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C 337 E/214

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Official Journal of the European Communities

28.11.2000

Amended proposal for a directive of the European Parliament and of the Council on manning conditions for regular passenger and ferry services operating between Member States ( 1 )

(2000/C 337 E/35)

(Text with EEA relevance)

COM(2000) 437 final 1998/0159(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 13 July 2000)

( 1 ) OJ C 213, 9.7.1998, p. 17.

INITIAL PROPOSAL

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 84(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee ( 1 ),

Acting in accordance with the procedure laid down in Article 189c of the Treaty, in cooperation with the European Parliament ( 2 ),

Whereas:

(1) Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries ( 3 ), as amended by Regulation (EEC) No 3573/90 ( 4 ), has rendered all the Treaty rules governing the freedom to provide services applicable to the sphere of maritime transport between Member States.

(2) Manning conditions for the provision of services in regular passenger and ferry services between Member States are normally the responsibility of the State of regis- tration of the vessel (the flag State ). The Rome Convention on the law applicable to contractual obli- gations ( 5 ) allows for other arrangements. Community interests and the interests of Member States between whose territories such services are provided also have to be taken into account.

( 1 ) OJ C 40, 15.2.1999, p. 3. ( 2 ) OJ C 175, 21.6.1999, p. 440. ( 3 ) OJ L 378, 31.12.1986, p. 1. ( 4 ) OJ L 353, 17.12.1990, p. 16. ( 5 ) OJ L 266, 9.10.1980, p. 1; consolidated version (OJ C 27, 26.1.1998, p. 34).

AMENDED PROPOSAL

THE

EUROPEAN UNION,

EUROPEAN

PARLIAMENT

AND

THE

COUNCIL

OF

THE

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

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The Committee for the Regions having failed to deliver an opinion within the time limit laid down by the Council,

Acting in accordance with the procedure laid down in Article 251 of the Treaty ( 2 ),

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( 2 ) OJ C 175, 21.6.1999 p. 440.

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Official Journal of the European Communities

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INITIAL PROPOSAL

(3) The principle that shipping companies established outside the Community should not receive more favourable treatment than shipping companies established in the territory of aMember State should be upheld.

(5) The special characteristics of the market for regular passenger and ferry services between Member States call for measures to ensure the proper functioning of the single market by guaranteeting that the terms and conditions of employment of seafaring personnel will be in line with the level of social standards generally applicable in the Community.

(6) In accordance with the principles of subsidiarity and proportionality as set out in Article 3 B of the Treaty, the objective of the proposed measures, namely to lay down rules on the working conditions of third country nationals employed on ferries operating between Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of scale and effects of the provisions required, be better achieved by the Community. This Directive confines itself to the minimum required in order to achieve that objective and does not go beyond what is necessary for that purpose.

(7) It is appropriate to require that third country nationals employed within the abovementioned sectors shall not be treated less favourably than Community residents.

(8) It is appropriate that Member States may provide for a derogation from the obligation to treat third country seafarers as Community residents on regular passenger and ferry services between Member States for labour contracts of an extremely short duration or in the event of an acute shortage of ferry capacity due to unforeseen circumstances.

(9) The competent bodies in the various Member States should cooperate with each other in the application of this Directive.

(10) Each Member State should determine the penalties to be imposed in the event of abreach of the provisions adopted for the implementation of this Directive,

AMENDED PROPOSAL

(4) The scope of this Directive should be restricted to regular passenger and ferry services, including mixed passenger/cargo services, and should therefore exclude regular cargo services, including those operated by vessels capable of carrying more than 12 drivers.

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(6) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objective of the proposed measures, namely to lay down rules on the working conditions of third country nationals employed on ferries operating between Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of scale and effects of the provisions required, be better achieved by the Community. This Directive confines itself to the minimum required in order to achieve that objective and does not go beyond what is necessary for that purpose.

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C 337 E/216

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Official Journal of the European Communities

28.11.2000

INITIAL PROPOSAL

ADOPTED THIS DIRECTIVE:

Article 1

1. This Directive shall apply to nationals of Member States

and to shipping companies established in a Member State which provide regular passenger and ferry services, including mixed passenger/cargo services, between ports situated in different Member States.

2. The provisions of this Directive shall also apply to

nationals of a Member State established outside the Community and to shipping companies established outside the Community and controlled by nationals of a Member State, providing the services referred to in paragraph 1, if their vessels are registered, and fly its flag, in that Member State in accordance with its legislation.

3. This Directive shall apply to the extent that the nationals

and shipping companies referred to in paragraphs 1 and 2 employ third-country nationals on board the vessels used for the services referred to under paragraph 1.

4. Shipping companies established outside the Community,

other than those referred to in paragraph 2, shall not be given more favourable treatment than the nationals and shipping

companies referred to in paragraphs 1 and 2.

AMENDED PROPOSAL

HAVE ADOPTED THIS DIRECTIVE:

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Article 1a

For the purposes of this Directive:

1. passenger service means a maritime transport service carried out by a passenger vessel;

2. regular service means a series of sailings organised in such a way as to provide a service linking the same two ports or others,

(i) either on the basis of a published timetable

(ii) or with a regularity or frequency such as to constitute a recognisable systematic service;

3. passenger vessel means a seagoing vessel which carries more than twelve passengers. This includes high-speed craft and vessels or craft carrying both passengers and cargo. This excludes vessels carrying only cargo;

4. passenger means any person except:

(i) the captain and the members of

the crew or other

persons employed or occupied, in whatever capacity, on board a vessel for the requirements of that vessel

(ii) children under the age of one

and

(iii) drivers or co-drivers of commercial road or rail vehicles who travel with their vehicles in their professional capacity;

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INITIAL PROPOSAL

Article 2

1. Member States shall ensure that, whatever the law

applicable to the employment relationship, the nationals and shipping companies referred to in Article 1(1) and (2), operating regular passenger and ferry services between Member States shall guarantee third-country nationals employed on board ships used for such services, the terms and conditions of employment as laid down:

(a)

by law, regulation or administrative provision, and/or

(b)

by collective agreements or arbitration awards which have been declared universally applicable insofar as they apply to the activities referred to in Article 1(1),

which are applicable to the residents of the Member State of registration of the vessel.

2. If the vessel used is not registered in aMember State, the

terms and conditions referred to in paragraph 1 shall be those applicable to the residents of one of the Member States between whose ports the service is provided and with which the service has the closest connection. The closest connection shall be determined on the basis of the place from which the service is effectively managed and of the place of residence of the seafarers concerned.

3. The terms and conditions of employment referred to in

paragraph 1 shall cover the following matters:

(a)

maximum work periods and minimum rest periods;

(b)

minimum annual paid holiday;

(c)

the minimum rates of pay, including overtime rates;

(d)

health, safety and hygiene at work;

(e)

protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;

(f)

equality of treatment for men and women and other provisions on non-discrimination;

(g)

measures for the repatriation of seafarers and the payment of outstanding salary and social contributions in the event of the insolvency of their employer.

4.

Paragraphs 1, 2 and 3 shall not prevent the application of

terms and conditions of employment which are more

favourable to workers.

AMENDED PROPOSAL

5. collective agreements or arbitration awards which have been declared universally applicable means those collective agreements and arbitration awards which are to be observed by all shipping companies concerned at national level.

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2. If the vessel used is not registered in aMember State, the

terms and conditions referred to in paragraph 1 shall be those applicable to the residents of one of the Member States between whose ports the service is provided and with which the service has the closest connection. The closest connection shall be determined on the basis of the place from which the service is effectively managed.

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Official Journal of the European Communities

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INITIAL PROPOSAL

AMENDED PROPOSAL

5.

Collective agreements or arbitration awards which have

 

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been declared universally applicable means those which are to

 

be

observed by all shipping companies concerned at national

level.

 

In

the absence of a system for declaring collective agreements

 

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or arbitration awards to be universally applicable, Member

 

States shall base themselves on:

(a) collective agreements or arbitration awards which are generally applicable to all shipping companies as referred to in Article 1(1) and (2), and/or

(b) collective agreements which have been concluded by the most representative employers’ and labour organisations in the relevant markets at national level.

The second subparagraph shall be subject to the condition that the application of those agreements or awards to the shipping companies referred to in Article 1(1) and (2) ensures equality of treatment on matters listed in paragraph 3 of this Article between all shipping companies concerned.

 

Deleted

Article 3

1. Member States may, after consulting employers and

labour, and in accordance with the traditions and practice of each Member State, decide not to apply the provisions of points (b) and (c) of Article 2(3), when the length of the employment period of the third country nationals does not exceed one month within any twelve-month period.

2. Member States may grant for a period of two months a

derogation from points (b) and (c) of Article 2(3), to a provider of services as referred to under Article 1(1) for vessels chartered in to compensate for an acute shortage of capacity

on a ferry route which has arisen owing to unforeseen circum-

stances. For derogations exceeding two months, prior author- isation by the Commission shall be required.

3. Member States shall inform the Commission without

delay of derogations pursuant to paragraph 2 and of the circumstances on which they are based.

Article 4

1. For the purpose of implementing this Directive, Member

States shall, in accordance with national legislation and/or practice, designate one or more liaison officers or one or

more competent national bodies.

6. Where one of the terms and conditions referred to in this

article is governed simultaneously by the applicable law and collective agreements and the latter provide for more favourable terms and conditions, the flag Member State or, where appropriate, the Member State of the closest connection within the meaning of Article 2(2), shall ensure that shipping companies operating regular passenger services as defined by Article 1(a) apply those terms and conditions to seafarers who are third-country nationals.

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INITIAL PROPOSAL

2. Member States shall adopt provisions for cooperation

between the public authorities which, under national legis- lation, are responsible for monitoring the terms and conditions of employment referred to in Article 2.

Mutual administrative assistance shall be provided free of charge.

3. Each Member State shall notify the other Member States

and the Commission of the liaison officers and/or competent bodies referred to in paragraph 1.

Article 5

Member States shall determine the penalties applicable to infringements of the national provisions implementing this Directive and shall take all measures necessary to ensure that those provisions are enforced. The penalties thus laid down shall be effective, proportionate and dissuasive. Member States shall notify the provisions to the Commission by the date mentioned in Article 6 and shall notify it of any subsequent amendments to them without delay.

Article 6

Member States shall adopt the laws, regulations and adminis- trative provisions necessary to comply with this Directive by 30 June 1999 at the latest. They shall forthwith inform the Commission thereof.

They shall apply those provisions with effect from 1 January

2000.

When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

Article 7

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 8

This Directive is addressed to the Member States.

AMENDED PROPOSAL

Article 5

The flag Member State or, where appropriate, the Member State of the closest connection within the meaning of Article 2(2) shall ensure that the shipowners concerned apply to third- country nationals working on board their vessels the terms and conditions of employment applicable to seafarers resident in that State.

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Where the service concerns Member States other than the flag Member States, the maritime authorities of the Member States concerned shall cooperate to ensure compliance with this article, under the conditions laid down in Article 4.

Article 6

Member States shall adopt the laws, regulations and adminis- trative provisions necessary to comply with this Directive within twelve months of its entry into force. They shall forthwith inform the Commission thereof.

They shall apply those provisions no later than 18 months after the entry into force of this Directive.

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Article 6a

The Commission shall submit to the Council and to the European Parliament, in good time, a report on the implemen- tation of this Directive as well as, where appropriate, any proposal deemed necessary.

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