Article 1 Purpose
The purpose of this Directive is to help to drastically reduce substandard shipping in the waters under the jurisdiction of Member States by: (a) increasing compliance with international and relevant Community legislation on maritime safety, maritime security, protection of the marine environment and on-board living and working conditions of ships of all flags; (b) establishing common criteria for control of ships by the port State and harmonising procedures on inspection and detention, building upon the expertise and experience under the Paris MOU; (c) implementing within the Community a port State control system based on the inspections performed within the Community and the Paris MOU region, aiming at the inspection of all ships with a frequency depending on their risk profile, with ships posing a higher risk being subject to a more detailed inspection carried out at more frequent intervals.
Article 2 Definitions
For the purposes of this Directive the following definitions shall apply: 1. ‘Conventions’ means the following Conventions, with the Protocols and amendments thereto, and related codes of mandatory status, in their up-to-date version: (a) the International Convention on Load Lines, 1966 (LL 66); (b) the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74); (c) the International Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (Marpol 73/78); (d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78/95); (e) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72); (f) the International Convention on Tonnage Measurement of Ships, 1969 (ITC 69); (g) the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO No 147); (h) the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92). 1. ‘Conventions’ means the following Conventions, with the Protocols and amendments thereto, and related codes of mandatory status, in their up-to-date version: (a) the International Convention on Load Lines, 1966 (LL 66); (b) the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74); (c) the International Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (Marpol 73/78); (d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78/95); (e) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72); (f) the International Convention on Tonnage Measurement of Ships, 1969 (ITC 69); (g) the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO No 147); (h) the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92). 2. ‘Paris MOU’ means the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, in its up-to-date version. 3. ‘Framework and procedures for the Voluntary IMO Member State Audit Scheme’ means IMO Assembly Resolution A.974(24). 4. ‘Paris MOU region’ means the geographical area in which the signatories to the Paris MOU conduct inspections in the context of the Paris MOU. 5. ‘Ship’ means any seagoing vessel to which one or more of the Conventions apply, flying a flag other than that of the port State. 6. ‘Ship/port interface’ means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons or goods or the provision of port services to or from the ship. 7. ‘Ship at anchorage’ means a ship in a port or another area within the jurisdiction of a port, but not at berth, carrying out a ship/port interface. 8. ‘Inspector’ means a public-sector employee or other person, duly authorised by the competent authority of a Member State to carry out port-State control inspections, and responsible to that competent authority. 9. ‘Competent authority’ means a maritime authority responsible for port State control in accordance with this Directive. 10. ‘Night time’ means any period of not less than seven hours, as defined by national law, and which must include, in any case, the period between midnight and 5.00. 11. ‘Initial inspection’ means a visit on board a ship by an inspector, in order to check compliance with the relevant Conventions and regulations and including at least the checks required by Article 13(1). 12. ‘More detailed inspection’ means an inspection where the ship, its equipment and crew as a whole or, as appropriate, parts thereof are subjected, in the circumstances specified in Article 13(3), to an in-depth examination covering the ship’s construction, equipment, manning, living and working conditions and compliance with on-board operational procedures. 13. ‘Expanded inspection’ means an inspection, which covers at least the items listed in Annex VII. An expanded inspection may include a more detailed inspection whenever there are clear grounds in accordance with Article 13(3). 14. ‘Complaint’ means any information or report submitted by any person or organisation with a legitimate interest in the safety of the ship, including an interest in safety or health hazards to its crew, on-board living and working conditions and the prevention of pollution. 15. ‘Detention’ means the formal prohibition for a ship to proceed to sea due to established deficiencies which, individually or together, make the ship unseaworthy. 16. ‘Refusal of access order’ means a decision issued to the master of a ship, to the company responsible for the ship and to the flag State notifying them that the ship will be refused access to all ports and anchorages of the Community. 17. ‘Stoppage of an operation’ means a formal prohibition for a ship to continue an operation due to established deficiencies which, individually or together, would render the continued operation hazardous. 18. ‘Company’ means the owner of the ship or any other organisation or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the International Safety Management (ISM) Code. 19. ‘Recognised Organisation’ means a classification company or other private body, carrying out statutory tasks on behalf of a flag State administration. 20. ‘Statutory certificate’ means a certificate issued by or on behalf of a flag State in accordance with Conventions. 21. ‘Classification certificate’ means a document confirming compliance with SOLAS 74, Chapter II-1, Part A-1, Regulation 3-1. 22. ‘Inspection database’ means the information system contributing to the implementation of the port State control system within the Community and concerning the data related to inspections carried out in the Community and the Paris MOU region.
Amendment rationale: CONTEXT OF THE PROPOSAL The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world. The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite. At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force. The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue. To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned. However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities. This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to: – move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law; – ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4] The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC. This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC. 1.1. The Maritime Labour Convention As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”. The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship. The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection. Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection. Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers. The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules. 1.2. The MLC Port State control responsibilities The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control. Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States. As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to: _ Minimum Age Convention, 1973 (No. 138); _ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); _ Minimum Age (Sea) Convention, 1920 (No. 7); _ Medical Examination (Seafarers) Convention, 1946 (No. 73); _ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); _ Accommodation of Crews Convention (Revised), 1949 (No. 92); _ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); _ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) - Seamen's articles of agreement Convention, 1926 (No 22) - Repatriation of Seamen Convention, 1926 (No 23) - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) - Right to Organize and Collective Bargaining Convention, 1949 (No 98) These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC. The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping. In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC. All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken. ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
Revised version (Article 2 Definitions):
For the purposes of this Directive the following definitions shall apply: 1. ‘Conventions’ means the following Conventions, with the Protocols and amendments thereto, and related codes of mandatory status, in their up-to-date version: (a) the International Convention on Load Lines, 1966 (LL 66); (b) the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74); (c) the International Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (Marpol 73/78); (d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78/95); (e) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72); (f) the International Convention on Tonnage Measurement of Ships, 1969 (ITC 69); (h) the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92); (i) the Maritime Labour Convention, 2006 (MLC 2006); (j) the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001 (AFS 2001); (k) the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers Convention, 2001). 1. ‘Conventions’ means the following Conventions, with the Protocols and amendments thereto, and related codes of mandatory status, in their up-to-date version: (a) the International Convention on Load Lines, 1966 (LL 66); (b) the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74); (c) the International Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (Marpol 73/78); (d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78/95); (e) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72); (f) the International Convention on Tonnage Measurement of Ships, 1969 (ITC 69); (h) the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92); (i) the Maritime Labour Convention, 2006 (MLC 2006); (j) the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001 (AFS 2001); (k) the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers Convention, 2001). 2. ‘Paris MOU’ means the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, in its up-to-date version. 3. ‘Framework and procedures for the Voluntary IMO Member State Audit Scheme’ means IMO Assembly Resolution A.974(24). 4. ‘Paris MOU region’ means the geographical area in which the signatories to the Paris MOU conduct inspections in the context of the Paris MOU. 5. ‘Ship’ means any seagoing vessel to which one or more of the Conventions apply, flying a flag other than that of the port State. 6. ‘Ship/port interface’ means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons or goods or the provision of port services to or from the ship. 7. ‘Ship at anchorage’ means a ship in a port or another area within the jurisdiction of a port, but not at berth, carrying out a ship/port interface. 8. ‘Inspector’ means a public-sector employee or other person, duly authorised by the competent authority of a Member State to carry out port-State control inspections, and responsible to that competent authority. 9. ‘Competent authority’ means a maritime authority responsible for port State control in accordance with this Directive. 10. ‘Night time’ means any period of not less than seven hours, as defined by national law, and which must include, in any case, the period between midnight and 5.00. 11. ‘Initial inspection’ means a visit on board a ship by an inspector, in order to check compliance with the relevant Conventions and regulations and including at least the checks required by Article 13(1). 12. ‘More detailed inspection’ means an inspection where the ship, its equipment and crew as a whole or, as appropriate, parts thereof are subjected, in the circumstances specified in Article 13(3), to an in-depth examination covering the ship’s construction, equipment, manning, living and working conditions and compliance with on-board operational procedures. 13. ‘Expanded inspection’ means an inspection, which covers at least the items listed in Annex VII. An expanded inspection may include a more detailed inspection whenever there are clear grounds in accordance with Article 13(3). 14. ‘Complaint’ means any information or report submitted by any person or organisation with a legitimate interest in the safety of the ship, including an interest in safety or health hazards to its crew, on-board living and working conditions and the prevention of pollution. 15. ‘Detention’ means the formal prohibition for a ship to proceed to sea due to established deficiencies which, individually or together, make the ship unseaworthy. 16. ‘Refusal of access order’ means a decision issued to the master of a ship, to the company responsible for the ship and to the flag State notifying them that the ship will be refused access to all ports and anchorages of the Community. 17. ‘Stoppage of an operation’ means a formal prohibition for a ship to continue an operation due to established deficiencies which, individually or together, would render the continued operation hazardous. 18. ‘Company’ means the owner of the ship or any other organisation or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the International Safety Management (ISM) Code. 19. ‘Recognised Organisation’ means a classification company or other private body, carrying out statutory tasks on behalf of a flag State administration. 20. ‘Statutory certificate’ means a certificate issued by or on behalf of a flag State in accordance with Conventions. 21. ‘Classification certificate’ means a document confirming compliance with SOLAS 74, Chapter II-1, Part A-1, Regulation 3-1. 22. ‘Inspection database’ means the information system contributing to the implementation of the port State control system within the Community and concerning the data related to inspections carried out in the Community and the Paris MOU region. 23. ‘Maritime labour certificate’ means the certificate referred to in Regulation 5.1.3 of MLC 2006. 24. ‘Declaration of maritime labour compliance’ means the declaration referred to in Regulation 5.1.3 of MLC 2006. All the references in this Directive to the Conventions, international codes and resolutions, including for certificates and other documents, shall be deemed to be references to those Conventions, international codes and resolutions in their up-to-date versions.
Article 3 Scope
1. This Directive shall apply to any ship and its crew calling at a port or anchorage of a Member State to engage in a ship/port interface. France may decide that the ports and anchorages covered by this paragraph do not include ports and anchorages situated in the overseas departments referred to in Article 299(2) of the Treaty. If a Member State performs an inspection of a ship in waters within its jurisdiction, other than at a port, it shall be considered as an inspection for the purposes of this Directive. Nothing in this Article shall affect the rights of intervention available to a Member State under the relevant Conventions. Member States which do not have seaports and which can verify that of the total number of individual vessels calling annually over a period of the three previous years at their river ports, less than 5 % are ships covered by this Directive, may derogate from the provisions of this Directive. Member States which do not have seaports shall communicate to the Commission at the latest on the date of transposition of the Directive the total number of vessels and the number of ships calling at their ports during the three-year period referred to above and shall inform the Commission of any subsequent change to the abovementioned figures. 2. Where the gross tonnage of a ship is less than 500, Member States shall apply those requirements of a relevant Convention which are applicable and shall, to the extent that a Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment. In applying this paragraph, Member States shall be guided by Annex 1 to the Paris MOU. 3. When inspecting a ship flying the flag of a State which is not a party to a Convention, Member States shall ensure that the treatment of such ship and its crew is not more favourable than that of a ship flying the flag of a State party to that Convention. 4. Fishing vessels, warships, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive.
Amendment rationale: CONTEXT OF THE PROPOSAL The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world. The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite. At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force. The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue. To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned. However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities. This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to: – move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law; – ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4] The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC. This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC. 1.1. The Maritime Labour Convention As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”. The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship. The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection. Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection. Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers. The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules. 1.2. The MLC Port State control responsibilities The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control. Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States. As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to: _ Minimum Age Convention, 1973 (No. 138); _ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); _ Minimum Age (Sea) Convention, 1920 (No. 7); _ Medical Examination (Seafarers) Convention, 1946 (No. 73); _ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); _ Accommodation of Crews Convention (Revised), 1949 (No. 92); _ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); _ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) - Seamen's articles of agreement Convention, 1926 (No 22) - Repatriation of Seamen Convention, 1926 (No 23) - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) - Right to Organize and Collective Bargaining Convention, 1949 (No 98) These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC. The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping. In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC. All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken. ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
Revised version (Article 3 Scope):
1. This Directive shall apply to any ship and its crew calling at a port or anchorage of a Member State to engage in a ship/port interface. France may decide that the ports and anchorages covered by this paragraph do not include ports and anchorages situated in the overseas departments referred to in Article 299(2) of the Treaty. If a Member State performs an inspection of a ship in waters within its jurisdiction, other than at a port, it shall be considered as an inspection for the purposes of this Directive. Nothing in this Article shall affect the rights of intervention available to a Member State under the relevant Conventions. Member States which do not have seaports and which can verify that of the total number of individual vessels calling annually over a period of the three previous years at their river ports, less than 5 % are ships covered by this Directive, may derogate from the provisions of this Directive. Member States which do not have seaports shall communicate to the Commission at the latest on the date of transposition of the Directive the total number of vessels and the number of ships calling at their ports during the three-year period referred to above and shall inform the Commission of any subsequent change to the abovementioned figures. 2. Where the gross tonnage of a ship is less than 500, Member States shall apply those requirements of a relevant Convention which are applicable and shall, to the extent that a Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment. In applying this paragraph, Member States shall be guided by Annex 1 to the Paris MOU. 3. When inspecting a ship flying the flag of a State which is not a party to a Convention, Member States shall ensure that the treatment of that ship and its crew is not more favourable than that of a ship flying the flag of a State party to that Convention. Such ship shall be subject to a more detailed inspection in accordance with procedures established by the Paris MOU. 4. Fishing vessels, warships, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive. 5. Measures adopted to give effect to this Directive shall not lead to a reduction in the general level of protection of seafarers under Union social law in the areas to which this Directive applies, as compared to the situation which already prevails in each Member State. In implementing those measures, if the competent authority of the port State becomes aware of a clear violation of Union law on board ships flying the flag of a Member State, it shall, in accordance with national law and practice, forthwith inform any other relevant competent authority in order for further action to be taken as appropriate.
Article 4 Inspection powers
1. Member States shall take all necessary measures, in order to be legally entitled to carry out the inspections referred to in this Directive on board foreign ships, in accordance with international law. 2. Member States shall maintain appropriate competent authorities, to which the requisite number of staff, in particular qualified inspectors, for the inspection of ships is assigned, for example, through recruitment, and shall take appropriate measures to ensure that inspectors perform their duties as laid down in this Directive and in particular that they are available for carrying out the inspections required in accordance with this Directive.
Article 5 Inspection system and annual inspection commitment
1. Member States shall carry out inspections in accordance with the selection scheme described in Article 12 and the provisions in Annex I. 2. In order to comply with its annual inspection commitment, each Member State shall: (a) inspect all Priority I ships, referred to in Article 12(a), calling at its ports and anchorages; and (b) carry out annually a total number of inspections of Priority I and Priority II ships, referred to in Article 12(a) and (b), corresponding at least to its share of the total number of inspections to be carried out annually within the Community and the Paris MOU region. The inspection share of each Member State shall be based on the number of individual ships calling at ports of the Member State concerned in relation to the sum of the number of individual ships calling at ports of each State within the Community and the Paris MOU region. 3. With a view to calculating the share of the total number of inspections to be carried out annually within the Community and the Paris MOU region referred to in point (b) of paragraph 2, ships at anchorage shall not be counted unless otherwise specified by the Member State concerned.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal This proposal concerns a n amendment of Directive 2009/1 6 /EC of the European Parliament and of the Council of 23 April 2009 on port State control 1 . Directive 2009/16/EC (hereinafter the Directive) regulates port State control inspections at EU level. Port State control (PSC) is a system of inspection of foreign ships in ports of states other than the flag state by PSC officers to verify that the competency of the master, officers and crew on board, the condition of a ship, and its equipment comply with the requirements of international conventions - and in the European Union, with applicable EU law. As such, PSC is important in ensuring maritime safety and in protecting the marine environment. Due to its history and international nature, maritime transport has developed a specific regulatory structure. At global level, the international legal framework was adopted under the auspices of the International Maritime Organi z ation 2 (IMO ) and the rules governing working and living conditions on-board ships are promulgated by another UN agency, the International Labour Organi z ation (ILO). The primary responsibility for monitoring the compliance of ships with IMO and ILO standards lies with the State where the ship is registered and whose nationality the ship holds – the flag State. However, flag State rules only apply to vessels that fly that flag. There continue to be flag States willing to allow substandard vessels to operate under their flags or unable to adequately enforce the international rules. Therefore, many of the IMO's most important technical conventions contain provisions for ships to be inspected when the vessels visit foreign ports to ensure that they meet the international requirements. To improve effectiveness, port States carrying out PSC inspections began to coordinate their work system atically at regional level . The Paris Memorandum of Understanding on port State control 3 (hereinafter the ‘ Paris M O U ’ ) drawn up in 1982 is the first of nine intergovernmental structures across the world . All 24 E uropean E conomic A rea (EEA) Member States with seaports, as well as Canada, the Russian Federation 4 and the United Kingdom, are signatories to the Paris MoU . The EU is not a member. The PSC Directive incorporates the procedures and tools of the Paris MoU as agreed in 2009. The Paris MoU and the PSC Directive are based on the concepts of shared burden and targeted , harmonised inspections. The Commission, assisted by the European Maritime Safety Agency (EMSA), provides all EEA and Paris M O U Member States with the technical support ne eded to decide which vessels to inspect, and to report and share the results of PSC inspections via the THETIS database (hosted by EMSA) and training on how to carry out inspections. EEA Member States are also provided with information on the vessels scheduled to call at their ports via the Union maritime information exchange system 'SafeSeaNet' 5 to allow them to plan their inspections. The main objectives of the PSC Directive are to: (i) continuous ly improve maritime safety and security; (ii) continuous ly improve of pollution prevention and of environmental impact; (iii) continuous ly improve on-board living and working conditions; (iv) the avoidance of distortions of competition. To this end, the key elements of the EU PSC regime are: (i) to take a harmonised approach to inspections and detentions; (ii) for each Member State to commit to an annual inspection commitment (iii) to target ships for inspection based on a ship risk profile (SRP) for each individual ship and (iv) record keeping and information sharing (inspection database). Since it ent ered into force, the Directive has been amended to enforce the Maritime Labour Convention , 2006 (MLC , 2006) 6 . Furthermore, in the EU, particular specific rules apply to ferries in regular service, 7 insurance requirements, 8 the control of ship generated waste and cargo residues 9 , the safe and environmentally sound recycling of ships 10 and the monitoring , reporting and verification (MRV) of greenhouse gas (GHG) emissions 11 where PSC inspections check enforce ment of these rules . For other EU legal acts, such as control of the sulphur content of marine fuels, PSC is also used to check in the vast majority of the EU Member States by PSC 12 . P ort State control in the EU is la rgely based on the rules and procedures of the Paris M O U but these EU provisions do not apply to the non-EEA signatories to the Paris M O U. The Directive was the subject of an ex-post evaluation and maritime fitness check (alongside other pieces of EU maritime safety legislation) in 2018. Since the Directive entered into application it has also been continuously monitored by the Commission which identified the following problematic issues: 1) current EU requirements are not aligned with new international mandatory rules and new procedures agreed at regional level (International Maritime Organi z ation – IMO, and Paris M O U); 2) current EU requirements do not apply to fishing vessels – certain international conventions applying to fishing vessels of over 24 metres in length, which could be enforced by PSC, are not inspected or are not inspected in a coordinated manner; 3) there is an un even distribution of PSC inspections across EU ports; 4) the current design of the ship risk profile and targeting mechanism used to select ships for inspection, are not up to date; 5) the system is too reliant on a cumbersome paper-based certificate system, and 6) there are inadequate and inflexible procedures and inadequate PSC resources (skills, training). The problems identified apply across the EU and have the same underlying causes. In the absence of EU action, Member States risk working in an uncoordinated and non-harmonised way. There is clear EU value in improving the Directive to address the problems identified. In the light of this, the Commission has prepared a proposal to amend Directive 2009/16/EC. The specific objectives of the proposal are to: – U pdate and align EU legislation with international rules and procedures , set by the IMO/IL O or the Paris M O U ; – P rotect f ishing vessels, their crew and the environment. Larger fishing vessels of more than 24 metres in length are not included in the scope of port State control . A voluntary system of control for this type of vessel – s hould increase the level of compliance with international standards of safety and environmental protection app licable to these vessels; – Ensure a higher uptake of digital solutions. In particular, it encourages the uptake and use of electronic statutory certificates by linking their use with the ship risk profile used to target and select ships for inspection. – Ensur e an efficient and harmonised approach to carrying out PSC inspections . This includes better targeting of vessels for inspection by restructuring out-dated aspects of the ship risk profile and add ing new components to it . For the sake of clarity and consistency, this proposal also updates a number of definitions and references to related EU legislation and IMO regulations.
Revised version (Article 5 Inspection system and annual inspection commitment):
1. Member States shall carry out inspections in accordance with the selection scheme described in Article 12 and the provisions in Annex I. 3. With a view to calculating the share of the total number of inspections to be carried out annually within the Community and the Paris MOU region referred to in point (b) of paragraph 2, ships at anchorage shall not be counted unless otherwise specified by the Member State concerned.
Article 6 Modalities of compliance with the inspection commitment
A Member State which fails to carry out the inspections required in Article 5(2)(a), complies with its commitment in accordance with that provision if such missed inspections do not exceed: (a) 5 % of the total number of Priority I ships with a high risk profile calling at its ports and anchorages; (b) 10 % of the total number of Priority I ships other than those with a high risk profile calling at its ports and anchorages. Notwithstanding the percentages in (a) and (b), Member States shall prioritise inspection of ships, which, according to the information provided by the inspection database, call at ports within the Community infrequently. Notwithstanding the percentages in (a) and (b), for Priority I ships calling at anchorages, Member States shall prioritise inspection of ships with a high risk profile, which, according to the information provided by the inspection database, call at ports within the Community infrequently.
Article 7 Modalities allowing a balanced inspection share within the Community
1. A Member State in which the total number of calls of Priority I ships exceeds its inspection share referred to in Article 5(2)(b), shall be regarded as complying with such commitment, if a number of inspections on Priority I ships carried out by that Member State corresponds at least to such inspection share and if that Member State does not miss more than 30 % of the total number of Priority I ships calling at its ports and anchorages. 2. A Member State, in which the total number of calls of Priority I and Priority II ships is less than the inspection share referred to in Article 5(2)(b), shall be regarded as complying with such commitment, if that Member State carries out the inspections of Priority I ships required under Article 5(2)(a) and inspections on at least 85 % of the total number of Priority II ships calling at its ports and anchorages. 3. The Commission shall, in its review referred to in Article 35, examine in particular the impact of this Article on the inspection commitment, taking into account the expertise and the experience gained in the Community and under the Paris MOU. The review shall take into account the objective of inspecting all ships calling at ports and anchorages within the Community. If appropriate, the Commission shall propose complementary measures with a view to improving the effectiveness of the inspection system applied in the Community, and, if necessary, a new review of the impact of this Article at a later stage.
Article 8 Postponement of inspections and exceptional circumstances
1. A Member State may decide to postpone the inspection of a Priority I ship in the following circumstances: (a) if the inspection may be carried out at the next call of the ship in the same Member State, provided that the ship does not call at any other port in the Community or the Paris MOU region in between and the postponement is not more than 15 days; or (b) if the inspection may be carried out in another port of call within the Community or the Paris MOU region within 15 days, provided the State in which such port of call is located has agreed in advance to perform the inspection. If an inspection is postponed in accordance with point (a) or (b) and recorded in the inspection database, a missed inspection shall not be counted as a missed inspection against the Member States which postponed the inspection. Nevertheless, where an inspection of a Priority I ship is not performed, the relevant ship shall not be exempted from being inspected at the next port of call within the Community in accordance with this Directive. 2. Where an inspection is not performed on Priority I ships for operational reasons, it shall not be counted as a missed inspection, provided that the reason for missing the inspection is recorded in the inspection database and the following exceptional circumstances occur: (a) in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment; or (b) the ship call takes place only during night time. In this case Member States shall take the measures necessary to ensure that ships which call regularly during night time are inspected as appropriate. 3. If an inspection is not performed on a ship at anchorage, it shall not be counted as a missed inspection if: (a) the ship is inspected in another port or anchorage within the Community or the Paris MOU region in accordance with Annex I within 15 days; or (b) the ship call takes place only during night time or its duration is too short for the inspection to be carried out satisfactorily, and the reason for missing the inspection is recorded in the inspection database; or (c) in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment, and the reason for missing the inspection is recorded in the inspection database. 4. The measures designed to amend non-essential elements of this Directive, by supplementing it, relating to the rules for the implementation of this Article shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 31(3).
Amendment rationale: CONTEXT OF THE PROPOSAL The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world. The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite. At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force. The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue. To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned. However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities. This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to: – move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law; – ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4] The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC. This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC. 1.1. The Maritime Labour Convention As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”. The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship. The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection. Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection. Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers. The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules. 1.2. The MLC Port State control responsibilities The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control. Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States. As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to: _ Minimum Age Convention, 1973 (No. 138); _ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); _ Minimum Age (Sea) Convention, 1920 (No. 7); _ Medical Examination (Seafarers) Convention, 1946 (No. 73); _ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); _ Accommodation of Crews Convention (Revised), 1949 (No. 92); _ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); _ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) - Seamen's articles of agreement Convention, 1926 (No 22) - Repatriation of Seamen Convention, 1926 (No 23) - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) - Right to Organize and Collective Bargaining Convention, 1949 (No 98) These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC. The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping. In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC. All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken. ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
Revised version (Article 8 Postponement of inspections and exceptional circumstances):
1. A Member State may decide to postpone the inspection of a Priority I ship in the following circumstances: (a) if the inspection may be carried out at the next call of the ship in the same Member State, provided that the ship does not call at any other port in the Community or the Paris MOU region in between and the postponement is not more than 15 days; or (b) if the inspection may be carried out in another port of call within the Community or the Paris MOU region within 15 days, provided the State in which such port of call is located has agreed in advance to perform the inspection. If an inspection is postponed in accordance with point (a) or (b) and recorded in the inspection database, a missed inspection shall not be counted as a missed inspection against the Member States which postponed the inspection. Nevertheless, where an inspection of a Priority I ship is not performed, the relevant ship shall not be exempted from being inspected at the next port of call within the Community in accordance with this Directive. 2. Where an inspection is not performed on Priority I ships for operational reasons, it shall not be counted as a missed inspection, provided that the reason for missing the inspection is recorded in the inspection database and the following exceptional circumstances occur: (a) in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment; or (b) the ship call takes place only during night time. In this case Member States shall take the measures necessary to ensure that ships which call regularly during night time are inspected as appropriate. 3. If an inspection is not performed on a ship at anchorage, it shall not be counted as a missed inspection if: (a) the ship is inspected in another port or anchorage within the Community or the Paris MOU region in accordance with Annex I within 15 days; or (b) the ship call takes place only during night time or its duration is too short for the inspection to be carried out satisfactorily, and the reason for missing the inspection is recorded in the inspection database; or (c) in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment, and the reason for missing the inspection is recorded in the inspection database.
Article 9 Notification of arrival of ships
1. The operator, agent or master of a ship which, in accordance with Article 14, is eligible for an expanded inspection and bound for a port or anchorage of a Member State, shall notify its arrival in accordance with the provisions laid down in Annex III. 2. On receipt of the notification referred to in paragraph 1 of this Article and in Article 4 of Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system ( 10 ), the port authority or body or the authority or body designated for that purpose shall forward such information to the competent authority. 3. Electronic means shall be used whenever possible for any communication provided for in this Article. 4. The procedures and formats developed by Member States for the purposes of Annex III to this Directive shall comply with the relevant provisions laid down in Directive 2002/59/EC regarding ships’ notifications.
Article 10 Ship risk profile
1. All ships calling at a port or anchorage of a Member State shall, in the inspection database, be attributed a ship risk profile which determines their respective priority for inspection, the intervals between the inspections and the scope of inspections. 2. The risk profile of a ship shall be determined by a combination of generic and historical risk parameters as follows: (a) Generic parameters Generic parameters shall be based on the type, age, flag, recognised organisations involved and company performance in accordance with Annex I, Part I.1 and Annex II. (a) Generic parameters Generic parameters shall be based on the type, age, flag, recognised organisations involved and company performance in accordance with Annex I, Part I.1 and Annex II. (b) Historical parameters Historical parameters shall be based on the number of deficiencies and detentions during a given period in accordance with Annex I, Part I.2 and Annex II. (b) Historical parameters Historical parameters shall be based on the number of deficiencies and detentions during a given period in accordance with Annex I, Part I.2 and Annex II. 3. The measures designed to amend non-essential elements of this Directive, by supplementing it, relating to the rules for the implementation of this Article, in particular: (a) the flag State criteria; (b) the company performance criteria; shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 31(3) and building upon the expertise of the Paris MOU.
Amendment rationale: CONTEXT OF THE PROPOSAL The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world. The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite. At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force. The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue. To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned. However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities. This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to: – move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law; – ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4] The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC. This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC. 1.1. The Maritime Labour Convention As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”. The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship. The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection. Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection. Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers. The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules. 1.2. The MLC Port State control responsibilities The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control. Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States. As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to: _ Minimum Age Convention, 1973 (No. 138); _ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); _ Minimum Age (Sea) Convention, 1920 (No. 7); _ Medical Examination (Seafarers) Convention, 1946 (No. 73); _ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); _ Accommodation of Crews Convention (Revised), 1949 (No. 92); _ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); _ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) - Seamen's articles of agreement Convention, 1926 (No 22) - Repatriation of Seamen Convention, 1926 (No 23) - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) - Right to Organize and Collective Bargaining Convention, 1949 (No 98) These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC. The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping. In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC. All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken. ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
Revised version (Article 10 Ship risk profile):
1. All ships calling at a port or anchorage of a Member State shall, in the inspection database, be attributed a ship risk profile which determines their respective priority for inspection, the intervals between the inspections and the scope of inspections. 2. The risk profile of a ship shall be determined by a combination of generic and historical risk parameters as follows: (a) Generic parameters Generic parameters shall be based on the type, age, flag, recognised organisations involved and company performance in accordance with Annex I, Part I.1 and Annex II. (a) Generic parameters Generic parameters shall be based on the type, age, flag, recognised organisations involved and company performance in accordance with Annex I, Part I.1 and Annex II. (b) Historical parameters Historical parameters shall be based on the number of deficiencies and detentions during a given period in accordance with Annex I, Part I.2 and Annex II. (b) Historical parameters Historical parameters shall be based on the number of deficiencies and detentions during a given period in accordance with Annex I, Part I.2 and Annex II. 3. Implementing powers shall be conferred on the Commission to implement a methodology for the consideration of generic risk parameters relating in particular to the flag State criteria and company performance criteria. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(3).
Article 11 Frequency of inspections
Ships calling at ports or anchorages within the Community shall be subject to periodic inspections or to additional inspections as follows: (a) Ships shall be subject to periodic inspections at predetermined intervals depending on their risk profile in accordance with Annex I, Part I. The interval between periodic inspections of ships shall increase as the risk decreases. For high risk ships, this interval shall not exceed six months. (b) Ships shall be subject to additional inspections regardless of the period since their last periodic inspection as follows: — the competent authority shall ensure that ships to which overriding factors listed in Annex I, Part II 2A, apply are inspected, — ships to which unexpected factors listed in Annex I, Part II 2B, apply may be inspected. The decision to undertake such an additional inspection is left to the professional judgement of the competent authority. (b) Ships shall be subject to additional inspections regardless of the period since their last periodic inspection as follows: — the competent authority shall ensure that ships to which overriding factors listed in Annex I, Part II 2A, apply are inspected, — ships to which unexpected factors listed in Annex I, Part II 2B, apply may be inspected. The decision to undertake such an additional inspection is left to the professional judgement of the competent authority.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal This proposal concerns a n amendment of Directive 2009/1 6 /EC of the European Parliament and of the Council of 23 April 2009 on port State control 1 . Directive 2009/16/EC (hereinafter the Directive) regulates port State control inspections at EU level. Port State control (PSC) is a system of inspection of foreign ships in ports of states other than the flag state by PSC officers to verify that the competency of the master, officers and crew on board, the condition of a ship, and its equipment comply with the requirements of international conventions - and in the European Union, with applicable EU law. As such, PSC is important in ensuring maritime safety and in protecting the marine environment. Due to its history and international nature, maritime transport has developed a specific regulatory structure. At global level, the international legal framework was adopted under the auspices of the International Maritime Organi z ation 2 (IMO ) and the rules governing working and living conditions on-board ships are promulgated by another UN agency, the International Labour Organi z ation (ILO). The primary responsibility for monitoring the compliance of ships with IMO and ILO standards lies with the State where the ship is registered and whose nationality the ship holds – the flag State. However, flag State rules only apply to vessels that fly that flag. There continue to be flag States willing to allow substandard vessels to operate under their flags or unable to adequately enforce the international rules. Therefore, many of the IMO's most important technical conventions contain provisions for ships to be inspected when the vessels visit foreign ports to ensure that they meet the international requirements. To improve effectiveness, port States carrying out PSC inspections began to coordinate their work system atically at regional level . The Paris Memorandum of Understanding on port State control 3 (hereinafter the ‘ Paris M O U ’ ) drawn up in 1982 is the first of nine intergovernmental structures across the world . All 24 E uropean E conomic A rea (EEA) Member States with seaports, as well as Canada, the Russian Federation 4 and the United Kingdom, are signatories to the Paris MoU . The EU is not a member. The PSC Directive incorporates the procedures and tools of the Paris MoU as agreed in 2009. The Paris MoU and the PSC Directive are based on the concepts of shared burden and targeted , harmonised inspections. The Commission, assisted by the European Maritime Safety Agency (EMSA), provides all EEA and Paris M O U Member States with the technical support ne eded to decide which vessels to inspect, and to report and share the results of PSC inspections via the THETIS database (hosted by EMSA) and training on how to carry out inspections. EEA Member States are also provided with information on the vessels scheduled to call at their ports via the Union maritime information exchange system 'SafeSeaNet' 5 to allow them to plan their inspections. The main objectives of the PSC Directive are to: (i) continuous ly improve maritime safety and security; (ii) continuous ly improve of pollution prevention and of environmental impact; (iii) continuous ly improve on-board living and working conditions; (iv) the avoidance of distortions of competition. To this end, the key elements of the EU PSC regime are: (i) to take a harmonised approach to inspections and detentions; (ii) for each Member State to commit to an annual inspection commitment (iii) to target ships for inspection based on a ship risk profile (SRP) for each individual ship and (iv) record keeping and information sharing (inspection database). Since it ent ered into force, the Directive has been amended to enforce the Maritime Labour Convention , 2006 (MLC , 2006) 6 . Furthermore, in the EU, particular specific rules apply to ferries in regular service, 7 insurance requirements, 8 the control of ship generated waste and cargo residues 9 , the safe and environmentally sound recycling of ships 10 and the monitoring , reporting and verification (MRV) of greenhouse gas (GHG) emissions 11 where PSC inspections check enforce ment of these rules . For other EU legal acts, such as control of the sulphur content of marine fuels, PSC is also used to check in the vast majority of the EU Member States by PSC 12 . P ort State control in the EU is la rgely based on the rules and procedures of the Paris M O U but these EU provisions do not apply to the non-EEA signatories to the Paris M O U. The Directive was the subject of an ex-post evaluation and maritime fitness check (alongside other pieces of EU maritime safety legislation) in 2018. Since the Directive entered into application it has also been continuously monitored by the Commission which identified the following problematic issues: 1) current EU requirements are not aligned with new international mandatory rules and new procedures agreed at regional level (International Maritime Organi z ation – IMO, and Paris M O U); 2) current EU requirements do not apply to fishing vessels – certain international conventions applying to fishing vessels of over 24 metres in length, which could be enforced by PSC, are not inspected or are not inspected in a coordinated manner; 3) there is an un even distribution of PSC inspections across EU ports; 4) the current design of the ship risk profile and targeting mechanism used to select ships for inspection, are not up to date; 5) the system is too reliant on a cumbersome paper-based certificate system, and 6) there are inadequate and inflexible procedures and inadequate PSC resources (skills, training). The problems identified apply across the EU and have the same underlying causes. In the absence of EU action, Member States risk working in an uncoordinated and non-harmonised way. There is clear EU value in improving the Directive to address the problems identified. In the light of this, the Commission has prepared a proposal to amend Directive 2009/16/EC. The specific objectives of the proposal are to: – U pdate and align EU legislation with international rules and procedures , set by the IMO/IL O or the Paris M O U ; – P rotect f ishing vessels, their crew and the environment. Larger fishing vessels of more than 24 metres in length are not included in the scope of port State control . A voluntary system of control for this type of vessel – s hould increase the level of compliance with international standards of safety and environmental protection app licable to these vessels; – Ensure a higher uptake of digital solutions. In particular, it encourages the uptake and use of electronic statutory certificates by linking their use with the ship risk profile used to target and select ships for inspection. – Ensur e an efficient and harmonised approach to carrying out PSC inspections . This includes better targeting of vessels for inspection by restructuring out-dated aspects of the ship risk profile and add ing new components to it . For the sake of clarity and consistency, this proposal also updates a number of definitions and references to related EU legislation and IMO regulations.
Revised version (Article 11 Frequency of inspections):
Ships calling at ports or anchorages within the Community shall be subject to periodic inspections or to additional inspections as follows: (a) Ships shall be subject to periodic inspections at predetermined intervals depending on their risk profile in accordance with Annex I, Part I. The interval between periodic inspections of ships shall increase as the risk decreases. For high risk ships, this interval shall not exceed six months. (b) Ships shall be subject to additional inspections regardless of the period since their last periodic inspection as follows: — the competent authority shall ensure that ships to which overriding factors listed in Annex I, Part II 2A, apply are inspected, — ships to which unexpected factors listed in Annex I, Part II 2B, apply may be inspected. The decision to undertake such an additional inspection is left to the professional judgement of the competent authority.
Article 12 Selection of ships for inspection
The competent authority shall ensure that ships are selected for inspection on the basis of their risk profile as described in Annex I, Part I, and when overriding or unexpected factors arise in accordance with Annex I, Part II 2A and 2B. With a view to the inspection of ships, the competent authority: (a) shall select ships which are due for a mandatory inspection, referred to as ‘Priority I’ ships, in accordance with the selection scheme described in Annex I, Part II 3A; (b) may select ships which are eligible for inspection, referred to as ‘Priority II’ ships, in accordance with Annex I, Part II 3B.
Article 13 Initial and more detailed inspections
Member States shall ensure that ships which are selected for inspection in accordance with Article 12 are subject to an initial inspection or a more detailed inspection as follows: 1. On each initial inspection of a ship, the competent authority shall ensure that the inspector, as a minimum: (a) checks the certificates and documents listed in Annex IV required to be kept on board in accordance with Community maritime legislation and Conventions relating to safety and security; (b) verifies, where appropriate, whether outstanding deficiencies found during the previous inspection carried out by a Member State or by a State signatory to the Paris MOU have been rectified; (c) satisfies himself of the overall condition of the ship, including the hygiene of the ship, including engine room and accommodation. 1. On each initial inspection of a ship, the competent authority shall ensure that the inspector, as a minimum: (a) checks the certificates and documents listed in Annex IV required to be kept on board in accordance with Community maritime legislation and Conventions relating to safety and security; (b) verifies, where appropriate, whether outstanding deficiencies found during the previous inspection carried out by a Member State or by a State signatory to the Paris MOU have been rectified; (c) satisfies himself of the overall condition of the ship, including the hygiene of the ship, including engine room and accommodation. 2. When, after an inspection referred to in point 1, deficiencies to be rectified at the next port of call have been recorded in the inspection database, the competent authority of such next port may decide not to carry out the verifications referred to in point 1(a) and (c). 3. A more detailed inspection shall be carried out, including further checking of compliance with on-board operational requirements, whenever there are clear grounds for believing, after the inspection referred to in point 1, that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention. ‘Clear grounds’ shall exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew. Examples of ‘clear grounds’ are set out in Annex V. 3. A more detailed inspection shall be carried out, including further checking of compliance with on-board operational requirements, whenever there are clear grounds for believing, after the inspection referred to in point 1, that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention. ‘Clear grounds’ shall exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew. Examples of ‘clear grounds’ are set out in Annex V.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal This proposal concerns a n amendment of Directive 2009/1 6 /EC of the European Parliament and of the Council of 23 April 2009 on port State control 1 . Directive 2009/16/EC (hereinafter the Directive) regulates port State control inspections at EU level. Port State control (PSC) is a system of inspection of foreign ships in ports of states other than the flag state by PSC officers to verify that the competency of the master, officers and crew on board, the condition of a ship, and its equipment comply with the requirements of international conventions - and in the European Union, with applicable EU law. As such, PSC is important in ensuring maritime safety and in protecting the marine environment. Due to its history and international nature, maritime transport has developed a specific regulatory structure. At global level, the international legal framework was adopted under the auspices of the International Maritime Organi z ation 2 (IMO ) and the rules governing working and living conditions on-board ships are promulgated by another UN agency, the International Labour Organi z ation (ILO). The primary responsibility for monitoring the compliance of ships with IMO and ILO standards lies with the State where the ship is registered and whose nationality the ship holds – the flag State. However, flag State rules only apply to vessels that fly that flag. There continue to be flag States willing to allow substandard vessels to operate under their flags or unable to adequately enforce the international rules. Therefore, many of the IMO's most important technical conventions contain provisions for ships to be inspected when the vessels visit foreign ports to ensure that they meet the international requirements. To improve effectiveness, port States carrying out PSC inspections began to coordinate their work system atically at regional level . The Paris Memorandum of Understanding on port State control 3 (hereinafter the ‘ Paris M O U ’ ) drawn up in 1982 is the first of nine intergovernmental structures across the world . All 24 E uropean E conomic A rea (EEA) Member States with seaports, as well as Canada, the Russian Federation 4 and the United Kingdom, are signatories to the Paris MoU . The EU is not a member. The PSC Directive incorporates the procedures and tools of the Paris MoU as agreed in 2009. The Paris MoU and the PSC Directive are based on the concepts of shared burden and targeted , harmonised inspections. The Commission, assisted by the European Maritime Safety Agency (EMSA), provides all EEA and Paris M O U Member States with the technical support ne eded to decide which vessels to inspect, and to report and share the results of PSC inspections via the THETIS database (hosted by EMSA) and training on how to carry out inspections. EEA Member States are also provided with information on the vessels scheduled to call at their ports via the Union maritime information exchange system 'SafeSeaNet' 5 to allow them to plan their inspections. The main objectives of the PSC Directive are to: (i) continuous ly improve maritime safety and security; (ii) continuous ly improve of pollution prevention and of environmental impact; (iii) continuous ly improve on-board living and working conditions; (iv) the avoidance of distortions of competition. To this end, the key elements of the EU PSC regime are: (i) to take a harmonised approach to inspections and detentions; (ii) for each Member State to commit to an annual inspection commitment (iii) to target ships for inspection based on a ship risk profile (SRP) for each individual ship and (iv) record keeping and information sharing (inspection database). Since it ent ered into force, the Directive has been amended to enforce the Maritime Labour Convention , 2006 (MLC , 2006) 6 . Furthermore, in the EU, particular specific rules apply to ferries in regular service, 7 insurance requirements, 8 the control of ship generated waste and cargo residues 9 , the safe and environmentally sound recycling of ships 10 and the monitoring , reporting and verification (MRV) of greenhouse gas (GHG) emissions 11 where PSC inspections check enforce ment of these rules . For other EU legal acts, such as control of the sulphur content of marine fuels, PSC is also used to check in the vast majority of the EU Member States by PSC 12 . P ort State control in the EU is la rgely based on the rules and procedures of the Paris M O U but these EU provisions do not apply to the non-EEA signatories to the Paris M O U. The Directive was the subject of an ex-post evaluation and maritime fitness check (alongside other pieces of EU maritime safety legislation) in 2018. Since the Directive entered into application it has also been continuously monitored by the Commission which identified the following problematic issues: 1) current EU requirements are not aligned with new international mandatory rules and new procedures agreed at regional level (International Maritime Organi z ation – IMO, and Paris M O U); 2) current EU requirements do not apply to fishing vessels – certain international conventions applying to fishing vessels of over 24 metres in length, which could be enforced by PSC, are not inspected or are not inspected in a coordinated manner; 3) there is an un even distribution of PSC inspections across EU ports; 4) the current design of the ship risk profile and targeting mechanism used to select ships for inspection, are not up to date; 5) the system is too reliant on a cumbersome paper-based certificate system, and 6) there are inadequate and inflexible procedures and inadequate PSC resources (skills, training). The problems identified apply across the EU and have the same underlying causes. In the absence of EU action, Member States risk working in an uncoordinated and non-harmonised way. There is clear EU value in improving the Directive to address the problems identified. In the light of this, the Commission has prepared a proposal to amend Directive 2009/16/EC. The specific objectives of the proposal are to: – U pdate and align EU legislation with international rules and procedures , set by the IMO/IL O or the Paris M O U ; – P rotect f ishing vessels, their crew and the environment. Larger fishing vessels of more than 24 metres in length are not included in the scope of port State control . A voluntary system of control for this type of vessel – s hould increase the level of compliance with international standards of safety and environmental protection app licable to these vessels; – Ensure a higher uptake of digital solutions. In particular, it encourages the uptake and use of electronic statutory certificates by linking their use with the ship risk profile used to target and select ships for inspection. – Ensur e an efficient and harmonised approach to carrying out PSC inspections . This includes better targeting of vessels for inspection by restructuring out-dated aspects of the ship risk profile and add ing new components to it . For the sake of clarity and consistency, this proposal also updates a number of definitions and references to related EU legislation and IMO regulations.
Revised version (Article 13 Initial and more detailed inspections):
Member States shall ensure that ships which are selected for inspection in accordance with Article 12 or Article 14a are subject to an initial inspection or a more detailed inspection as follows: 2. When, after an inspection referred to in point 1, deficiencies to be rectified at the next port of call have been recorded in the inspection database, the competent authority of such next port may decide not to carry out the verifications referred to in point 1(a) and (c). 3. A more detailed inspection shall be carried out, including further checking of compliance with on-board operational requirements, whenever there are clear grounds for believing, after the inspection referred to in point 1, that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention. ‘Clear grounds’ shall exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew. Examples of ‘clear grounds’ are set out in Annex V.
Article 14 Expanded inspections
1. The following categories of ships are eligible to an expanded inspection in accordance with Annex I, Part II 3A and 3B: — ships with a high risk profile, — passenger ships, oil tankers, gas or chemical tankers or bulk carriers, older than 12 years of age, — ships with a high risk profile or passenger ships, oil tankers, gas or chemical tankers or bulk carriers, older than 12 years of age, in cases of overriding or unexpected factors, — ships subject to a re-inspection following a refusal of access order issued in accordance with Article 16. 2. The operator or master of the ship shall ensure that sufficient time is available in the operating schedule to allow the expanded inspection to be carried out. Without prejudice to control measures required for security purposes, the ship shall remain in the port until the inspection is completed. 3. On receipt of a pre-notification provided by a ship eligible for a periodic expanded inspection, the competent authority shall inform the ship if no expanded inspection will be carried out. 4. The scope of an expanded inspection, including the risk areas to be covered, is set out in Annex VII. The Commission shall, in accordance with the procedures referred to in Article 31(2), adopt measures for the implementation of Annex VII.
Amendment rationale: CONTEXT OF THE PROPOSAL The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world. The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite. At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force. The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue. To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned. However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities. This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to: – move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law; – ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4] The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC. This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC. 1.1. The Maritime Labour Convention As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”. The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship. The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection. Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection. Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers. The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules. 1.2. The MLC Port State control responsibilities The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control. Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States. As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to: _ Minimum Age Convention, 1973 (No. 138); _ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); _ Minimum Age (Sea) Convention, 1920 (No. 7); _ Medical Examination (Seafarers) Convention, 1946 (No. 73); _ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); _ Accommodation of Crews Convention (Revised), 1949 (No. 92); _ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); _ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) - Seamen's articles of agreement Convention, 1926 (No 22) - Repatriation of Seamen Convention, 1926 (No 23) - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) - Right to Organize and Collective Bargaining Convention, 1949 (No 98) These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC. The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping. In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC. All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken. ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
Revised version (Article 14 Expanded inspections):
1. The following categories of ships are eligible to an expanded inspection in accordance with Annex I, Part II 3A and 3B: — ships with a high risk profile, — passenger ships, oil tankers, gas or chemical tankers or bulk carriers, older than 12 years of age, — ships with a high risk profile or passenger ships, oil tankers, gas or chemical tankers or bulk carriers, older than 12 years of age, in cases of overriding or unexpected factors, — ships subject to a re-inspection following a refusal of access order issued in accordance with Article 16. 2. The operator or master of the ship shall ensure that sufficient time is available in the operating schedule to allow the expanded inspection to be carried out. Without prejudice to control measures required for security purposes, the ship shall remain in the port until the inspection is completed. 3. On receipt of a pre-notification provided by a ship eligible for a periodic expanded inspection, the competent authority shall inform the ship if no expanded inspection will be carried out. 4. The scope of an expanded inspection, including the risk areas to be covered, is set out in Annex VII. The Commission may adopt detailed measures to ensure uniform conditions for the application of Annex VII. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(3).
Article 15 Safety and security guidelines and procedures
1. Member States shall ensure that their inspectors follow the procedures and guidelines specified in Annex VI. 2. As far as security checks are concerned, Member States shall apply the relevant procedures set out in Annex VI to this Directive to all ships referred to in Articles 3(1), 3(2) and 3(3) of Regulation (EC) No 725/2004 of the European Parliament and of the Council ( 11 ), calling at their ports and anchorages, unless they fly the flag of the port State of inspection. 3. The provisions of Article 14 of this Directive concerning expanded inspections shall apply to ro-ro ferries and high-speed passenger craft, referred to in Article 2(a) and (b) of Directive 1999/35/EC. When a ship has been surveyed in accordance with Articles 6 and 8 of Directive 1999/35/EC by a host State which is not the flag State of the ship, such specific survey shall be recorded as a more detailed or an expanded inspection, as relevant, in the inspection database and taken into account for the purposes of Articles 10, 11 and 12 of this Directive and for calculating the fulfilment of the inspection commitment of each Member State in as much as all the items referred to in Annex VII to this Directive are covered. Without prejudice to a prevention of operation of a ro-ro ferry or a high-speed passenger craft decided in accordance with Article 10 of Directive 1999/35/EC, the provisions of this Directive concerning rectification of deficiencies, detention, refusal of access, follow-up to inspections, detentions and refusal of access, as appropriate, shall apply. 4. If necessary, the Commission may, in accordance with the procedure referred to in Article 31(2), adopt the rules for the harmonised implementation of paragraphs 1 and 2 of this Article.
Amendment rationale: CONTEXT OF THE PROPOSAL The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world. The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite. At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force. The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue. To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned. However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities. This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to: – move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law; – ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4] The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC. This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC. 1.1. The Maritime Labour Convention As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”. The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship. The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection. Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection. Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers. The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules. 1.2. The MLC Port State control responsibilities The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control. Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States. As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to: _ Minimum Age Convention, 1973 (No. 138); _ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); _ Minimum Age (Sea) Convention, 1920 (No. 7); _ Medical Examination (Seafarers) Convention, 1946 (No. 73); _ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); _ Accommodation of Crews Convention (Revised), 1949 (No. 92); _ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); _ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) - Seamen's articles of agreement Convention, 1926 (No 22) - Repatriation of Seamen Convention, 1926 (No 23) - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) - Right to Organize and Collective Bargaining Convention, 1949 (No 98) These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC. The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping. In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC. All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken. ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
Revised version (Article 15 Safety and security guidelines and procedures):
1. Member States shall ensure that their inspectors follow the procedures and guidelines specified in Annex VI. 2. As far as security checks are concerned, Member States shall apply the relevant procedures set out in Annex VI to this Directive to all ships referred to in Articles 3(1), 3(2) and 3(3) of Regulation (EC) No 725/2004 of the European Parliament and of the Council ( 11 ), calling at their ports and anchorages, unless they fly the flag of the port State of inspection. 3. The provisions of Article 14 of this Directive concerning expanded inspections shall apply to ro-ro ferries and high-speed passenger craft, referred to in Article 2(a) and (b) of Directive 1999/35/EC. When a ship has been surveyed in accordance with Articles 6 and 8 of Directive 1999/35/EC by a host State which is not the flag State of the ship, such specific survey shall be recorded as a more detailed or an expanded inspection, as relevant, in the inspection database and taken into account for the purposes of Articles 10, 11 and 12 of this Directive and for calculating the fulfilment of the inspection commitment of each Member State in as much as all the items referred to in Annex VII to this Directive are covered. Without prejudice to a prevention of operation of a ro-ro ferry or a high-speed passenger craft decided in accordance with Article 10 of Directive 1999/35/EC, the provisions of this Directive concerning rectification of deficiencies, detention, refusal of access, follow-up to inspections, detentions and refusal of access, as appropriate, shall apply. 4. The Commission may adopt detailed measures to ensure uniform application of the procedures referred to in paragraph 1 and of the security checks referred to in paragraph 2 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(3).
Article 16 Access refusal measures concerning certain ships
1. A Member State shall ensure that any ship which: — flies the flag of a State whose detention rate falls into the black list, adopted in accordance with the Paris MOU on the basis of information recorded in the inspection database and as published annually by the Commission, and has been detained or has been issued with a prevention of operation order under Directive 1999/35/EC more than twice in the course of the preceding 36 months in a port or anchorage of a Member State or of a State signatory of the Paris MOU, or — flies the flag of a State whose detention rate falls into the grey list, adopted in accordance with the Paris MOU on basis of information recorded in the inspection database and as published annually by the Commission, and has been detained or has been issued with a prevention of operation order under Directive 1999/35/EC more than twice in the course of the preceding 24 months in a port or anchorage of a Member State or of a State signatory of the Paris MOU, is refused access to its ports and anchorages, except in the situations described in Article 21(6). Refusal of access shall become applicable as soon as the ship leaves the port or anchorage where it has been the subject of a third detention and where a refusal of access order has been issued. 2. The refusal of access order shall be lifted only after a period of three months has passed from the date of issue of the order and when the conditions in paragraphs 3 to 9 of Annex VIII are met. If the ship is subject to a second refusal of access, the period shall be 12 months. 3. Any subsequent detention in a port or anchorage within the Community shall result in the ship being refused access to any port and anchorage within the Community. This third refusal of access order may be lifted after a period of 24 months has passed from the issue of the order and only if: — the ship flies the flag of a State whose detention rate falls neither into the black list nor the grey list referred to in paragraph 1, — the statutory and classification certificates of the ship are issued by an organisation or organisations recognised under Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (recast) ( 12 ), — the ship is managed by a company with a high performance according to Annex I, Part I.1, and — the conditions in paragraphs 3 to 9 of Annex VIII are met. Any ship not meeting the criteria specified in this paragraph, after a period of 24 months has passed from the issue of the order, shall be permanently refused access to any port and anchorage within the Community. 4. Any subsequent detention in a port or anchorage within the Community after the third refusal of access shall result in the ship being permanently refused access to any port and anchorage within the Community. 5. For the purpose of this Article, Member States shall comply with the procedures laid down in Annex VIII.
Amendment rationale: CONTEXT OF THE PROPOSAL Reasons for and objectives of the proposal This proposal concerns a n amendment of Directive 2009/1 6 /EC of the European Parliament and of the Council of 23 April 2009 on port State control 1 . Directive 2009/16/EC (hereinafter the Directive) regulates port State control inspections at EU level. Port State control (PSC) is a system of inspection of foreign ships in ports of states other than the flag state by PSC officers to verify that the competency of the master, officers and crew on board, the condition of a ship, and its equipment comply with the requirements of international conventions - and in the European Union, with applicable EU law. As such, PSC is important in ensuring maritime safety and in protecting the marine environment. Due to its history and international nature, maritime transport has developed a specific regulatory structure. At global level, the international legal framework was adopted under the auspices of the International Maritime Organi z ation 2 (IMO ) and the rules governing working and living conditions on-board ships are promulgated by another UN agency, the International Labour Organi z ation (ILO). The primary responsibility for monitoring the compliance of ships with IMO and ILO standards lies with the State where the ship is registered and whose nationality the ship holds – the flag State. However, flag State rules only apply to vessels that fly that flag. There continue to be flag States willing to allow substandard vessels to operate under their flags or unable to adequately enforce the international rules. Therefore, many of the IMO's most important technical conventions contain provisions for ships to be inspected when the vessels visit foreign ports to ensure that they meet the international requirements. To improve effectiveness, port States carrying out PSC inspections began to coordinate their work system atically at regional level . The Paris Memorandum of Understanding on port State control 3 (hereinafter the ‘ Paris M O U ’ ) drawn up in 1982 is the first of nine intergovernmental structures across the world . All 24 E uropean E conomic A rea (EEA) Member States with seaports, as well as Canada, the Russian Federation 4 and the United Kingdom, are signatories to the Paris MoU . The EU is not a member. The PSC Directive incorporates the procedures and tools of the Paris MoU as agreed in 2009. The Paris MoU and the PSC Directive are based on the concepts of shared burden and targeted , harmonised inspections. The Commission, assisted by the European Maritime Safety Agency (EMSA), provides all EEA and Paris M O U Member States with the technical support ne eded to decide which vessels to inspect, and to report and share the results of PSC inspections via the THETIS database (hosted by EMSA) and training on how to carry out inspections. EEA Member States are also provided with information on the vessels scheduled to call at their ports via the Union maritime information exchange system 'SafeSeaNet' 5 to allow them to plan their inspections. The main objectives of the PSC Directive are to: (i) continuous ly improve maritime safety and security; (ii) continuous ly improve of pollution prevention and of environmental impact; (iii) continuous ly improve on-board living and working conditions; (iv) the avoidance of distortions of competition. To this end, the key elements of the EU PSC regime are: (i) to take a harmonised approach to inspections and detentions; (ii) for each Member State to commit to an annual inspection commitment (iii) to target ships for inspection based on a ship risk profile (SRP) for each individual ship and (iv) record keeping and information sharing (inspection database). Since it ent ered into force, the Directive has been amended to enforce the Maritime Labour Convention , 2006 (MLC , 2006) 6 . Furthermore, in the EU, particular specific rules apply to ferries in regular service, 7 insurance requirements, 8 the control of ship generated waste and cargo residues 9 , the safe and environmentally sound recycling of ships 10 and the monitoring , reporting and verification (MRV) of greenhouse gas (GHG) emissions 11 where PSC inspections check enforce ment of these rules . For other EU legal acts, such as control of the sulphur content of marine fuels, PSC is also used to check in the vast majority of the EU Member States by PSC 12 . P ort State control in the EU is la rgely based on the rules and procedures of the Paris M O U but these EU provisions do not apply to the non-EEA signatories to the Paris M O U. The Directive was the subject of an ex-post evaluation and maritime fitness check (alongside other pieces of EU maritime safety legislation) in 2018. Since the Directive entered into application it has also been continuously monitored by the Commission which identified the following problematic issues: 1) current EU requirements are not aligned with new international mandatory rules and new procedures agreed at regional level (International Maritime Organi z ation – IMO, and Paris M O U); 2) current EU requirements do not apply to fishing vessels – certain international conventions applying to fishing vessels of over 24 metres in length, which could be enforced by PSC, are not inspected or are not inspected in a coordinated manner; 3) there is an un even distribution of PSC inspections across EU ports; 4) the current design of the ship risk profile and targeting mechanism used to select ships for inspection, are not up to date; 5) the system is too reliant on a cumbersome paper-based certificate system, and 6) there are inadequate and inflexible procedures and inadequate PSC resources (skills, training). The problems identified apply across the EU and have the same underlying causes. In the absence of EU action, Member States risk working in an uncoordinated and non-harmonised way. There is clear EU value in improving the Directive to address the problems identified. In the light of this, the Commission has prepared a proposal to amend Directive 2009/16/EC. The specific objectives of the proposal are to: – U pdate and align EU legislation with international rules and procedures , set by the IMO/IL O or the Paris M O U ; – P rotect f ishing vessels, their crew and the environment. Larger fishing vessels of more than 24 metres in length are not included in the scope of port State control . A voluntary system of control for this type of vessel – s hould increase the level of compliance with international standards of safety and environmental protection app licable to these vessels; – Ensure a higher uptake of digital solutions. In particular, it encourages the uptake and use of electronic statutory certificates by linking their use with the ship risk profile used to target and select ships for inspection. – Ensur e an efficient and harmonised approach to carrying out PSC inspections . This includes better targeting of vessels for inspection by restructuring out-dated aspects of the ship risk profile and add ing new components to it . For the sake of clarity and consistency, this proposal also updates a number of definitions and references to related EU legislation and IMO regulations.
Revised version (Article 16 Access refusal measures concerning certain ships):
1. A Member State shall refuse access to its ports and anchorages to any ship which: — flies the flag of a State whose detention rate falls into the black list, adopted in accordance with the Paris MOU on the basis of information recorded in the inspection database and published annually by the Commission, and has been detained more than twice in the course of the preceding 36 months in a port or anchorage of a Member State or of a State signatory of the Paris MOU, or — flies the flag of a State whose detention rate falls into the grey list, adopted in accordance with the Paris MOU on the basis of information recorded in the inspection database and published annually by the Commission, and has been detained more than twice in the course of the preceding 24 months in a port or anchorage of a Member State or of a State signatory of the Paris MOU. The first subparagraph shall not apply to the situations described in Article 21(6). The refusal of access shall be applicable as soon as the ship leaves the port or anchorage where it has been the subject of a third detention and where a refusal of access order has been issued. 2. The refusal of access order shall be lifted only after a period of three months has passed from the date of issue of the order and when the conditions in paragraphs 3 to 9 of Annex VIII are met. If the ship is subject to a second refusal of access, the period shall be 12 months. 3. Any subsequent detention in a port or anchorage within the Community shall result in the ship being refused access to any port and anchorage within the Community. This third refusal of access order may be lifted after a period of 24 months has passed from the issue of the order and only if: — the ship flies the flag of a State whose detention rate falls neither into the black list nor the grey list referred to in paragraph 1, — the statutory and classification certificates of the ship are issued by an organisation or organisations recognised under Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (recast) ( 3 ), — the ship is managed by a company with a high performance according to Annex I, Part I.1, and — the conditions in paragraphs 3 to 9 of Annex VIII are met. Any ship not meeting the criteria specified in this paragraph, after a period of 24 months has passed from the issue of the order, shall be permanently refused access to any port and anchorage within the Community. 4. Any subsequent detention in a port or anchorage within the Community after the third refusal of access shall result in the ship being permanently refused access to any port and anchorage within the Community. 5. For the purpose of this Article, Member States shall comply with the procedures laid down in Annex VIII.
Article 17 Report of inspection to the master
On completion of an inspection, a more detailed inspection or an expanded inspection, the inspector shall draw up a report in accordance with Annex IX. The ship’s master shall be provided with a copy of the inspection report.
Amendment rationale: CONTEXT OF THE PROPOSAL The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world. The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite. At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force. The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue. To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned. However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities. This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to: – move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law; – ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4] The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC. This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC. 1.1. The Maritime Labour Convention As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”. The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship. The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection. Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection. Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers. The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules. 1.2. The MLC Port State control responsibilities The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control. Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States. As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to: _ Minimum Age Convention, 1973 (No. 138); _ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); _ Minimum Age (Sea) Convention, 1920 (No. 7); _ Medical Examination (Seafarers) Convention, 1946 (No. 73); _ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); _ Accommodation of Crews Convention (Revised), 1949 (No. 92); _ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); _ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) - Seamen's articles of agreement Convention, 1926 (No 22) - Repatriation of Seamen Convention, 1926 (No 23) - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) - Right to Organize and Collective Bargaining Convention, 1949 (No 98) These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC. The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping. In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC. All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken. ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
Revised version (Article 17 Report of inspection to the master):
On completion of an inspection, a more detailed inspection or an expanded inspection, the inspector shall draw up a report in accordance with Annex IX. The ship’s master shall be provided with a copy of the inspection report. Where, following a more detailed inspection, the living and working conditions on the ship are found not to conform to the requirements of MLC 2006, the inspector shall forthwith bring the deficiencies to the attention of the master of the ship, with required deadlines for their rectification. In the event that the inspector considers such deficiencies to be significant, or if they relate to a possible complaint under point 19 of Part A of Annex V, the inspector shall also bring the deficiencies to the attention of the appropriate seafarers’ and shipowners’ organisations in the Member State in which the inspection is carried out, and may: (a) notify a representative of the flag State; (b) provide the competent authorities of the next port of call with the relevant information. In respect of matters concerning MLC 2006, the Member State in which the inspection is carried out shall have the right to transmit a copy of the inspector’s report, to be accompanied by any reply received from the competent authorities of the flag State within the prescribed deadline, to the Director-General of the International Labour Office with a view to such action as may be considered appropriate and expedient in order to ensure that a record is kept of such information and that it is brought to the attention of parties who might be interested in availing themselves of relevant recourse procedures.
Article 18 Complaints
All complaints shall be subject to a rapid initial assessment by the competent authority. This assessment shall make it possible to determine whether a complaint is justified. Should that be the case, the competent authority shall take the necessary action on the complaint, in particular, ensuring that anyone directly concerned by that complaint can make their views known. Where the competent authority deems the complaint to be manifestly unfounded, it shall inform the complainant of its decision and of the reasons therefor. The identity of the complainant shall not be revealed to the master or the shipowner of the ship concerned. The inspector shall ensure confidentiality during any interviews of crew members. Member States shall inform the flag State administration, with a copy to the International Labour Organisation (ILO) if appropriate, of complaints not manifestly unfounded and of follow-up actions taken.
Amendment rationale: CONTEXT OF THE PROPOSAL The Maritime Labour Convention (MLC), 2006 was adopted by the International Labour Organisation (ILO) with a quasi unanimous vote on 23 February 2006 in Geneva. It applies to international shipping and covers essential matters such as the minimum requirements for seafarers to work on board a ship (title I of the MLC), conditions of employment (title II of the MLC), accommodation, recreational facilities, food and catering (title III of the MLC), health protection, medical care, welfare and social security protection (title IV) and compliance and enforcement (title V) in order to guarantee decent working and living conditions on board ships, as well as procedures to implement these provisions. The Convention can be considered as the first maritime labour code for more than 1.2 million seafarers worldwide, as well as for shipowners and maritime nations around the world. The EU Member States and the Commission have supported the ILO work on this matter from the outset. The EU sees a valuable input in the MLC which aims at establishing a level playing field in the worldwide maritime industry by setting common minimum standards for all flags and seafarers. In this respect, the EU has already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interest of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation[1]. Some Member States have already ratified it (Spain, Bulgaria, Luxembourg, Denmark, Latvia, the Netherlands) and others are about to do so. On the substance, the Member States national legislations are generally more protective and detailed than the ILO standards. To maintain the consistency between the international and national standards and to ratify the Convention, an extensive and time consuming screening of the national legislations is the prerequisite. At this stage, 22 countries have ratified the MLC representing more than 45% of the world fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are required by the MLC to enter into force. The EU also adopted Council Directive 2009/13/EC of 16 February 2009, implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC[2]. Directive 2009/13/EC constitutes an outstanding achievement of the sectoral social dialogue. To this end it is foreseen, on the one hand, to require Member States to apply Directive 2009/13/EC when they wield their powers as flag States. As things stand, through Directive 2009/13/EC, European legislation has been put in line with the international standards fixed by the MLC. This took up the relevant provisions of the MLC establishing rights for seafarers contained in its Titles I, II, III and IV above mentioned. However, the European social partners, wishing to implement their agreement by means of a Council decision on the basis of Article 155 TFEU, do not have the power to include in their Agreement the enforcement provisions contained in Title V of the MLC and asked the Commission to act in this respect. The present initiative aims precisely to do so on the port State responsibilities. This initiative is part of the EU policy on the maritime professions. In fact, as stated by the Commission in its Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Strategic goals and recommendations for the EU's maritime transport policy until 2018[3], there is a genuine EU interest in enhancing the attractiveness of the maritime professions to Europeans by means of actions that involve, where appropriate, the Commission, the Member States and the industry itself. This fully applies to the implementation of the MLC which considerably improves working and living conditions on board ships. The Communication underlines that the agreement between EU social partners on the implementation of key elements of this Convention demonstrates the wide support within the industry in this field and that, therefore, action of the EU and its Member States should aim to: – move towards rapid ratification of the MLC by Member States and the early adoption of the Commission’s proposals based on the social partners' agreement for implementing its key elements in EU law; – ensure the effective enforcement of the new rules by means of adequate measures, including flag and port State control requirements.[4] The White Paper on the Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system[5] highlights the importance of a social agenda for the maritime transport to both promote jobs and enhance safety and the Staff Working Document accompanying the White Paper foresees a proposal to ensure effective enforcement of the MLC. This proposal is closely associated with the Proposal for a Directive of the European Parliament and of the Council concerning the flag State responsibilities for the enforcement of Directive 2009/13/EC. 1.1. The Maritime Labour Convention As generally acknowledged and explicitly stated by the ILO, the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”. The MLC, adopted in 2006, provides comprehensive rights and protection at work for all seafarers regardless of their nationality and the flag of the ship. The MLC aims to both achieve decent working conditions for seafarers and secure fair competition for quality shipowners. It sets out seafarers' rights to decent conditions of work on a wide range of subjects, and has been designed to be globally applicable, easily understandable, updatable and uniformly enforced. It has also been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the three key Conventions of the International Maritime Organization (IMO): the International Convention for the Safety of Life at Sea (SOLAS Convention), the International Convention on Standards of Certification, Training and Watch keeping (STCW Convention) and the International Convention for the Prevention of Pollution from Ships (MARPOL Convention). It contains four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements for seafarers to work on board a ship; Title 2 on conditions of employment; Title 3 on accommodation, recreational facilities, food and catering; Title 4 on health protection, medical care, welfare and social security protection. Moreover, the MLC, in its Title 5, contains mechanisms to improve supervision at all levels: the ship, the company, the flag State, the port State, the labour supplying State and the ILO system for a global and uniform compliance and verification. Indeed, together with a sound corpus of rules, a more effective enforcement and compliance system was needed in order to eliminate substandard ships for the sake of ship safety and security and environmental protection. Therefore the EU has to provide means, through flag State and port State control to ensure that the relevant MLC maritime labour standards are applied on board all ships calling at EU ports, regardless of the nationality of the seafarers. The enforcement of the MLC standards through flag State and port State control has also to be seen as a way to limit social dumping, which deteriorates working conditions on board, and penalises shipowners offering decent working conditions complying with the ILO rules. 1.2. The MLC Port State control responsibilities The responsibility for ensuring that ships comply with the provisions of the relevant instruments rests upon the owners, masters and the flag States. However, some flag States fail to properly enforce such provisions. They therefore fail to fulfil their commitments contained in agreed international legal instruments or are being too lax in applying shipping standards and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. In reaction to this matter of fact, this has led to the establishment of port state control. Port States, as a system of harmonised inspection procedures, can exercise jurisdiction on those vessels calling at their ports and constitute a “safety net” to catch substandard ships with the main objective of their eventual elimination. In this context, it is imperative to develop close co-operation between flag States and port States. As things stand, there are already port State control inspections covering social standards based on ILO conventions in particular under the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) which refers to: _ Minimum Age Convention, 1973 (No. 138); _ Minimum Age (Sea) Convention (Revised), 1936 (No. 58); _ Minimum Age (Sea) Convention, 1920 (No. 7); _ Medical Examination (Seafarers) Convention, 1946 (No. 73); _ Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) (Articles 4 and 7); _ Accommodation of Crews Convention (Revised), 1949 (No. 92); _ Food and Catering (Ships’ Crews) Convention, 1946 (No. 68) (Article 5); _ Officers’ Competency Certificates Convention, 1936 (No. 53) (Articles 3 and 4) - Seamen's articles of agreement Convention, 1926 (No 22) - Repatriation of Seamen Convention, 1926 (No 23) - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) - Right to Organize and Collective Bargaining Convention, 1949 (No 98) These conventions have been consolidated into the MLC, 2006, but they are still in force, since some parties might be willing to continue applying them without ratifying the MLC. The MLC contains provisions on port State control, requiring compliance checks with its requirements on foreign ships calling at State parties' ports. Port States intervene as the second line of defence to enforce the MLC and to contribute to eliminating substandard shipping. The Convention also contains a "no more favourable treatment” clause. Under this clause, each State-party shall implement its responsibilities under the Convention in such a way so as to ensure that the ships that fly the flag of any State that has not ratified the Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This clause should encourage uniformity in connection with inspections and effectively contribute to a sound level-playing field for shipping. In practice, the MLC defines a specific and simple procedure. An initial inspection is carried out to check the documents delivered by the flag State (the maritime labour certificate and a declaration of maritime labour compliance) and to make a tour of the ship to get an overview of the crew and ship’s condition including engine room and accommodation and see whether they meet the appropriate standards. Depending on the professional judgement of port State control inspectors identifying clear grounds that ships conditions do not meet the international standards, more detailed inspections can be performed, especially in cases where the deficiencies would constitute clear hazard to the safety, health or security of seafarers as required by the MLC. All complaints regarding conditions on board will be investigated thoroughly and action will be taken as deemed necessary by the port State control officer. If necessary, the ship will be detained until appropriate corrective action is taken. ILO, like IMO, is an international rule-maker with a universal impact by means of continuous system of international conventions, rules, codes and recommendations. However, ILO has no direct authority on board of the ships and further legislation was needed at EU and national level.
Revised version (Article 18 Complaints):
All complaints shall be subject to a rapid initial assessment by the competent authority. This assessment shall make it possible to determine whether a complaint is justified. Should that be the case, the competent authority shall take the necessary action on the complaint, in particular, ensuring that anyone directly concerned by that complaint can make their views known. Where the competent authority deems the complaint to be manifestly unfounded, it shall inform the complainant of its decision and of the reasons therefor. The identity of the complainant shall not be revealed to the master or the shipowner of the ship concerned. The inspector shall take appropriate steps to safeguard the confidentiality of complaints made by seafarers, including ensuring confidentiality during any interviews of seafarers. Member States shall inform the flag State administration, with a copy to the International Labour Organisation (ILO) if appropriate, of complaints not manifestly unfounded and of follow-up actions taken.