Select Committee on European Scrutiny Thirty-Sixth Report

10 Maritime labour standards




COM(06) 287




COM(06) 288

Commission Communication under Article 138(2) EC on the strengthening of maritime labour standards

Draft Council Decision on authorising Member States to ratify, in the interests of the European Community, the 2006 Consolidated Maritime Labour Convention of the International Labour Organization

Legal base(a) —

(b)Articles 42, 300(2) and 300(3)EC; co-decision; QMV

Document originated(a) and (b) 15 June 2006
Deposited in Parliament(a) 4 July 2006

(b) 29 June 2006

Basis of consideration(a) EM of 14 July 2006

(b) EM of 14 July 2006

Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessment(a) and (b) legally and politically important
Committee's decisionNot cleared; further information requested


10.1 At its 94th (Maritime) Session in Geneva in February of this year the International Labour Organization (ILO) adopted a consolidated maritime labour Convention. This Convention aims to provide a single coherent instrument consolidating the standards of existing international maritime labour conventions and recommendations, as well as fundamental principles found in international labour Conventions, dating back to the 1920s.

10.2 The Convention ensures the right of all seafarers to decent employment, including the right to a safe and secure workplace, fair terms of employment, decent working and living conditions on board ship and to health protection, medical care and welfare measures. The Convention also requires Members to respect as fundamental rights the rights to freedom of association and effective recognition of the right to collective bargaining, and the elimination of forced and compulsory labour, child labour and discrimination. The Convention is intended to replace most ILO measures on maritime labour, and will apply in relation to crews of vessels with a displacement of more than 500 tonnes which are engaged in international voyages or which sail between foreign ports.

10.3 The Convention will institute a system of certification whereby a maritime labour certificate and maritime labour declaration will attest to conformity with the rules of the Convention, unless the contrary is shown. Such certificates will be issued by the flag State once it has verified that the working conditions on board conform to the national rules adopted to give effect to the Convention. The system of certification will also permit port States to check compliance by ships with the requirements of the Convention.

The communication from the Commission

10.4 The communication from the Commission (document (a)) is made under Article 138(2) EC under which the Commission is obliged to consult management and labour on the possible direction of future Community action before submitting proposals in the social policy field. The communication refers to the ILO Convention and notes that the Commission supported this work from the outset and obtained a negotiating mandate from the Council to "act alongside Member States to safeguard the Community acquis during ILO negotiations". The communication states the Commission's view that it is essential to implement the Convention at both Community and national level.

10.5 Whilst welcoming the Convention, the Commission regrets that Member States did not wish to go further under the mandate to explore the possibility of presenting amendments which would have mentioned the role of regional economic interest organisations (i.e. the European Community). The Commission indicates that it was an "absolute priority" to ensure that the Convention was compatible with Community law, particularly in relation to the coordination of social security systems, a matter which the Commission claims to be one of exclusive competence. The Commission notes that a safeguard clause had to be adopted in order to maintain the Community system for coordinating social security systems and argues that a Council Decision authorising ratification of the Convention by the Member States is also required.

10.6 The communication indicates that it will "probably be essential" to adapt the Community provisions directly affected by the ILO Convention (Council Directive 95/21/EC of 19 June 1995 on Port State control and Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of provisions in respect of seafarers hours of work on board ships calling at Community ports). The communication also raises the question of whether Community legislation should be adopted on those areas of the ILO Convention which are not presently covered, or only partly covered, at Community level (such as the regulation of recruitment agencies, or the requirement that an employee possess a signed contract of employment). A further question is raised as to whether the Community should go beyond the minimum standards provided for by the ILO Convention.

10.7 The communication also questions whether there should be a harmonised and legally binding interpretation at Community level of the provisions of the ILO Convention, so as to guarantee a more uniform application of the Convention and to reduce the risks of different interpretations within the European Union. A further issue raised by the communication is whether there should be a structure at Community level to correspond to the "Special Tripartite Committee" of representatives of Governments, shipowners and seafarers under Article XIII of the ILO Convention (and which is to review the operation of the Convention).

The proposed Council Decision

10.8 The proposed Council Decision (document (b)) authorises the Member States to ratify the ILO Convention and instructs them to do so by 31 December 2008. The proposal is made under Article 42 EC and rests on the assertion of exclusive Community competence over the coordination of Member States' social security systems, flowing from the adoption of Regulation 1408/71/EEC of 14 June 1971 (which has now been replaced by Regulation 883/2004/EC). The principles of this Regulation have been extended to third-country nationals by Regulation 859/2003. The Commission also points out in its explanatory memorandum that Articles 13(2)(c) and 14(b) of Regulation 1408/71/EEC make specific provision for seafarers and that Regulation 859/2003 sets out the rules applying to third-country nationals and provides them with the same social security rights as EU nationals when moving within the EU.

10.9 The Commission notes that under the ILO Convention the flag state and the state of residence are responsible for social security coverage, but in different areas, whereas under Community law the flag state is, as a rule, designated as the country whose social security legislation should apply. A saving provision has been included in the ILO Convention to safeguard the precedence of Community law in case the ILO Convention leads to an outcome which differs form the EC rules on the matter.

10.10 The Commission also points to the "substantial Community acquis" deriving from Articles 42, 71, 137 and 138 EC on wide range of issues covered by the ILO Convention states that "shared competence matters affected by the 2006 Convention represent the bulk of the provisions of the text" and that "the Community competence has been exercised inter alia in fields such as working conditions, equality and non-discrimination, health protection, medical care, prevention of accidents, welfare, port state control and enforcement of provisions related to the working hours of seafarers calling at Community ports". The Commission notes that Directive 1995/21/EC on port state control of shipping refers to ILO Convention 73 on the medical examination of seafarers and to ILO Convention 147 on merchant shipping and argues that the substitution of the new ILO Convention for these existing ILO Conventions "has a direct impact on Directive 1995/21".

10.11 Based on these considerations (and on the fact that only States may accede to the ILO Convention, so that the European Community cannot accede as such), the Commission proposes that the Council should authorise those States which are bound by Community rules in this area to ratify the ILO Convention in the interests of the Community.

The Government's view

10.12 In his Explanatory Memorandum on 14 July on the Commission communication (document (a)) the Minister of State for Transport (Dr Stephen Ladyman) explains that the communication contains no specific proposals for legislation but indicates current thinking in the Commission about how it foresees aspects of the implementation of the ILO Convention by the Member States. The Minister notes that the communication invites the views of social partners on whether they wish to enter into negotiations for an agreement to be implemented by means of a Council Decision under Article 139 EC, and that the Commission would prefer the ILO Convention to be implemented in Community law through a social partner agreement under the "European Social Dialogue Process". The Minister comments that this "presents no policy difficulty for the UK" and that there are "acceptable precedents for this approach in the maritime sector, notably in relation to the Working Time Directive".

10.13 In relation to the proposed Council Decision (document (b)) the Minister, after informing us that the Government intends to ratify the ILO Convention, makes the following statement in relation to Community competence in his Explanatory Memorandum of 14 July:

    "Should the Commission propose an EC Directive or Regulation laying down how the Convention was to be implemented by Member States, this would raise questions relating to competence. The measures contained in the Convention are a mixture of those where competence lies with the individual Member States, those where competence is shared and those, in the case of measures pertaining to social security co-ordination between Member States, in respect of seafarers resident in the EU/EAA, where the Community has exclusive competence. Should Member States agree to an EC measure governing areas of competence currently residing with the individual Member States, such matters would subsequently become part of the acquis communautaire. Such a development could also set a precedent for future ILO instruments, including those unrelated to the maritime sector.

    "Furthermore, there is a risk that an EU measure might require the UK to implement parts of the new Convention that are not mandatory, or to implement additional measures which go beyond those contained in the Convention … If such a measure or measures were proposed, there would be a need for close scrutiny of the details at that time."

10.14 The Minister adds that the proposed deadline of 31 December 2008 for ratification of the Convention by Member States could cause difficulties for the UK, since it would take some three years for the necessary steps to be taken, and that this might necessitate the UK arguing for a longer deadline.


10.15 We thank the Minister for his Explanatory Memoranda. In relation to the Commission's communication (document (a)), we note that it envisages possible future measures, and we shall look forward to further information in due course.

10.16 In relation to the proposed Council Decision (document (b)), we are sure that the Minister is right to be cautious on the question of Community competence, in particular on the risk that future measures in relation to the implementation of the ILO Convention might have the result of conferring exclusive external competence on the Community.

10.17 The Minister does not state whether, notwithstanding its concerns over Community competence, the Government supports the proposed draft Council Decision. We therefore invite the Minister to state the Government's position more clearly.

10.18 In this regard, we invite the Minister to consider whether the draft Council Decision could be drafted more clearly so as to distinguish more clearly the fields in which competence is shared from those where it is exclusive. At present, no such distinction is drawn, which might suggest that the Community has competence to direct the Member States to ratify an international convention where competence is shared, or even where competence is enjoyed only by the Member States. We believe that such ambiguity is most undesirable, but we should be grateful for the Minister's views.

10.19 We shall hold the documents under scrutiny pending the Minister's reply.

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