Article 19 Rectification and detention
1. The competent authority shall be satisfied that any deficiencies confirmed or revealed by the inspection are, or will be, rectified in accordance with the Conventions. 2. In the case of deficiencies which are clearly hazardous to safety, health or the environment, the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained or that the operation in the course of which the deficiencies are revealed is stopped. The detention order or stoppage of an operation shall not be lifted until the hazard is removed or until such authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment. 3. When exercising his professional judgement as to whether or not a ship is to be detained, the inspector shall apply the criteria set out in Annex X. 4. If the inspection reveals that the ship is not equipped with a functioning voyage data recorder, when use of such recorder is compulsory in accordance with Directive 2002/59/EC, the competent authority shall ensure that the ship is detained. If such deficiency cannot be readily rectified in the port of detention, the competent authority may either allow the ship to proceed to the appropriate repair yard nearest to the port of detention where it may be readily rectified or require the deficiency to be rectified within a maximum period of 30 days, as provided for in the guidelines developed by the Paris MOU. For these purposes, the procedures laid down in Article 21 shall apply. 5. In exceptional circumstances, where the overall condition of a ship is obviously substandard, the competent authority may suspend the inspection of that ship until the responsible parties take the steps necessary to ensure that it complies with the relevant requirements of the Conventions. 6. In the event of detention, the competent authority shall immediately inform, in writing and including the report of inspection, the flag State administration or, when this is not possible, the Consul or, in his absence, the nearest diplomatic representative of that State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognised organisations responsible for the issue of classification certificates or statutory certificates in accordance with Conventions shall also be notified where relevant. 7. This Directive shall be without prejudice to the additional requirements of the Conventions concerning notification and reporting procedures related to port State control. 8. When port State control is exercised under this Directive, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue detention or delay the burden of proof shall lie with the owner or operator of the ship. 9. In order to alleviate port congestion, a competent authority may allow a detained ship to be moved to another part of the port if it is safe to do so. However, the risk of port congestion shall not be a consideration when deciding on a detention or on a release from detention. Port authorities or bodies shall cooperate with the competent authority with a view to facilitating the accommodation of detained ships. 10. The port authorities or bodies shall be informed at the earliest convenience when a detention order is issued.
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 19 Rectification and detention):
1. The competent authority shall be satisfied that any deficiencies confirmed or revealed by the inspection are, or will be, rectified in accordance with the Conventions. 2. In the case of deficiencies which are clearly hazardous to safety, health or the environment, the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained or that the operation in the course of which the deficiencies are revealed is stopped. The detention order or stoppage of an operation shall not be lifted until the hazard is removed or until such authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment. 2a. In the case of living and working conditions on board which are clearly hazardous to the safety, health or security of seafarers or deficiencies which constitute a serious or repeated breach of MLC 2006 requirements (including seafarers’ rights), the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained or that the operation in the course of which the deficiencies are revealed is stopped. The detention order or stoppage of an operation shall not be lifted until those deficiencies have been rectified or if the competent authority has accepted a plan of action to rectify those deficiencies and it is satisfied that the plan will be implemented in an expeditious manner. Prior to accepting a plan of action, the inspector may consult the flag State. 3. When exercising his professional judgement as to whether or not a ship is to be detained, the inspector shall apply the criteria set out in Annex X. 4. If the inspection reveals that the ship is not equipped with a functioning voyage data recorder, when use of such recorder is compulsory in accordance with Directive 2002/59/EC, the competent authority shall ensure that the ship is detained. If such deficiency cannot be readily rectified in the port of detention, the competent authority may either allow the ship to proceed to the appropriate repair yard nearest to the port of detention where it may be readily rectified or require the deficiency to be rectified within a maximum period of 30 days, as provided for in the guidelines developed by the Paris MOU. For these purposes, the procedures laid down in Article 21 shall apply. 5. In exceptional circumstances, where the overall condition of a ship is obviously substandard, the competent authority may suspend the inspection of that ship until the responsible parties take the steps necessary to ensure that it complies with the relevant requirements of the Conventions. 6. In the event of detention, the competent authority shall immediately inform, in writing and including the report of inspection, the flag State administration or, when this is not possible, the Consul or, in his absence, the nearest diplomatic representative of that State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognised organisations responsible for the issue of classification certificates or statutory certificates in accordance with Conventions shall also be notified where relevant. Moreover, if a ship is prevented from sailing due to serious or repeated breach of the requirements of MLC 2006 (including seafarers’ rights) or due to the living and working conditions on board being clearly hazardous to the safety, health or security of seafarers, the competent authority shall forthwith notify the flag State accordingly and invite a representative of the flag State to be present, if possible, requesting the flag State to reply within a prescribed deadline. The competent authority shall also inform forthwith the appropriate seafarers’ and shipowners’ organisations in the port State in which the inspection was carried out. 7. This Directive shall be without prejudice to the additional requirements of the Conventions concerning notification and reporting procedures related to port State control. 8. When port State control is exercised under this Directive, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue detention or delay the burden of proof shall lie with the owner or operator of the ship. 9. In order to alleviate port congestion, a competent authority may allow a detained ship to be moved to another part of the port if it is safe to do so. However, the risk of port congestion shall not be a consideration when deciding on a detention or on a release from detention. Port authorities or bodies shall cooperate with the competent authority with a view to facilitating the accommodation of detained ships. 10. The port authorities or bodies shall be informed at the earliest convenience when a detention order is issued.
Article 20 Right of appeal
1. The owner or operator of a ship or his representative in the Member State shall have a right of appeal against detention or refusal of access by the competent authority. An appeal shall not cause the detention or refusal of access to be suspended. 2. Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation. 3. The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal and the practical arrangements relating thereto. 4. When, as a result of an appeal or of a request made by the owner or the operator of a ship or his representative, a detention order or a refusal of access order is revoked or amended: (a) Member States shall ensure that the inspection database is amended accordingly without delay; (b) the Member State where the detention order or refusal of access order is issued shall, within 24 hours of such a decision, ensure that the information published in accordance with Article 26 is rectified.
Article 21 Follow-up to inspections and detentions
1. Where deficiencies referred to in Article 19(2) cannot be rectified in the port of inspection, the competent authority of that Member State may allow the ship concerned to proceed without undue delay to the appropriate repair yard nearest to the port of detention, as chosen by the master and the authorities concerned, where follow-up action can be taken, provided that the conditions determined by the competent authority of the flag State and agreed by that Member State are complied with. Such conditions shall ensure that the ship can proceed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment. 2. Where the decision to send a ship to a repair yard is due to a lack of compliance with IMO Resolution A. 744(18), either with respect to a ship’s documentation or with respect to a ship’s structural failures and deficiencies, the competent authority may require that the necessary thickness measurements be carried out in the port of detention before the ship is allowed to sail. 3. In the circumstances referred to in paragraph 1, the competent authority of the Member State in the port of inspection shall notify the competent authority of the State where the repair yard is situated, the parties mentioned in Article 19(6) and any other authority as appropriate of all the conditions for the voyage. The competent authority of a Member State receiving such notification shall inform the notifying authority of the action taken. 4. Member States shall take measures to ensure that access to any port or anchorage within the Community is refused to ships referred to in paragraph 1 which proceed to sea: (a) without complying with the conditions determined by the competent authority of any Member State in the port of inspection; or (b) which refuse to comply with the applicable requirements of the Conventions by not calling into the indicated repair yard. Such refusal shall be maintained until the owner or operator provides evidence to the satisfaction of the competent authority of the Member State where the ship was found defective, demonstrating that the ship fully complies with all applicable requirements of the Conventions. 5. In the circumstances referred to in paragraph 4(a), the competent authority of the Member State where the ship was found defective shall immediately alert the competent authorities of all the other Member States. In the circumstances referred to in paragraph 4(b), the competent authority of the Member State in which the repair yard lies shall immediately alert the competent authorities of all the other Member States. Before denying entry, the Member State may request consultations with the flag administration of the ship concerned. 6. By way of derogation from the provisions of paragraph 4, access to a specific port or anchorage may be permitted by the relevant authority of that port State in the event of force majeure or overriding safety considerations, or to reduce or minimise the risk of pollution or to have deficiencies rectified, provided that adequate measures to the satisfaction of the competent authority of such Member State have been implemented by the owner, the operator or the master of the ship to ensure safe entry.
Article 22 Professional profile of inspectors
1. Inspections shall be carried out only by inspectors who fulfil the qualification criteria specified in Annex XI and who are authorised to carry out port State control by the competent authority. 2. When the required professional expertise cannot be provided by the competent authority of the port State, the inspector of that competent authority may be assisted by any person with the required expertise. 3. The competent authority, the inspectors carrying out port State control and the persons assisting them shall have no commercial interest either in the port of inspection or in the ships inspected, nor shall the inspectors be employed by, or undertake work on behalf of, non-governmental organisations which issue statutory and classification certificates or which carry out the surveys necessary for the issue of those certificates to ships. 4. Each inspector shall carry a personal document in the form of an identity card issued by his competent authority in accordance with Commission Directive 96/40/EC of 25 June 1996 establishing a common model for an identity card for inspectors carrying out port State control ( 13 ). 5. Member States shall ensure that the competence of inspectors and their compliance with the minimum criteria referred to in Annex XI are verified, before authorising them to carry out inspections and periodically thereafter in the light of the training scheme referred to in paragraph 7. 6. Member States shall ensure that inspectors receive appropriate training in relation to changes to the port State control system applied in the Community as laid down in this Directive and amendments to the Conventions. 7. In cooperation with Member States, the Commission shall develop and promote a harmonised Community scheme for the training and assessment of competences of port State control inspectors by Member States.
Article 23 Reports from pilots and port authorities
1. Member States shall take appropriate measures to ensure that their pilots engaged on the berthing or unberthing of ships or engaged on ships bound for a port or in transit within a Member State immediately inform the competent authority of the port State or the coastal State, as appropriate, whenever they learn in the course of their normal duties that there are apparent anomalies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment. 2. If port authorities or bodies, in the course of their normal duties, learn that a ship within their port has apparent anomalies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, such authority or body shall immediately inform the competent authority of the port State concerned. 3. Member States shall require pilots and port authorities or bodies to report at least the following information, in electronic format whenever possible: — ship information (name, IMO identification number, call sign and flag), — sailing information (last port of call, port of destination), — description of apparent anomalies found on board. 4. Member States shall ensure that proper follow-up action is taken on apparent anomalies notified by pilots and port authorities or bodies and shall record the details of action taken. 5. The Commission may, in accordance with the regulatory procedure referred to in Article 31(2), adopt measures for the implementation of this Article, including a harmonised electronic format and procedures for the reporting of apparent anomalies by pilots and port authorities or bodies and of follow-up action taken by Member States.
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 23 Reports from pilots and port authorities):
1. Member States shall take appropriate measures to ensure that their pilots engaged on the berthing or unberthing of ships or engaged on ships bound for a port or in transit within a Member State immediately inform the competent authority of the port State or the coastal State, as appropriate, whenever they learn in the course of their normal duties that there are apparent anomalies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment. 2. If port authorities or bodies, in the course of their normal duties, learn that a ship within their port has apparent anomalies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, such authority or body shall immediately inform the competent authority of the port State concerned. 3. Member States shall require pilots and port authorities or bodies to report at least the following information, in electronic format whenever possible: — ship information (name, IMO identification number, call sign and flag), — sailing information (last port of call, port of destination), — description of apparent anomalies found on board. 4. Member States shall ensure that proper follow-up action is taken on apparent anomalies notified by pilots and port authorities or bodies and shall record the details of action taken. 5. Implementing powers shall be conferred on the Commission to adopt measures for the implementation of this Article, including harmonised procedures for the reporting of apparent anomalies by pilots and port authorities or bodies and of follow-up actions taken by Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(3).
Article 24 Inspection database
1. The Commission shall develop, maintain and update the inspection database, building upon the expertise and experience under the Paris MOU. The inspection database shall contain all the information required for the implementation of the inspection system set up under this Directive and shall include the functionalities set out in Annex XII. 2. Member States shall take the appropriate measures to ensure that the information on the actual time of arrival and the actual time of departure of any ship calling at their ports and anchorages, together with an identifier of the port concerned, is transferred within a reasonable time to the inspection database through the Community maritime information exchange system ‘SafeSeaNet’ referred to in Article 3(s) of Directive 2002/59/EC. Once they have transferred such information to the inspection database through SafeSeaNet, Member States are exempted from the provision of data in accordance with paragraphs 1.2 and 2(a) and (b) of Annex XIV to this Directive. 3. Member States shall ensure that the information related to inspections performed in accordance with this Directive is transferred to the inspection database as soon as the inspection report is completed or the detention lifted. Within 72 hours, Member States shall ensure that the information transferred to the inspection database is validated for publication purposes. 4. On the basis of the inspection data provided by Member States, the Commission shall be able to retrieve from the inspection database any relevant data concerning the implementation of this Directive, in particular on the risk profile of the ship, on ships’ due for inspections, on ships’ movement data and on the inspection commitments of each Member State. Member States shall have access to all the information recorded in the inspection database which is relevant for implementing the inspection procedures of this Directive. Member States and third signatories to the Paris MOU shall be granted access to any data they have recorded in the inspection database and to data on ships flying their flag.
Article 25 Exchange of information and cooperation
Each Member State shall ensure that its port authorities or bodies and other relevant authorities or bodies provide the competent port State control authority with the following types of information in their possession: — information notified in accordance with Article 9 and Annex III, — information concerning ships which have failed to notify any information according to the requirements of this Directive, and to Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues ( 14 ) and Directive 2002/59/EC, as well as, if appropriate, with Regulation (EC) No 725/2004, — information concerning ships which have proceeded to sea without having complied with Articles 7 or 10 of Directive 2000/59/EC, — information concerning ships which have been denied entry or expelled from port on security grounds, — information on apparent anomalies in accordance with Article 23.
Article 26 Publication of information
The Commission shall make available and maintain on a public website the information on inspections, detentions and refusals of access in accordance with Annex XIII, building upon the expertise and experience under the Paris MOU.
Article 27 Publication of a list of companies with a low and very low performance
The Commission shall establish and publish regularly on a public website information relating to companies whose performance, in view of determining the ship risk profile referred to in Annex I Part I, has been considered as low and very low for a period of three months or more. The Commission shall adopt, in accordance with the regulatory procedure referred to in Article 31(2), the rules for the implementation of this Article, specifying in particular the modalities of the publication.
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 27 Publication of a list of companies with a low and very low performance):
The Commission shall establish and publish regularly on a public website information relating to companies whose performance, in view of determining the ship risk profile referred to in Annex I Part I, has been considered as low and very low for a period of three months or more. Implementing powers shall be conferred on the Commission to establish the detailed arrangements for publication of the information referred to in the first paragraph, the criteria for aggregating the relevant data and the frequency of updates. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(3).
Article 28 Reimbursement of costs
1. Should the inspections referred to in Articles 13 and 14 confirm or reveal deficiencies in relation to the requirements of a Convention warranting the detention of a ship, all costs relating to the inspections in any normal accounting period shall be covered by the shipowner or the operator or by his representative in the port State. 2. All costs relating to inspections carried out by the competent authority of a Member State under the provisions of Articles 16 and 21(4) shall be charged to the owner or operator of the ship. 3. In the case of detention of a ship, all costs relating to the detention in port shall be borne by the owner or operator of the ship. 4. The detention shall not be lifted until full payment is made or a sufficient guarantee is given for reimbursement of the costs.
Article 29 Data to monitor implementation
Member States shall provide the Commission with the information listed in Annex XIV at the intervals stated in that Annex.
Article 30 Monitoring of compliance and performance of Member States
In order to ensure the effective implementation of this Directive and to monitor the overall functioning of the Community’s port State control regime in accordance with Article 2(b)(i) of Regulation (EC) No 1406/2002, the Commission shall collect the necessary information and carry out visits to Member States.
Article 31 Committee procedure
1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) created by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council ( 15 ). 2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months. 3. Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
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 31 Committee):
1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and the Council ( 15 ). That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. Where the committee delivers no opinion on a draft implementing act to be adopted pursuant to Articles 10(3), 23(5) and the second paragraph of Article 27 respectively, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.
Article 32 Amendment procedure
The Commission shall: (a) adapt the Annexes, except Annex I, in order to take into account amendments to Community legislation on maritime safety and security which have entered into force, and the Conventions, international codes and resolutions of relevant international organisations and developments in the Paris MOU; (b) amend the definitions referring to Conventions, international codes and resolutions and Community legislation which are relevant for the purposes of this Directive. Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 31(3). The amendments to the international instruments referred to in Article 2 may be excluded from the scope of this Directive, pursuant to Article 5 of Regulation (EC) No 2099/2002.
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.
Article 33 Implementing rules
When establishing the implementing rules referred to in Articles 8(4), 10(3), 14(4), 15(4), 23(5) and 27 in accordance with the procedures referred to in Article 31(2) and (3), the Commission shall take specific care that these rules take into account the expertise and the experience gained with the inspection system 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 33 Implementing rules):
When establishing the implementing rules referred to in Articles 10(3), 14(4), 15(4), 18a(7), 23(5) and 27 in accordance with the procedures referred to in Article 31(3), the Commission shall take specific care that those rules take into account the expertise and experience gained with the inspection system in the Union and build upon the expertise of the Paris MOU.
Article 34 Penalties
Member States shall lay down a system of penalties for the breach of national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties provided for shall be effective, proportionate and dissuasive.
Article 35 Review
The Commission shall review the implementation of this Directive no later than 30 June 2012. The review will examine, inter alia, the fulfilment of the overall Community inspection commitment laid down in Article 5, the number of port State control inspectors in each Member State, the number of inspections carried out, and the compliance with the annual inspection commitment by each Member State and the implementation of Articles 6, 7 and 8. The Commission shall communicate the findings of the review to the European Parliament and the Council and shall determine on the basis of the review whether it is necessary to propose an amending Directive or further legislation in this area.
Article 36 Implementation and notification
1. Member States shall adopt and publish, by 31 December 2010, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall apply those provisions from 1 January 2011. 2. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated. 3. Member States shall communicate to the Commission the text of the main provisions of national law adopted in the field covered by this Directive. 4. In addition, the Commission shall inform the European Parliament and the Council on a regular basis of progress in the implementation of this Directive within the Member States, in particular with a view to a uniform application of the inspection system in the Community.
Article 37 Repeal
Directive 95/21/EC, as amended by the Directives listed in Annex XV, Part A, is hereby repealed, with effect from 1 January 2011, without prejudice to the obligations of Member States relating to the time limits for transposition into national law of the Directives set out in Annex XV, Part B. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex XVI to this Directive.
Article 38 Entry into force
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union .
Article 39 Addressees
This Directive is addressed to the Member States.