21 The Maritime Labour Convention,
2006
| (a)
(33794)
8239/12
COM(12) 129
(b)
(33795)
8241/12
COM(12) 134
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Draft Directive amending Council Directive 2009/16/EC on port state control
Draft Directive concerning flag state responsibilities for the enforcement of Council Directive 2009/13/EC implementing the Agreement concluded by the European Community Shipowners' Associations (ECSA) and the European Transport Workers' Federation (ETF) on the Maritime Labour Convention,2006, and amending Directive 1999/63/EC
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| Legal base | Article 100(2) TFEU; co-decision; QMV
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| Department | Transport
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| Basis of consideration | Two Minister's letters of 19 October 2012
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| Previous Committee Report | None
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| Discussion in Council | 29 October 2012
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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BACKGROUND
21.1 The Maritime Labour Convention, 2006 (MLC) was adopted
at the International Labour Conference's 94th (Maritime) Session,
in February 2006. It consolidates and updates over 60 maritime
labour instruments, appertaining to seafarer health and welfare,
adopted by the International Labour Organisation (ILO) since 1920
and is considered a significant step forward in establishing globally
applicable minimum standards for seafarers — such as training,
health and age, employment conditions regarding contracts, working
hours, repatriation and compensation rights, accommodation and
social protection. As an ILO Convention, it represents a tripartite
agreement between governments and social partners.
21.2 Currently the MLC has been ratified by 25 countries representing
over 56% of the world fleet by gross tonnage. Entry into force
of the MLC is dependent on its ratification by at least 30 countries
with a total share in the world gross tonnage of ships of 33%.
It is expected that the MLC will enter into force in 2013.
21.3 Title 5 of the MLC sets out compliance and enforcement
requirements both for flag States and port States. Flag States
that are signatory to the Convention are responsible for ensuring
compliance with the MLC on ships flying their flag (flag State
compliance). Port States that are signatories to the MLC have
the right to undertake inspections of foreign flag ships in their
ports to ensure compliance with the Convention and, where necessary,
take enforcement action (port State control). Port States which
are signatories to the MLC may enforce the standard of the Convention
on ships flying the flag of any State that has not ratified
the Convention — this is known as "no more favourable
treatment". This clause should encourage uniformity in connection
with inspections and effectively contribute to a level playing
field for shipping.
21.4 The MLC is a mixed agreement in the sense that parts
of it fall within the competence of the EU, parts within the shared
competence of the Member States and the EU and a large proportion
within the exclusive competence of the Member States. The EU is
not a member of the ILO and the ILO's constitution does not permit
EU membership. The EU has not therefore been able to be a party
to the MLC. However, it was very supportive of the development
of the MLC and in June 2007 the Transport Council adopted a decision
authorizing Member States to ratify the MLC for those parts falling
within EU competence and exhorting Member States to ratify by
no later than the end of 2010.
21.5 Directive 2009/16/EC, the present Port State Control
Directive, is concerned with the MLC and ILO standards. Under
it:
- ships are targeted for inspection based on risk;
- each ship is awarded a "risk profile" — high,
standard or low;
- the criteria to determine the risk profile is
based on age, ship type, flag state, company performance and inspection
and detention history;
- the risk profile determines the inspection frequency,
with low risk ships enjoying less frequent inspections (every
24-36 months), whilst high risk ships are subject to inspections
every six months;
- certain factors are considered serious enough
to warrant an inspection irrespective of the ship's risk profile,
for example, in cases where ships have been involved in collision,
grounding or stranding, alleged discharge of harmful substances,
or alleged violation of the Collision Regulations — these
are termed "Overriding Factors";
- other less serious factors which could nevertheless
indicate a threat to the safety of the ship and crew or to the
environment, for example ships reported by pilots or relevant
authorities, ships reported by the master, crew or third party
with a legitimate interest in the ship, may warrant inspection
and are termed "Unexpected Factors"; and
- reporting of anomalies by port pilots and deep
sea pilots, who report informally by telephone, fax, and email.
21.6 Directive 2009/13/EC implements the Agreement
on the MLC, concluded on 19 May 2008, between organisations representing
management and labour in the maritime transport sector —
the European Community Shipowners' Association and the European
Transport Workers' Federation. The agreement is not on the entirety
of the MLC, but deals with working conditions and contains provisions
on the health and safety of workers.
21.7 With the draft Directive, document (a),
the Commission proposes amending the existing Port State Control
Directive to take into account the new documents and arrangements
brought in by the MLC. In particular the draft Directive would:
- add ships flagged by a State
that has not ratified one or more conventions, including the MLC,
to the list of "Unexpected Factors"; and
- allow the Commission to establish harmonised
forms for the reporting of anomalies by pilots and port authorities.
21.8 With the draft Directive, document (b),
the Commission proposes that Member States be required to enforce
the provisions of Directive 2009/13/EC. It would also amend Directive
1999/63/EC concerning the agreement on the organisation of working
time for seafarers. The Commission believes that incorporating
the provisions of the MLC into EU law will enhance the attractiveness
of work in the maritime sector for EU seafarers, thus helping
to create more and better jobs and a more even playing field globally
in the interests of all parties involved.
21.9 The draft Directive would require Member
States to put certain measures in place to enforce the social
partners' agreement on the MLC (which agreement Member States
are already required to implement by Directive 2009/13/EC). These
measures include procedures for investigating any well-founded
complaint that a ship that flies its flag does not conform to
the requirements of Directive 2009/13/EC or that there are serious
deficiencies in the shipowners' implementing measures. The investigation
of complaints by the flag state (complementing on board procedures
covered by the social partners agreement) is part of effective
enforcement of MLC standards and is required by the Convention.
21.10 The social partners' agreement, and therefore
this proposal, covers only those aspects of the MLC which fall
within EU competence and which the social partners can undertake
to deliver. Other elements of the MLC (recruitment and placement,
payment of wages, much of the detail of crew accommodation standards,
social security) are outside the scope of Directive 2009/13/EC
and therefore not included in this proposal. It does not operate
to extend competence to the EU where competence does not currently
exist.
21.11 The European Communities (Definition of
Treaties) (Maritime Labour Convention) Order 2009 declares the
Maritime Labour Convention to be a Community Treaty within the
meaning of section 1(2) of the European Communities Act 1972.
The Convention is ancillary to the existing Community Treaties
because it contains matters within the competence of the EU. Those
parts which do not fall within EU competence are ancillary to
the transport and employment provisions of the EU Treaties, in
particular insofar as those provisions promote social protection
and raise the standard of living and employment of seafarers.
21.12 When we considered these two proposals
in April we said that:
- whilst the Government appeared
content with the general thrust of the draft Directive to amend
the Port State Control Directive, document (a), we noted its concerns
about formalised reporting for deep sea pilots and extending the
scope of "Unexpected Factors";
- so we wanted to hear about progress in resolving
these difficulties in negotiation of the proposal before considering
the matter further;
- similarly, the Government would be content with
the draft Directive about enforcement of Directive 2009/13/EC,
document (b), so long as it did not go beyond Commission competence,
Directive 2009/13/EC or the MLC requirements (gold-plating); and
- so we wanted to hear about avoiding this possibility
in negotiation of the proposal before considering this matter
further.[83]
THE
MINISTER'S
LETTERS
21.13 The Parliamentary Under-Secretary of State,
Department for Transport (Stephen Hammond), writes now, in advance
of the Transport Council of 29 October, when the Presidency proposes
adoption of a general approach on both draft Directives. In his
letter about the draft Directive to amend the Port State Control
Directive, document (a), the Minister first tells us that:
- the Commission has taken the
opportunity during negotiations to include two further Conventions,
already incorporated in the Port State Control Regime by the Paris
MOU,[84] — the
International Convention on the Control of Harmful Anti-fouling
Systems on Ships 2001 (AFS 2001) and International Convention
on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers
Convention, 2001); and
- Member States are content with this change.
21.14 Turning to the two points of concern on
this draft Directive, the Minister reports on the first of these,
the proposal to include non-ratification of a Convention as an
"unexpected factor", which would automatically give
a ship a Priority II status, requiring its inspection by a port
State, he says that:
- the Government objected to
this because it would undermine the prioritisation of inspections
to target sub-standard ships, by bringing to bear the flag State's
ratification status;
- following significant opposition from a number
of Member States, this provision has been dropped, and will not
be included in the general approach; but
- the Commission has signalled its continuing support
for the measure, and the Government will remain alert to ensure
that it is not re-introduced at a later stage.
21.15 On the second issue, introduction of a
requirement for pilot reporting, the Minister says that following
negotiations the text has been amended to remove reference to
"electronic" reporting and other minor changes (thus
no longer formalising reporting) which the Government can now
accept.
21.16 The Minister also tells us that:
- during recent negotiations
on the draft Directive, a Member State made a proposal for an
additional paragraph to prevent a Member State carrying out Port
State Control against a Convention that they have not themselves
ratified, and by implication, implemented as a Flag State;
- the Government supported the principle, which
is well established in international practice and in the Guidelines
of the Paris MOU on Port State Control;
- there was strong opposition from a few Member
States and from the Commission on the grounds that this could
introduce unfair competition between the ports of ratifying and
non-ratifying Member States and even provide an incentive to Member
States to delay ratification of major Conventions;
- the arguments highlighted the lack of clarity,
unfortunately implicit in the existing Port State Control Directive,
between the powers of a Member State to enforce EU law on ships
visiting their ports, and wider issues of ratification of international
Conventions, some of which extend into areas where the EU has
no competence;
- this has only become obvious now because it is
proposed to add a further Convention to the scope of the Directive
which is not yet in force and which not all Member States have
yet ratified;
- the Government and another Member State collaborated
on a compromise text, which was successful in securing agreement
from all Member States and the Commission; and
- this recognises the principle that a Member State
should only carry out Port State Control in respect of international
requirements that they have implemented and therefore exhorts
Member States to implement international Conventions before they
come into force internationally.
21.17 The Minister concludes that following intense
discussion the Government is satisfied with the terms of the general
approach and that the proposed Directive will not require the
UK to make any substantive changes to its proposed implementation
of the provisions of the MLC on port State responsibilities.
21.18 In his second letter, about the draft Directive
on enforcement of Directive 2009/13/EC, document (b), the Minister
says that:
- the Government was concerned
to ensure that the Flag State Directive should not extend into
areas beyond EU competence, by seeking to force Member States
to ratify the whole MLC, which includes matters of EU competence,
matters of shared competence and matters of Member State competence;
- the initial proposal did not present competence
concerns because it did not refer directly to the MLC (which includes
matters outside EU competence) but referred instead to the enforcement
of Directive 2009/13/EC;
- subsequent text put forward during negotiations
did refer to the MLC directly, principally because of the argument
that it would not be possible for a new Directive under Article
100 TFEU to contain enforcement measures in respect of Directive
2009/13/EC, which was made under (what is now) Article 155 TFEU;
however, the competence concerns described to us
previously have been dealt with by further amendments made during
negotiations to make clear that the requirement to enforce MLC
provisions would relate only to those provisions of the MLC covered
by Directive 2009/13/EC (that is, those within competence);
- the potential treaty base issue was addressed
by making explicit that the purpose of the draft Directive was
to enforce those (within competence) provisions of the MLC, not
the provisions of the social partners' agreement annexed to Directive
2009/13/EC, even though in substance there is a close relationship
between them;
- the Government is satisfied that these amendments
continue to support its position that the draft Directive must
not extend into areas beyond EU competence.
21.19 Turning to the issue of ensuring that the
proposed Directive would not impose any additional requirements
over and above the MLC itself (gold-plating) the Minister says
that:
- the Government, with like-minded
Member States, successfully resisted an attempt during negotiations
to prevent Member States using the flexibility provided by the
MLC to treat small vessels (under 200 gross tonnes) operating
on domestic voyages differently as regards the mandatory standards
in the MLC Code;
- this issue arose because this flexibility is
not referred to in the social partners' agreement or Directive
2009/13/EC and the Commission and a very small number of Member
States argued that it had therefore been superseded;
- the Government has been advised, however, by
UK social partners that the provision was not included because
their understanding was that it fell outside the scope of the
social partners' agreement;
- the argument about the proper interpretation
of the social partners' agreement may go on; but
- as regards this proposed Directive the Government
is pleased to have secured a clear statement in the text that
the power to derogate remains available to it.
21.20 The Minister concludes that the Government
believes that the proposed general approach represents a satisfactory
outcome for the UK and will not require it to make any substantive
changes to its proposed implementation of the provisions of the
MLC on flag State responsibilities.
CONCLUSION
21.21 We note that:
- the Government has secured
improvements to these draft Directives which meet the concerns
mentioned to us previously;
- inclusion of further Conventions covered by the
draft Directive on Port State Control is acceptable to Member
States; and
- the new issue of Port State Control in relation
to Conventions which a Member State has not itself implemented
has been resolved satisfactorily.
21.22 On that basis we now clear the documents.
83 See headnote. Back
84
The Paris MOU organization
consists of 27 participating
maritime administrations and covers the waters of the European
coastal States and the North Atlantic basin from North America
to Europe: see http://www.parismou.org/ Back
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