10 Maritime labour standards
| (a)
(27630)
10901/06
COM(06) 287
(b)
(27623)
10900/06
COM(06) 288
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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
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| Legal base | (a) —
(b)Articles 42, 300(2) and 300(3)EC; co-decision; QMV
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| Document originated | (a) and (b) 15 June 2006
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| Deposited in Parliament | (a) 4 July 2006
(b) 29 June 2006
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| Department | Transport |
| Basis of consideration | (a) EM of 14 July 2006
(b) EM of 14 July 2006
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | (a) and (b) legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
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.
Conclusion
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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