Proposal for a COUNCIL DIRECTIVE implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) to amend Council Directive 2009/13/EC in accordance with the amendments of 2014 to the Maritime Labour Convention, 2006 as approved by the International Labour Conference on 11 June 2014
Date: 2017-07-27
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: International Labour Organisation, crew, fisherman, international convention, labour standard, maritime safety, maritime transport, organisation of work, social-security benefit, working conditions

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   EUROPEAN COMMISSION  Brussels, 27.7.2017  COM(2017) 406 final 2017/0181 (NLE)   Proposal for a COUNCIL DIRECTIVE implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) to amend Council Directive 2009/13/EC in accordance with the amendments of 2014 to the Maritime Labour Convention, 2006 as approved by the International Labour Conference on 11 June 2014 (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  International  Labour  Organisation  (ILO)  adopted  the  Maritime  Labour  Convention 
(MLC)  in  2006  to  create  a  single,  coherent  instrument  bringing  together  all  up-to-date 
standards  for  international  maritime  labour.  The  MLC  provides  comprehensive  rights  and 
protection at work for all seafarers, regardless of their nationality and the ship’s flag. So far it 
has  been  ratified  by  81 countries, including  all EU  Member  States  except  Austria, Slovakia 
and the Czech Republic.1 

the  Agreement  concluded  by 

The provisions of the MLC were incorporated into EU law by Council Directive 2009/13/EC2 
implementing 
the  European  Community  Shipowners’ 
Associations  (ECSA)  and  the  European  Transport  Workers’  Federation  (ETF)  on  the 
Maritime Labour Convention, 2006. The Directive updated EU law with MLC standards that 
were  more  favourable  for  seafarers  than  those  in  place  (employment  agreements,  working 
hours,  repatriation,  accommodation  and  recreation  facilities,  food  and  catering,  health  and 
safety  protection,  medical  care  and  complaint  procedures,  etc.).  The  Directive  promoted 
ratification  of  the  MLC  across  the  EU  and  helped  to  speed  up  its  entry  into  force.  It  also 
helped to bring about the uniform transposition of MLC standards in all Member States and 
invested the agreement with specific enforcement measures under EU law.  

The 2006 MLC only partially addressed the problems relating to liability and compensation in 
connection  with  crew  claims  for  death,  personal  injury  and  abandonment  in  foreign  ports 
when  shipowners  no  longer  fulfil  their  responsibilities.  The  shipping  industry  is  global  in 
nature,  with  different  national  laws  applying,  depending  on  the  State  of  the  shipowner,  the 
flag State of the vessel or the nationality of the crew. This makes it difficult for seafarers to 
get speedy and satisfactory redress in the event of abandonment, injury or death.  

These  problems  have  long  been  recognised  both  by  the  ILO  and  the  IMO  (International 
Maritime Organisation). In  1998 they established the joint IMO/ILO ad hoc expert working 
group  on  liability  and  compensation  regarding  claims  for  death,  personal  injury  and 
abandonment of seafarers. This group recommended a two-step approach: the first step would 
be  the  adoption  of  non-binding  guidelines,3  and  the  second  step  the  adoption  of  mandatory 

1  Austria  was  not  obliged  to  transpose  Council  Directive  2009/13/EC  for  geographical  reasons  (see 
Commission  decision  of  29 September 2016  to  close  non-communication  infringement  case  2014/0489 
against Austria) given that it is a landlocked Member State that no longer has a register for sea ships and does 
not  intend  to  introduce  such  a  register  in  the  near  future.  The  Czech  Republic  and  Slovakia  are  also 
landlocked countries with no merchant fleet flying their flag, according to UNCTAD statistics on merchant 
fleet by flag of registration and by type of ship. 
See http://unctadstat.unctad.org/wds/TableViewer/tableView.aspx?ReportId=93. 

2  OJ L 124, 20.5.2009, p. 30. The Directive entered into force on 20 August 2013, the day of entry into force of 

the MLC. Member States were to transpose it into their national legislation by 20 August 2014. 

3  Two  guidelines  relating  to  financial  security  to  cover  claims  from  seafarers  in  cases  of  abandonment, 
personal 
in  November  2001: 
http://www.imo.org/en/OurWork/Legal/JointIMOILOWorkingGroupsOnSeafarerIssues/Pages/IMOILOWGL
iabilityCompensationForDeathAbandonment.aspx. 

and  death  were 

IMO  Assembly 

adopted  by 

injury 

the 

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instruments.  It  also  recommended  the  establishment  of  a  database  on  incidents  of 
abandonment of seafarers, which was established in 2005.4  

In  2010  and  2011,  following  the  recommendations  of  the  joint  working  group,  the  ILO 
identified  two  priority  concerns:  the  abandonment  of  seafarers  and  financial  security;  and 
claims  related  to  death  or  long-term  disability  of  seafarers.  In  2004,  the  Special  Tripartite 
Committee established under the MLC adopted two amendments on these issues. As of March 
2016, the ILO abandonment of seafarers database listed 192 abandoned merchant ships, some 
dating back to 2006, with abandonment cases still unresolved. Many abandoned seafarers are 
aboard ships without pay, often for  several months,  and lack regular food supplies,  medical 
care, or the means to return home. 

Some  of  the  rules  introduced  by  the  amendments  fell  within  the  European  Union’s 
competence and concerned matters on which it had adopted rules, in particular in social policy 
and transport. Therefore, the Council adopted a Decision (2014/346/EU)5 on the position to be 
adopted on behalf of the Union at the 103rd session of the International Labour Conference on 
the 2014 amendments to the MLC, ensuring Union support for their approval. 

The amendments were approved by the International Labour Conference at its 103rd session in 
Geneva  on  11  June  2014.  All  EU  Member  States  voted  to  approve  them.  The  two  sets  of 
amendments  concern  both  the  mandatory  provisions  (part  A  regulations  and  standards)  and 
the non-mandatory provisions (part B guidelines)6 in the MLC Code. They cover Regulation 
2.5  (repatriation)  in  Title  2  on  conditions  of  employment,  and  Regulation  4.2  (shipowners’ 
liability) in Title 4 on health protection, medical care, welfare and social security protection.  

The amended mandatory provisions seek to deliver an effective financial security system that:  

(1) 

protects  seafarers’  rights  in  the  event  of  abandonment  (amendment  to  Regulation 
2.5).  This  amendment  improves  the  financial  security  system  applying  when  the 
shipowner  fails  to  cover  the  cost  of  their  repatriation,  as  already  recognised  by 
Regulation 2.5(2). It also recognises two new situations: when the shipowner has left 
the seafarer without the necessary maintenance and support; or when the shipowner 
has otherwise unilaterally severed his ties with the seafarer, including failing to pay 
contractual wages for at least two months. It also includes requirements to establish a 
rapid  and  effective  financial security  system  to  assist  seafarers  on a  ship  flying  the 
flag of a Member State in the event of abandonment;  

(2) 

establishes  minimum  requirements  for  the  financial  security  system  to  provide 
compensation for contractual claims for death or long-term disability of seafarers due 
to occupational injury, illness or hazard (amendment to Regulation 4.2).  

Therefore,  these  amendments  improve  and  expand  the  existing  system  of  protection  for 
seafarers;  they  make  compensation  procedures  easier  and  more  effective;  and  they  are 

4  Database on reported incidents of abandonment of seafarers. 

See http://www.ilo.org/dyn/seafarers/seafarersbrowse.home. The content of the database is limited to vessels 
reported as abandoned after 1 January 2004.   

5  Council Decision 2014/346/EU of 26 May 2014 (OJ L 172, 12.6.2014, p. 28).  
6  Countries that ratify the MLC must adopt national laws or take other measures to ensure that the principles 
and rights set out in the regulations are implemented in the manner set out by the standards in part A of the 
Code (or in a substantially equivalent manner). The guidelines are not mandatory and are not subject to port 
State  inspections,  however,  governments  are  required  to  give  due  consideration  to  their  content  when 
implementing their responsibilities, and this is reviewed by the ILO's supervisory system. 

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supported by the obligation to carry documentary evidence of the financial security system on 
board ships. 

These amendments to the MLC entered into force on 18 January 2017 for 18 Member States.7 
In the Netherlands, the amendments are expected to enter into force as from 1 January 2018.8 
Italy and Lithuania deferred the entry into force of the amendments until 18 January 2018.9 
As  regards  the  four  Member  States  that  ratified  the  MLC  after  the  amendments  had  been 
approved,  Slovenia  has  already  accepted  the  amendments,  which  will  enter  into  force  on  3 
August  2017.  However,  Romania,  Estonia  and  Portugal  have  yet  to  submit  a  formal 
declaration of acceptance. This is expected in the coming months.10 

On  5  December  2016  the  social  partners  in  the  maritime  transport  sector,  the  European 
Community  Shipowners’  Associations  (ECSA)  and  the  European  Transport  Workers’ 
Federation (ETF), concluded an agreement to amend their agreement implementing the MLC, 
2006, as annexed to Directive 2009/13/EC, to bring it in line with the 2014 amendments to the 
MLC.  This  agreement  reproduces  the  content  of  all  mandatory  provisions  of  the  2014 
amendments to the MLC.  

On  12  December  2016  ECSA  and  the  ETF  requested  that  the  Commission  implement  their 
agreement through a proposal for a Council decision in accordance with Article 155(2) of the 
TFEU. This proposal responds to their request.  

The  Commission  submits  this  proposal  in  order  to  align  Directive  2009/13/EC,  and  the 
agreement  annexed  to  it,  with  the  ILO  2014  mandatory  amendments  to  the  MLC.  This  will 
improve the working conditions, health and safety and social protection for seafarers on board 
ships flying the flag of an EU Member State.  

The  proposal  also  aims  to  ensure  the  effective  enforcement  of  the  ILO  2014  mandatory 
amendments to the MLC across the EU through the application of the enforcement Directive 
on  flag  State  responsibilities  (Directive  2013/54/EU).11  This  Directive  lays  down  rules  to 
ensure that Member States:  

it 

7 
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11301:0::NO::P11301_INSTRUMENT_AMENDMENT_ID:3256971  
8  The  Netherlands  has  stated  that  it  will  be  bound  by  the  amendments  only  after  a  subsequent  express 
notification of its acceptance under Article XV, paragraph 8(a) of the Convention. It has done this to defer 
acceptance  of  the  amendments  and  implement  them  through  Dutch  legislation,  as  the  Netherlands  has 
announced 
force  on  1 January 2018. See 
https://www.ilent.nl/english/merchant_shipping/crew/legislation/amendments_mlc_2014/.  

amendments 

expects 

enter 

into 

that 

the 

to 

9  They have made use of the option under Article XV, paragraph 8(b) of the Convention. 
10  General  Observation,  Report  of  the  Committee  of  Experts  on  the  Application  of  Conventions  and 
Recommendations, p.577: ‘in a number of cases, questions have arisen as to the manner in which Members 
whose  ratification  was  registered  between  the  approval  and  the  entry  into  force  of  the  amendments  may 
accept the amendments to the Code adopted pursuant to Article XV of the MLC, 2006. (…) The Committee 
notes  that,  in  the  meantime,  the  Office  has  informed  all  the  Members  concerned  that  they  may  accept  the 
amendments  by  addressing  a  formal  declaration 
the  Director-General’.  See 
http://www.ilo.org/public/libdoc/ilo/P/09661/09661(2017-106-1A).pdf.  For  Romania,  Estonia  and  Portugal 
the  MLC  entered  into  force  on  24  November  2016,  5  May  2017,  and  12  May  2017  respectively,  but  the 
amendments will enter into force when they declare acceptance. Nevertheless, given that they voted in favour 
of the amendments, it is expected that they will declare acceptance in the coming months. 

that  effect 

to 

to 

11  Directive  2013/54/EU  of  the  European  Parliament  and  of  the  Council  of  20  November  2013  concerning 
certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention, 
2006. (OJ L 329, 10.12.2013, p. 1–4) 

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- 

- 

effectively comply with their obligations as flag States in implementing the relevant parts 
of  MLC  2006  (meaning  those  parts  with  content  considered  as  corresponding  to  the 
provisions in the Annex to Directive 2009/13/EC); and  

establish  specific  regimes  for  monitoring  compliance  and  handling  of  on-board  and 
onshore complaint procedures.  

Once the Annex to Directive 2009/13/EC has been amended by this proposal, the monitoring 
measures  of  Directive  2013/54/EU  will  also  apply  to  the  2014  amendments  to  the  MLC, 
without the need to amend the latter specifically.  

• 

Consistency with existing policy provisions in the policy area 

This  proposal  fits  within  the  Commission’s  work  to  establish  a  fair  and  truly  pan-European 
labour  market  that  provides  workers  with  decent  protection  and  sustainable  jobs12.  This 
includes occupational safety and health protection, working time, social protection and rights 
connected to the employment contract. In pursuing an integrated maritime policy for the EU 
the  Commission  also  supports  fully  ‘the  social  dialogue  on  the  integration  of  the  ILO 
Convention on maritime labour standards into Community law’.13 

This  proposal  supports  maritime  safety  in  another  way.  Protecting  abandoned  seafarers  by 
offering them repatriation, support and maintenance and paying their outstanding wages can 
help prevent accidents for the vessel and the crew, because it means that seafarers do not have 
to  stay  on  board  abandoned  ships  stranded  in  ports  until  they  are  repatriated  or  paid  their 
outstanding wages. Nor are they left in drifting vessels without fuel or basic food and water 
supplies.  

A  more  robust  financial  security  system  for  cases  of  abandonment,  death  and  long-term 
disability  of  seafarers  will  lift  the  burden  on  the  European  ports  and  coastal  communities 
currently providing assistance to affected seafarers and their families. 

This proposal complements the efforts to implement the MLC more effectively by drawing on 
the specific regimes for monitoring and handling on-board and onshore complaint procedures 
in  enforcement  Directive  2013/38/EU14  on  port  State  control.  This  Directive  included  the 
MLC  2006  among  the  Conventions  whose  implementation  is  verified  by  Member  State 
authorities in their ports. This  ensures  that the treatment of ships, and their crew, flying  the 
flag of a non-ratifying State is not more favourable than that of a ship, and its crew, flying the 
flag  of  a  ratifying  State.  The  2014  amendments  to  the  MLC  are  already  subject  to  this 
Directive, as it applies to the MLC, including all its amendments.  

The proposal complements Directive 2015/1794/EU,15 which includes seafarers in the scope 
of five labour law Directives (on the protection of employees in the event of the insolvency of 

12  President Juncker’s State of the Union address in the European Parliament on 9 September 2015.  
13  Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions  -  An  Integrated  Maritime  Policy  for  the  European 
Union (COM/2007/0575 final, p. 9) 

14  Directive 2013/38/EU of the European Parliament and of the Council of 12 August 2013 amending Directive 

2009/16/EC on port State control (OJ L 218, 14.8.2013, p. 1). 

15  Directive  (EU)  2015/1794  of  the  European  Parliament  and  of  the  Council  of  6  October  2015  amending 
Directives  2008/94/EC,  2009/38/EC  and  2002/14/EC  of  the  European  Parliament  and  of  the  Council,  and 
Council Directives 98/59/EC and 2001/23/EC, as regards seafarers (OJ L 263, 8.10.2015, p. 1). 

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their  employer,  information  and  consultation  of  employees,  on  the  establishment  of  a 
European  Works  Council,  collective  redundancies  and  transfers  of  undertakings),  thus 
improving their labour rights and giving them the same rights as onshore employees.  

• 

Consistency with other Union policies 

For Europe, maritime transport has been a catalyst for economic development and prosperity 
throughout its history. The maritime transport of goods and passengers furthers both intra-EU 
and  international  trade  and  promotes  contacts  between  all  European  nations,  citizens  and 
tourists. The growing shortage of maritime professionals, officers and ratings carries with it 
the risk of losing the critical mass of human resources that sustains the competitiveness of the 
European  maritime  industries  in  general.  This  proposal  responds  to  the  aim  of  supporting, 
under the Maritime Transport Strategy until 2018,16 ‘the work of the International Maritime 
Organisation (IMO) and the International Labour Organisation (ILO) on the fair treatment of 
seafarers, to ensure, inter alia, that the guidelines on the treatment of seafarers in the event of 
a  maritime  accident,  abandonment,  personal  injury  or  death  of  seafarers,  and  shore  leave 
conditions  are  adequately  implemented  in  the  EU  and  worldwide’.  This  should  make  the 
maritime professions more attractive to Europeans. 

The proposal will contribute to fairer competition conditions for those shipowners in the EU 
maritime  transport  sector  that  respect  seafarers’  rights  and  are  often  disadvantaged  by 
substandard shipping. 

The implementation of the social partners’ agreement through EU law is also in line with the 
Commission’s  commitment  to  promote  cross-industry  and  sectoral  social  dialogue  at  EU 
level,  as  expressed  in  the  joint  statement,  A  New  Start  for  Social  Dialogue,17  that  the  EU 
social partners, the Presidency of the Council and the Commission signed on 27 June 2016.  

This  agreement  is  a  positive  example  of  social partners  supporting  the Commission’s  better 
regulation agenda in keeping EU law up to date and fit for purpose.18 

It also reflects the principle of the European Pillar of Social Rights19 on social dialogue and 
involvement  of  workers,  which  states  that  ‘The  social  partners  (…)  shall  be  encouraged  to 
negotiate  and  conclude  collective  agreements  in  matters  relevant  to  them,  while  respecting 
their autonomy and the right to collective action. Where appropriate, agreements concluded 
between  the  social  partners  shall  be  implemented  at  the  level  of  the  Union  and  its  Member 
States’.  It  also  fits  within  other  specific  principles  and  rights  recognised  by  the  European 
Pillar of Social Rights, such as wages, a healthy, safe and well-adapted work environment and 
data protection and social protection. 

Overall, this proposal helps bring the Sustainable Development Goals fully into the European 
the  Commission 
policy  framework, 

the  commitment  made 

in  accordance  with 

in 

16  Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions,  Strategic  goals  and  recommendations  for  the  EU’s 
maritime transport policy until 2018, COM(2009) 8 final, section 3. 

17  A  New  Start for Social  Dialogue -  Statement  of  the  Presidency  of  the Council  of  the  European Union,  the 

European Commission and the European Social Partners, 27 June 2016. 

18  Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions,  Better regulation for better results  - An EU agenda, 
COM(2015) 215 final. 
19  SWD(2017) 201 final. 

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Communication  Next  steps  for  a  sustainable  European  future:  European  action  for 
sustainability.20 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 155(2) constitutes the legal basis for this proposal. 

Article  155(2)  of  the  TFEU  provides  that  ‘Agreements  concluded  at  Union  level  shall  be 
implemented either in accordance with the procedures and practices specific to management 
and labour and the Member States or, in matters covered by Article 153, at the joint request 
of  the  signatory  parties,  by  a  Council  decision  on  a  proposal  from  the  Commission.  The 
European  Parliament  shall  be  informed.  The  Council  shall  act  unanimously  where  the 
agreement in question contains one or more provisions relating to one of the areas for which 
unanimity is required pursuant to Article 153(2)’.  

The first amendment in the social partners’ agreement on the financial security system in the 
event of abandonment of the seafarer, relates both to health and safety and working conditions 
and  thus  is  covered  by  Article  153(1)(a)  on  improvement  in  particular  of  the  working 
environment to protect workers' health and safety and (b) on working conditions.  

The  second  amendment,  on  the  requirements  to  the  financial  security  system  to  assure 
compensation  in  the  event  of  the  death  or  long-term  disability  of  seafarers  due  to  an 
occupational injury, illness or hazard, is covered by Article 153(1)(c) on social security and 
social protection of workers.  

Given that this is an area for which unanimity is required pursuant to Article 153(2), second 
subparagraph, the Council will have to decide by unanimity.  

• 

Subsidiarity  

This proposal ensures that EU law and the MLC are consistent and that the 2014 amendments 
to  the  MLC  are  properly  enforced  across  the  EU  through  the  application  of  the  Directive 
2013/54/EU  on  flag  State  responsibilities.  This  objective  cannot  be  achieved  by  means  of 
national legislation, as changes to existing EU legislation can be made only at EU level.  

Moreover, there must be equal treatment across the EU fleet and EU ports, and with non-EU 
fleets. In addition, the Council has formally spelled out in Council Decision 2014/346/EU that 
‘Parts of the rules under the Convention and the amendments are falling within the Union’s 
competence and concern matters in respect of which the Union has adopted rules’.  

The proposal will help apply the mandatory amendments to the MLC at the same time and in 
the  same  way  in  all  Member  States.  This  is  necessary  to  ensure  the  aforementioned  level 
playing field across EU fleet and EU ports. The proposal may reduce the negative impacts on 
EU  port  States,  as  fewer  cases  should  fall  under  paragraph  5(a)  of  Standard  A.2.5  of  the 
Annex to Directive 2009/13/EC. Under this paragraph, if a shipowner fails to arrange for the 
repatriation  of  the  seafarer,  the  EU  flag  State  must  do  so.  If  it  also  fails  to  do  so,  the  State 

20  COM(2016) 739 final. 

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from which the seafarers are to be repatriated or the State of which they are a national may 
arrange for their repatriation and recover the cost from the EU flag State.  

For Member States which are not or not yet bound by the amendments (Member States that 
either have not ratified the MLC21 or have yet to submit a formal declaration of acceptance22), 
EU action would have the added value of applying the agreement to shipowners flying their 
flags and thus improving working conditions for seafarers and social protection for seafarers 
on board those vessels and their families.  

The proposal has added value also for Member States that have ratified the MLC, in which the 
amendments have already entered into force and which are thus bound by them. It will align 
the scope of the 2014 amendments with the scope of Directive 2009/13/EC, bring them within 
the scope of enforcement Directive 2013/54/EU on flag State responsibilities and within the 
EU law supervisory and monitoring system, including the jurisdiction of the Court of Justice 
of  the  European  Union,  on  top  of  the  MLC  supervisory  system.  This  will  give  seafarers 
greater protection and should increase compliance by Member States and shipowners with the 
new requirements.  

• 

Proportionality 

The  proportionality  principle  is  met  because  the  scope  of  the  proposal  is  strictly  limited  to 
transposing  into  EU  law  the  updated  mandatory  minimum  standards  contained  in  the  2014 
amendments to the MLC, 2006. 

The  proposal  leaves  EU  Member  States  the  options  of  keeping  or  setting  more  favourable 
standards for workers and taking into account features specific to their national situation. As a 
consequence,  it  leaves  room  for  flexibility  as  regards  the  choice  of  actual  implementing 
measures. 

• 

Choice of the instrument 

The  instrument  chosen  is  a  directive.  The  term  ‘decision’  in  Article  155(2)  of  the  TFEU  is 
used in its general meaning, so that the legislative instrument can be selected in accordance 
with Article 288 of the TFEU. It is up to the Commission to propose the most appropriate of 
the three binding instruments referred to in that Article (a regulation, directive or decision).  

Article 296 of the TFEU states that  ‘where the Treaties  do not  specify the type of act to  be 
adopted,  the  institutions  shall  select  it  on  a  case-by-case  basis,  in  compliance  with  the 
applicable procedures and with the principle of proportionality’.  

In  this  instance,  the  Commission  considers  that  a  directive  is  the  most  suitable  instrument, 
since  it  will  amend  another  directive  (Directive  2009/13/EC)  and  since  the  social  partners’ 
agreement includes obligations and rights that will  have to be transposed by Member States 
into their national law. 

21  Austria, the Czech Republic and Slovakia. 
22  Romania, Portugal and Estonia. 

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3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

No  evaluation  of  the  existing  Directive  2009/13/EC  has  been  undertaken,  since  the 
transposition deadline was 20 August 2014 and the transposition compliance assessment has 
not been concluded.23 

• 

Stakeholder consultations 

Where social partners request that the Commission present a proposal for a Council decision 
implementing their agreement in accordance with Article 155 of the TFEU, better regulation 
principles must be applied without prejudice to the role and autonomy the TFEU entrusts to 
them, the Commission’s task to facilitate their dialogue, or the need for overall transparency. 

Given the transparency of the process, the fact that the social partners party to this agreement 
are representative of employers and workers in the sector, and the role entrusted to the social 
partners by Article 155 of the TFEU, no additional public consultation has been carried out.24 

• 

Impact assessment 

The  proposal  will  align  the  scope  of  the  ILO  2014  mandatory  amendments  with  that  of 
Directive 2009/13/EC which precludes the possibility under Article II(6) of the MLC not to 
apply  certain  details  of  the  Code,  which  the  competent  authority  determines  not  to  be 
reasonable  or  practicable,  to  ships  of  less  than  200  gross  tonnage  that  are  not  engaged  in 
international voyages, to the extent that the subject matter is dealt with differently by national 
measures.25  

Nevertheless, these impacts are considered to be limited given that:  

 

 

According to the MLC database,26 to date none of the ratifying Member States 
for  which  the  ILO  2014  amendments  have  already  entered  into  force  has 
communicated  to  the  ILO  any  national  determinations  on  the  ILO  2014 
amendments. 

The subjective scope of the derogation is very limited as it applies only to ships 
of less than 200 gross tonnage engaged in domestic voyages.   

23  Currently  there  are  still  eight  open  infringement  procedures  for  non-communication  of  the  transposition 
measures  (Greece,  Italy,  Latvia,  Lithuania,  Poland,  Portugal,  Slovakia  and  Slovenia)  which  are  under 
examination.  

24  http://ec.europa.eu/smart-regulation/guidelines/tool_7_en.htm. 
25  Article II(6) Where the competent authority determines that it would not be reasonable or practicable at the 
present time to apply certain details of the Code referred to in Article VI, paragraph 1, to a ship or particular 
categories of ships flying the flag of the Member, the relevant provisions of the Code shall not apply to the 
extent that the subject matter is dealt with differently by national laws or regulations or collective bargaining 
agreements or other measures. Such a determination may only be made in consultation with the shipowners’ 
and seafarers’ organizations concerned and  may only be made with respect to ships of less than 200 gross 
tonnage not engaged in international voyages 

26  http://www.ilo.org/global/standards/maritime-labour-convention/database-ratification-implementation/lang--

en/index.htm  

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 

 

To date some ratifying States have made use of this derogation, principally for 
certain details of Title III of the MLC on accommodation. Since the ILO 2014 
amendments  refer  to  the  protection  of  basic  minimum  rights  (repatriation, 
essential needs of the seafarer including food and accommodation and payment 
of outstanding wages up to  4  months) and compensation in case of the worst 
incidents that can occur to a seafarer for occupational reasons (death or long-
term disability), it will be difficult to justify the use of the derogation in such 
cases. 

The  potential  national  derogations  cannot  apply  to  the  obligation  to  have 
documentary evidence of financial security in case of abandonment since this 
obligation  only  applies  to  ships  required  to  carry  a  maritime  labour 
certificate27.  It  must  also  be  recalled  that  the  ILO  2014  amendments  improve 
and  expand  an  existing  protection  system  under  which  Member  States  are 
already  obliged  to  require  all  ships  that  fly  its  flag  to  provide  the  financial 
security  to  cover  repatriation  and  to  assure  compensation  in  case  of  death  or 
long-term disability for occupational reasons. 

 

The  conditions  to  make  use  of  the  derogation  (including  the  requirement  to 
consult the social partners) are relatively strict.  

  Member  States  have  flexibility  in  monitoring  the  application  of  the  new 
requirements  to  ships  of  less  than  200  gross  tonnage  not  engaged  in 
international  voyages  under  Article  3(2)  of  Directive  2013/54/EU,  which 
allows Member States to adapt, pursuant to Article II(6) of MLC, monitoring 
mechanisms,  including  inspections,  to  take  account  of  the  specific  conditions 
of those ships.  

The proposal will also bring the ILO 2014 amendments within the scope of the enforcement 
Directive  2013/54/EU  on  flag  State  responsibilities  and  the  EU  law  supervisory  and 
monitoring system, including the jurisdiction of the Court of Justice of the European Union, 
on top of the MLC supervisory system. This should make for greater compliance by Member 
States and shipowners. 

Since  the  proposal  is  otherwise  not  likely  to  have  significant  economic,  environmental  or 
social impacts against the baseline scenario, no impact assessment has been conducted for this 
proposal.28  

The  baseline  scenario  assumes  that  EU  Member  States  that  have  ratified  the  MLC  will 
implement the 2014 amendments, as these either entered into force in those Member States on 
18 January  2017 or  will do so soon. Therefore, in  the absence  of the adoption  of the social 
partners' agreement, it is likely that all ratifying Member States would in any case apply the 
2014  amendments  and  therefore  implement  the  protection  systems  in  case  of  abandonment 
and compensation for death or personal injury of seafarers and  that this implementation will 
be  monitored  by  the  ILO  supervisory  system.  This  system  is  based  on  the  examination  of 
national reports and on observations of the social partners by two ILO bodies (the Committee 

27  According to Regulation 5.1.3 of the MLC, ships required to carry a maritime labour certificate are ships of 
(a) 500 gross tonnage or over, engaged in international voyages; and (b) 500 gross tonnage or over, flying the 
flag of a Member and operating from a port, or between ports, in another country. 

28  According to the Better Regulation Guidelines (SWD(2015) 111 final), an impact assessment is required for 
impacts.  See 

to  have  significant  economic,  environmental  or  social 

initiatives 
http://ec.europa.eu/smart-regulation/guidelines/docs/swd_br_guidelines_en.pdf. 

that  are 

likely 

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of  Experts  on  the  Application  of  Conventions  and  Recommendations  and  the  International 
Labour  Conference’s  Tripartite  Committee  on  the  Application  of  Conventions  and 
Recommendations).  However,  in  case  of  failure  to  implement  the  amendments,  this  system 
does not provide for a judicial mechanism like the one of the Court of Justice of the European 
Union.  

The  new  requirements  will  prevent  the  unfortunate  situation  of  seafarers  being  stranded  on 
anchorage or  in  port for long  periods when shipowners abandon their crews without paying 
their  wages  or  without  repatriating  them  to  their  home  countries.  The  estimated  number  of 
active  seafarers  in  maritime  EU  Member  States  in  2010,  plus  Norway,  is  254  119.29 
According  to  the  ILO’s  abandonment  of  seafarers  database,  192  merchant  ships  have  been 
abandoned from 2004 of which 21 were EU-flagged vessels. In 2016, 20 merchant ships were 
abandoned, of which only eight cases had been resolved by 30 May 2017. Of these 20 vessels 
abandoned in 2016, four were EU-flagged vessels with 45 abandoned seafarers in total. Some 
unresolved cases of abandonment date back to 2006. In the past, abandoned seafarers would 
often  be  reluctant  to  leave  their  ship  until  it  was  sold  in  a  judicial  sale  to  pay  outstanding 
claims,  including  claims  for  unpaid  wages.  Now,  the  payment  of  such  claims  will  be 
expedited  by  the  financial  security  system.  Furthermore,  payment  of  outstanding  claims  to 
seafarers  or  their  families  in  cases  of  death  or  long-term  disability  resulting  from  their 
employment will also be expedited. This will help avoid the long delays in payment and red 
tape in proceedings that seafarers or their families frequently encounter. 

Better protection for abandoned seafarers will also benefit all EU port authorities, because it 
will result in fewer problematic cases of abandonment. According to the ILO’s abandonment 
of  seafarers  database,  in  2016  five  merchant  vessels  were  abandoned  in  EU  ports  with  58 
seafarers. 

Nevertheless,  according  to  the  MLC  (paragraph  13(a)  of  Article  XV),  port  State  control  of 
ratifying countries that have accepted the amendments also applies to non-ratifying countries 
and ratifying countries that are not bound by the amendments. This implies that ships flying 
the flag of ratifying EU Member States not yet bound to the 2014 amendments as well as of 
non-ratifying  EU  Member  States  will  be  subject  to  inspection  of  port  authorities  of  the 
ratifying countries if they do not meet the requirements of the amendments. 

Given these expected developments under the baseline scenario, the Council directive would 
therefore  have  no  significant  impact  for  any  of  the  twenty-two  ratifying  Member  States  in 
which amendments already entered into force on 18 January 2017 or will enter into force soon 
as well as for the three landlocked Member States that have not ratified the MLC (Austria, the 
Czech Republic and Slovakia). 

The application of the provisions of this proposal will not  increase the monitoring costs for 
the ratifying Member States since they have to incur those costs by virtue of their ratification 
of  the  MLC  and  its  amendments.  And  given  that  the  non-ratifying  Member  States  are 
landlocked  countries  without  any  fleet  at  present  it  is  expected  that  they  will  not  incur 
monitoring costs as a result of this proposal.  

As to the potential monitoring costs in case of ships less than 200 gross tonnage not engaged 
in international voyages, Article 3(2) of Directive 2013/54/EU allows Member States to adapt 

29  Study on EU seafarers' employment. Final Report. DG MOVE, 2011. 

https://ec.europa.eu/transport/sites/transport/files/modes/maritime/studies/doc/2011-05-20-seafarers-
employment.pdf  

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their  monitoring  mechanisms,  including  inspections,  to  take  account  of  those  specific 
conditions.  

 

Representativeness of the EU social partners in the maritime transport sector  

When assessing  a request  from EU  social  partners to  implement their agreement in  EU law 
according to Article 155 of the TFEU, the Commission examines their representativeness and 
mandate in the area in question. This ensures that the request is in line with the provisions of 
the TFEU and that the agreement can count on broad support among those actually concerned. 

In  accordance  with  Article  1  of  Commission  Decision  98/500/EC,30  social  partners  at 
European level must:  

(a)  relate to specific sectors or categories and be organised at European level;  

(b)  consist of organisations which are themselves an integral and recognised part of Member 
States’ social partner structures and have the capacity to negotiate agreements, and which 
are representative of several Member States; and  

(c)  have  adequate  structures  to  ensure  their  effective  participation  in  the  work  of  the 

(Sectoral) Dialogue Committees.  

These conditions should be fulfilled at the time when the agreement was signed.  

This agreement concerns working conditions in maritime transport, which matches the remit 
of  the  sectoral  social  dialogue  committee  for  maritime  transport.  The  social  partners  on  the 
committee  are  the  European  Community  Shipowners’  Associations  (ECSA)  representing 
employers and the European Transport Workers’ Federation (ETF) representing workers.  

On  30  June  2016  the  European  Foundation  for  the  Improvement  of  Living  and  Working 
Conditions  (Eurofound)  published  a  study  analysing  the  representativeness  of  the  ETF  and 
ECSA as social partner organisations in maritime transport at EU level.31 

With  the  exception  of  the  landlocked  countries  (Austria,  the  Czech  Republic,  Hungary  and 
Slovakia)  and  Bulgaria,  Latvia,  Romania  and  Poland,  ECSA32  has  members  in  all  EU 
Member  States  (and  in  Norway).33,34  While  a  considerable  number  of  seafarers  come  from 
Poland,  there  are  only  very  few  shipowners’  companies  in  Poland,  and  there  are  no  sector-
related  employers’  organisations  in  Latvia.  That  means  the  only  Member  States  to  which 
ECSA could realistically extend its membership are Bulgaria and Romania. 

30  Commission  Decision  98/500/EC  of  20  May  1998  on  the  establishment  of  Sectoral  Dialogue  Committees 
promoting the Dialogue between the social partners at European level. (OJ L 225, 12.8.1998, p. 27–28)  
31  https://www.eurofound.europa.eu/observatories/eurwork/comparative-information/representativeness-of-the-

european-social-partner-organisations-maritime-transport. 

32  ECSA  is  the  trade  association  representing  the  national  shipowners’  associations  of  the  EU  and  Norway. 
According  to  its  website,  ECSA  represents  almost  99 %  of  the  European  Economic  Area  fleet  and  about 
20 % of the world fleet. 

33  In Bulgaria, the sector-related employers’ organisation, the BSA, was affiliated to ECSA from 2007 to 2012 

and then cancelled its affiliation. 

34  Austria,  Hungary  and  Slovakia  were  excluded  from  the  study  because  of  the  absence  of  sector-related 
activities.  In  spite  of  (limited)  sector-related  activities  in  the  Czech  Republic,  no  sector-related  employers’ 
organisation was found there.  

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On the workers’ side, the ETF has 56 affiliates from 25 Member States, accounting for 64 % 
of  all  trade  unions  with  sector-related  activities.  Fifty-two  of  these  affiliates  are  themselves 
involved  in  sector-related  collective  bargaining.  The  ETF  has  sector-related  affiliates  in  all 
Member States with sector-related activities, according to the Eurofound study. 

This  leads  to  the  conclusion  that  –  based  on  their  membership  –  the  social  partners  which 
signed the agreement are the leading European-level social partner organisations in the sector, 
that they are representative of the sector, and that they are therefore entitled to request that the 
Commission implement the agreement in accordance with Article 155 of the TFEU. 

 

Legality of the clauses  

The  Commission  has  examined  the  legality  of  the  agreement.  It  has  scrutinised  each  clause 
and has not found any to be contrary to EU law. The obligations which would be imposed on 
the  Member  States  do  not  arise  directly  from  the  agreement  between  the  social  partners. 
Rather  they  would  arise  from  its  implementation  by  means  of  a  Council  decision,  i.e.  a 
directive. The scope and content of the agreement remains within the fields listed in Article 
153(1) of the TFEU as stated in section 2. 

The agreement contains two sets of amendments to the Annex to Directive 2009/13/EC that 
will not affect the current non-regression clauses contained in Article 3 of the Directive.  

• 

Regulatory fitness and simplification 

The proposal implements a social partners’ agreement. In such cases, the Commission cannot 
amend the text of the agreement but can only accept or reject it.35  

The majority of the provisions of the social partners’ agreement and the 2014 amendments to 
the MLC do not draw any distinction between workers in SMEs and others. They apply to all 
ships  ordinarily  engaged  in  commercial  activities  other  than  ships  engaged  in  fishing  or  in 
similar pursuits and ships of traditional build, such as dhows and junks. Directive 2013/54/EU 
allows  Member  States  to  adapt  their  monitoring  mechanisms  to  the  specific  conditions  of 
ships of less than 200 gross tonnage not engaged in international voyages. 

The  agreement  and  the  2014  amendments  to  the  MLC  are  less  demanding  for  SMEs  as 
regards the obligation to carry on board documentary evidence of financial security to assist 
seafarers in the event of abandonment. This obligation only applies to ships that are required 
to carry a maritime labour certificate under national law or are requested to do so. According 
to  Regulation  5.1.3  of  the  Code  to  the  MLC,  ships  of  500  gross  tonnage  or  above  that  are 
engaged in international voyages or voyages between foreign ports, along with smaller ships 
where the shipowner so requests, are required to carry a maritime labour certificate.  

• 

Fundamental rights 

The  objectives  of  this  proposal  are  in  line  with  the  Charter  of  Fundamental  Rights  of  the 
European  Union,  in  particular  the  right  protected  under  Article  31  on  fair  and  just  working 
conditions,  which  provides  that  ‘Every  worker  has  the  right  to  working  conditions  which 
respect his or her health, safety and dignity’. 

35  http://ec.europa.eu/smart-regulation/guidelines/tool_7_en.htm.  

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4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the EU budget.  

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  Commission  will  monitor  the  implementation  of  the  Directive  implementing  the 
agreement. 

Directive  2009/13/EC  does  not  contain  any  evaluation  or  reporting  requirements.  No  such 
requirements are planned for this Directive amending Directive 2009/13/EC. 

• 

Explanatory documents (for directives) 

Explanatory documents are not necessary in this case. 

•  

European Economic Area 

The proposal concerns a matter relevant to the European Economic Area and should therefore 
be applicable to it.  

• 

Detailed explanation of the specific provisions of the proposal 

Article 1  

This Article makes the agreement between the social partners binding. 

Article 2 

This Article includes the amendments to Directive 2009/13/EC. 

(1) Subparagraph 1 introduces a consequential amendment to the numbering.  

(2) Subparagraph 2 inserts a new Standard A2.5.2 on ‘Financial security’ with 14 paragraphs.  

– 

– 

Paragraph 1 states the purpose of the proposed standard.  

Paragraph 2 defines the concept of abandonment for which support from a financial 
security system would be provided:  

(a) failure to cover the cost of the seafarer’s repatriation (already recognised by 
Regulation 2.5(2) of the Annex to Directive 2009/13/EC);  

(b) lack of maintenance and support (clarified in paragraph 5);  

(c) any other situation involving a unilateral severance by the shipowner of ties 
with a seafarer, including the failure to pay contractual wages for at least two 
months.  

Subparagraphs (b) and (c) extend the obligation to provide a financial security system 
to cover two new situations of abandonment. 

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– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

– 

Paragraph 3 sets out the obligation on a Member State, as a flag State, to ensure that 
a financial security system is in place for ships flying its flag. This system may take 
various  forms,  to  be  determined  by  the  Member  State  after  consultation  with  the 
shipowners’ and seafarers’ organisations concerned.  

Paragraph  4  sets  out  criteria  for  the  financial  security  system  adopted  by  the  flag 
State, including the need to provide abandoned seafarers with direct access, sufficient 
coverage and expedited financial assistance.  

Paragraph 5 gives substantive details of the concept of ‘necessary maintenance and 
support’ referred to in subparagraph 2(b).  

Paragraph  6  sets  out  the  requirement  related  to  carry  on  board  documentary 
evidence of financial security for ships that are required to carry a maritime labour 
certificate under national law or are requested to do so.  

Paragraph 7 lists the information to be included in the documentary evidence, which 
must be in English or be accompanied by an English translation. 

Paragraph  8  sets  out  the  requirement  related  to  expedited  financial  assistance  (see 
paragraph 4).  

Paragraphs 9 and 10, on the ‘sufficient coverage’ criteria proposed in paragraph 4, 
set  out  the  details  and  scope  of  the  assistance  to  be  provided  under  the  financial 
security  system.  Paragraph  9  refers  to  Regulation  2.5  of  the  Annex  to  Directive 
2009/13/EC with respect to repatriation. It limits the coverage of outstanding wages 
and other entitlements to four months. Paragraph 10 provides details of  repatriation 
coverage in cases of abandonment.  

Paragraph  11  sets  out  the  obligation  for  the  financial  security  provider  to  give  the 
flag State at least 30 days’ prior notification of cancellation of the financial security. 

Paragraph 12 provides for subrogation of rights for a provider of insurance or other 
financial security.  

Paragraph  13  indicates  that  this  standard  is  without  prejudice  to  any  right  of 
recourse of the insurer or provider of financial security against third parties. 

Paragraph  14  indicates  that  the  rights  under  the  proposed  standard  are  without 
prejudice to any other rights, claims or remedies of the seafarer. Moreover, it allows 
for  the  adoption  of  provisions  for  offsetting  amounts  received  under  this  standard 
from other sources such as compensation with respect to rights, claims or remedies 
under the standard.  

(3)  Subparagraph  3  proposes  a  consequential  amendment  to  the  current  numbering  of 
Standard  A4.2,  which  becomes  Standard  A4.2.1.  It  adds  seven  new  paragraphs  (8  to  14)  to 
renumbered  Standard  A4.2.1.  It  builds  on  the  existing  requirement  in  Standard  A4.2, 
paragraph 1(b). Under that requirement, shipowners must provide financial security to assure 
compensation in the event of death or long-term disability of a seafarer due to occupational 
injury, illness or hazard.  

– 

Paragraph  8  sets  out  in  subparagraphs  (a)  to  (e)  minimum  requirements  to  be 
contained in national laws and regulations for the financial security system to assure 
compensation under paragraph 1(b) of existing Standard A4.2 for contractual claims 
(as  defined  in  paragraph  1  of  proposed  new  Standard  A4.2.2).  They  include  the 
requirement  of  payment  in  full  without  delay,  with  interim  payments  where  full 
compensation is difficult to assess.  

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– 

– 

– 

– 

– 

Paragraphs  9  and  10  address  the  requirements  for  notification  to  seafarers  and  to 
flag  States  in  the  event  that  a  shipowner’s  financial  security  is  cancelled  or 
terminated.  

Paragraph  11  requires  ships  to  carry  on  board  documentary  evidence  of  financial 
security issued by the financial security provider.  

Paragraph  12  sets  out  the  obligation  for  the  financial  security  provider  to  give  the 
flag State at least 30 days’ prior notification of cancellation of the financial security.  

Paragraph 13 sets out the requirement that the security must provide for the payment 
of all contractual claims that it covers and that arise during the period for which the 
document is valid.  

Paragraph 14 lists the information required in the documentary evidence of financial 
security. It also sets out English-language requirements for the document.  

(4) Subparagraph 4 inserts a new Standard A4.2.2 on ‘Treatment of contractual claims’ with 
three paragraphs.  

– 

– 

– 

Paragraph 1 clarifies the meaning of the term ‘contractual claims’ as referred to in 
proposed paragraph 8 in Standard A4.2 (renumbered as A4.2.1).  

Paragraph 2 sets out how the financial security system to assure compensation in the 
event  of  death  or  long-term  disability  for  occupational  reasons  may  take  various 
forms, to be determined by the Member after consultation with the shipowners’ and 
seafarers’ organisations concerned.  

Paragraph  3  requires  arrangements  to  be  in  place  to  receive,  deal  with  and 
impartially settle contractual claims relating to compensation referred to in Standard 
A4.2 (renumbered as A4.2.1) through expeditious and fair procedures.  

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2017/0181 (NLE) 

Proposal for a 

COUNCIL DIRECTIVE 

implementing the Agreement concluded by the European Community Shipowners’ 
Associations (ECSA) and the European Transport Workers’ Federation (ETF) to amend 
Council Directive 2009/13/EC in accordance with the amendments of 2014 to the 
Maritime Labour Convention, 2006 as approved by the International Labour 
Conference on 11 June 2014 

THE COUNCIL OF THE EUROPEAN UNION, 

(Text with EEA relevance) 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 155(2) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(2) 

(1)  Management and labour (‘the social partners’) may, in accordance with Article 155(2) 
of  the  TFEU,  request  jointly  that  agreements  they  conclude  at  Union  level  be 
implemented by a Council decision, on a proposal from the Commission.  
Council  Directive  2009/13/EC36  implemented  the  agreement  concluded  by  the 
European Community Shipowners’ Associations (ECSA) and the European Transport 
Workers’  Federation  (ETF)  to  incorporate  the  provisions  of  the  Maritime  Labour 
Convention,  2006,  (MLC)  of  the  International  Labour  Organisation  (ILO)  into  EU 
law,  in  order  to  update  the  European  legislation  in  force  with  those  standards  of  the 
Convention which were more favourable for seafarers. It aimed at improving working 
conditions  for  seafarers,  particularly  as  regards  employment  agreements,  working 
hours,  repatriation,  careers  and  skill  development,  accommodation  and  recreation 
facilities, food and catering, health and safety protection, medical care and complaint 
procedures.  

(3) 

Following  international  expert  meetings,  the  ILO  launched  a  process  to  amend  the 
Convention to address concerns relating to the abandonment of seafarers and financial 
security  on  the  one  hand,  and  to  claims  related  to  death  or  long-term  disability  of 
seafarers  on  the  other.  The  Special  Tripartite  Committee  established  under  the  MLC 
adopted two amendments on these issues at its meeting from 7 to 11 April 2014. Parts 
of the rules under the amendments fell within the Union’s competence and concerned 
matters  on  which  the  Union  had  adopted  rules,  in  particular  in  social  policy  and 
the  Council  adopted  a  Decision 
transport.  Therefore,  on  26 May 2014 

36  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 (OJ L 124, 20.5.2009, p. 30). 

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(4) 

(5) 

(6) 

(7) 

(8) 

(2014/346/EU)37  on  the  position  to  be  adopted  on  behalf  of  the  Union  at  the  103rd 
session  of  the  International  Labour  Conference.  This  position  was  to  support  the 
approval of the amendments to the MLC Code.  
The amendments were approved by the Conference at its 103rd session in Geneva on 
11 June 2014 and entered into force on 18 January 2017. These relate to providing an 
effective  financial  security  system  to  (i)  protect  seafarers’  rights  in  the  event  of 
abandonment,  and  (ii)  assure  compensation  for  contractual  claims  for  death  or  long-
term disability of seafarers due to occupational injury, illness or hazard. They improve 
and  optimise  the  existing  system  for  protecting  seafarers,  including  the  obligation  to 
carry  on  board  ships  documentary  evidence  of  the  financial  security  system  and  to 
extend  the  system  to  cover  two  new  situations  of  abandonment.  (These  situations 
relate to when seafarers have been left without the necessary maintenance and support, 
or  when  the  shipowner  has  unilaterally  severed  its  ties  with  the  seafarer,  including 
failure to pay contractual wages for a period of at least two months.) 

On  5 December 2016  the  social  partners  in  the  maritime  transport  sector  –  the 
European Community Shipowners’ Associations (ECSA) and the European Transport 
Workers’ Federation (ETF) – concluded an agreement to amend Directive 2009/13/EC 
in line with the amendments of 2014 to the MLC, 2006.  On 12 December 2016 they 
requested the Commission to present a proposal for a Council Directive under Article 
155(2) of the TFEU implementing their agreement. 

The social partners’ agreement reproduces the content of all mandatory provisions of 
the  2014  amendments  to  the  MLC.  The  first  amendment,  on  the  financial  security 
system in the event of abandonment of the seafarer, relates both to health and safety 
and  working  conditions  and  thus  it  is  covered  by  Article  153(1)(a)  and  (b)  of  the 
TFEU. The second amendment, on the requirements of the financial security system to 
assure compensation in the event of the death or long-term disability of seafarers due 
to an occupational injury, illness or hazard, is covered by Article 153(1)(c), on social 
security and social protection of workers. Therefore, the agreement relates to matters 
covered by Article 153 of the TFEU and can be implemented by a Council decision on 
a  proposal  from  the  Commission,  according  to  Article  155(2).  For  the  purposes  of 
Article 288 of the Treaty, the appropriate instrument to implement the agreement is a 
directive.  
In  accordance  with  Commission  Communication  of  20 May 199838  on  adapting  and 
promoting the social dialogue at Community level, the Commission has assessed the 
representative  status  of  the  signatory  parties  and  the  legality  of  each  clause  of  the 
agreement. 

The  social  partners’  agreement  of  5  December  2016  amends  the  agreement  of 
19 May 2008  between  ECSA  and  the  ETF  on  the  MLC,  annexed  to  Directive 
2009/13/EC,  and  incorporates  into  the  Directive  the  2014  ILO  amendments  to  the 
MLC  in  order  to  improve  the  working  conditions,  health  and  safety  and  social 
protection for seafarers on board ships flying the flag of an EU Member State. 

(9) 

In  amending  Directive  2009/13/EC,  the  social  partners’  agreement  of  5  December 
2016 will bring the mandatory  provisions of the 2014 ILO  amendments to  the MLC 

37  Council  Decision  2014/346/EU  of  26  May  2014  on  the  position  to  be  adopted  on  behalf  of  the  European 
Union at the 103rd session of the International Labour Conference concerning amendments to the Code of the 
Maritime Labour Convention (OJ L 172, 12.6.2014, p. 28). 

38  COM(1998) 322 final.  

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within the  scope  of enforcement Directive 2013/54/EU on  flag State responsibilities, 
and of the EU law supervisory and monitoring system – and in particular of the Court 
of  Justice  of  the  European  Union,  in  addition  to  the  MLC  supervisory  system.  This 
should make for greater compliance by Member States and shipowners. 

(10)  Without prejudice to the provisions of the agreement on follow-up and review by the 
the 

the  European  Commission  will  monitor 

social  partners  at  EU 
implementation of this Directive and the agreement. 

level, 

(11)  The  Member  States  may  entrust  social  partners  with  the  implementation  of  this 
Directive, where the latter jointly request this and as long as the Member States take 
all  necessary  steps  to  ensure  that  they  can  at  all  times  guarantee  the  results  sought 
under this Directive. 

(12)  The Commission has informed the European Parliament pursuant to Article 155(2) of 
the  TFEU  by  sending  to  it  the  text  of  its  proposal  for  a  Directive  containing  the 
agreement. 

(13)  This Directive respects the fundamental rights and principles recognised in the Charter 

of Fundamental Rights of the European Union, and in particular Article 31 thereof. 

(14)  This  Directive  is  intended  to  improve  the  working  conditions,  health  and  safety  and 
social protection of workers in the maritime transport sector, which is a cross-border 
sector operating under the flags of different Member States. Since its objectives cannot 
be  sufficiently  achieved  by  the  Member  States,  but  can  be  better  achieved  at  Union 
level,  the  European  Union  may  adopt  measures,  in  accordance  with  the  principle  of 
subsidiarity as set out in Article 5(3) of the Treaty on European Union. In accordance 
with  the  principle  of  proportionality,  as  set  out  in  Article  5(4)  of  the  Treaty  on 
European  Union,  this  Directive  does  not  go  beyond  what  is  necessary  in  order  to 
achieve those objectives, 

HAS ADOPTED THIS DIRECTIVE: 

Article 1 

This  Directive  implements  the  agreement  concluded  between  the  European  Community 
Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on 
5 December 2016 by amending Council Directive 2009/13/EC in line with the amendments of 
2014 to the MLC, 2006 as approved by the International Labour Conference on 11 June 2014. 

Article 2 

In accordance with the Agreement between ECSA and ETF concluded on 5 December 2016 
to  amend  Council  Directive  2009/13/EC  to  accord  with  the  amendments  of  2014  to  the 
Maritime Labour Convention, 2006 as approved by the International Labour Conference at its 

103rd session, Geneva, 11 June 2014, the Annex to Council Directive 2009/13/EC is amended 
as follows: 

(1) in the heading “Standard A2.5 – Repatriation”, “A2.5” is replaced by “A2.5.1”.  

(2) the following Standard A2.5.2 is inserted: 

‘Standard A2.5.2 - Financial security 

In  implementation  of  Regulation  2.5,  paragraph  2,  this  Standard  establishes 
1. 
requirements  to  ensure  the  provision  of  an  expeditious  and  effective  financial  security 

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system to assist seafarers in the event of their abandonment. 

2. For the purposes of this Standard, a seafarer shall be deemed to have been abandoned 
where,  in  violation  of  the  requirements  of  this  Agreement  or  the  terms  of  the  seafarers’ 
employment agreement, the shipowner: 

(a) fails to cover the cost of the seafarer’s repatriation; or 

(b) has left the seafarer without the necessary maintenance and support; or 

(c)  has  otherwise  unilaterally  severed  their  ties  with  the  seafarer  including  failure  to 
pay contractual wages for a period of at least two months. 

3.  Each  Member  State  shall  ensure  that  a  financial  security  system  meeting  the 
requirements  of  this  Standard  is  in  place  for  ships  flying  its  flag.  The  financial  security 
system may be in the form of a social security scheme or insurance or a national fund or 
other  similar  arrangements.  Its  form  shall  be  determined  by  the  Member  State  after 
consultation with the shipowners’ and seafarers’ organisations concerned. 

4.  The  financial  security  system  shall  provide  direct  access,  sufficient  coverage  and 
expedited financial assistance, in accordance with this Standard, to any abandoned seafarer 
on a ship flying the flag of the Member State. 

5. For the purposes of paragraph 2(b) of this Standard, necessary maintenance and support 
of  seafarers  shall  include:  adequate  food,  accommodation,  drinking  water  supplies, 
essential fuel for survival on board the ship and necessary medical care. 

6. Each Member State shall require that ships that fly its flag, and which are required under 
national  laws  to  carry  a  Maritime  Labour  Certificate  or  do  so  at  the  request  of  the 
shipowner, carry on board a certificate or other documentary evidence of financial security 
issued by the financial security provider. A copy shall be posted in a conspicuous place on 
board  where  it  is  available  to  the  seafarers.  Where  more  than  one  financial  security 
provider  provides  cover,  the  document  provided  by  each  provider  shall  be  carried  on 
board. 

7. The certificate or other documentary evidence of financial security shall be in English or 
accompanied by an English translation and contain the following information: 

(a) name of the ship; 

(b) port of registry of the ship; 

(c) call sign of the ship; 

(d) IMO number of the ship; 

(e) name and address of the provider or providers of the financial security; 

(f) contact details of the persons or entity responsible for handling seafarers’ requests 
for relief; 

(g) name of the shipowner; 

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(h) period of validity of the financial security; and 

(i) an attestation from the financial security provider that the financial security meets 
the requirements of this Standard A2.5.2. 

8.  Assistance  provided  by  the  financial  security  system  shall  be  granted  promptly  upon 
request made by the seafarer or the seafarer’s nominated representative and supported by 
the necessary justification of entitlement in accordance with paragraph 2 of this Standard. 

9.  Having  regard  to  Regulation  2.5,  assistance  provided  by  the  financial  security  system 
shall be sufficient to cover the following: 

(a)  outstanding  wages  and other  entitlements due from the shipowner to the seafarer 
under  their  employment  agreement,  the  relevant  collective  bargaining  agreement  or 
the  national  law  of  the  flag  State,  limited  to  four  months  of  any  such  outstanding 
wages and four months of any such outstanding entitlements; 

(b) all expenses reasonably incurred by the seafarer, including the cost of repatriation 
referred to in paragraph 10 of this Standard; and 

(c) the essential needs of the seafarer including such items as: adequate food, clothing 
where necessary, accommodation, drinking water supplies, essential fuel for survival 
on board the  ship,  necessary medical care and any other  reasonable costs or  charges 
from  the  act  or  omission  constituting  the  abandonment  until  the  seafarer’s  arrival  at 
home. 

10.  The  cost  of  repatriation  shall  cover  travel  by  appropriate  and  expeditious  means, 
normally  by air,  and include provision for food  and  accommodation  of the seafarer from 
the  time  of  leaving  the  ship  until  arrival  at  the  seafarer’s  home,  necessary  medical  care, 
passage and transport of personal effects and any other reasonable costs or charges arising 
from the abandonment. 

11.  The  financial  security  shall  not  cease  before  the  end  of  the  period  of  validity  of  the 
financial  security  unless  the  financial  security  provider  has  given  prior  notification  of  at 
least 30 days to the competent authority of the flag State. 

12. If the provider of insurance or  other  financial security has  made  any payment to  any 
seafarer in accordance with this Standard, such provider shall, up to the amount it has paid 
and  in  accordance  with  the  applicable  law,  acquire  by  subrogation,  assignment  or 
otherwise, the rights which the seafarer would have enjoyed. 

13. Nothing in this Standard shall prejudice any right of recourse of the insurer or provider 
of financial security against third parties. 

14.  The  provisions  in  this  Standard  are  not  intended  to  be  exclusive  or  to  prejudice  any 
other rights, claims or remedies that may also be available to compensate seafarers who are 
abandoned.  National  laws  and  regulations  may  provide  that  any  amounts  payable  under 
this Standard can be offset against amounts received from other sources arising from any 
rights,  claims  or  remedies  that  may  be  the  subject  of  compensation  under  the  present 
Standard’. 

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(3) in the heading “Standard A4.2 Shipowners’ liability”, “A4.2” is replaced by “A4.2.1” and 
the following paragraphs are added: 

‘8.  National  laws  and  regulations  shall  provide  that  the  system  of  financial  security  to 
assure  compensation  as  provided  by  paragraph  1(b)  of  this  Standard  for  contractual 
claims, as defined in Standard A4.2.2, meet the following minimum requirements: 

(a)  the  contractual  compensation,  where  set  out  in  the  seafarer’s  employment 
agreement and without prejudice to subparagraph (c) of this paragraph, shall be paid in 
full and without delay; 

(b) there shall be no pressure to accept a payment less than the contractual amount; 

(c) where the nature of the long-term disability of a seafarer makes it difficult to assess 
the  full  compensation  to  which  the  seafarer  may  be  entitled,  an  interim  payment  or 
payments shall be made to the seafarer so as to avoid undue hardship; 

(d) in accordance with Regulation 4.2, paragraph 2, the seafarer shall receive payment 
without  prejudice  to  other  legal  rights,  but  such  payment  may  be  offset  by  the 
shipowner against any damages resulting from any other claim made by the seafarer 
against the shipowner and arising from the same incident; and 

(e)  the  claim  for  contractual  compensation  may  be  brought  directly  by  the  seafarer 
concerned,  or  their  next  of  kin,  or  a  representative  of  the  seafarer  or  designated 
beneficiary. 

9. National laws and regulations shall ensure that seafarers receive prior notification if a 
shipowner’s financial security is to be cancelled or terminated. 

10.  National  laws  and  regulations  shall  ensure  that  the  competent  authority  of  the  flag 
State  is  notified  by  the  provider  of  the  financial  security  if  a  shipowner’s  financial 
security is cancelled or terminated. 

11. Each Member State shall require that ships that fly its flag carry on board a certificate 
or  other  documentary  evidence  of  financial  security  issued  by  the  financial  security 
provider. A copy shall be posted in a conspicuous place on board where it is available to 
the  seafarers.  Where  more  than  one  financial  security  provider  provides  cover,  the 
document provided by each provider shall be carried on board. 

12. The financial security shall not cease before the end of the period of validity of the 
financial security unless the financial security provider has given prior notification of at 
least 30 days to the competent authority of the flag State. 

13. The financial security shall provide for the payment of all contractual claims covered 
by it which arise during the period for which the document is valid. 

14. The certificate or other documentary evidence of financial security shall be in English 
or accompanied by an English translation and contain the following information: 

(a) name of the ship; 

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(b) port of registry of the ship; 

(c) call sign of the ship; 

(d) IMO number of the ship; 

(e) name and address of the provider or providers of the financial security; 

(f)  contact  details  of  the  persons  or  entity  responsible  for  handling  seafarers’ 
contractual claims; 

(g) name of the shipowner; 

(h) period of validity of the financial security; and 

(i) an attestation from the financial security provider that the financial security meets 
the requirements of Standard A4.2.1’. 

(4) the following Standard A4.2.2 is inserted: 

‘Standard A4.2.2 - Treatment of contractual claims 

1. For the purposes of Standard A4.2.1, paragraph 8, and the present Standard, the term 
“contractual  claim”  means  any  claim  which  relates  to  death  or  long-term  disability  of 
seafarers  due  to  an  occupational  injury,  illness  or  hazard  as  set  out  in  national  law,  the 
seafarers’ employment agreement or collective agreement. 

2. The system of financial security, as provided for in Standard A4.2.1, paragraph 1{b), 
may  be  in  the  form  of  a  social  security  scheme  or  insurance  or  fund  or  other  similar 
arrangements. Its form shall be determined by the Member State after consultation with 
the shipowners’ and seafarers’ organizations concerned. 

3. National laws and regulations shall ensure that effective arrangements are in place to 
receive,  deal  with  and  impartially  settle  contractual  claims  relating  to  compensation 
referred to in Standard A4.2.1, paragraph 8, through expeditious and fair procedures’. 

Article 3 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by two years after the entry into 
force  of  the  Directive  at  the  latest.  They  shall  forthwith  communicate  to  the 
Commission the text of those provisions. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

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

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This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 4 

Article 5 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the Council 

The President 

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