10 Safety standards for fishermen
| (35295)
13350/13
COM(13) 595
| Draft Council Decision authorising Member States to sign and/or ratify, the International Convention on Standards of Training, Certification and Watch-keeping for Fishing Vessel Personnel, 1995, of the International Maritime Organisation
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| Legal base | Articles 43(2), 46, 53(1), 62 and 218(6)(a)(v) TFEU; consent; QMV
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| Document originated | 20 August 2013
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| Deposited in Parliament | 11 September 2013
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| Department | Transport
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| Basis of consideration | EM of 3 October 2013
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| Previous Committee Report | None
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| Discussion in Council | Not known
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
10.1 The International Convention on Standards of
Training, Certification and Watch-keeping for Fishing Vessel Personnel,
1995, of the International Maritime Organisation (the STCW(F)
Convention) came into force in October 2012. The Convention introduces,
for the first time, an international standard for the training
and qualifications of fishermen. In brief, the Convention requires
that all fishermen:
· undergo safety training;
· in a management capacity (skippers, officers,
engineer officers and radio operators) in vessels of more than
24 metres in length or with engines of 750 kilowatt propulsion
power or more are suitably qualified;
· must be medically fit; and
· in vessels of more than 24 metres must
have a medical fitness certificate.
10.2 The UK has not ratified the STCW(F) Convention.
If the Government decides to ratify, any certificates issued
to fishermen under the current UK training system before ratification
would automatically become valid under the Convention. The UK
could continue to issue certificates under its current training
system for a period of up to five years to fishermen who started
working at sea before ratification of the Convention.
10.3 Only four Member States, Denmark, Latvia, Lithuania
and Spain, have ratified the Convention so far. Denmark has made
a reservation about whether the Convention should apply to Greenland.
Regulation 7 of the annex to the Convention makes clear that administrations
which have signed up to the Convention should not recognise certificates
issued by an administration that has not signed up.
10.4 The UK currently recognises the training of
all Member States, as required by Directive 2005/36/EC. The purpose
of this Directive is to encourage the freedom of movement of professional
workers within the EU. The Directive:
· applies to EU nationals with professional
qualifications who wish to work in another Member State;
· covers all professions unless they are
covered by separate EU legislation;
· includes sea fishing as a profession,
although it only includes direct references to Germany and the
Netherlands;
· requires Member States to carry out a
comparison of the qualifications and relevant experience of such
jobseekers against the qualifications required by the host Member
State;
· provides for Member States to impose compensatory
measures if they believe that there are substantial differences
between the two sets of qualification; and
· allows for the recognition of professional
qualifications issued by third countries.
The document
10.5 This proposed Decision:
· acknowledges the development of the STCW(F)
Convention;
· encourages Members States to ratify the
Convention; and
· is intended to authorise Member States,
in respect of those parts of the Convention in which the EU has
exclusive competence, to ratify the Convention.
10.6 The reason given for authorising Members States
to ratify the Convention is that the EU asserts exclusive competence
over the parts that relate to mutual recognition of certificates
issued to those working at sea in fishing vessels, as derived
from Directive 2005/36/EC.
10.7 The Commission:
· supports the adoption of the Convention,
believing that its implementation is in the interests of the EU
fishing industry, as set out in the Common Fisheries Policy;
· notes that as fishing is one of the most
dangerous professions to work in, internationally agreed standards
for training and qualifications will make the industry more attractive
by cutting accidents; and
· notes that the Convention contains elements
designed to protect the marine environment, which is an objective
of the Common Fisheries Policy.
10.8 The Commission cannot ratify the Convention
itself and believes that it is in the best interests of the EU
for every Member State to do so. Because of this, the Commission
proposal is intended to encourage any Member States that have
not ratified the Convention to do so by 31 December, requesting
that they also make a reservation acknowledging that EU law relating
to the recognition of professional qualifications applies between
Member States. Where Member States have already ratified the Convention
the proposed Decision would require them to send the Secretary
General of the International Maritime Organisation a statement
acknowledging that EU law takes precedent where there is a conflict
between Member States.
The Government's view
10.9 The former Minister of State, Department for
Transport (Mr Simon Burns) says that, although the draft Decision
is permissive in nature and therefore would impose no legal obligation
on the UK to ratify the Convention, there are two issues about
the claimed legal basis which will require further consideration.
10.10 The Minister explains first that:
· the Commission cites Article 43(2) TFEU
as a legal basis;
· this relates to the establishment of common
organisation of agricultural markets provided for in Article 40(1)
and the other provisions necessary for the pursuit of the objectives
of the Common Agricultural Policy and the Common Fisheries Policy;
and
· whilst the proposed Decision obviously
relates to fishing, it is not clear how the provisions of the
Convention necessarily fall within this Article.
10.11 On the second point the Minister says that:
· the Commission has asserted exclusive
competence over the recognition of professional qualifications,
saying that therefore Member States may not ratify the Convention
without EU authorisation;
· there is no express exclusive competence
in the EU Treaties and this assertion is based on the AETR (the
European Agreement Concerning the Work of Crews of Vehicles Engaged
in International Road Transport) case law of the Court of Justice;
· the Commission recognises that the EU
does not have exclusive competence over all aspects of the Convention
and so in proposed Article 1 it is stated that the authority for
ratification would be only 'for those parts [of the Convention]
falling under the European Union's competence'; and
· the Government considers that the Commission
should identify precisely which parts of the Convention fall under
the EU's exclusive competence and that these should be specified
in the Decision.
10.12 Turning to subsidiarity the Minister says that:
· the Convention could provide an international,
agreed standard of training, however the minimum standards it
sets are at a lower level than those set by the UK;
· its introduction would not improve standards
of safety for fishing vessels operating in UK waters or on board
UK fishing vessels operating in international waters;
· the Commission's view is that the proposal
falls under the exclusive competence of the EU and that therefore
the subsidiarity principle does not fully apply; and
· it is the view of the Government that
as the objective of the Commission is to improve safety by raising
standards of training in EU through the Convention and the standards
set by the Convention are in part lower than those of the UK's
existing national regulations, accordingly this proposal does
not adhere to the principles of proportionality and subsidiarity.
10.13 On the policy implications of the proposal
the Minister says that:
· the Government shares the Commission's
desire to improve safety standards;
· although the Government recognises that
the Commission has competence in the mutual recognition of qualifications,
the Government does not believe, however, that this gives the
Commission competence over the substance of the qualifications;
· before the Government could support the
proposal it would therefore like to seek clarity as to which Articles
of the Convention the Commission believes fall within the exclusive
competence of the EU and which Treaty provisions and secondary
legislation, other than Directive 2005/36/EC, are affected by
the Convention;
· the draft Decision is worded in a permissive
way and does not direct Member States to sign up, which implies
that the Commission is not claiming competency in the main subject
matter of the Convention;
· the first section of the Commission's
explanatory memorandum claims however that the EU, through Directive
2005/36/EC, takes precedence over the Convention;
· this assertion is made in the context
of provision in the Convention which prevents the recognition
of certificates issued by States which are not party to the Convention;
and
· the Government would like further explanation
as to how this could be applied if some Member States do not sign.
10.14 Turning to the implications more specific to
the UK situation the Minister says that:
· the Convention is an attempt to establish
an internationally recognised standard of training for fishermen;
· fishing is important to the UK —
there are over 6,000 fishing vessels on the UK register with over
12,000 fishermen working around its shores;
· fishing is a dangerous occupation —
in 2012, there were 260 accidents involving fishing boats, fifty
serious injuries and nine fishermen died;[53]
· the Government agrees that the Convention
is a good idea and intends to ratify it;
· it has discussed the Convention over a
number of years with representatives of the UK fishing industry
and the training colleges through its involvement with the Fishing
Industry Safety Group (FISG) and directly with the various fishermen's
organisations and the sea fish industry is broadly supportive
of the Convention;
· there is concern that the Convention in
its present form does not go far enough and unless the UK continues
to apply some of the standards of its present training system
on top of the Convention it would be lowering their current standards
of training and compromising safety on UK fishing vessels;
· the Government has worked in partnership
with industry to develop a ten-year strategy aimed at eliminating
preventable deaths which includes enhanced training, and would
like to continue to follow this by maintaining the existing higher
standards than apply under Convention, while taking the opportunity
to work with the International Maritime Organisation to develop
the Convention into a robust agreement;
· if the UK did not ratify the Convention
there would be port State control issues for fishing vessels which
operate outside of UK territorial waters;
· most of the UK's fishing catch is exported
and larger fishing vessels land catch in foreign ports, particularly
South America ¯ if countries where UK ships land fish sign
up to the Convention and the UK does not, their port authorities
could choose to impose fines on the ship owners or refuse entry
to these ships;
· the Government believes that the UK's
current standards of training are an important part of minimising
accidents in the marine environment and that it is justified in
maintaining them even though it means retaining an element of
'gold-plating';
· a major difference between the UK's existing
training programmes and the standards required by the Convention
is that such training applies to all fishermen working as officers
in vessels of over 16.5 metres in length;
· with Convention training standards applying
only to those working in fishing vessels of over 24 metres in
length, those working on smaller vessels are required to complete
only basic safety training;
· 4% of UK fishing vessels are over 24 metres
in length and approximately 6% are between 16.5 metres and 24
metres;
· unless current training standards are
maintained, signing the Convention would reduce the number of
fishermen requiring formal training in navigation and watchkeeping
duties by approximately a half;
· 89% of UK fishing vessels are under 15
metres long and the majority of UK fishermen need basic safety
training and are not affected by the changes;
· the structure of the qualifications in
the Convention differs slightly from the current UK Fishing Qualification;
· the Maritime and Coastguard Agency has
been working with the fishing industry to upgrade training requirements
to meet their needs and has already begun to align training systems
with the Convention requirements; and
· the most significant change within the
Convention is the requirement for all fishermen to be physically
fit and for those sailing in vessels of more than 24 metres in
length to hold a medical fitness certificate and, additionally,
some modifications to UK syllabuses will be required.
10.15 In relation to consultation the Minister tells
us that:
· the Government works in partnership with
the fishing industry and training colleges to develop a safety
culture and revise training regulations to reflect the current
needs of the fishing industry;
· in particular, it works with the FISG,
which exists to encourage the development of safety training and
reduce the accident rate within the industry;
· the FISG includes representatives from
the fishing industry, the International Association of Marine
Institutes, the Maritime and Coastguard Agency, the Group Training
Association and the Sea Fish Industry Association; and
· the FISG has discussed the Convention
and is broadly in favour of its implementation.
Conclusion
10.16 Although we are told that the Government
shares the Commission's desire to improve safety standards in
the fishing industry, we note what appear to be considerable reservations
about the draft Council Decision, at least in its present form.
So, before considering this matter again we should like to hear
about progress in consideration of:
· the use of Article 43(2) TFEU as a
legal base;
· identification of which Articles of
the Convention the Commission believes fall within the exclusive
competence of the EU and which Treaty provisions and secondary
legislation, other than Directive 2005/36/EC, are affected by
the Convention;
· the subsidiarity issue the Government
identifies;
· how non-recognition of certificates
issued by States which are not party to the Convention would work
in relation to a Member State which has not ratified; and
· any further problematic points that
arise in negotiation.
10.17 Meanwhile the document remains under scrutiny.
53 From the UK Sea Fisheries Annual Statistics: http://www.marinemanagement.org.uk/fisheries/statistics/annual.htm Back
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