CELEX: 52014PC0161
Language: en
Date: 2014-03-13
Title: Proposal for a COUNCIL DECISION 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

|
			
		
		
		52014PC0161
		
			Proposal for a COUNCIL DECISION 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 /* COM/2014/0161 final - 2014/0088 (NLE) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
This proposal aims at establishing the
Union position on amendments to the Code of the Maritime Labour Convention,
2006 regarding the liability of shipowners with respect to a) compensation for
claims for death and personal injury and b) abandonment of seafarers. 
Amendments to the Code of the Maritime
Labour Convention, 2006 (MLC, 2006) of the International Labour Organisation
(ILO), hereinafter ‘the Maritime Labour Convention’, ‘the Convention’ or ‘the MLC’
are on the agenda of the first meeting of the “Special Tripartite Committee”,
hereinafter ‘the Committee’.
The MLC establishes minimum working and living
standards for all seafarers working on ships flying the flags of ratifying
countries[1].
The amendments to be considered by the Committee
concern the Code of the MLC, which relates to the way the MLC Articles and
Regulations are implemented and which contains both standards and guidelines[2]. 
1.1.        Consideration and possible
adoption of amendments to the Code of the Maritime Labour Convention at the
first meeting of the "Special Tripartite Committee" on 7-11 April
2014
The Committee is entrusted to consider
proposals of amendments to the Code of the MLC in accordance with Article XV of
the MLC. The ILO Governing Body established the Committee at its 318th Session
in June 2013. At its 319th Session in October 2013, it further decided to
convene the first meeting of the Committee in Geneva from 7 to 11 April 2014
and adopted its agenda, which includes the “consideration of proposals for
amendments to the Code of the Maritime Labour Convention, 2006 (MLC,
2006)".
Two matters for future amendments to the Code had
been identified at the joint ILO/IMO[3]
Ad Hoc Expert Working Group on Liability and Compensation held in 2009[4] as a follow-up to a
resolution adopted by the 94th (Maritime) Session of the
International Labour Conference when it adopted the MLC[5]: the liability of
shipowners with respect to compensation for claims for death, personal injury
and to abandonment of seafarers. These two matters were further identified by
the Preparatory Committee established in 2010 by the Governing Body of the ILO as
urgent matters for consideration at the first meeting of the Committee. 
Two sets of Proposals for amendments to the
Code of the MLC in this respect were jointly submitted by the group of
shipowners and the group of seafarers at the Committee in October 2013, in
accordance with paragraph 2 of Article XV of the MLC[6]. 
Under the simplified procedure for amending the
Code of the MLC provided for as per paragraph 3 of Article XV of the MLC, the
Director General of the ILO communicated the proposal for amendments to all ILO
Member States with an invitation to transmit their observations and suggestions
in October 2013[7]. The proposals for amendments were further made available to the
European Union in December 2013[8].
The Committee meeting in April 2014 is to
consider these two sets of proposals for amendments. The adoption of these
amendments by the Committee will require that half of the Members having
ratified the MLC are represented in the meeting and a majority of two-thirds of
the Committee members, comprising the votes of half of each of the government,
shipowners and seafarers voting powers. 
1.2.        Possible approval of
amendments to the Code of the Maritime Labour Convention at the 103rd
session of the International Labour Conference on 28 May-12 June 2014 and entry
into force
Once adopted by the
Committee, amendments to the Code of the MLC are to be approved by the International
Labour Conference with a two-thirds of the votes cast by delegates present and
are submitted for consideration to the ILO members that have ratified the MLC. It
is expected that the 103rd session of the International Labour
Conference, to be held on 28
May-12 June 2014, will be entrusted with that task.
Amendments approved under this procedure enter
into force within a period which is normally two years, unless a substantial
proportion of ratifying members[9]
have formally expressed their disagreement with these amendments.
1.3.        Content of the proposed
amendments to the Code of the Maritime Labour Convention subject to 2014
meetings of the International Labour Organisation
The two sets of Proposals for amendments to the
Code of the MLC subject to ILO 2014 meetings concern Standards (part A) and
Guidelines (part B) of the Code of the MLC relating to Regulation 2.5 on
Repatriation in title 2 on conditions of employment and to Regulation 4.2 on
Shipowners’ liability in Title 4 on health protection, medical care, welfare
and social security protection[10]. 
The proposal under Regulation 2.5
“Repatriation” (see Annex) deals with the abandonment of seafarers. Abandonment
occurs when the shipowner fails to cover the cost of the seafarer’s
repatriation or has left the seafarer without the necessary maintenance and
support or has otherwise unilaterally severed his ties with the seafarer
including failure to pay contractual wages for a period of at least two months.
The proposed amendments establish requirements to a rapid and effective
financial security system to assist seafarers employed or engaged or working in
any capacity on a ship flying the flag of the Member in the event of
abandonment. This system shall cover outstanding wages and other entitlements
up to four months, the cost of repatriation, necessary maintenance including
adequate food, clothing, accommodation, necessary medical care and other
reasonable costs or charges arising from the abandonment. Under the proposal, each
Member shall further require that ships that fly its
flag provide documentary evidence of financial security issued by the financial
security provider. The proposed guidelines deal with immediate assistance in
case time is needed to check the validity of certain aspects of the seafarer’s
request and with details of the evidence of financial security. 
The proposal under 4.2 “Shipowners’ liability”
(see Annex) deals with compensation in the event of death or long-term
disability due to an occupational injury, illness or hazard. It establishes
minimum requirements for the financial security system providing such
compensation as regards contractual claims, defined as claims which relate to
sickness, injury or death occurring while the seafarer is serving under a
seafarers’ employment agreement or arising from employment under such an
agreement. Effective arrangements are to be in place to receive, deal with and
impartially settle contractual claims relating to compensation through rapid
and fair procedures. There shall be no delay, no pressure to accept payment falling
short of the contractual amount and interim payment in cases in which the final
compensation is difficult to assess. Furthermore, there shall be no prejudice
to other legal rights; however, benefits shall be offset against damages. Under
the proposal, each Member shall further require that ships that fly its flag
provide documentary evidence of financial security or that the shipowner
notifies the flagstate and the seafarers if the security is cancelled. The proposed
guidelines deal with details of the evidence of financial security and contain model
receipt and release forms for the payment of contractual claims. 
1.4.        Union law in the field of
the amendments to the Code of the Maritime Labour Convention subject to 2014
meetings of the International Labour Organisation
The proposed amendments to the Code of the MLC are
to a large extent covered by competences conferred upon the Union by the
Treaties. In addition, many parts of the amendments address areas of Union law in
which the degree of regulation on the level of the EU has already reached an
advanced stage. Moreover, Council Decision 2007/431/EC of 7 June 2007
authorised Member States to ratify the MLC in the interests of the Union.
The proposed amendments to the MLC focus on
issues dealt with in Directive 2009/13/EC implementing the Agreement concluded
by the European Community Shipowners’ Associations (ECSA) and the European
Transport Workers’ Federation (ETF) on the Maritime Labour Convention and
amending Directive 1999/63/EC. This Directive incorporates relevant provisions
of the MLC into EU law by setting minimum requirements in the relevant fields
on the basis of an agreement between European social partners of the sector
pursuant to the provisions of the Treaty in the social policy area[11].
While not dealt with as such under Directive
2009/13/EC, the “abandonment” of seafarers falls however under its Standard A 2.5
providing that “Each Member State shall ensure that the seafarers in ships that
fly its flag are entitled to repatriation (...) when the seafarers are no
longer able to carry out their duties under their employment agreement or
cannot be expected to carry them out in the specific circumstances”. Similarly,
as regards shipowners’ liability, Standard A 4.2 provides that “Each Member
State shall adopt laws and regulations requiring that shipowners of ships that
fly its flag are responsible for health protection and medical care of all
seafarers working on board the ships in accordance with the following minimum
standards: (...) shipowners shall provide financial security to assure
compensation in the event of the 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”. In both cases, the
amendments to the MLC would introduce specific requirements for financial
security systems and for the production of documentary evidence in these
fields. 
It has also to be noted that the final
provisions of the Agreement concluded by the European Community Shipowners’
Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the
Maritime Labour Convention, implemented by Directive 2009/13/EC, state that
subsequent to any amendments to any of the provisions of the MLC and if
requested by either one of the Parties to the Agreement, a review of the
application of this Agreement shall be carried out. 
The enforcement of the proposed amendments to
the MLC involves the transport area[12]:
the “Port State Control” Directive 2009/16/EC, as amended by Directive
2013/38/EU of 12 August 2013 to include the MLC among the Conventions such as
SOLAS[13],
MARPOL[14]
and the STCW[15],
as well as the “Flag State” Directive 2013/54/EU of 20
November 2013 enforcing the Annex to Directive
2009/13/EC. Directive 2009/16/EC applies to all ships calling at EU ports,
regardless of the nationality of seafarers, and Directive 2013/54/EU aims to
ensure that EU Member States fulfil their responsibilities as flag States with
regard to Directive 2009/13/EC as well as its Annex and applies to all
seafarers on EU flagged ships. The provision of documentary evidence
included in the proposals for amendments is in particular covered by Directive
2009/16/EC as amended.
The proposed amendments further involve aspects of the social policy area[16], where minimum
requirements are set in particular on occupational health and safety by
Directive 89/391/EEC on the introduction of measures to encourage improvements
in the safety and health of workers at work.
Moreover, the envisaged amendments concern the
coordination of social security dealt with in Regulation
(EC) No 883/2004 and Implementing
Regulation (EC) No 987/2009 as far as EU
nationals are concerned, Regulation
(EU) No 1231/2010[17] as far as third-country nationals legally resident in the EU, their
family members and their survivors are concerned in a cross-border situation.
These regulations were adopted in the areas of free movement of workers and
immigration[18].
The proposed amendments may involve EU
legislation in the areas of judicial cooperation in civil matters, in
particular Regulation (EU) No 1215/2012 on jurisdiction as well as the
recognition and enforcement of judgments in civil and commercial matters [19].
2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
Not applicable. 
3.           LEGAL ELEMENTS OF THE
PROPOSAL
The 103rd session of the
International Labour Conference is likely to be entrusted to approve the said
proposals for amendments to the Code of the Maritime Labour Convention. In
accordance with Article XV of the MLC, such amendments enter into force for all
Parties not formally expressing their dissent within a period of two years[20], six months after the
end of that period, unless more than 40% of the Parties which, at the same
time, represent not less than 40% of the Parties' gross tonnage have expressed
disagreement with the amendments approved at the International Labour
Conference.
It follows that the envisaged amendments to
the Code of the Maritime Labour Convention will constitute an act of a body set
up by an international agreement which will produce legal effects.
Only States are members of the ILO and can
vote on the approval of the amendments to the Code of the MLC at the
International Labour Conference, to which the Union is invited with an observer
status.
Given the above, in accordance with Article
218(9) TFEU, it is necessary that the Council adopts a decision to establish the
position to be adopted on the Union's behalf, authorising at the same time
Member States to act jointly in the interest of the Union.
It is proposed to support the approval of
the envisaged amendments to the Code of the MLC.
Indeed, based, at this stage, on the proposal
jointly submitted by the group of ship-owners and the group of seafarers at the
Committee, it appears that there is no contradiction between the general
principles pursued by the proposed amendments and Union law, and there is no incompatibility between the proposed
amendments and the Union acquis. In particular, there is
no inconsistency of approach between the proposed amendments to the Code of the
MLC and the minimum requirements under the Union acquis in the social
area. This means that Union measures can be more stringent than the ILO
standards and vice versa[21],
as it follows from Article 19(8) of the ILO Constitution that ILO Conventions
such as the MLC contain minimum standards. Neither is there inconsistency
between the proposed amendments to the Code of the MLC and Union acquis concerning
the coordination of social security or the regulations under the Union acquis
in the transport area.
Based on past experience, it can be
expected that the text of the envisaged amendments to the Code of the MLC will
not change substantially between the draft agreed by the group of ship-owners
and the group of seafarers and its approval by the International Labour
Conference. Nevertheless, in order to allow Member States to act within the
bodies of the ILO jointly in the interest of the Union in an effective and
efficient way, it is necessary to provide that Member States may agree to a
text of the amendments to the Code with non-essential changes as compared to
the text agreed between the group of ship-owners and the group of seafarers. 
2014/0088 (NLE)
Proposal for a
COUNCIL DECISION
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
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union and, in particular, Articles 153 and 218(9) thereof,
Having regard to the proposal from the
European Commission,
Whereas:
(1)       The Maritime Labour
Convention, 2006, of the International Labour Organisation (ILO), hereinafter ‘the
Convention’, establishes minimum working and living
standards for all seafarers working on ships flying the flags of ratifying
countries. 
(2)       Proposals for amendments
to the Code of the Convention are on the agenda of the first meeting of the
“Special Tripartite Committee” established under the Convention, hereinafter ‘the
Committee’, taking place on 7-11 April 2014 for consideration and, possibly,
adoption. Adopted amendments are to be submitted for approval to the 103rd
session of the International Labour Conference on 28 May - 12 June 2014.
(3)       The proposals for
amendments concern the liability of shipowners with respect to compensation for
claims due to death, personal injury and abandonment of seafarers. They were
jointly submitted by the group of shipowners and the group of seafarers at the
Committee in October 2013, in accordance with paragraph 2 of Article XV of the Convention
(hereinafter "draft amendments").
(4)       The rules under the Convention
and the draft amendments are covered to a large extent by competences conferred
upon the Union by the Treaties. In addition, the draft amendments will affect
existing acquis in the areas of social policy[22], transport and coordination
of social security[23].
In particular, most of the provisions of the Convention have been the subject
of Directive 2009/13/EC 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 implementation of the Convention in the Union is further ensured by Directive 2009/16/EC of 23 April
2009 on “Port State Control”, as amended by Directive 2013/38/EU of 12 August
2013 and the "Flag State Directive" 2013/54/EU of 20 November 2013
enforcing the Annex of Directive 2009/13/EC of 16 February 2009. 
(5)       In accordance with Article
XV of the Convention, the amendments to the Code approved by the International
Labour Conference will enter into force for all Parties not formally expressing
their dissent within a period that is normally two years, six months after the
end of that period, unless more than 40% of the Parties which, at the same
time, represent not less than 40% of the Parties' gross tonnage have expressed
disagreement with these amendments. It follows that the envisaged amendments to
the Code of the Maritime Labour Convention will constitute an act of a body set
up by an international agreement which will produce legal effects.
(6)       Given the above, in
accordance with Article 218(9) TFEU, it is necessary that the Council adopts a
decision to establish the position to be adopted on the Union's behalf,
authorising at the same time Member States to act jointly in the interest of
the Union, which is not a member of the ILO[24].
(7)       Given that, at this stage,
the draft amendments have not yet received the agreement of all stakeholders
and that certain changes may still be made to it before their approval by the International
Labour Conference, it is necessary to provide that Member States, acting
jointly in the interest of the Union, may agree to a text of the amendments
with non-essential changes as compared to the text agreed between the group of
ship-owners and the group of seafarers.      

HAS ADOPTED THIS DECISION: 
Article 1
1.           The position of the Union at the 103rd session of the International Labour Conference shall be to support
the approval of the envisaged amendments to the Code of the Convention, such as
currently jointly submitted by the group of shipowners and the group of
seafarers at the Committee (referred to as the "draft amendments").
The text of the draft amendments is attached to this decision. 
2.           The position of the Union as
set out in paragraph 1 shall be taken by the Member States, acting jointly in
the interest of the Union when approving the amendments to the Code of the
Convention at the 103rd session of the International Labour
Conference.
3.           Non substantial changes to
this position may be agreed to within the bodies of the ILO by the Member
States acting jointly in the interest of the Union, without further decision of
the Council.
Article 2
This Decision is addressed to the Member
States.
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
[1]               http://www.ilo.org/global/standards/maritime-labour-convention/lang--en/index.htm. 
[2]               The MLC is organized into three main parts: the Articles,
coming first, set out the broad principles and obligations. The Articles are
followed by the Regulations and the Code, which relate to the areas of
seafarers‘ working and living conditions covered by the Convention and to
inspection and compliance. The Regulations, which are written in very general
terms, are complemented by the more detailed Code. The Code has two parts: Part
A contains Standards and Part B Guidelines. 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). When
deciding on the details of their laws or other implementing measures, the
ratifying countries must give due consideration to following the Guidelines set
out in Part B of the Code.
[3]               International Maritime Organisation.
[4]               ILO–IMO–WGPS/9/2009/10, Final report, Joint
IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding
Claims for Death, Personal Injury and Abandonment of Seafarers, Ninth Session. 
[5]               Resolution concerning the Joint IMO/ILO Ad Hoc Expert
Working Group on Liability and Compensation regarding Claims for Death,
Personal Injury and Abandonment of Seafarers, International Labour Conference, Provisional
Record No. 3-1(Rev.), 94th Session (Maritime), Geneva, 2006, p. 3-1/16.
See: http://www.ilo.org/global/standards/maritime-labour-convention/WCMS_088130/lang--en/index.htm.
[6]               http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/genericdocument/wcms_229695.pdf, see the Annex to the recommended Decision. 
[7]               http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/genericdocument/wcms_229694.pdf. 
[8]               The invitation to attend the Committee included a
reference to the webpage http://www.ilo.org/global/standards/maritime-labour-convention/WCMS_228789/lang--en/index.htm
which was updated in November 2013.
[9]               40% of the Members having
ratified the MLC and which represent 40% of the gross tonnage of the ships of
the Members having ratified the MLC.
[10]             http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/genericdocument/wcms_229695.pdf.

[11]             Art.153 and 155 TFEU.
[12]             Art.100 TFEU.
[13]             International Convention for the Safety of Life at Sea.
[14]             International Convention for the Prevention of
Pollution from Ships.
[15]             International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers.
[16]             Art.153 and 155 TFEU.
[17]             Or Regulation
(EC) No 859/2003 in the cases of Denmark or the United Kingdom.
[18]             Article 48 TFEU, 79.2b TFEU. 
[19]             Article 67(4) and points (a),
(c) and (e) of Article 81(2) TFEU.
[20]             Or another period set by the Conference, after they
have been notified by the ILO DG to Members having ratified the Convention 
[21]             Opinion 2/91 of the ECJ, para. 18.
[22]               Including the health and safety framework Directive
89/391/EEC.
[23]               Including Regulation
(EC) No 883/2004 and Implementing
Regulation (EC) No 987/2009 for EU
nationals, Regulation
(EU) No 1231/2010 or Regulation
(EC) No 859/2003 for third-country nationals
legally resident in the EU and in a cross-border situation and their family
members and survivors.
[24]               Opinion 2/91 of the European Court of Justice of 19
March 1993, ECR 1993-I, page 1061, para. 26.