   ||   ||   ||   || X3 
 FI ||   ||   ||   ||   || X1 || X3 
 FR ||   ||   ||   ||   ||   || X 
 HU ||   || X ||   ||   || X || X 
 IE || X2 ||   ||   || X || X || X3/ X2 
 IT ||   || X3 ||   ||   ||   || X3 
 LT ||   || X3 ||   ||   ||   || X3 / X2 
 LU ||   ||   || X || X || X || X3 
 LV ||   || XX ||   || X || X || X3 
 MT || X || X || X || X || X || X1 
 NL ||   ||   ||   ||   || X ||   
 PL ||   ||   ||   ||   ||   || X3 
 PT ||   ||   ||   ||   || X1 ||   
 RO ||   || X3 || X ||   || X || X 
 SE ||   ||   ||   ||   ||   || X 
 SI ||   ||   ||   ||   ||   ||   
 SK ||   ||   ||   || X ||   ||   
 UK || X2 || X1 || X1 || X2 ||   || X 
X          excluded
X1         MS has provided for an equivalent level of
protection in national law
X2         share-fishermen are excluded because qualified as
self-employed workers
X3         excluded are merchant navy crews
Source: European
Labour Law Network (ELLN).
The table shows in green Member States who have
not made use of the derogations or exclusions (and therefore apply national law
to the categories of workers excluded from the Directives), in yellow Member
States who do not apply entirely the provisions of the Directive but grant an
equivalent protection and in red Member States having used the faculty to
exclude seafarers from national law transposing the Directives.
The current situation does not ensure a level
playing field in the European market, since certain companies are exempted from
certain obligations, notably in terms of information and consultation, which
are mandatory for competing companies based in other Member States.
It is worth noting that some of the big
shipping nations do not exclude seafarers from the national provisions
implementing the Directives, without any measurable negative impact (see point
6.2 for more details).
The merchant navy
Around 90% of world trade is carried by the
international shipping industry. 
Without shipping the import and export of goods on the scale necessary for the
modern world would not be possible. There are over 50,000 merchant ships
trading internationally, transporting every kind of cargo. The world fleet is
registered in over 150 nations, and manned by over a million seafarers of
virtually every nationality. About 30% of the merchant ships are registered in
an EU Member State (see Annex 2). In terms of gross tonnage (GT)[26], the EU represents 19,2% of
the world fleet. The EEA represents 40% of the world fleet[27]. 
Table 3: Top 30
Commercial Fleet Registration (GT Basis)
 Flag country || vessels || GT Total 
 Panama || 8637 || 223958099 
 Liberia || 3122 || 125407801 
 Marshall Is. || 2002 || 79555852 
 Hong Kong || 2097 || 73233264 
 Singapore || 3319 || 54940849 
 Bahamas || 1463 || 53780248 
 Malta || 1853 || 44941400 
 Greece || 1582 || 43,063,752 
 China P.R || 4135 || 42247731 
 Cyprus || 1045 || 21676443 
 United Kingdom || 1362 || 18817025 
 Italy || 1526 || 18423793 
 Norway || 1591 || 16,975461 
 Germany || 820 || 15,505,688 
 Japan || 5423 || 15227950 
 Isle of Man || 425 || 13562439 
 United States || 3631 || 11833928 
 Denmark || 665 || 11612293 
 South Korea || 1909 || 11400181 
 Antigua & B || 1340 || 11331852 
 Bermuda || 166 || 11270168 
 India || 1330 || 9665778 
 Indonesia || 5,921 || 9,505,776 
 Malaysia || 1,503 || 8,056,477 
 Netherlands || 1,264 7 || 836,717 
 France || 554 || 6,961,264 
 Turkey || 1358 || 6571223 
 Russia || 2,319 || 6,036,884 
 Philippines || 1388 || 5214668 
  Belgium || 203 || 4528275 
 Total || 63953 || 983143279 
 Total World || 87347 || 1582839745 
Source: ECAS, Annual report
2011-2012
It is difficult to quantify the value of volume
of world seaborne trade in monetary terms, as figures for trade estimates are
traditionally in terms of tonnes or tonne-miles, and are therefore not
comparable with monetary-based statistics for the value of the world economy.
However, the United Nations Conference on Trade
and Development (UNCTAD) estimates that the operation of merchant ships
contributes about US$380 billion in freight rates within the global economy,
equivalent to about 5% of total world trade[28].
Throughout the last century the shipping
industry has seen an increasing trend in total trade volume. Increasing
industrialisation and the liberalisation of national economies have fuelled
free trade and a growing demand for consumer products. Advances in technology
have also made shipping an increasingly efficient and swift method of
transportation. Over the last four decades total seaborne trade estimates have
quadrupled, from just over 8 thousand billion tonne-miles in 1968 to
over 32 thousand billion tonne-miles in 2008.
As with all industrial sectors, however,
shipping can be susceptible to economic downturns. The contraction in trade,
following the economic downturn in 2008, has translated into a dramatic and
abrupt reduction in demand for shipping in 2009. The market recovered in 2010,
but slowed down in 2011. The global shipping market faces several challenges: a
general over capacity, the global economic outlook and trade growth, high
operational costs (e.g. fuel), and piracy, as about half of EU shipping
activity takes place in so-called cross-trades[29].

Table 4: International
Seaborne Trade selected years (millions of tons loaded
   || 2000 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 
 Container || 628 || 1020 || 1134 || 1264 || 1319 || 1201 || 1347 || 1477 
 Other dry || 1905 ||  1 852 ||  2 032 || 2066 || 2109 || 1 921 || 1 976 || 2 105 
 Five major bulks || 1288 || 1701 || 1836 || 1957 || 2059 ||  2 094 || 2 333 || 2 477 
 Crude oil and products || 2163 || 2 422 || 2698 || 2747 ||  2 742 || 2 642 || 2 752 || 2 820 
Source: UNCTAD, Martime Transport Review,2011
This had also consequences for seafarers. The
economic downturn is raising real fears that crews could be left high, dry and
unpaid if shipping companies become bankrupt while they are in transit[30]. Services are being
rescheduled and unprofitable routes are cut. Reportedly, crews are repatriated
without knowing when they will be paid. Some shipping companies are in
financial difficulties or file for bankruptcy[31].

The fishing industry
The world fishing fleet consisted of about 4.4
million vessels in 2010, relatively stable since 1998, with 73 percent in Asia,
followed by Africa, Latin America and the Caribbean, North America and Europe.
In total, 3.2 million vessels were considered to operate in marine waters and
1.1 million vessels in inland waters. Globally, 60 percent of the fishing vessels
were with engines in 2010 and over 85 percent of the motorized fishing vessels were less than 12 m in length overall (LOA).

Total global capture production decreased by
about 1.1 percent in 2010, due to a drop in anchoveta catches of 2.7 million
tonnes. On the other hand, catches of all other marine species excluding
anchoveta grew by 0.9 million tonnes, and the reported inland waters catch
continued its increasing trend with world production reaching 11.2 million
tonnes in 2010, although the statistics for this sector remain highly
approximate for many countries.[32]
The EU fishing industry provides some 6.4
million tonnes of fish each year. Fishing and fish processing provide jobs for
more than 350,000 people.
In 2006 five Member States (Denmark, Spain,
France, the Netherlands and the United Kingdom) accounted for 60 % of
Community production. There are structural differences between these five
countries. In Denmark, 69 % of production is for industrial use, mainly
the production of fishmeal, whereas the corresponding figure in the United
Kingdom is only 6 %. In Spain, France and the Netherlands, all production
is intended for human consumption. Catch values and employment in the fisheries
sector are an accurate reflection of this situation. For example, the unit
value of landings in Spain is seven times higher than that of Danish landings.
In the period 2005 to 2008 the EU fleet
continued the decline seen in the period 2000 to 2005. This was in spite of the
inclusion of the fleets of new Member States in 2004 and 2007.
The decrease in vessel numbers was 12.4% from
2000 to 2005 compared with a fall of 5.8% from2005 to 2008. In 2008 the EU-27
fishing fleet consisted of under 87 thousand vessels with a total tonnage of
nearly 1.9 million tonnes and a total engine power of 6.9 million KW
By far the largest fishing fleets among the EU
Member States, in terms of power, were those from Italy, France, Spain and the
United Kingdom; in 2010, the fishing fleets of each of these countries had a
collective power of between 0.8 million kW and 1.1 million kW. In terms of
tonnage, however, the Spanish fishing fleet was by far the largest
(415 000 gross tonnes), which was at least twice the size of the fleets in
the United Kingdom, Italy or France. The fishing fleets of Norway and Iceland
were also relatively large. Indeed, the fleet in Norway had more power (1.2
million kW) than any of the fleets from the EU Member States, while in tonnage
terms the Norwegian fleet (366 000) was smaller only than the Spanish one.[33]
Table 5: Fishing fleet EEA countries
With the exception of Belgium and the
Netherlands, where large vessels predominate, all Member States’ fleets have
relatively similar structures. In Greece, Ireland, France, Poland and the
United Kingdom more than 50 % of vessels are less than 12 metres in
length, reflecting the importance of coastal fishing in those countries.
Table 6: Total catches in all fishing
regions, 2000-2010 (1 000 tonnes live weight)
2.3.        Data
on seafarers
First of all, it should be noted that, in order
to give a working estimate of affected seafarer numbers, the applicable law
to contracts of employment in the shipping industry has been taken to be the
law of the flag since this is the commonest practice[34].
Data on seafarers is not systematically
gathered at national level. Over recent years a number of international surveys
have been undertaken to measure the number of European seafarers[35]. However, there are still many
loopholes and no uniform methodology to calculate the number of seafarers in
employment. As a result of using different sources and methodologies, such surveys
arrive at different conclusions (see Annex 1).
The Commission has asked Member States to
provide figures on the number of seafarers active at national level. When
available, the present report uses the data received from national authorities.
When not available, taken into account the disparities in the different
studies, it is more appropriate to use an average of all the identified
sources, instead of using a single source.
The present report is therefore based on the
information from national authorities or a calculation of the average numbers
of seafarers based on the studies listed in Annex 1.
Table 7:
employment in the merchant navy
 Member State || Estimated employment in merchant navy 
 AT** || 537 
 BE* || 879 
 BU** || 16,579 
 CY* || 21,000 
 CZ** || 967 
 DE* || 15,179 
 DK* || 9,200 
 EE* || 6,250 
 EL* || 44,800 
 ES* || 12,138 
 FI* || 9,175 
 FR* || 23,060 
 HU** || 250 
 IE** || 1,320 
 IT** || 21,955 
 LT* || 1,204 
 LU** || 2,306 
 LV* || 500 
 MT* || 43,000 
 NL** || 13,358 
 PL* || 25,000 
 PT* || 14,853 
 RO** || 20,191 
 SE* || 13,997 
 SI* || 300 
 SK** || 457 
 UK* || 27,000 
 Total EU 27 || 345,455 
*:
Source: national authorities
**: Source: average calculated from studies
listed in Annex 1
How many fishermen in Europe?
The number of seagoing fishermen in Europe is
very much concentrated in a handful of countries: Spain, Greece, Italy and France
account for a high proportion of total employment in the fisheries sector in
the EU.
Table 8: Employment in the fisheries sector
 Member State || Estimated employment in fisheries 
 Austria*** || 0 
 Belgium** || 239 
 Bulgaria* || 1507 
 Czech Republic*** || 0 
 Cyprus*** || 747 
 Denmark** || 3635 
 Estonia*** || 247 
 Finland** || 2195 
 France** || 23000 
 Germany** || 739 
 Greece*** || 24745 
 Hungary*** || 0 
 Ireland*** || 3838 
 Italy*** || 25426 
 Latvia** || 865 
 Lithuania*** || 744 
 Luxembourg*** || 0 
 Malta** || 894 
 Netherlands || 1966 
 Poland** || 3071 
 Portugal** || 13731 
 Romania* || 6811 
 Slovenia** || 117 
 Slovakia*** || 0 
 Spain** || 28462 
 Sweden*** || 1879 
 UK** || 12703 
 Total || 157561 
* Source: ECOTEC, An exhaustive analysis of employment trends in all
sectors related to sea or using sea resources. Data for 2006.
** Source: national authorities
*** Source: The
2009 Annual Economic Report on the European Fishing Fleet.
The universe of excluded workers is different
from a Directive to another and across Member States due to their different
choices in terms of use of the exclusions and derogations.
In order to give a general idea of the
dimension of the problem, the table below gives an overview of the number and
proportion of workers concerned for the whole EU.
Table 9: Workers affected by the exclusions
   || Insolvency || EWC || Consultation and Information || Collective Redundancies || Transfer of Undertakings || Posting of Workers 
 Total || Merchant navy || Not excluded || 159150 || 86497 || 138141 || 155925 || 272520 
 Fisheries || 26386 || Not excluded || 8452 || 35702 || 43501 || Not excluded 
 % in category || Merchant navy || Not excluded || 46.1% || 25.0% || 40% || 45.1% || 78.9% 
 Fisheries || 16.7% || Not excluded || 5.4% || 22.7% || 27.6% || Not excluded 
 % of EU workforce[36] || Merchant navy || Not excluded || 0.07% || 0.04% || 0.06% || 0.07% || 0.11% 
 Fisheries || 0.01% || Not excluded || 0.004% || 0.015% || 0.018% || Not excluded 
The percentage of workers affected by this
initiative in relation to the number of workers in the same category varies
from 5.4%% to 78.9%. In any case, compared with the EU active population, this
situation concerns a marginal proportion of workers (from 0.004% to 0.11%).
2.4.        A
regulatory failure?
A different treatment of a certain category of
workers without any objective justification could be problematic in terms of
equal treatment between categories of workers. Due to the different scope of
the exclusions and the diversity of the legal texts concerned, it is necessary
to determine whether it can be inferred from the context any objective
justification of the exclusions. It is also necessary to determine whether the directive
could be applied as such to seafarers or whether such an exclusion results in a
way or another from the specificities of the sector.
The directives contain no reasoning on the
reasons and aims of the exclusions. It should be recalled that these exclusions
were not part of the Commission's proposal, but were inserted at a later stage
during the inter-institutional negotiations.
The absence of express reference in the
preparatory works or recitals of the directives does not per se mean that the
exclusion is not justified. It has to be assessed whether other elements
gleaned from the general context can allow the identification of the objective
underlying the exclusion. This will be done below for each directive.
2.4.1.     Employer
Insolvency Directive
The Directive provides that wherever such
provision already exists in national legislation, Member States may continue to
exclude from its scope share fishermen. Other categories of seafarers, notably
within the merchant navy, are covered by the Directive.
Is there an objective justification for the
derogation?
As mentioned above, the possibility that Member
States exclude share fishermen was not in the original proposal from the
Commission. It was inserted during the inter-institutional negotiations,
without any attempt to justify it in the preamble of the Directive.
It should nevertheless be assessed whether an
objective justification can be inferred from the general context.
There is an important difference between share
fishermen and other categories of workers: share fishermen are usually paid at
the end of the trips, which for most of them do not last for more than one to
three days. Share fishermen are paid once the catch is sold, i.e. they are paid
before the following trip. Therefore, as underlined by the MRAG study,
"the accrual of unpaid wages is relatively less likely to take place than
in circumstances where a worker is paid a weekly or monthly wage".
Nevertheless, as the social partners have
underlined in their joint contribution to the second-stage consultation,
"often a guarantee wage is fixed to secure a minimum pay to
fishermen". This guarantee wage is not different from the wage received by
any other worker and could be left unpaid in case of insolvency.
Furthermore, it should be mentioned that the
Directive also deals with the potential impact of the non-payment of compulsory
contributions due by the employer to social security. On this aspect, there
does not seem to be any difference between share fishermen and any other
category of employees.
According to a settled case-law[37], the principle of equal treatment
or non-discrimination requires that comparable situations must not be treated
differently and that different situations must not be treated in the same way,
unless such treatment is objectively justified.
In the case at stake, although the system of
remuneration is partially specific, it does not appear that share fishermen and
other workers are in a substantially different situation concerning the
exposure to the risk of non-payment in case of insolvency as to justify this
faculty to exclude them from the scope of the Directive.
Would the Directive apply if no express
exclusion/derogation?
Without express provision, the Directive would
entirely apply to share fishermen.
2.4.2.     European
Works Council Directive
Article 1(7) of the Directive reads as follows:
"Member States may provide that this Directive shall not apply to merchant
navy crews". The Directive therefore applies to fishing vessels, but not
to the merchant navy.
Is there an objective justification for the
exclusion?
The Directive has a horizontal nature and was
intended to apply to all sectors of activity. As the Commission notes in its
2007 Communication[38],
"the provisions of the Directive are flexible (the information and
consultation mechanisms are negotiated in order to adapt them to company
characteristics)". There does not appear to be an objective justification
for the exclusion although "the specific working patterns of seafarers
will always need to be taken into account".
Would the Directive apply if no express
exclusion?
There are no provisions in the Directive which
could be inapplicable to the excluded sector. The fact that seafarers spend
periods of time off-shore is in itself not an obstacle to the application of
the provisions of the Directive.
2.4.3.     Information
and Consultation Directive
Directive 2002/14/EC establishes a general
framework for the right to information and consultation of employees in
European companies. The Directive applies, depending on the choice of the
Member State, to undertakings employing at least 50 or to establishments
employing at least 20 employees in any one Member State.
In its Article 3(3), the Directive states that
"Member States may derogate from this Directive through particular
provisions applicable to the crews of vessels plying the high seas".
Is there an objective justification for the
derogation?
It is worth underlying that there is no
exclusion, since the Directive imposes that Member States who derogate from the
provisions of the Directive do it through "particular provisions".
Member States can therefore derogate from the rules of the Directive but
provided they adopt specific provisions on information and consultation
applicable to the crews of vessels.
According to the Commission document launching
the second-stage consultation of European social partners, the reasons raised
by the Member States to justify the use of the derogation were as follows: the
difficulty in applying information and consultation procedures on board ships
operating far away from the undertaking's seat and the fact that seafarers'
contracts are frequently short-term.
In view of the relevance of the rights at
stake, it can be made clearer in the text that Member States can only derogate
from the provisions of the Directive if they adopt alternative provisions
ensuring equivalent level of rights on information and consultation.
Would the Directive apply if no express
derogation?
The definitions of "undertaking" and
"establishment", which refer to the location "within the
territory of the Member State" could be problematic. As the Commission
wrote in the document launching the first-stage consultation of European social
partners, "the application of the law of the flag is generally based on
the notion of nationality of a vessel rather than assimilation to the territory".
The fact that seafarers spend periods of time
off-shore is in itself not an obstacle to the application of the provisions of
the Directive since the obligations in term of information and consultation
could be fulfilled using available IT technologies.
2.4.4.     Collective
Redundancies Directive
In its Article 1(2)c), the Directive lays down
that it does not apply to the crews of seagoing vessels.
Is there an objective justification for the
exclusion?
In 1991, in the explanatory memorandum[39] attached to its proposal for
the review of Directive 75/129/EEC[40],
the Commission considered that "the information, 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".
This remains valid, even more so now that the
right to information and consultation became a fundamental right enshrined in
the EU Charter of Fundamental Rights.
Would the Directive apply if no express
exclusion?
There are no provisions on the Directive which
could be inapplicable to the excluded sector. The fact that seafarers spend
periods of time off-shore is in itself not an obstacle to the application of
the provisions of the Directive since the obligations in term of information
and consultation could be fulfilled using available IT technologies.
2.4.5.     Transfer
of Undertakings Directive
Article 1(3) of the Directive provides that it
does not apply to "seagoing vessels".
Is there an objective justification for the
exclusion?
As underlined by the Commission in its
Communication launching the second-stage consultation of European social
partners, neither the original Commission proposal[41] nor the amended proposal[42] contained any specific
reference to seagoing vessels. In 1994, in its proposal for the revision of the
Directive[43],
the Commission considered 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.
As mentioned above, the merchant navy sector is
characterised by a high proportion of employees being on fixed term employment
contracts. This could make a difference in terms of accrued rights, but it does
not seem to be relevant when the Directive aims at protecting the maintenance
of the existing rights at the moment of the transfer.
As for information and consultation rights, the
absolute exclusion does not appear to be justified by the specificities of the
sector, although they could justify some differentiation from the general rules
to take into account the itinerant nature of vessels. 
Would the Directive apply if no express
exclusion?
The Directive applies "where and in so far
as the undertaking, business or part of the undertaking or business to be
transferred is situated within the territorial scope of the Treaty". The
reference to the "territorial scope of the Treaty" could cast doubts
as far as certain vessels plying the high seas are concerned.
2.4.6.     Posting
of Workers
Article 1(2) of the Directive lays down that it
does not apply to merchant navy undertakings as regards seagoing personnel.
The Commission adopted on 21 March 2012 a
legislative package including a proposal for a Directive[44] on the enforcement of
Directive 96/71/EC concerning the posting of workers in the framework of the
provision of services and a proposal for a Council Regulation[45] on the exercise of the right
to take collective action within the context of the freedom of establishment
and the freedom to provide services.
The proposal for a Directive does not intend to
amend Directive 96/71/EC. It aims to improve, enhance and reinforce the way in
which this Directive is implemented, applied and enforced in practice across
the European Union by establishing a general common framework of appropriate
provisions and measures for better and more uniform implementation, application
and enforcement of the Directive, including measures to prevent any
circumvention or abuse of the rules.
On the other hand, the proposal for a Council
Regulation aims to clarify the general principles and EU rules applicable to
the exercise of the fundamental right to take industrial action within the
context of the freedom to provide services and the freedom of establishment,
including the need to reconcile them in practice in cross-border situations.
Therefore, this legislative package did leave
unchanged the scope of the Posting of Workers Directive and did not deal with
the exclusion of merchant navy undertakings as regards seagoing personnel.
Is there an objective justification for the
exclusion?
The exclusion could be justified by the
specific nature of the itinerant work done by this group of workers and the
practical difficulties associated with monitoring them. This was the view taken
by representatives of Member states meeting in the context of the Working Party
on the transposition of the Directive.
Would the Directive apply if no express
exclusion?
There is a doubt on whether the provisions of
the Directive could apply to seagoing personnel at all, even in the absence of
the express exclusion. Indeed, posted workers are defined in the Directive as
workers who, for a limited period, carry out their activities in the territory
of a Member State other than the State in which they normally work. In
practice, situations equivalent to posting seem to be rare in the maritime
sector. According to the MRAG Study, "the temporary posting of workers
from a vessel flying one flag to a vessel flying another flag may happen occasionally
but essentially seems to be a rather rare kind of situation".
Even if the situation exists, as mentioned by
the Commission in the Communication[46]
launching the first-stage consultation of European social partners,
"seagoing personnel on a vessel plying the high seas are not to be
considered as being posted to the territory of another Member State",
since "the application of the law of the flag is generally based on the
notion of nationality of a vessel rather than assimilation to the territory".
This why in the previously mentioned
Communication the Commission considered that "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". This remains valid.
2.5.        The
EU right to act and subsidiarity
This exercise concerns the possible review of
six Directives. As such, this can only be done at the level of the EU, by a
Directive or a series of Directives amending the existing acts.
The Directives at stake have been adopted at
different moments with mainly three legal bases: Article 100 EC (Maastricht
consolidated version of the Treaties), Article 94 EC (Nice consolidated
version) and Article 137 EC (Nice consolidated version), corresponding to
current Article 115 TFEU and Article 153 TFEU.
Depending on the Directives to be amended, this
could be done by a single proposal for a Directive based on Article 153 TFEU or
on separate proposals based on Article 153 TFEU, on Article 115 TFEU and on
Articles 53(1) and 62 TFEU.
This initiative covers a sector subject to a
strong international competition and with a large part of the workforce
employed in the vessels of Member States coming from other Member States or
third countries. An EU initiative would ensure a level playing field, at least
at the level of vessels carrying the flag of a Member State.
2.6.        Baseline
scenario
In the EU, the legal situation is characterised
by its diversity in practical and legal terms. The importance of the maritime
sector as a whole is very different from a landlocked country to a country with
a large maritime coast and tradition. The legal situation, as far as the
Directives at stake are concerned, is also very different, Member States having
made different choices when implementing the exclusions and derogations of the
EU Directives. Table 2 in chapter 2 gives an overview on whether Member states
have made use of the exclusions or derogations.
In the absence of new EU action, the current
situation would remain unchanged as far as the labour law Directives are
concerned.This would mean that, at EU level, the protection of labour rights
protected under the EU Charter of Fundamental Rights would be kept at a
problematic low level. 
The gradual decrease of the number of EU
seafarers will continue and this is problematic for the whole maritime cluster,
since experience off-shore is essential for certain shore-based jobs.
The maritime sector has a clear international
dimension. In this context, it should be underlined that the Maritime Labour
Convention, 2006[47],
enters into force on 20 August 2013. The Convention will harmonize the working
conditions of seafarers throughout the world and therefore contribute to fill
the gap between vessels holding an EU flag and vessels holding third countries
flags.
At EU level, the adaption of the EU legal
acquis to the standards of the Convention is done by Directive 2009/13/EC
implementing the European social partners' agreement[48].
On the other hand Directive 2009/16/EC[49] on port State control will
contribute to reduce substandard shipping in the waters under the jurisdiction
of Member States and therefore ensure a level playing field at international
level.
Nevertheless, it is important to note that
neither the Convention nor the Directive deal with the issues that are the
subject of the present report and would therefore not change the current
situation on these matters.
Despite the entry into force of the Maritime
Labour Convention, perception of a lower level of protection of off-shore jobs
would continue. For a young European envisaging to engage into a maritime job,
the perceived difference of protection by European and national law of
off-shore jobs (compared to on-shore jobs) is a factor of dissuasion. This
would continue to exert a downward pressure upon the willingness of young
students to envisage a career in the merchant navy or the fishing sector.
Therefore, the number of EU workers citizens wishing to engage into merchant
navy or fishing jobs would continue its downward trend, thus aggravating the
already serious shortage of skills and manpower in this sector.
3.           OBJECTIVES
3.1.        General
objectives
This initiative aims to improve the level of
protection of the rights protected under the EU Charter of Fundamental Rights
in labour law. It contributes to general policy objectives which are enshrined
in Article 151 TFEU, namely the promotion of employment, improved living and
working conditions, proper social protection and dialogue between management
and labour.
3.2.        Specific
objectives
In order to reach the general objectives set
above, the present initiative has the following specific objectives:
(a)      Improve the level of protection of the
rights protected under the EU Charter of Fundamental Rights, in particular by assessing
whether a different treatment is objectively justified by the characteristics
of the sector and, if not by enhancing the rights of workers in the seafaring
professions in order to bring them up to the standard enjoyed by workers on
shore;
(b)     Contribute to bring more young EU
citizens into jobs in the merchant navy and fisheries sectors, by making them
more attractive compared with on shore jobs and improve the retention of
seafarers in the profession.
3.3.        Consistency
with other EU policies and horizontal objectives
This initiative aims at assessing the scope and
reasons for the exclusion or faculty to exclude of seafarers from labour law
Directives. The Commission is committed to ensure the compatibility of any new
legislative proposal with the EU Charter of Fundamental Rights. In the case at
stake, suppressing the exclusions would have a positive impact on the rights
protected under Articles 27 and 31 of the Charter.
On the other hand, this initiative is also
fully in line with the Integrated Maritime Policy for the European Union,
established in 2007 through the so-called "Blue Book"[50]. The Blue Book stressed the
need for an increase of the number and quality of maritime jobs for European
citizens. It considered that "improved staffing policies and working
conditions (including health and safety), supported by a concerted effort by
all maritime stakeholders and an efficient regulatory framework taking into
account it global context, are necessary if Europeans are to be attracted to
the sector". It therefore announced Commission's intention to
"reassess, in close cooperation with social partners, the exclusion
affecting maritime sectors in EU labour legislation".
This initiative is also in line with the EU
2020 Strategy and its goals, notably in terms of employment.
4.           POLICY
OPTIONS
It should be noted that the policy options
below will be assessed separately for each Directive. The preferred option for
the initiative as a whole could therefore be a combination of the different
policy options.
4.1.        Policy
option A: no EU action
Under this policy option, the EU would take no
new initiative, legislative or non-legislative. The current Directives would
remain in place as they stand and Member States would remain free to use or not
use the derogations and exclusions. Trends show that the decline in the number
of European seafarers is likely to continue, with more and more jobs aboard
European vessels taken up by personnel from non-EU countries. As the Green
Paper "Towards a future Maritime Policy for the Union" notes,
"evidence suggests that the causes of this decline are to be found on both
the demand and supply sides. In shipping, competitive pressures reduce the
willingness of employers to offer openings at wage levels that are attractive
to Europeans. Coupled with the impression that jobs are not secure and to a
much lesser extent working conditions are poor, this has led to a reduction in
the number of candidates applying for positions within the maritime
profession".
4.2.        Policy
option B: no legally-binding measures
This option would consist of non-legally
binding measures aimed at reaching the objectives set for the initiative
without any further legal measure.
The Commission could issue a Recommendation
providing that Member States consider whether the use of the exclusions at
national level is still necessary and, if not, take the initiative to suppress
it from national law. Such a recommendation could also encourage employers' and
employees' organisations to discuss at the appropriate level the adoption of rules
in the areas excluded by national measures transposing the Directives.
4.3.        Policy
option C: a derogation subject to the guarantee of an equivalent level of
protection
This option entails replacing the blank
exclusions by a provision allowing Member States to deviate from the provisions
of the Directive for seafarers provided that a degree of protection equivalent
to that of the Directives is ensured.
This option would allow the adaptation of the
legal framework to the specificities of the maritime sector, notably the
remoteness of workers from the headquarters of the company for very long
periods, but would still require Member States to ensure the substance of the
protection, if not the practical modalities.
This option would require the adoption of a
proposal for a Directive amending the existing texts, based on Article 153 of
the TFEU.
4.4.        Policy
option D: suppress the exclusions in all Directives
This option would be based on the assumption
that, all of the proposals were originally intended to include all sectors of
activity and that the exclusions of seafarers are unjustified and in breach of
the fundamental rights to information and consultation and/or fair and just
working conditions. 
This option would require the adoption of a
proposal for a Directive amending the existing texts, based on Article 153 of
the TFEU.
4.5.        Policy
option E: adapt the rules to the specificities of the sector
This option would entail the adoption of
substantive norms aimed at adapting the legal texts to the characteristics of
the maritime sector. This option would address the concerns expressed by some
stakeholders concerning the specificities of the sector and the additional
costs.
Depending on each particular Directive, this
could mean that it could be neccesary to put in place special arrangements
concerning the application of information and consultation obligations (Option
a) or the eligibility as worker representative or the application of general
rules to the sale of a vessel. (option b) .
This option would require the adoption of a
proposal for a single Directive amending all the concerned Directives based on
Article 153 of the TFEU. Contrary to options C and D, it would not aim at
simply suppressing the exclusions or provide for an equivalent level of
protection, but rather at determining the substantive rules which would apply
to the sector taking into account its specificities. Taking into account the
financial impacts of the options which is a concern expressed by the Member
States (see annex 3), this could mean, for instance, providing for a specific
rule to apply in situations which are specific to the sector such as, for
instance, the frequent sale of a vessel or collective redundancies. This would
not exclude the information and consultation rights of seafarers as underlined
by other stakeholders. 
4.6.        Policy
option F: suppression of the exclusions for the fisheries sector only
This option would be based on the outcome of
the consultations of European social partners. Since there is an agreement
between both sides of industry for the fisheries sector and disagreement
between employees' and employers' organisations for the merchant navy, this
option would draw an immediate consequence from this situation.
4.7.        Preliminary
screening of the options
Two of the six options identified above seem
hardly compatible with the objectives and nature of the initiative.
Option B above (no legally-binding measures)
could encourage Member States to apply the provisions of the Directives to
seafarers but it is hardly imaginable that all Member States would do so. Even
if this was the case, depending on national law, level of protection of rights
enshrined by the EU Charter of Fundamental Rights could be low in certain
cases. 
On the other hand, option B would not
contribute to change the perception that seafarers' jobs are less protected and
valued than on-shore jobs. It would therefore not encourage more young
Europeans to engage into maritime professions.
Option B is therefore not a viable option and
should be discarded without in-depth analysis of its economic and social
impacts.
Option F consists in suppressing the exclusions
for the fisheries sector only It concerns a more limited personal scope than
option D. When option D is used Option F is implied. The use of Option F can
have 
(a) no effect when fishermen are not excluded
(EWC, Posting of Workers), 
(b) more limited effect than Option D when both
seafarers and fishermen are currently excluded (Information and consultation,
Collective redundancies, Transfer of undertakings) or 
(c) the same effect as Option D when only
fishermen are currently excluded (Employer insolvency regarding Article 1(3)) 
As such, this option could be realistic since
there is an agreement between the two sides of industry in the fisheries sector
on this issue, contrary to what happens in the merchant navy.
Nevertheless, the inclusion of fishermen only
within the scope of the Directives would reach the objectives set for the
initiative for a small part only of all employees concerned by the exclusions.
It would leave unchanged, reduce the level of protection of the rights
enshrined by the Charter. 
Therefore, it seems that concerning the
situations where Option F has more limited affect than D, the latter should be
considered instead of the former (situation b). Situation (a) can be
disregarded. As regards situation (c) the effect of F is equivalent to D and
therefore the latter can be used instead of the former for the sake of clarity
of analysis. 
The agreement of social partners from the
fisheries sector is an important element to take into consideration when
deciding on the way forward, but it cannot be the only element to take into
account. Option F alone is therefore not a viable option and should be
discarded without in-depth analysis of its economic and social impacts.
4.8.        Options
retained for the Impact Assessment
In consequence, the following options will be
subject to a detailed impact assessment and comparison of costs and benefits:
·              
Option 1:
no EU action
·              
Option 2:
a derogation subject to the guarantee of an equivalent level of protection
·              
Option 3:
suppress the exclusions in all Directives
·              
Option 4:
adapt the rules to the specificities of the sector.
4.9.        SME
Test
4.9.1.     Preliminary
assessment of businesses likely to be affected
In its Report entitled "Minimizing
regulatory burden for SMEs – Adapting EU regulation to the needs of
micro-enterprises"[51],
the Commission announces that "from January 2012 the Commission's
preparation of all future legislative proposals will be based on the premise that
in particular micro-entities should be excluded from the scope of the proposed
legislation unless the proportionality of their being covered can be
demonstrated".
It is therefore necessary to assess the impact
of this initiative on SMEs and specifically consider whether micro-enterprises
should be covered.
As a preliminary, it should be underlined that
some of the Directives at stake do not apply to micro-enterprises and some of
them do not even apply to small or medium-sized enterprises. Indeed, most of
the Directives include a threshold in terms of number of employees which
excludes enterprises with a small number of staff. The table below summarizes
the situation for the six Directives at stake.

Table 10: Applicability of the Directives according to the number of employees
 Directive || Threshold 
 Insolvency Directive || No threshold, applies to all types of undertakings. 
 European Works Council Directive || Undertakings and groups with at least 1000 employees within the MS and at least 150 employees in each of at least two MS. 
 Information and Consultation Directive || Undertakings employing at least 50 employees in any one MS or establishments employing at least 20 employees in any one Member State. 
 Collective Redundancies Directive || Applies to collective redundancies of: (i) either, over a period of 30 days: - at least 10 in establishments normally employing more than 20 and less than 100 workers, - at least 10 % of the number of workers in establishments normally employing at least 100 but less than 300 workers, - at least 30 in establishments normally employing 300 workers or more, (ii) or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question. 
 Transfer of Undertakings Directive || The provisions on information and consultation can be limited by MS to "undertakings or businesses which, in terms of the number of employees, meet the condition for the election or nomination of a collegiate body representing the employees". 
 Posting of Workers Directive || No threshold, applies to all types of undertakings. 
As it appears from the tables above, there are
only two Directives which apply irrespective of the size of the company –
Insolvency and Posting of Workers. For the rest, one of them (European Works Council
Directive) does not apply at all to SME's, another one applies in principle to
medium-sized companies or small companies, although is more likely to apply to
bigger enterprises (Collective Redundancies), the Directive on Information and
Consultation only applies to large and medium-sized companies and another one
(Transfer of Undertakings) has introduced mitigating measures for small and
micro-enterprises, allowing them not to apply some of its provisions.
4.9.2.     Consultation
with SMEs representatives
As mentioned previously, the Commission
consulted twice the European social partners from both sectors concerned,
merchant navy and fisheries. 
The position of the European social partners is
explained in point 1.2 of the present report.
4.9.3.     Measurement
of the impact on SMEs
The impact of this initiative on SMEs,
essentially on small and micro-enterprises is reduced. On one hand, most of the
Directives already exclude small and micro-enterprises, on the other hand, when
this is not the case (the Insolvency Directive, for example), the employers'
organisation for fisheries at European level is in favour of the suppression of
the derogation for their sector.
4.9.4.     Alternative
options and mitigating measures
Mitigating measures are already in place for most
of the Directives concerned. In any case, two of the envisaged policy options
(policy options 2 and 4) would require amendments to the Directives to adapt
their provisions to the reality of the maritime sector.
Since micro-enterprises will not be affected
(and small enterprises only marginally), it is not necessary to reverse the
burden of proof and assess the proportionality of their being covered.
5.           ANALYSIS
OF IMPACTS
5.1.        The
risk of flagging out and its link with competitiveness
Shipping has historically been a globalised
industry. With a few exceptions, such as ferries and cabotage, world shipping
operates with few barriers to entry. As both supply and demand for shipping is
global, shipping companies compete directly with each other all around the
world. 
The globalised nature of the shipping industry
manifests itself in a number of different ways but a key element is the legal
regime for the flagging (and re-flagging) of ships, a process that has no
direct equivalent in land-based industries. Shipowners have strategically
chosen to fly another state’s flag for almost as long as there have been
shipping records. Widespread use of such flags, however, came only with the
decision by certain States beginning around the 1920s to create ‘open registries’,
where ships were not required to have onerous ties to a state to register.
From the outset, the phenomenon of flagging out
has been largely driven by the desire of shipowners to avoid the costs and
restrictions associated with having their ships registered in the traditional
maritime States. One of the main costs of operating a ship is the cost of
paying crew salaries and other related costs. It is estimated that crew cost
differences between selected EU flags and lower-cost open registry vessels
range from +22% to +333%[52].
The risk of flagging out is thus directly
proportional to the difference in the manning costs between the lower-costs
countries and higher-costs countries. Therefore, it constitutes a good
indicator of the impact which the policy options taken into consideration in
the present document might have on the competitiveness of EU vessels.
It should be noted that the entry into force in
August 2013 of the Maritime Labour Convention 2006 will approximate the working
conditions on board ships throughout the world. The Convention establishes
comprehensive minimum requirements for almost all aspects of working conditions
for seafarers including, inter alia, conditions of employment, hours of work
and rest, accommodation, recreational facilities, food and catering, health
protection, medical care, welfare and social security protection. A detailed
description of the provisions of the Convention can be found in Annex 4.
Directive 2009/16/EC[53] on port State control will
also contribute to reduce substandard shipping in the waters under the
jurisdiction of Member States. It is expected that it will ensure a level
playing field at international level and reduce the encouragement to
flagging-out.
European shipowners have made considerable use
of non-EU registries: some 46% of the total EEA-controlled fleet is currently
registered under third country flags[54].
The MRAG study calculates that the simple
change of the county of registration has an annual cost around $14,000, i.e.
around 10,000 euros per year. This concerns only the direct administrative
costs (initial registration fee, and yearly fees paid to the new country of
registration).
Nevertheless, the real costs of flagging-out,
although difficult to monetise, include more elements than just the registration
costs. It should be noted, for instance, that holding a flag of a Member State
brings benefits, which are difficult to monetise but are important for
shipowners. According to the MRAG study, the benefits are mainly the following:
increased protection from EU naval forces, lower costs for insurance, market
premium due to assurances of reliability and quality, better access and lower
prices for loans and mortgages and higher prestige in the market attached to an
EU flag.
In the present context, the benefits of any
policy option have to be measured against this risk of flagging-out, which
should be minimised. It must be avoided that an initiative aiming at improving
the working conditions of European seafarers ends up as reducing not only their
working conditions but also their safety. A high risk of flagging out
associated with a policy option would mean that the perception of the negative
competitive impact of that policy option outweighs the perceived benefits of
flying the flag of a Member State. An actual flagging out would also trigger a further
reduction in the number of EU seafarers. As a consequence, one of the
objectives of the proposed EU action would be jeopardised.
5.2.        The
experience in Member States
As table 2 clearly shows, many Member States have
chosen not to use the possibility to exclude or derogate seafarers from the
scope of the Directives. This means that options 2, 3 and 4 are, to a certain
extent, already applied in some Member States, notably some Member States with
important maritime sectors.
In order to determine whether the application
of the Directives had any measurable impact, notably on the flagging-out of
vessels, the table in Annex 2 presents the evolution on the number of vessels
and gross tonnage per Member States during a period of 10 years.
It should be emphasised that this evolution has
probably been determined by factors other than the exclusions from labour law
Directives. Those factors include trends and vicissitudes of national/global
economies and the adoption of national measures aimed to boost the maritime
industry (such as tonnage taxes and tax exemptions for seafarers). In
consequence, for the purposes of the present exercise, it should be checked
whether the exclusions from labour law Directives has prevented this kind of
measures from producing their positive effects. 
In Spain (where pro-shipping measures were
introduced during this time-spam), the gross tonnage of the national fleet
increased by 40.4% between 2001 and 2011. In France (where the same occurred),
for the same period, the increase was 40.2%. Both France and Spain apply all
the Directives (except the Posting of Workers Directive) to the maritime
sector. On the other hand, in Greece, between 2001 and 2011, the gross tonnage
of national fleet increased by by 34%. In Cyprus, between 2003 and 2011, the
gross tonnage increased by 0.5%. Both Greece and Cyprus exclude the maritime
sector from the scope of national law transposing the Directives.
In conclusion, the experience in the last
decade does not corroborate the argument that the application of the Directives
could lead to a flagging-out of vessels under third countries flags.
For the preparation of the present report, the
Commission has requested Member States and social partners to help in
identifying the impacts of their national law. A detailed questionnaire was
sent to all Member states and to sectoral employers' and employees'
organisations. The Commission services received replies from both sides of the
industry and from 20 Member States (AT, BG, CY, CZ, DE, DK, EE, EL, ES, FI, FR,
LT, LV, MT, PL, PT, RO, SE, SI and UK). The information received is detailed in
the Annex dealing with the consultations of stakeholders (see Annex 3).
The replies can be summarized by underlying
that Member States having made the option to apply the provisions of the
Directives to seafarers are unanimous concerning the estimation that this does
not appear to represent significant additional costs compared to on-shore
companies. None of these Member States is aware of any negative impact, notably
in case of the sale of a vessel.
On the contrary, Member States having made use
of the exclusions and derogations unanimously argue that they should be
maintained and that the application of the Directives to the maritime sector
would have important additional costs. The Member States at stake do not give
any indication as for the quantification of the additional costs.
This allows concluding that since the
implementation of the Directives, the position of the Member States regarding
the appropriateness of the exclusions has not evolved significantly.
5.3.        Insolvency
Directive
5.3.1.     Who
is affected by the exclusion?
Three Member States have excluded share
fishermen from the scope of national law transposing the Directive: Cyprus, Greece
and Malta. It should be noted that in Ireland and in the United Kingdom, the
provisions on the protection against employers' insolvency are not applicable
to share fishermen because they are considered by law and/or by an established
case law as self-employed workers. Therefore, the suppression of the exclusion
would have no impact on Ireland and the United Kingdom.
There are 26,386 workers excluded from the
scope of the Directive, assuming that all fishermen in those Member States are
share fishermen (it is therefore an overestimation).
The proportion of fishermen excluded from the
protection granted by the Directive amounts to 16.7% of the total number of
fishermen in Europe.
5.3.2.     Economic
and social impacts
In Cyprus, a special Fund has been created,
which is managed by a Council consisting of members of the Social Insurance
Department. When it was set up, the Fund received a payment of CYP 1,000,000
(approx. EUR 1,724,137) from the Redundancy Fund of the Republic of Cyprys and
has since then been receiving monthly contributions from the employers at the
rate of 0.2% of gross salaries paid to employees. According to the information
received by Cyprus as response to the questionnaire there are currently 500
self-employed fishermen in Cyprus, which would be excluded from the scope of
the Directive. Around 248 employees work in on fishing vessels from which 200
belong to the small scale fisheries and the rest of them to the sector of
multipurpose fisheries
In Greece, Law 1836/1989 specifies that the
Guarantee Fund is financed in part by employers’ contributions and in part by
State subsidy from the Labour Ministry budget. Employers contribute with 0.15%
of any remuneration paid. Based on the MRAG study, there are 30,196 share
fishermen in Greece, which is overestimated as mentioned in paragraph 5.3.1.
In Malta, the Guarantee Fund is financed by the
national budget (Consolidated Fund). It was initially endowed with the sum of MTL
250,000i, (EUR 579,722) to be paid out of the Consolidated Fund over a maximum period
of five years, at a minimum rate of MTL 50,000 (115,944 euro). There is
therefore no specific contribution from employers or employees.
None of these funds presently cover
share-fishermen.
In conclusion, in view of the low number of
workers concerned (and it is overestimated), the economic impact of the
coverage of share fishermen is marginal. In Cyprus and in Greece, employers
would need to contribute to the Guarantee Fund, but the contribution is low and
the number of workers reduced. In Malta, in view of the reduced number of
workers (1,303) concerned, the Guarantee Fund would probably need no
reinforcement to cover these workers.
The exclusion of share-fishermen from the
national provisions transposing the Insolvency Directive means that share-fishermen
do not benefit from the guarantee of payment of any outstanding claims in case
of employer's insolvency. There are no statistics on the number of insolvencies
in the fishing sector or on the number of fishermen having benefited from the
guarantee. There are no elements to suggest that this sector is different from
other sectors on that matter.
European social partners, including the
employers' organisation, of the fisheries sector are in favour of the
suppression of the exclusion.
5.4.        European
Works Council Directive
5.4.1.     Who
is affected by the exclusion?
Nine Member states have made full use of this
derogation, i.e., they do not apply any rule on information and consultation of
employees to the merchant navy (see table 2).
The number of workers potentially excluded from
the scope of national laws is 159,150, i.e., 48.3% of the total number of
seafarers.
Taking into account that the Directive only
applies to undertakings and groups with at least 1,000 employees within the
Member States and at least 150 employees in each of at least two Member States,
Member States having made use of the exclusion do not seem to host, at present,
any company qualifying for the application of the Directive.
5.4.2.     Economic
and social impacts
In order to assess the possible additional
costs of applying the EWC Directive to seagoing workers, the MRAG study has
chosen two scenarios for illustrative purposes. The scenarios depend on the
choice of the company and the availability, or not, if IT technologies, they
are not an alternative left to Member States.
The first scenario assumes that one of the
large European shipping companies based in Denmark (having more than 1000
workers and 150 in each of at least two Member States) has set up a EWC and is
obliged to allow representatives of merchant navy crews to attend.
It is assumed that the EWC member is at sea
when a meeting has to be held and is, for example, an officer (as more likely
to be European) aboard a vessel about to land in Hong Kong then go to Shanghai.
- Flying back to Copenhagen for the duration of
the meeting and then returning (EUR 2000 flight costs although the time during
the meeting is not an additional cost since the individual would be spending
this time at sea.);
- Flying a replacement to Hong Kong then returning
from Shanghai (7 working days at EUR 3,500pm for an officer = EUR 816 and EUR
2000 flight costs)
- Management and administration of the
swap-over at the company offices (2 working days at EUR 106 per day)
According to the MRAG study, the total of these
costs would be around EUR 5028 per meeting per participant. Since the
average number of annual plenary meetings (including both ordinary and
extraordinary meetings) is 2, and that one of the two representatives would be
probably on-shore, the annual costs would amount to EUR 5,028 X 2 = EUR
10056 per year.
The second scenario is based on the
availability of communication by satellite phone. For a remote meeting by means
of satellite phone the Euro 1.50 per minute rate would mean about EUR 500 for
dialling into a EWC meeting that took most of the day. Since the participant
would be attending in their own time owing to the responsibilities of seagoing
duties they would need compensating by up to a day’s salary (the week's salary
being EUR 816 a day's salary can be estimated at EUR 163), the total cost of
remote participation would be EUR 663 per meeting per participant. As for
scenario 1, this calculation of the costs needs to be adapted to the reality:
average of 2 meetings and great probability that some of the participants are
on-shore. The annual cost would then amount to EUR 663 X 2 = EUR 1326.
It is important to note that these costs spread
over the company and not specific vessels. The companies to which these
directives apply are by definition large companies. Thus, for example, Maersk
Line of Denmark has more than 500 vessels but only needs to host one EWC. The
costs estimated above can therefore be deferred over, say 500 vessels.
Taking into account that the Directive applies
to companies having more than 1000 employees, that the number of personnel
serving on a vessel is between 20 and 27[55]
and the working time arrangements for seafarers, we can estimate that a
maritime company qualifying for the application of the Directive has at least
25 vessels. Therefore, the costs amount to EUR 603 per vessel per year for
Scenario 1 and EUR 79.5 per vessel under Scenario 2. In relation to
the benchmarks for the risk of flagging out or increasing social costs within
cost of operation, these are not significant.
In any case, it is important to underline that
these are the costs for companies qualifying for the application of the
Directive (+ 1000 employees) and not for all the companies. 
Furthermore, it should also be underlined that
not all companies that qualify effectively have EWC in place. According to ETUI
database[56],
there are 2424 companies that fit the criteria in terms of number of employees
but only 931 (38.4%) currently operate an EWC. This is so because the
introduction of EWC is not automatic but requires either central management
initiative or a request from a certain number of employees.
It has proved to be more difficult to quantify
benefits for shipping companies.
In the context of the review of the EWC
Directive, some elements have been presented. For instance, where active, EWCs
contribute to improving corporate governance in large transnational
undertakings, a key factor for their competitiveness, and to reducing the
negative consequences of unprepared restructuring for both the workers and the territories
affected. 
All employee representatives consider EWCs to
be beneficial (EPEC 2008 survey[57]).
Despite the financial and the other non-quantifiable costs of operating a EWC,
57% of the companies with a EWC accept that the benefits of having a EWC outweigh
its costs (while 35% consider that costs outweigh benefits and 8% give no clear
answer). The reason for this is largely the ability of companies to communicate
information regarding company strategy and the rationale for certain decisions
to employees, particularly in times of change. 
Table 11: Views of involved parties on the
benefits associated with the operation of EWCs (EPEC 2008)
   || Companies || Employees 
 Agree || Neutral || Disagree || Agree || Neutral || Disagree 
 Better ability to talk to employee reps from other countries || 88% || 4% || 8% || 96% || 0% || 4% 
 Better ability to talk directly to group management || 79% || 10% || 10% || 91% || 4% || 4% 
 Improved understanding of management decisions || 82% || 10% || 8% || 76% || 15% || 10% 
 Better exchange of information || 80% || 12% || 10% || 98% || 2% || 0% 
 Improved relations between management and employees || 76% || 22% || 2% || 63% || 17% || 20% 
 Increased trust || 63% || 29% || 8% || 61% || 20% || 20% 
 Better corporate culture at European level || 62% || 28% || 11% || 73% || 22% || 5% 
 More effective decision-making || 23% || 33% || 44% || 37% || 22% || 41% 
 Enhanced productivity || 0% || 38% || 62% || 19% || 46% || 35% 
These benefits, although non–quantifiable, have
very concrete impacts upon both workers and companies. For companies, they
minimise the risks associated with social unrest in terms of the company’s
public image as well as costs and delays, which far more than outweighs the
operational costs of running a EWC. They reduce resistance to change, support
adaptation on the part of workers, contribute to the building of an integrated
corporate culture following mergers, convey qualitative root-level information
about the company’s life to top management, and help in attracting and
retaining qualified employees.
The employees’ representatives (ETF) are in
favour of the suppression of the exclusion. On the other hand, the employer
organisation (ECSA) is against the mere suppression of the exclusion and argues
that a distinction could be made between seafarers away from home for long
periods and seafarers away no longer than 48 hours. 
5.5.        Information
and Consultation Directive
5.5.1.     Who
is affected by the exclusion?
The Directive does not allow Member States to
exclude seafarers from the scope of their national law on information and
consultation of employees, but only to deviate from the provisions of the
Directive through specific provisions on the matter.
Four Member States (Cyprus, Luxembourg, Malta
and Romania) have totally excluded seafarers from the scope of their national
law, without providing for "particular provisions" on information and
consultation. All the other Member States apply the general rules to them or
have introduced particular provisions applying to crews of vessels plying the
high seas, as allowed by the Directive (Germany, Greece, and the UK) (see Annex
6).
The total exclusion of seafarers is in
contradiction with the text of the Directive and this should be dealt with by
the infringement procedures, rather than by an amendment of the EU law. For the
purpose of the present report, it will be assumed that Member States having
excluded seafarers from the Directive will adopt particular provisions
applicable to them.
The exact number of workers to whom the
provisions of the Directive do not fully apply is impossible to identify since
there is no statistical data on how many seafarers from the merchant navy and
fishermen "ply the high seas". Furthermore, the directive applies
only to undertakings with at least 50 employees or with establishments with at
least 20 employees. Taking into account all seafarers and fishermen from the
four Member States concerned, independently of the fact that they ply the high
seas and irrespective of the size of the company, the universe of workers
excluded would amount to a maximum of 94,649 seafarers, i.e., 19.5% of the
total of EU27.
5.5.2.     Economic
and social impacts
Merchant Crews
Since this Directive does not allow Member
States to exclude seafarers from the scope of national law transposing it, but
only to lay down specific provisions on information and consultation, only
option 3 could have an economic impact. In any case, this would be more a
clarification of the substantive law already in place, rather than a
modification of the law. 
It can be considered that the scenarios
available to enable the rights currently subject to derogation are the same as
for those under the EWC Directive, namely the repatriation scenario with a
replacement being fielded or the participation by sattelite with the workers
private time compensated for. The unit costs for these two scenarios will be
similar to those under the EWC directive. The difference however is that these
costs are now applicable to much smaller enterprises. With a minimum number of
employees of 50 such enterprises may have only two or three vessels each over
which to defer the costs..
Since consultation only occurs when needed, it
can be assumed that, on average there would be one meeting per year, with two
representatives being called back to attend to the meeting. This would bring
the annual cost to EUR 10056. Given the much smaller nature of the enterprise,
taking a worst case scenario by assuming the enterprise only has two vessels,
the costs will be EUR 5028 per vessel per year. 
Under Scenario 2 costs for participation by
satellite the cost is around EUR 663 per meeting per participant. Assuming
again one meeting per year and two representatives the potential annual cost
would be EUR 1326 which under the worst case two vessel situation would be
equivalent to EUR 663 per vessel per year.
As mentioned previously, these are maximal
costs, since the Directive already imposes Member States to ensure rights to
information and consultation. Nevertheless, it could entail some additional
costs if the proposal clarifies that workers should benefit from an equivalent
level of rights. In any case, the costs mentioned before would be a maximum,
which would occur only where no information and consultation is provided for by
national law.
As with all improvements in consultation and
information exchange there are potential second order downstream benefits which
might accrue. Improved relationships may ultimately manifest themselves in new
employment relationships or even negotiation on terms and conditions.
As mention above for the EWC Directive, the
institution of information and consultation procedures could reduce resistance
to change, support adaptation on the part of workers, contribute to the
building of an integrated corporate culture following mergers, convey
qualitative grass roots-level information about the company’s life to senior
management, and help in attracting and retaining qualified employees.
The fact that the exclusions from this Directive
apply only to larger companies (i.e., those with more than 50 employees or
establishments above 20) and to vessels that ply the high seas means that
fishing vessels and companies are in practice almost all exempted along with
coastal vessels, with some possible exceptions within distant water fishing
fleet a few Member States.
For the merchant navy, the employees’
representatives (ETF) are in favour of the suppression of the exclusion. On the
other hand, the employer organisation (ECSA) argues that there is no need to
change the Directive since it already provides that the derogation is subject
to particular provisions.
For the fisheries sector, both sides of
industry are in favour of the establishment of equivalent specific provisions.
5.6.        Collective
Redundancies Directive
5.6.1.     Who
is affected by the exclusion?
The exclusion applies both to the merchant navy
and fishing seagoing vessels.
Currently, ten Member States (Belgium, Cyprus,
Germany, Denmark, Greece, Ireland, Luxembourg, Latvia, Malta and Slovakia) make
use of the possibility to exclude seafarers from the scope of their national
law transposing the Directive. Seventeen Member States do therefore not use
this faculty to exclude seafarers from the scope of their national law
transposing the Directive.
The number of seafarers potentially excluded
from the Directive in the ten Member States is 174343, representing
35.7% of the total of seafarers in EU27.
The merchant shipping sector is characterised
by the systematic use of fixed term employment contracts as opposed to
contracts of indefinite duration. It can be assumed that those employed on the
basis of fixed term contracts are substantially less impacted by the exclusion
since reduction of staff would be achieved by not renewing the contract at the
end of the fixed term.
5.6.2.     Economic
and social impacts
According to the MRAG study, the cost of
implementing the directive for an employer comes from three sources: the cost
of consultation before a sale; the direct cost of the ‘cooling off’ period and
the indirect opportunity cost of having a boat inactive during this period.
For the purpose of this exercise, it is
necessary to envisage two possible sub-options:
a) an obligation on employers to inform and
consult when envisaging collective dismissals;
b) information and consultation obligations
plus a cooling-off period of one month for the application of the envisages
redundancies.
Sub-option a)
The consultation is assumed to take place
between two employers` and two union representatives. The cost of consultation
can be taken as a tele – meeting with two employees` representatives, at EUR
1316 per meeting per participant (from Scenario 2 of EWC above), that is EUR
2632.
Sub-option b)
The MRAG study then assesses the costs of the
"cooling off" period, i.e., the period between the notification of
the intention to proceed to collective dismissals and the effective dismissal[58]. Nevertheless, it fails to
take into account some elements. First of all, according to Article 4 of the
Directive, the deadline of one month can be reduced[59] by national authorities.
Furthermore, due to the high rate of fixed term contracts, it is likely that
the vessel is sold at the end of a trip when the employment contracts would
come to an end. Finally, if the exclusion of seafarers from the scope of the
Transfer of Undertakings is suppressed or reviewed, the sale of a vessel would
have to be considered a transfer of an undertaking and therefore no termination
of employment contract would be allowed due to the transfer.
Taking into account what has been said
previously, the calculation below is in any case overestimated is given as the
worse scenario in terms of costs.
According to the MRAG study, the direct cost of
the ‘cooling off’ period would include one month's wages for the crew[60]. It might be said that, with
the vessel in port, the long termers could be immediately redeployed but since
this will almost certainly include the senior officers it is more realistic to
allow for the payment of the whole crew at the standardised cost of EUR
39678 per month.
The opportunity cost of having the vessel tied
up for a month has been monetised by MRAG by assuming the owners have to
charter a vessel to do the job of the vessel tied up or its replacement. The cost
of chartering a medium sized vessel has been estimated at $35000 per day
(Stopford 2009). For the present exercise, the opportunity cost is calculated
at 25550 euros per day. For a minimum 30 day cooling off period this amounts to
an opportunity cost of EUR 766500.
The total monthly cost of the one month cooling
off period would therefore be, according to the MRAG study, EUR 811442.
The Directive establishes a two-stage
procedure: information and consultation of workers when the employer is
considering a collective dismissal "with a view to reaching an
agreement" and a notification to the competent authority which will
"seek solutions to the problems raised by the projected collective
redundancies". The involvement of workers and their representatives and of
the competent authorities can limit the scale of job losses and the longer-term
impact on workers. There is no reason why this would not be valid in the
maritime sector. 
The procedures for information and consultation
of the workers contribute to improving corporate governance and to reducing the
negative consequences of unprepared restructuring. Companies will benefit from
an increased ability to communicate information regarding company strategy and
the rationale for certain decisions to employees, particularly in times of
change.
5.7.        Transfer
of Undertakings Directive
5.7.1.     Who
is affected by the exclusion?
The exclusion applies to seagoing vessels both
from the merchant navy and fishing sectors. Ten Member States have made use of
the exclusion at national level (Cyprus, Denmark, Hungary, Greece, Ireland,
Latvia, Luxembourg, Malta, The Netherlands and Romania. The number of seafarers
affected by the exclusion is 199,426, representing 40.9% of the
seafarers in EU27 (47.3% of workers from the merchant navy, 27.5% from
fisheries).
5.7.2.     Economic
and social impacts
It is also necessary to envisage two possible
sub-options in order to assess the economic and social impacts of any amendment
to the current situation:
a) The Directive would apply to the transfer of
a seagoing vessel constituting an undertaking, business or part of an
undertaking or business but its Chapter II would not apply when the object of
the transfer consists exclusively of one or more seagoing vessels. 
b) the Directive would apply entirely to
seagoing vessels.
If sub-option a) is considered, the employers` increased
cost would only consist of some consultation with the crew. This could be
indicated by two tele-meetings with the crew as per Scenario 2 for the EWC
Directive, which would amount to an additional cost of around EUR 2632.
It should be noted that this would be the cost
for any transaction of a vessel, not the costs for each company.
In the case of sub-option b), there would be a
high indirect opportunity cost if a vessel, as an undertaking, would have to be
sold complete with crew. In a competitive market for the buying and selling of
vessels this would put the EU seller at a great competitive disadvantage. To
monetise this opportunity cost, it could be assumed that the vessel would have
to be sold at a discounted price to compensate for having to include the crew
which would inconvenient and not usual practice. Taking the discount to be
offered at say 5% of the sale price, approximately half the operational manning
costs, for a vessel worth EUR 30 million, this could amount to an opportunity
cost of EUR 1.5 million. 
5.8.        Posting
of Workers Directive
5.8.1.     Who
is affected by the exclusion?
Almost all Member States have made use of this
exclusion and therefore do not apply their national laws on the posting of
workers to seafarers. The exceptions are Austria, the Czech Republic, the
Netherlands, Portugal, Slovenia and Slovakia. Malta has adopted specific
provisions for this sector. The number of seafarers from merchant navy affected
by the exclusion is 267,976, representing 81.3% of the seafarers in EU27.
5.8.2.     Economic
and social impacts
It should be recalled that the legislative
package adopted in March 2012 by the European Commission leaves unchanged the
provisions of the Posting of Workers Directive and thus the exclusion of
seagoing vessels. 
Strictly speaking all seafarers are subject to
exclusion from this directive but it is very difficult to carry out any
quantitative analysis because the terms of the directive use solely land-based
premises which are conceptually difficult to apply to the maritime situation. 
The impacts of this exclusion are very
difficult to discern largely because addressing this exclusion with the present
parameters of the directive is not technically feasible. The specific focus on
postings to the territory of a Member State makes it difficult to assess the
impacts of an exclusion in terms of merchant navy crews which is all but
impossible: a vessel is not the territory of a Member State. 
In practice, options 2 and 3 would be
inapplicable to the sector due to the link with the territory of a Member
State.
Option 4 could be implemented for the sake of
harmonisation and but it would require fundamental changes in the text of the
Directive. As mentioned in point 2.1.6, situations of posting of workers seem
to be rare in the sector.
6.           COMPARING
THE OPTIONS
For every Directive and for the four policy
options, the following elements are taken into account, each being assessed
from zero to three, with a negative (-) or positive (+) impact, on the basis of
the analysis carried out in the previous section.
·              
Ability to achieve the specific objectives:
–              
Improve the level of protection of the rights
protected under the EU Charter of Fundamental Rights, in particular by
assessing whether a different treatment is objectively justified by the
characteristics of the sector and, if not by enhancing the rights of workers in
the seafaring professions, in order to bring them up to the standard enjoyed by
workers on shore;
–              
   Contribute to bringing more EU young citizens
into jobs in the merchant navy and fishing sectors, by making them more
attractive compared to on shore jobs and to improving the retention of
seafarers in the profession.;
·              
Likely economic and social impact
·              
Risk of flagging-out.
6.1.        Insolvency
Directive
 PO || Specific objectives || Economic and social impacts || Additional risk of flagging-out 
 Improve and expand rights, notably those protected by the EU Charter Ensure compatibility with the EU Charter of Fundamental Rights || Contribute to bring more EU young citizens into maritime jobs ||   ||   
 1 || --- || --- ||   ||   || Number of EU seafarers continue decreasing || None 
 2 || +++ Would increase the protection in case of insolvency || ++ Better protection would be beneficial ||   ||   || -/+ Impacts limited: low number of workers and MS and low contribution || None, it only concerns share fishermen 
 3 || +++ Would increase the protection in case of insolvency || +++ Equalisation of rights would have positive impact ||   ||   || -/+ Impacts limited: low number of workers and MS and low contribution || None Concerns only share fishermen, not merchant navy. 
 4 || ++/+++ Would improve the current situation, to an extend depending on the actual provisions || ++ Positive, depending the actual provisions ||   ||   || -/+ Impacts limited: low number of workers and MS and low contribution || None Concerns only share fishermen, not merchant navy. 
For the Insolvency Directive, policy option 1
will not meet any of the objectives. All the other options will allow to meet
the three objectives and all have a reduced economic impact, due to the fact
that only shared fishermen are concerned and only in three Member States.
Furthermore, the rate of contribution of employers is low (0.15% of the
remuneration in Greece, 0.2% in Cyprus) or inexistent (in Malta).
Policy options 2 to 4 are therefore very
similar in terms of capacity to reach the objectives, as well as in terms of
economic impacts. Nevertheless, policy option 3 is the most effective as far as
the attractiveness of the profession is concerned, without an increase of costs
compared to options 2 or 4.
6.2.        European
Works Council Directive
 PO || Specific objectives || Economic and social impacts || Additional risk of flagging-out 
 Improve and expand rights, notably those protected by the EU Charter Ensure compatibility with the EU Charter of Fundamental Rights || Contribute to bring more EU young citizens into maritime jobs ||   ||   
 1 || --- No improvement || --- No progress ||   ||   || - No additional costs but no benefits from the setting up of EWC || None No additional risk of flagging-out 
 2 || +++ Would improve current situation || ++ Approximation of legal situation would have positive impact ||   ||   || - Reduced costs, limited to big companies || Low risk since reduced economic costs 
 3 || +++ Full application of the Directive would ensure maximal protection || +++ Same rights would have the highest positive impact ||   ||   || - Reduced costs, limited to big companies || Low risk since reduced economic costs 
 4 || ++/+++ Would improve current situation, to an extent depending on the actual provisions || ++/+++ Improvement would have positive impact ||   ||   || -+ Adapted provisions might have lower or higher costs depending on the actual provisions || Low risk since reduced economic costs 
For the Works Council Directive, option 1 is
clearly the only option which would meet no objective.
One common feature of options 2 - 4 is the low
economic costs due to the fact that this Directive only applies to big
companies (undertakings with at least 1,000 employees within the Member States
and at least 150 employees in each of at least two Member States) and not
automatically: the introduction of a EWC requires a central management
initiative or a request from employees. Policy option 3 would be more effective
in contributing to the attractiveness of maritime jobs, since the perception of
the different levels of protection is a central element of the problem.
6.3.        Information
and Consultation Directive
 PO || Specific objectives || Economic and social impacts || Additional risk of flagging-out 
 Improve and expand rights, notably those protected by the EU Charter Ensure compatibility with the EU Charter of Fundamental Rights || Contribute to bring more EU young citizens into maritime jobs ||   ||   
 1 || ++ Current Directive already ensures rights to information and consultation || - Would not change current situation ||   ||   || None || None 
 2 || +++ Clarification of the text would allow better implementation || ++ Clarification would be beneficial ||   ||   || None || None No risk since no additional costs 
 3 || Not applicable || Not applicable ||   ||   || Not applicable || Not applicable 
 4 || None Already in place || None Already in place ||   ||   || None Already in place || None Already in place 
The Information and Consultation Directive is
in a peculiar position as far as this assessment is concerned. It does not
exclude seafarers from its scope; it merely allows Member States to derogate
from its provisions "through particular provisions applicable to the crews
of vessels plying the high seas". Therefore, Member States may deviate
from the general rules of the Directive, but need to have in place specific
rules on information and consultation of seafarers.
Option 3 is simply not applicable concerning
this Directive and option 4 is already implemented. Nevertheless, the
provisions of the Directive could be made clearer on the fact that an
equivalent level of protection should be granted (policy option 2).
6.4.        Collective
Redundancies Directive
 PO || Specific objectives || Economic and social impacts || Additional risk of flagging-out 
 Improve and expand rights, notably those protected by the EU Charter Ensure compatibility with the EU Charter of Fundamental Rights || Contribute to bring more EU young citizens into maritime jobs ||   ||   
 1 || --- No change to current exclusion || --- No change to current exclusion ||   ||   || None || None 
 2 || +++ Would improve the protection in case of collective dismissal || ++ Improved protection in case of collective dismissal would have positive impact ||   ||   || --- High costs notably in case of the sale of the vessel || --- Very high risk 
 3 || +++ Would improve the protection in case of collective dismissal || +++ Improved protection in case of collective dismissal would have positive impact ||   ||   || --- High costs notably in case of the sale of the vessel || --- Very high risk 
 4 a) || ++ Would improve current situation || ++ Any approximation of the legal situation is positive ||   ||   || - Limited costs || - Low risk 
 4b)  Would reach fully the objective || +++ Equivalence with on-shore would have the highest positive impact ||   ||   || --- Costs would be high || --- Very high risk 
Unlike a factory, it is not possible for a shipowner
to decide to reduce the number of seafarers on-board: the number of seafarers
is regulated by various international conventions. Therefore, a collective
redundancy will happen, in most of the cases, when a vessel is to be sold.
Option 1 will meet none of the objectives set
for this initiative. Option 3 would have the highest impact, while options 2
and 4 would allow reaching the objectives with lower costs if the nature of the
maritime sector is taken into account. 
Option 4a will improve the current situation
without imposing substantial costs to employers. Option 4b would have high
costs, notably in the case of the sale of the vessel. This was also a concern
expressed by Member States (see Annex 3). The cost could be limited if the
envisaged proposal suppresses "cooling-off" period in the case of a
dismissal provoked by the sale of a vessel.
6.5.        Transfer
of Undertakings Directive
 PO || Specific objectives || Economic and social impacts || Additional risk of flagging-out 
 Improve and expand rights, notably those protected by the EU Charter Ensure compatibility with the EU Charter of Fundamental Rights || Contribute to bring more EU young citizens into maritime jobs ||   ||   
 1 || --- No change to current exclusion || --- No change to current exclusion ||   ||   || None || None 
 2 || +++ Would improve the protection || ++ Improved protection would have positive impact ||   ||   || --- High costs notably in case of the sale of the vessel || --- Very high risk 
 3 || +++ Would improve the current level of protection || +++ Improved protection would have positive impact ||   ||   || --- High costs notably in case of the sale of the vessel || --- Very high risk 
 4a || ++ Would improve current situation || ++ Any approximation of the legal situation is positive ||   ||   || - Limited costs || - Low risk 
 4b || +++ Would reach fully the objective || +++ Equivalence with on-shore would have the highest positive impact ||   ||   || --- Very high costs || --- Very high risk 
The impacts of the different policy options are
very much influenced by the fact that, unlike a factory, a vessel is sold
frequently and rapidly. If the Directive applies in such a case, the market
price of the vessel could be negatively impacted.
In this context, PO 1 has no additional costs
but is unable to reach any of the objectives. On the other hand, PO 3 would
have a potential very high cost and a very high risk of flagging-out. 
Option 4a will have limited costs. It would
improve the current situation in terms of information and consultation but
would not ensure an equivalent level of protection. On the other hand, option
4b would have high costs in case of the sale of the vessel.
6.6.        Posting
of Workers Directive
 PO || Specific objectives || Economic and social impacts || Additional risk of flagging-out 
 Improve and expand rights, notably those protected by the EU Charter Improve and expand rights, notably those protected by the EU Charter || Contribute to bring more EU young citizens into maritime jobs ||   ||   
 1 || - || - ||   ||   || None || None 
 2 || Inapplicable || Inapplicable ||   ||   || Inapplicable || Inapplicable 
 3 || Inapplicable || Inapplicable ||   ||   || Inapplicable || Inapplicable 
 4 || ++ Would require substantial amendments, low impact in practice || + Approximation of law could be beneficial ||   ||   || - Costs low, posting is rare in the sector || - Low risk 
There is a broad consensus among stakeholders
on two points: that the Directive is inapplicable as such to the sector without
major amendments, notably to the definition of "posting", and that in
practice situations of posting within the meaning of the Directive are
extremely rare, if any, in the maritime sector.
6.7.        Ranking
of the options and their cost
This initiative deals with six labour law
Directives and the ranking of the policy options will need to be set for each
of them, since the best approach could be different from a Directive to
another. 
Due to a different formulation of each one of
the exclusions, they have different impacts (diversification of fleets and
their different structure in the Member States, limitation to particular
situations such as insolvency or only when plying the high seas etc.), as well
as personal scopes of application (seafarers/fishermen, size or situation of
the enterprise, location of a vessel etc.), the costs which will potentially
derive form the proposed policy option mix are not comparable. Therefore,
instead of presenting an overall estimate, the main drivers of the potential
cost have been analysed below for the preferred policy option regarding each
one of the Directives.
An important number of the MS have made a very
limited use to no-use of the exclusions. Taking into account the information in
Table 2 and disregarding Posting of Workers Directive, which remains unchanged:

(a) There are 8 Member States who have not
excluded seafarers from any of the Directives. 
(b) Two others used a single exclusion
(transfer of undertakings) while providing for an equivalent level of
protection. 
(c) Finally 6 more MS used a single exclusion
without providing for an equivalent level of protection. 
In conclusion, we can state that 16 Member
States have made use of none or only one exclusion. An average of 2 exclusions
are used by the Member States who decided to make use of them (see Annex 6).
For the Insolvency Directive, policy
options 2, 3 and 4 have very similar economic impact and none has any risk in
terms of flagging-out. Policy option 3 (suppression of the exclusion) is the
more effective and the most likely to contribute to attract more people into
seafaring jobs. The limited number of workers concerned in only two countries
suggests that the cost of implementing the policy option proposed should not be
significant and could probably be assumed by the existing structures.
Furthermore, the costs of each one of the policy actions proposed, except
non-action, are comparable. Furthermore, nothing suggests that the
implementation of the Directive concerning share fisherman or contributions to
be paid by employers would be higher than in other sectors, currently covered by
the Directive.
As far as the European Works Council is
concerned, policy option 3 would have the highest positive impact on the
attractiveness of the sector while the economic impact remains low for all
policy options. 
The assessment on the Information and
Consultation Directive is limited since policy option 3 (suppression of
exclusion) is not applicable (no exclusion is provided) and policy option 4 is
already implemented, although a clarification of the text might be useful. In
view of the current situation in Member States, requiring an equivalent level
of protection under policy option 2 would contribute to reach the objectives in
terms of improvement of rights and attractiveness without imposing additional
costs.
As far as the Collective Redundancies is
concerned, policy option 1 would meet none of the objectives set for the
initiative. Policy option 4a would meet the objectives without imposing too
high costs, provided the specific situation of the sale of the vessel is taken
into account. The option chosen involves notably lower costs in comparison with
any other option, except non-action. This option would address the concerns
expressed by some Member States. 
The same applies to the Transfer of
Undertakings Directive; policy option 4a is the only one that could improve
the current situation without imposing disproportionate additional costs. The
cost involved will in broad lines be similar to the estimate obtained regarding
Collective Redundancies Directive. This option will address the concerns expressed
by some stakeholders concerning the costs. 
Finally, no proper assessment can be made
concerning the Posting of Workers Directive, which should remain
unchanged.
In conclusion, the preferred option for this
initiative would be a combination of the four different policy options,
according to the individual Directive:
·              
Policy option 3 (suppression of the exclusions)
for the Insolvency Directive;
·              
Policy option 3 (suppression of the exclusions)
for the European Works Council Directive;
·              
Policy option 2 (equivalent level of protection)
for the Information and Consultation Directive;
·              
Policy option 4a (specific provisions) for the
Collective Redundancies Directive;
·              
Policy option 4a (specific provisions) for the
Transfer of Undertakings Directive;
·              
Policy option 1 (no action) for the Posting of
Workers Directive.
The situation can be summarised as follows:
 Directive || Preferred policy option || Socio-economic impact || Economic impact of the preferred option in comparison with other policy options taken into account (except no action) || Number of Member States currently making use of the exclusions 
 Insolvency Directive || 3 (suppression) || -/+ Impacts limited: low number of workers and MS and low contribution || Comparable economic impact of all policy options. Not higher than in other sectors. || 2 + 2 where share fishermen are excluded as self-employed 
 European Works Council Directive || 3 (suppression) || - Limited costs, limited to big companies. Voluntary and flexible mechanism. || Reduced, comparable cost of all policy options. || 10 (none of them currently hosting companies qualifying for EWCs) 
 Information and Consultation Directive || 2 (equivalent level of protection) || None || No impact in all applicable policy options (Option 3 is not applicable and Option 4 is already in place) || 4 MS without providing for an equivalent level of protection – irregular situation under the current directive 
 Collective Redundancies Directive || 4a (specific provisions) || - Limited costs || High to very high cost of any other policy option except the preferred option || 9 
 Transfer of Undertakings Directive || 4a (specific provisions) || - Limited costs || High to very high cost of any other policy option except the || 9 MS + 2 MS providing for an equivalent level of protection 
 Posting of Workers Directive || 1 (no action) || No cost || N/A || N/A 
7.           MONITORING
AND EVALUATION
The present initiative will result slight
amendments to Directives currently in force. As a consequence,
monitoring/evaluation mechanisms and indicators already in place under each
relevant Directive can continue to be used regarding the amendments introduced
by the new Directive.
The Commission will monitor in particular the
impact of the new Directive on two issues: the phenomenon of flagging-out and
the level of employment of EU seafarers. On the flagging-out, the evolution of
the fleet under a flag of an EU Member State will give an accurate view of the
phenomenon. Data is available on an annual basis on the gross tonnage of the
fleet by national flag: the follow-up of this indicator will provide a clear
indication of the trend of flagging-out. Movements in the level of employment
will be more difficult to monitor, at least if the collection of data at
national level is not improved. If the recommendations of the Task Force on
Maritime Employment and Competiveness on the improvement of data collection are
not implemented, recourse to external expertise will be needed.
The Commission will cover these two issues in
the reports provided for by the current Directives or, when no report is
foreseen in current texts, will provide for a separate reporting exercise.
The Commission also supports the request for
improving "the availability of comparable data"[61] and will cooperate with Member
States and social partners in order to improve the availability of data which
would allow for an assessment of the impact of the Directive on this matter,
recurring to an external expertise when necessary.
In view of the limited formal changes to be
made in existing Directives, the transposition of the Directive by Member
States should not be problematic. The Commission aims at a rate of compliance
close to 100% within three years after transposition. The substance of the
rights is integrated in all national legal framework, the changes consist mainly
in extending the personal scope of the law, to include seafarers.
8.           Annexes
Annex 1: Number
of seafarers according to different sources
   || MS || MRAG[62] || SULPICE 2011[63] || ECOTEC 2006[64] || ECORYS 2009[65] || Others 
 AT ||   || 17 ||   || 1,056 ||   ||   
 BE || 879 || 5,232 || 590 || 3,600 || 20,997 ||   
 BU ||   || 1,076 || 33,269 ||   || 13,175 || 18,796[66] 
 CY || 21,000 || 24,200 || 3,421 || 24,200 || 701[67] ||   
 CZ ||   || - ||   || 967 ||   ||   
 DE || 15,179 || 16,211 || 10,253 || 10,801 || 8,552[68] || 9,400[69] 6,767[70] 
 DK || 9,200 || 11,465 || 3,938[71] || 14,815 || 18,244 || 9,611[72] 
 EE || 6,250 || 459 || 9,000 || 4,500 || 7,167[73] ||   
 EL || 44,800 || 45,190 || 12,963 || 30,920 || 18,954 || 21,526[74] 
 ES || 12,138 || 3,019 || 7,043 || 8,000 || 26,682 ||   
 FI || 9,175 || 1,790 || 4,200 || 11,295 || 1,196 ||   
 FR || 23,060 || 7,021 || 13,696 || 13,632 || 29,243 ||   
 HU ||   || - ||   || 250 ||   ||   
 IE ||   || 150 || 3,112 || 700 ||   ||   
 IT ||   || 16,238 || 20,950 || 34,480 || 16,410 || 21,700[75] 
 LT || 1,204 || 413 || 5,395 || 11,832 || 5,682 || 6,766[76] 
 LU ||   || 784 || 4,436 || 1,700 ||   ||   
 LV || 500 || 266 || 7,892 || 18,842 || 15,760 || 11,782[77] 
 MT || 43,000 || 38,159 || 2,436 || 119 || 131 ||   
 NL ||   || 6,920 || 3,574 || 19,850 || 23,297 || 13,150[78] 
 PL || 25,000 || 91 || 22,669 || 35,000 || 20,327 || 40,000[79] 30,000[80] 
 PT ||   || 1,182 || 2,221 || 3,206 || 5,000 ||   
 RO ||   || 187 || 24,343 ||   || 25,553 || 30,682[81] 
 SE || 13,997 || 5,034 || 10,923 || 14,000 || 9,876 || 10,119[82] 
 SI || 300 || - || 644 || 1,443 || 1,443 ||   
 SK ||   || 290 || 576 || 505 ||   ||   
 UK || 27,000 || 18,544 || 23,193 || 26,520 || 28,439 || 38,523[83] 
 TOTAL || 267,976 || 185,104 || 206,968 || 292,233 || 268,390 || 188,799 
Annex 2: EU registered commercial fleet
by flag
 MS || Year || Vessels || GT || Variation 
 BE || 2001 || 10 || 7295 ||   
 2002 || 10 || 7295 ||   
 2003 || 41 || 1382072 ||   
 2004 || 67 || 4379044 ||   
 2005 || 70 || 3904222 ||   
 2006 || 73 || 4165275 ||   
 2007 || 88 || 4234138 ||   
 2008 || 83 || 4153894 ||   
 2009 || 182 || 4177079 ||   
 2010 || 199 || 4398923 ||   
   || 2011 || 203 || 4528275 || +99,84% 
 BU || 2006 || 93 || 852559 ||   
 2007 || 94 || 870547 ||   
 2008 || 73 || 610126 ||   
 2009 || 116 || 675324 ||   
 2010 || 104 || 508509 ||   
   || 2011 || 100 || 436625 || -48,79% 
 CY || 2003 || 1062 || 21559085 ||   
 2004 || 962 || 20643714 ||   
 2005 || 924 || 19466852 ||   
 2006 || 881 || 19047358 ||   
 2007 || 878 || 19585095 ||   
 2008 || 847 || 19543063 ||   
 2009 || 1058 || 21256278 ||   
 2010 || 1076 || 21817360 ||   
   || 2011 || 1045 || 21676443 || +0,54% 
 DE || 2001 || 542 || 6157397 ||   
 2002 || 500 || 6396890 ||   
 2003 || 417 || 5995761 ||   
 2004 || 486 || 9192559 ||   
 2005 || 523 || 11155847 ||   
 2006 || 506 || 11741753 ||   
 2007 || 510 || 13119703 ||   
 2008 || 585 || 15248885 ||   
 2009 || 854 || 15338852 ||   
 2010 || 847 || 15631900 ||   
   || 2011 || 820 || 15505688 || +60,23% 
 DK || 2001 || 449 || 6.886.624 ||   
 2002 || 431 || 7265771 ||   
 2003 || 393 || 7403984 ||   
 2004 || 377 || 7336118 ||   
 2005 || 373 || 8013799 ||   
 2006 || 374 || 8692167 ||   
 2007 || 381 || 9278834 ||   
 2008 || 398 || 10260207 ||   
 2009 || 639 || 10956103 ||   
 2010 || 654 || 11414459 ||   
   || 2011 || 665 || 11612293 || +40,70% 
 EE || 2003 || 68 || 336891 ||   
 2004 || 57 || 307130 ||   
 2005 || 49 || 398808 ||   
 2006 || 50 || 420674 ||   
 2007 || 39 || 371552 ||   
 2008 || 33 || 340642 ||   
 2009 || 89 || 437691 ||   
 2010 || 86 || 406553 ||   
   || 2011 || 85 || 322644 || -4,23% 
 EL || 2001 || 1274 || 28383650 ||   
 2002 || 1325 || 30397734 ||   
 2003 || 1298 || 32305664 ||   
 2004 || 1276 || 31779946 ||   
 2005 || 1245 || 31380389 ||   
 2006 || 1218 || 33107369 ||   
 2007 || 1244 || 36572111 ||   
 2008 || 1272 || 38902690 ||   
 2009 || 1552 || 40976786 ||   
 2010 || 1562 || 41922172 ||   
   || 2011 || 1582 || 43063752 || +34,09% 
 ES || 2001 || 233 || 1693092 ||   
 2002 || 242 || 1901254 ||   
 2003 || 244 || 2222227 ||   
 2004 || 226 || 2272430 ||   
 2005 || 218 || 2320797 ||   
 2006 || 223 || 2398866 ||   
 2007 || 217 || 2443280 ||   
 2008 || 202 || 2347225 ||   
 2009 || 552 || 2660317 ||   
 2010 || 547 || 2863823 ||   
   || 2011 || 546 || 2850428 || +40,41% 
 FI || 2001 || 167 || 1.414.271 ||   
 2002 || 166 || 1508326 ||   
 2003 || 165 || 1361045 ||   
 2004 || 162 || 1394815 ||   
 2005 || 156 || 1349878 ||   
 2006 || 154 || 1404414 ||   
 2007 || 159 || 1448680 ||   
 2008 || 159 || 1413692 ||   
 2009 || 270 || 1531816 ||   
 2010 || 270 || 1565812 ||   
   || 2011 || 264 || 1553896 || +8,99% 
 FR || 2001 || 195 || 4.164.052 ||   
 2002 || 189 || 4139817 ||   
 2003 || 192 || 4419841 ||   
 2004 || 191 || 4489708 ||   
 2005 || 201 || 5286137 ||   
 2006 || 162 || 2436539 ||   
 2007 || 204 || 5682484 ||   
 2008 || 246 || 6147774 ||   
 2009 || 591 || 6450605 ||   
 2010 || 561 || 6819183 ||   
   || 2011 || 554 || 6961264 || +40,19% 
 IE || 2001 || 44 || 227.670 ||   
 2002 || 45 || 208812 ||   
 2003 || 56 || 398237 ||   
 2004 || 52 || 378562 ||   
 2005 || 42 || 169667 ||   
 2006 || 38 || 109861 ||   
 2007 || 43 || 121403 ||   
 2008 || 43 || 109364 ||   
 2009 || 86 || 173768 ||   
 2010 || 88 || 169178 ||   
   || 2011 || 91 || 181447 || -20,30% 
 IT || 2001 || 847 || 9199516 ||   
 2002 || 855 || 9409829 ||   
 2003 || 858 || 9918568 ||   
 2004 || 863 || 10839764 ||   
 2005 || 886 || 11486896 ||   
 2006 || 913 || 12500854 ||   
 2007 || 914 || 13141394 ||   
 2008 || 938 || 14271707 ||   
 2009 || 1522 || 16081364 ||   
 2010 || 1547 || 17857585 ||   
   || 2011 || 1526 || 18423793 || +50,07% 
 LT || 2003 || 66 || 378452 ||   
 2004 || 65 || 373765 ||   
 2005 || 63 || 371594 ||   
 2006 || 62 || 391994 ||   
 2007 || 56 || 333841 ||   
 2008 || 56 || 389818 ||   
 2009 || 78 || 344618 ||   
 2010 || 74 || 319421 ||   
   || 2011 || 76 || 372768 || -15,02% 
 LU || 2001 || 56 || 1351547 ||   
 2002 || 57 || 1201517 ||   
 2003 || 41 || 687409 ||   
 2004 || 36 || 382975 ||   
 2005 || 38 || 461051 ||   
 2006 || 42 || 624058 ||   
 2007 || 43 || 634758 ||   
 2008 || 42 || 539710 ||   
 2009 || 125 || 1189455 ||   
 2010 || 151 || 1224735 ||   
   || 2011 || 165 || 1337593 || -1,03% 
 LV || 2003 || 22 || 99998 ||   
 2004 || 30 || 251037 ||   
 2005 || 33 || 255027 ||   
 2006 || 31 || 196167 ||   
 2007 || 35 || 215561 ||   
 2008 || 35 || 282930 ||   
 2009 || 67 || 205646 ||   
 2010 || 62 || 187636 ||   
   || 2011 || 60 || 151561 || +34,02% 
 MT || 2003 || 1248 || 24754610 ||   
 2004 || 1168 || 22991468 ||   
 2005 || 1208 || 23505022 ||   
 2006 || 1256 || 24818613 ||   
 2007 || 1435 || 30882356 ||   
 2008 || 1517 || 33508601 ||   
 2009 || 1674 || 35798514 ||   
 2010 || 1791 || 40617530 ||   
   || 2011 || 1853 || 44941400 || +44,92% 
 NL || 2001 || 783 || 4965000 ||   
 2002 || 810 || 5301000 ||   
 2003 || 627 || 4958769 ||   
 2004 || 582 || 4917743 ||   
 2005 || 584 || 4960683 ||   
 2006 || 589 || 5009385 ||   
 2007 || 631 || 5600710 ||   
 2008 || 688 || 6194787 ||   
 2009 || 1192 || 7325561 ||   
 2010 || 1252 || 7416145 ||   
   || 2011 || 1264 || 7836717 || +36;64% 
 PL || 2003 || 51 || 172263 ||   
 2004 || 51 || 69937 ||   
 2005 || 55 || 78751 ||   
 2006 || 52 || 77543 ||   
 2007 || 53 || 73858 ||   
 2008 || 56 || 80191 ||   
 2009 || 173 || 149679 ||   
 2010 || 173 || 133889 ||   
   || 2011 || 169 || 94147 || -45,35% 
 PT || 2001 || 168 || 1070352 ||   
 2002 || 158 || 973059 ||   
 2003 || 163 || 1115185 ||   
 2004 || 159 || 1233081 ||   
 2005 || 152 || 1123628 ||   
 2006 || 160 || 1076022 ||   
 2007 || 162 || 956559 ||   
 2008 || 165 || 1062800 ||   
 2009 || 244 || 1047658 ||   
 2010 || 251 || 1140044 ||   
   || 2011 || 244 || 1105294 || +3,16% 
 RO || 2006 || 41 || 160144 ||   
 2007 || 39 || 151560 ||   
 2008 || 34 || 146475 ||   
 2009 || 138 || 182634 ||   
 2010 || 143 || 159807 ||   
   || 2011 || 147 || 154440 || -3,56% 
 SE || 2001 || 357 || 2881090 ||   
 2002 || 352 || 3163682 ||   
 2003 || 353 || 3496775 ||   
 2004 || 358 || 3610858 ||   
 2005 || 350 || 3655908 ||   
 2006 || 349 || 3833976 ||   
 2007 || 350 || 4074359 ||   
 2008 || 339 || 4244807 ||   
 2009 || 463 || 4171032 ||   
 2010 || 453 || 4021334 ||   
   || 2011 || 435 || 3652372 || +21,11% 
 SK || 2003 || 8 || 64500 ||   
 2004 || 27 || 127343 ||   
 2005 || 47 || 212161 ||   
 2006 || 53 || 235512 ||   
 2007 || 56 || 234473 ||   
 2008 || 42 || 173065 ||   
 2009 || 37 || 136063 ||   
 2010 || 30 || 79084 ||   
   || 2011 || 26 || 55396 || -14,11% 
 UK || 2001 || 437 || 5297181 ||   
 2002 || 517 || 7662767 ||   
 2003 || 602 || 10553934 ||   
 2004 || 595 || 10285293 ||   
 2005 || 603 || 10745621 ||   
 2006 || 632 || 11721831 ||   
 2007 || 664 || 13441403 ||   
 2008 || 703 || 16122523 ||   
 2009 || 1409 || 17986449 ||   
 2010 || 1403 || 19243873 ||   
   || 2011 || 1362 || 18817025 || +71,85% 
 EU || 2001 || 6975 || 95134714 ||   
 2002 || 7036 || 100736470 ||   
 2003 || 9293 || 152715790 ||   
 2004 || 9047 || 154332311 ||   
 2005 || 9037 || 156906387 ||   
 2006 || 9168 || 161718926 ||   
 2007 || 9732 || 181667568 ||   
 2008 || 9959 || 193806632 ||   
 2009 || 15086 || 209079833 ||   
 2010 || 15299 || 219848379 || +56,73% 
   || 2011 || 13141 || 205312617 || +53,66% 
Source: ECSA (European Community
Shipowners' Associations), Annual Reports.
Annex 3-: Outcome of the consultations of
stakeholders
Consultation of European social partners in
accordance with Article 154 TFEU
First-stage consultation
In October 2007, the Commission adopted a Communication
launching the first stage consultation of European social partners as provided
for in Article 154 TFEU. The Commission stresses its commitment "to
improving the Community legal framework for workers in the sea-going
vessels" and that "the analysis (…) 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".
The Commission then asks the European social
partners for their views on how to proceed on this issue.
The Commission received replies from the
European Community shipowners' Associations (ECSA), the European Transport
Workers' Federation (ETF) and a joint response from ETF, EUROPECHE (Association
of National Organisations of Fishery Enterprises) and Cogeca (European
agri-cooperatives) within the Sectoral Social Dialogue Committee for Maritime
Fisheries (SSDC).
The first consultation showed that the social
partners in the maritime transport sector had differing views on the need to do
away with the existing exclusions. While the employees (ETF) were in favour of
doing away with all exclusions, the employers (ECSA) considered that the
reasons for introducing them, which were linked to the specificities of the
maritime transport sector, remained valid and that the exclusions should
therefore be maintained.
For their part, concerning the fishery sector,
both sides of the industry were in favour of doing away with some of the
existing exclusions (in particular, those set out in Directives 2002/74/EC
(Insolvency), 98/59/EC (Collective redundancies) and 2001/23/EC (Transfer of
undertakings)). They also stressed the need to guarantee equivalent provisions
for the entire sector regarding information and consultation rights (Directive
2002/14/EC on information and consultation) and encouraged the Commission to
"put all the Member States on an equal footing" in this respect.
Second-stage consultation
In April 2009, the Commission launched the
second-stage consultation of the European social partners. The document
stressed that the main aim of the review is to improve and expand the rights of
workers in the seafaring professions in the EU in order to bring them up to the
standard enjoyed by workers on-shore. Taking into account the principles of
equality and proportionality, the Commission argued that the exclusions should
only be maintained as long as the underlying objective reasons justifying them
remain but that, on the other hand, any additional burdens imposed on
undertakings once the exclusions are repealed should be limited to what is
strictly necessary to ensure the effective exercise of employees' rights.
The Commission received three replies to the
second-stage consultation: separate replies from ETF and ECSA concerning the
maritime sector and a joint reply from three organisations representing
employers and employees, in the framework of the SSDC, for the fishing sector.
ECSA underlines that the maritime sector is
already well regulated and recalls the (then) recent adoption of the Directive
implementing the social partners' agreement on the Maritime Labour Convention.
ECSA does not believe that a straight removal of any of the existing exclusions
or derogations is justified, but would be prepared to discuss other possible
ways ahead. On each individual Directive, ECSA' position is as follows. On the
European Works Council Directive, ECSA considers that it would not be realistic
to apply any rules to seafarers that require their physical presence at
meetings or elections. ECSA suggests that a distinction is made between
seafarers away from their home base for many months at a time and shipping
services where the seafarer is away no longer than 48 hours, the latter being
able to serve as representatives of the seafarers. According to ECSA, there is
no reason to amend the Information and Consultation Directive since this
Directive already provides that the derogation is subject to the adoption of
particular provisions. On the Insolvency Directive, ECSA considers that there
is no need to adapt the Directive. On the Collective Redundancies Directive,
ECSA draws the attention to the specificities of the sector, notably due to the
fact that ships are sold and bought frequently. On the Transfer of Undertakings
Directive, again, ECSA considers that "if a ship is sold and changes flag
the legal regime will change to that of the new flag. It is consequently not
possible for seafarers to have a right to maintain the same employment conditions
made by the former owner without considerable legal confusion and uncertainty
resulting". Furthermore, it underlines the doubts concerning the
application of the Directive to sea-going vessels, taking into account the
reference to the "territorial scope of Treaty". Consequently, ECSA
believes that the exclusion should not be removed. Finally, as far as the
Posting of Workers Directive is concerned, ECSA considers it essential that
seafarers continue to be excluded from the scope of the Directive.
The organisation representing employees, the
European Transport Workers' Federation (ETF) reiterates its views that the
current exclusions or derogations are unjustified and that there is no
compelling reason to exclude seafarers from the provisions of the Directives.
ETF considers that the exclusions and derogations should be suppressed, but
with certain nuances for the Directive on Posting of Workers. In this case,
ETF, in view of "the restrictive interpretation the ECJ gave in some
recent cases", supports the inclusion of seafarers within the scope of the
Directive on condition that the Directive is revised.
Contrary to the maritime sector, the social
partners of the fishing sector sent to the Commission a joint reply, agreed
within the SSDC. The SSDC supports the elimination of all the exclusions in
force or the establishment of equivalent specific provisions.
Other stakeholders: replies from Member
States to the questionnaire (December 2011)
Estonia states that the costs of applying the
Insolvency Directive, the Information and Consultation Directive, the
Collective Redundancies Directive and the Transfer of Undertakings Directive to
seafarers have not been different compared to on-shore companies.
Spain, as far as the EWC Directive is
concerned, underlines that no agreement for the setting up of a European Works
Council in the maritime sector has been notified. Although there is therefore
no practical experience, Spain states that there is no reason to believe that,
for an institution like the European Works Council, which aims at informing and
consulting workers based in different countries, the costs are to be
substantially different in the case of off-shore workers. The same applies to
the Information and Consultation Directive, for which Spain has no evidence of
higher costs for the maritime sector compared to land based companies. Spain
has no data on possible additional costs to maritime company due to the
application of the rules of the Collective Dismissals and Transfer of
Undertakings Directives.
Finland applies to seafarers almost all the
concerned Directives. According to national authorities, no differences in the
cost of applying the Directives to seafarers have been reported comparatively
to on-shore companies. Finland explains notably that the sale of a vessel is
considered to be a business transfer and it has to be handled according to the
rules applicable to the transfer of undertakings, notably on the information
and consultation of employees' representatives. According to Finland, national
rules have no impact on the value of the vessel.
France recognises that the information and
consultation obligations stemming from labour law Directives can have
additional costs to maritime companies, but underlines that this can also be
the case for certain on-shore companies. France applies the Directives at stake
to sea-going personnel and has no information on any negative impact on the
value of vessels. It nevertheless underlines that the provisions of the
Transfer of Undertakings Directive can be difficult to apply when a vessel is
sold and registered under a third country's flag, since the rules can only
apply when two Member States are concerned.
The UK applies national laws transposing the
EWC Directive and the Information and Consultation Directive to seafarers but
employees plying the high seas do not have the right to stand or act as an
employee's representative. The UK considers that whilst it may be possible to
introduce ICT solutions to help merchant crew members fulfil their duties as
employee's representatives, this would beat a disproportionate cost to the
employer. The UK also states that the application of the Transfer of
Undertakings Directive to seafarers had no impact on the transfer of ownership
of vessels.
Member States having excluded seafarers from
the scope of their national law transposing the Directives were asked to detail
the main obstacles to their coverage, as well as the additional costs that
maritime sector would face.
Cyprus indicates that the European Works
Council Directive and the Collective Redundancies Directive have been made for
application to shore workers. Therefore, they could not apply to seafarers
without fundamental changes. Cyprus gives no information about possible
additional costs.
Lithuania argues that applying the Information
and Consultation Directive "would be costly for ship owners. One Inmarsat
used minute costs about 1,1 USD". Lithuania also argues that starting a
process of information in view of a collective dismissal "might have
negative impact on seafarers".
Latvia considers that the provisions of the
Collective Redundancies Directive "cannot be applied to collective
redundancies of the crews of seagoing vessels because of specific character of
seafarers' employment (…) the seafarer's job is related to a particular ship.
In the event of termination or interruption of seafarer's employment contract
also ship safety and human safety should be taken into account".
Romania does not seem to oppose to the
amendment of the Collective Redundancies Directive but considers that this
would require "a detailed analysis of existing conditions in the shipping
sector".
Belgium states that the Collective Redundancies
Directive does not apply to seagoing fishermen and seafarers from the merchant
navy because they are always under fixed term employment contracts or, as far
as fishermen are concerned, employment contracts for the duration of the trip.
In their response, Danish national authorities
stressed the working conditions of seafarers should be established by means of
global regulation due to the global nature of the business. Denmark explains
that the national law transposing the European Works Council Directive lays
down that crew members of merchant ships cannot be elected as members of the
special negotiating body or of the European Works Council. As for the
Collective Redundancies Directive and the Transfer of Undertakings Directive,
Denmark stresses that seafarers do not work within the territory of a Member
State.
Greece reminds that the specific nature of
maritime transport should be taken into consideration and recalls that
seafarers spend only a small period of time working on the same ship or for the
same company and that issues like organisation of work or staffing levels do
not derive from an employer's decision but are essentially imposed by national
and international maritime legislation. On the EWC Directive, Greece considers
it to be inapplicable to the maritime sector "since nearly all Greek
seagoing vessels never approach Greek ports", inducing considerable travel
costs if it was to be applied. Nevertheless, Greece states that no company
operating in Greece meets the requirements of the Directive in terms of number
of workers in order to be applied. 
Concerning the Collective Redundancies
Directive, Greece argues that it is not possible to apply its provisions to the
maritime sector due to the existing practices in ocean-going shipping. For
example, a ship can be sold in a short time, making it impossible or extremely
costly, to respect the deadlines set by the Directive.
Malta considers that the suppression of the
exclusions could have a significant impact on Malta as a flag State. Malta is
of the view that, given the globalised nature of the maritime industry, any
regulation must be done through global and not regional organisations.
Malta considers that the application of the
Insolvency Directive to share fishermen will prove to be too onerous for small
scale enterprises and will most likely accelerate the decline of the industry.
On the EWC Directive, Malta considers that its application is not realistic for
a sector whose turnover of employees is high and with many domiciled outside
the EU. The same reasoning is also valid for the Information and Consultation
Directive. On the Collective Redundancies Directive, Malta argues that the
exclusion is still relevant, essentially due to the short term employment
contracts and the protection granted to seafarers through the traditions of
maritime liens.
Annex 4 : The Maritime Labour Convention
2006
The 94th Session of the International
Labour Conference, in February 2006, adopted the Maritime Labour Convention,
2006 (hereafter "MLC 2006"), an important new international agreement
that consolidates almost all of the 70 existing ILO maritime labour instruments
in a single globally applicable legal instrument.
The MLC 2006 establishes comprehensive
minimum requirements for almost all aspects of working conditions for seafarers
including, inter alia, conditions of employment, hours of work and rest,
accommodation, recreational facilities, food and catering, health protection,
medical care, welfare and social security protection. 
It combines rights and principles with
specific standards and detailed guidance as to how to implement these standards
at the national level. 
The MLC 2006 will enter into force on 20
August 2013. When it comes into force and is effectively implemented in all
countries with a maritime interest:
·                        
all seafarers, whatever their nationality,
serving on a ship to which the Convention applies, whatever flag it flies, will
have decent working and living conditions and an ability to have concerns
addressed where conditions do not meet the requirements of the Convention;
·                        
various mechanisms in the Convention will serve
to ensure, to the greatest extent possible, that the Convention requirements
are respected, even on the ships that fly the flag of countries that do not
ratify the Convention;
·                        
Governments and shipowners committed to
establishing decent working and living conditions for seafarers will have a level
playing field with strong protection against unfair competition from
substandard ships.
The Convention establishes a comprehensive
enforcement and compliance system, based on cooperation among all ratifying
States, which will ensure that decent working conditions, once certified by a
flag State, are continuously maintained, no matter where the ship travels.
Implementation at EU level
Following the adoption of the Maritime
Labour Convention 2006, the Commission has consulted the European social
partners on the advisability of developing the existing Community acquis by
adapting, consolidating or supplementing it in view of the Maritime Labour
Convention 2006.
The sectoral European social partners
(Community Shipowners’ Associations (ECSA) and the European Transport Workers’
Federation (ETF) informed the Commission of their wish to enter into
negotiations in accordance with Article 154(4) TFEU.
On 19 May 2008, the said organisations
wishing to help create of a global level playing field throughout the maritime
industry concluded an Agreement on the Maritime Labour Convention, 2006 and
jointly asked the Commission to implement it by a Council decision, under
Article 155(2) TFEU.
On 16 February 2009, the Council adopted
Directive 2009/13/EC[84]
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/EC.
The Directive enters into force on the date
of entry into force of the Maritime Labour Convention, 2006 and should be
transposed into national law not later than 12 months after the date of entry
into force of the Directive.
The main provisions of the Directive and of
the Agreement taken up from the Maritime Labour Convention are as follows:
·                        
1.1: minimum age
·                        
1.2: medical certificate
·                        
1.3: training & qualifications
·                        
2.1: seafarer’s employment agreements
·                        
2.3: hours of works
·                        
2.4: entitlement to leave
·                        
2.5: repatriation
·                        
2.6: seafarer compensation for ship’s loss or
foundering
·                        
2.7: manning levels
·                        
2.8: employment in the maritime sector
·                        
3.1: accommodation & recreational facilities
(only provisions on mosquitoes devices, (standard 3.1§16), recreational
facilities (S3.1§17), inspection of hygiene conditions (S3.1§18)
·                        
3.2: food and catering
·                        
4.1: medical care on board ship and ashore
·                        
4.2: shipowners’ liability
·                        
4.3: health and safety protection and accident
prevention (only references to general obligations of states and to
international instruments) 
·                        
4.4: access to shore-based welfare facilities.    
Annex 5: Past evolution in numbers of EU seafarers (2000 – 2010)
Source: Study on EU seafarers employment, Final
Report, Guy Sulpice, May 2011, p. 23.
Annex 6:
Estimated costs per Member State
 Member State || Employer Insolvency Directive || EWC || Information and Consultation[85][86] || Collective Redunancies[87][88] || Transfer of Undertakings[89] 
 BE || N/A || N/A || N/A || According to the MRAG study Belgium has 100% fixed term ontracts. Assuming that the fixed term contracts are for the duration of the voyage and the collective redundancy would take place after the expiring of the contract, no costs would incurred. || N/A 
 CY || 248 share fisherman contribution to the fund: 0.2% of gross salaries paid || CY does not seem to host any companies which would qualify for an EWC || 50 companies would qualify according to the MRAG report. Assuming a number of single vessel companies, about 35 companies might fall within the scope. Assuming one meeting a year and assuming teleparticipation of one person on a vessel. The costs would be EUR 1,326. In case of a two vessel company the costs would need to be spread over the two vessels: 663 euro per year. || 1045 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. According to the MARG study 95% of the crew on board of these vessels are on fixed term contracts. In case of a collective redundancy, costs would be incurred by the employer by consulting the workers' representatives. Assuming that two working representatives are on board of the vessel, costs of a tele meeting would be 1,326 euro per participant. || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see 4th column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
 DE || N/A || N/A || Provided equivalent national protection || 820 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. According to the MARG study 30% of the crew on board of these vessels are on fixed term contracts. For costs for information and consultation and cooling off period: 1,326 euro per meeting per participant and in worst case scenario 811, 442 euro, see par. 6.6.2. of the report. || N/A 
   ||   ||   ||   ||   ||   
 DK || N/A || Equivalent protection under national law || N/A || 665 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. According to the MARG study 60-70% of the crew on board of these vessels are on fixed term contracts. For costs for information and consultation and cooling off period: 1,326 euro per meeting per participant and in worst case scenario 811, 442 euro, see par. 6.6.2. of the report. || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
   ||   ||   ||   ||   ||   
 EE || N/A || Hosts one group which qualifies for the Directive. EWC negotiations are on going[90]. 18 vessels. Total costs EUR 1,989[91] || N/A || N/A || N/A 
 EL || 30,196 share fisherman at at cost of 0.15% of the any renumeration paid.[92] || Hosts no shipping company that qualifies for EWC || Provided equivalent national protection || 1,582 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. 90% of seafarers are on fixed term contracts. For costs for information and consultation and cooling off period: 1,326 euro per meeting per participant and in worst case scenario 811, 442 euro, see par. 6.6.2. of the report. || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
   ||   ||   ||   ||   ||   
 HU || N/A || Hosts no shipping company that qualifies for EWC || N/A || N/A || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
 IE ||   ||   ||   || 88 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. No information available on fixed term contracts. For costs for information and consultation and cooling off period: 1,326 euro per meeting per participant and in worst case scenario 811, 442 euro, see par. 6.6.2. of the report. || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
 IT || N/A || Hosts no shipping company that qualifies for EWC || N/A || N/A || N/A 
 LU || N/A || N/A || Luxemburg has 165 vessels registered.[93] It has not been established if these vessels are owned by undertakings established in Luxemburg and how many vessels are owned by each company. || 165 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. No information available on fixed term contracts. For costs for information and consultation and cooling off period: 1,326 euro per meeting per participant and in worst case scenario 811, 442 euro, see par. 6.6.2. of the report. || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
   ||   ||   ||   ||   ||   
 LV || N/A || Hosts no shipping company that qualifies for EWC || N/A || 62 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. 90% of seafarers are on fixed term contracts. || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
   ||   ||   ||   || For costs for information and consultation and cooling off period: 1,326 euro per meeting per participant and in worst case scenario 811, 442 euro, see par. 6.6.2. of the report. 
   ||   ||   ||   ||   ||   
 MT || No additional costs[94] || Hosts no shipping company that qualifies for EWC || 50 companies would qualify according to the MRAG report. Assuming a number of single vessel companies, about 35 companies might fall within the scope. Assuming one meeting a year and assuming teleparticipation of one person on a vessel. The costs would be 663 euro per year. || 1,853 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. 90% of seafarers are fixed term contracts. For costs for information and consultation and cooling off period: 1,326 euro per meeting per participant and in worst case scenario 811, 442 euro, see par. 6.6.2. of the report. || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
   ||   ||   ||   ||   ||   
 NL || N/A || N/A || N/A || N/A || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
 RO ||   || Hosts no shipping company that qualifies for EWC || 6 vessels would qualify according to the MRAG report. Assuming one or two companies are singel vessel companies. 4 companies would qualify. The costs are estimated at 663 euro per vessel per year. || 143 vessels registered (ECAS, annual review 2011-2012). No information available on how a many shipping companies are registered. 70% fixed term contracts. For costs for information and consultation and cooling off period: 1,326 euro per meeting per participant and in worst case scenario 811, 442 euro, see par. 6.6.2. of the report || Factors to be taken into account, number of vessels and the rate of fixed term contracts (see third column). In case of the transfer of exclusively one or more vessels, costs for information and consultation will be incurred, which would be around 1,326 euro per participant. 
   ||   ||   ||   ||   ||   
 UK || N/A || Provided for equivalent level of protection || Provided for equivalent level of protection || N/A || N/A 
[1]               For the purpose of this Report, the term "seafarers"
will be used to cover staff on-board vessels from both merchant navy and
fisheries. Whenever it is necessary to distinguish between these two sectors,
an express reference to the sector at stake will be used.
[2]               The Directive use mainly two formulations: the
express exclusion from the scope of the Directive (Directives on collective
redundancies and transfer of undertakings) and the faculty left to Member
States to exclude from the scope of national law transposing the Directives
(Directives on European Works Councils and on Insolvency). Although there are
differences from a legal point of view, they do not differ very much in
practice: in both cases it is up to Member States to decide whether they will
exclude seafarers from the scope of national law or not.
[3]               Directive 2008/94/EC of the European Parliament and
of the Council of 22 October 2008 on the protection of employees in the event
of the insolvency of their employer (Codified version), OJ L 283, p. 36.
[4]               Directive 2009/38/EC of the European Parliament and
of the Council of 6 May 2009 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 (Recast),
JO L 122, 16.5.2009, p. 28. This Directive repeals and replaces Directive
94/45/EC (OJ L 254, 30.9.1994, p. 64), as amended by Directive 97/74/EC (OJ L
10, 16.1.1998, p. 22) and Directive 2006/109/EC (OJ L 363, 20.12.2006, p. 416).
[5]               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, OJ L 80, 23.3.2002, p. 29
[6]               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.
[7]               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.
[8]               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, OJ L 18 , 21/01/1997, p. 1.
[9]               Document COM(2006)275.
[10]             Document COM(2007)575.
[11]             Document 2007/2023(INI).
[12]             Document TEN/255 CESE 609/2007, paragraph 1.7.
[13]             See: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/gena/111231.pdf, p. 14.
[14]             Document COM(2007)574, p. 6.
[15]             Document COM(2007)575.
[16]             Document COM(2007)591.
[17]             AT, BG, CY, CZ, DE, DK, EE, EL, ES, FI, FR, LT, LV, MT,
PL, PT, RO, SE, SI and UK.
[18]             MRAG, Preparatory study for an impact assessment
concerning a possible revision of the current exclusions of seafaring workers
from the scope of EU social legislation, December 2010.
[19]             Document COM(2009)8.
[20]             Available here: http://ec.europa.eu/transport/maritime/seafarers/doc/2011-06-09-tfmec.pdf.
[21]             MRAG, Preparatory study for an impact assessment
concerning a possible revision of the current exclusions of seafaring workers
from the scope of EU social legislation, December 2010.
[22]             For example: the maximum weekly working time (Article 6
of the Working Time Directive) does not apply to managing executives and family
workers.
[23]             This is recognised also by the employers' organisation
(ECSA). Nevertheless, it argues that the reasons for the exclusions are linked
to matters other than the logistics of information and consultation,
essentially the need to avoid to add administrative burdens which would undermine
European operators' competitiveness.
[24]             See, among others, the Communication "An
Integrated Maritime Policy for the European Union"(COM/2007/575) and the
Report of the Task Force on Maritime Employment.
[25]             Study on EU Seafarers Employment, Final Report, Guy
Sulpice, May 2011.
[26]             Gross Tonnage is the internationally accepted
measurement of vessels representing the volume of the vessels enclosed spaces. 
[27]             ECSA, Annual Report 2011-2012
[28]             UNCTAD, Maritime Transport Review, 2011
[29]             UNCTAD Martime Transport Review, 2011, ECSA Annual
Report 2011-2012
[30]             For an overview of cases of abandonment, see the ILO's
database: http://www.ilo.org/dyn/seafarers/seafarersbrowse.home
[31]             ITF Seafarers' bulletin 2012. 
[32]             FAO, Agriculture and Fisheries Department
[33]             Eurostat, Fishery Statistics, September 2012
[34]             See the MRAG Study, p. 10-12.
[35]             See references in the MRAG Study, p. 15-16.
[36]             239,608 workers, according to Labour market statistics
2011 edition, Eurostat
[37]             Case 106/83 Sermide [1984] ECR 4209, paragraph
28; Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others
[2005] ECR I-10423, paragraph 63; Case C-127/07 Arcelor Atlantique et
Lorraine and Others [2008] ECR I-9895, paragraph 23, and Case C-558/07 S.P.C.M.
and Others [2009] ECR I-5783, paragraph 74.
[38]             Document COM(2007) 591 final.
[39]             Document COM(91) 292.
[40]             Council Directive 75/129/EEC of 17 February 1975 on the
approximation of the laws of the Member States relating to collective
redundancies, OJ L 048, 22.02.1975, p. 29.
[41]             Document COM(74)351.
[42]             Document COM(75)429.
[43]             Document COM(94)300.
[44]             COM(2012)131 final.
[45]             COM(2012)130 final.
[46]             Document COM(2007)591, p. 7.
[47]             http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/normativeinstrument/wcms_090250.pdf. Information on ratification is available on the ILO webpage: http://www.ilo.org/global/standards/maritime-labour-convention/lang--en/index.htm.
[48]             According to Article 7 of the Directive, it enters into
force on the date of entry into force of the Maritime Labour Convention, 2006.
Article 5 provides that Member states shall transpose its provisions into
national law not later than 12 months after the date of entry into force of the
Directive.
[49]             Directive 2009/16/EC of the European Parliament and of
the Council of 23 April 2009 on port State control (Recast), OJ L 131/57, 28.5.2009,
p. 57.
[50]             Document COM(2007) 575.
[51]             Document COM(2011)803.
[52]             Mitroussi, K. ‘Employment of seafarers in the EU
context: Challenges and opportunities’, Marine Policy 32 (2008) 1043–1049, at
page 1046.
[53]             Directive 2009/16/EC of the European Parliament and of
the Council of 23 April 2009 on port State control (Recast), OJ L 131/57, 28.5.2009,
p. 57.
[54]             UNCTAD Review of Maritime Transport 2009 United
Nations, New York &Geneva, 2009.
[55]             See "Ship Operating Costs 2009-2010",
Published by Nigel Gardiner, Drewry Publishing, July 2009, p. 37, figure 2.5.
[56]             See http://www.ewcdb.eu/index.php.

[57]             Study
commissioned by the Commission and carried out by European Policy Evaluation
Consortium — EPEC — under the coordination of GHK Consulting, see http://ec.europa.eu/social/BlobServlet?docId=2421&langId=en.
[58]             Article 4(1) of the Directive states that: Projected
collective redundancies notified to the competent public authority shall take
effect not earlier than 30 days after the notification referred to in Article
3(1) without prejudice to any provisions governing individual rights with
regard to notice of dismissal.
[59]             Article 4(1), second subparagraph: Member States may
grant the competent public authority the power to reduce the period provided
for in the preceding subparagraph.
[60]             The directive permits a reduction in the 30 day notice
period, but it also permits such period to be extended. That is why the MRAG
Study took 30 days as an average.
[61]             See the Report of the Task Force on Maritime
Employment, p. 21.
[62]             MRAG, Preparatory study for an impact assessment
concerning a possible revision of the current exclusions of seafaring workers
from the scope of EU social legislation, December 2010, available here: 
[63]             Guy Sulpice, Study on EU seafarers employment, May
2011, available here: http://ec.europa.eu/transport/maritime/studies/doc/2011-05-20-seafarers-employment.pdf
.
[64]             ECOTEC,
An exhaustive analysis of employment trends in all sectors related to sea or
using sea resources - Final report for the European Commission, DG Fisheries
and Maritime Affairs, September 2006, available here: http://ec.europa.eu/maritimeaffairs/documentation/studies/documents/main_report_en.pdf
.
[65]             ECORYS,
Study on the Labour Market and Employment Conditions in Intra-Community
Regular Maritime Transport Services Carried out by Ships under Member States’
or Third Countries’ Flags, December 2009, available here: https://webgate.ec.europa.eu/maritimeforum/system/files/DG%20EMPL%20-%20Study%20on%20maritime%20labour.pdf

[66]             Bulgarian Ministry of Transport, quoted in Suplice, p.
52.
[67]             Only ratings, no figures available for officers.
[68]             Only officers.
[69]             Based on German Social Assurance System, quoted in
Suplice, p. 64.
[70]             Flotten Komando 2010, quoted in Suplice, p. 64.
[71]             Only nationals.
[72]             Danish
Maritime Authority, Facts about shipping 2011, p. 18 (http://www.dma.dk/SiteCollectionDocuments/Publikationer/Facts-about-shipping/FoS-2011-engelsk-FINAL-MASTER.pdf).
It comprises nationals and non-nationals.
[73]             Only officers.
[74]             National Statistics Bureau 2006, includes national and
non-national seafarers, quoted in Suplice, p. 68.
[75]             Confitarma 2010, including national and non-national
seafarers, quoted in Suplice, p. 73.
[76]             Lithuanian MSA 2010, including national and
non-national seafarers, quoted in Suplice, p. 78.
[77]             Latvian Seamen Registry 2010, quoted in Suplice, p. 75.
[78]             Nederlandse Maritime Cluster 209, including national
and non-national seafarers, quoted in Suplice, p. 83.
[79]             Ministry of Transport, quoted in Suplice, p. 88.
[80]             Drewry Pal 2009, quoted in Suplice, p. 88.
[81]             Ministry of Transport, quoted in Suplice, p. 92.
[82]             Swedish Statistics Bureau, including national and
non-national seafarers, quoted in Suplice, p. 96.
[83]             UK Statistics Department 2010, including national and
non-nationals holding a British Certificate, quoted in Suplice, p. 96.
[84]             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/EC, JO L
124/30, p. 30.
[85]             This directive applies to undertakings with at least 50
employees or with establishments with at least 20 employees. Assuming that
according to the MRAG study about 31% of the companies are single vessel
companies or two vessel companies which will not fall within the scope of the
Directive assuming an average crew of 13-24 crew members depending on size of
vessels, type, year of building.
[86]             The exact number of workers to whom the provisions of
the Directive do not fully apply is impossible to identify since there is no
statistical data on how many seafarers from the merchant navy and fishermen
"ply the high seas".
[87]             Directive applies to establishments employing more then
20 workers. Establishment is not being defined. The Directive applies in case
of at least 10 redundancies over a period of 30 days. The merchant shipping
sector is characterised by the systematic use of fixed term employment
contracts as opposed to contracts of indefinite duration. It can be assumed
that those employed on the basis of fixed term contracts are substantially less
impacted by the exclusion since reduction of staff would be achieved by not
renewing the contract at the end of the fixed term. In the case of merchant
navy crew it is questionable how many would fall within the scope of the
Directive as many modern merchant vessels seem to have a crew of less then 20.
The majority of fishing vessels would not be included in the scope of the
Directive because most fishing vessels have a crew of less then 20 workers,
according to the MRAG study.
[88]             Source for proportion of fixed term contracts per
country MRAG study.
[89]             The Directive applies "where and in so far as the
undertaking, business or part of the undertaking or business to be transferred
is situated within the territorial scope of the Treaty". Transfer of
undertakings in the merchant navy sector is reportedly rare. There is no
information available, as Member States who made use of the exclusion do not
report the transfer of undertakings. The sector is characterised by selling and
buying of one or more vessels. It is proposed that the Directive would apply to
the transfer of a seagoing vessel constituting an undertaking, business or part
of an undertaking or business but its Chapter II would not apply when
the object of the transfer consists exclusively of one or more seagoing
vessels. Therefore in the scenario of transferring only one or two vessels the
employers increased cost would entail consultation with the crew. In case of a
transfer of undertaking it is reportedly practice that shares of the company
are being transferred instead of the vessel and crew.
[90]             Source www.ewcdb.eu
accessed in December 2012
[91]             Assuming the scenario as described in paragraph 6.4.2.
that one EWC member is on board of a vessel during the EWC meeting and that
member is participating by phone to the meeting. The amount therefore needs to
be spread over the total amount of vessels.
[92]             No information available on renumeration of fishermen.
Number of share fishermen is overestimated, see paragraph 6.3.1. of the Impact
Assessment Report.
[93]             ECAS Annual Review 2011-2012
[94]             See paragraph 6.3.2. of the Impact Assessment Report