Reassessing the regulatory social framework for more and better seafaring jobs in the EU

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1 Rue du Midi 165 B-1000 Brussels Telephone Fax etf@etf-europe.org European Transport Workers Federation Fédération Européenne des Travailleurs des Transports Europäische Transportarbeiter-Föderation Federación Europea de los Trabajadores del Transporte Reassessing the regulatory social framework for more and better seafaring jobs in the EU ETF response to the first phase consultation of the Social Partners at Community level The European Transport Workers' Federation (ETF) represents more than 2.5 million transport workers from 223 transport unions and 40 European countries, in the following sectors: railways, road transport, maritime transport, inland navigation, civil aviation, ports & docks, tourism and fisheries. The ETF is the recognised social partner in six European Sectoral Social Dialogue Committees including those for Sea Transport and for Maritime Fisheries. 1

2 General considerations In its Communication, the Commission clearly states that the seafaring profession suffers from a lower protection under EU law and comes to the conclusion that a close re-examination of current legislation is considered opportune and this, in an attempt to find effective solutions to face the increasing shortage of qualified staff to man European vessels. The ETF welcomes the initiative launched by the Commission in this respect, although we do not agree entirely with the above-mentioned statement. ETF has reiterated in many occasions that the number of Europeans embarking in a maritime career particularly the young workers is continuously and progressively decreasing. As for ratings, the cause of the decline in EU seafarers is not to be found on the supply side. Seafarers are prevented from embarking on maritime career because management tends to favour the employment of cheap workers third country nationals in most cases with a view to reduce the manning costs. The inclusion of seafaring professions within the general scope of application of relevant directives is definitely a step in the right direction which could encourage the motivation of current employed workers and give more incentives to young Europeans to initiate a career at sea. However, this inclusion alone is unlikely to address properly the dramatic employment crisis affecting EU seagoing workers as the Commission pretends to believe naïvely. As stated in its initial statement on the Commission s proposed integrated Maritime Policy 1, the ETF deplores that the crucial factors likely to lever up the increase in the number of seafarers have been ignored by the Commission. Amongst them there are: the need to put an end to the discrimination on pay rates suffered by seafarers on the basis of the residence/nationality criteria; the elimination of Flags of Convenience (FOCs) tonnage so as to achieve the re-flagging of EU controlled tonnage back to EU flag, manned by EU nationals; the lack of a proposal on a new regulatory framework to protect and enhance EU seafarers jobs following the withdrawal of the proposed Manning directive in 2004; the passivity of the Commission which allows the tonnage tax regime to be opened to FOCs and substandard shipping where nearly no EU nationals are employed; and also the unacceptable tolerance towards second registers which are used by major shipping companies to minimize their costs by lowering standards and escape from their obligations coming from national and international legislation while discouraging the recruitment of EU nationals and preventing seafarers from exercising their collective and individual rights. In ETF views, the only way to make the maritime sector more attractive to job seekers, to ensure more job opportunities and the improvement of living and working conditions at sea is to address seriously the above-mentioned challenges. The ETF would also like to reiterate its concerns for the misuse of the State Aid Guidelines (SAG) for the Maritime Transport; ETF believes that the EU should make a better response to EU taxpayers, who expect to see employment opportunities for EU seafarers encouraged in return for tax advantages. State Aids aim at supporting Member States fleets and are supposed to be granted provided that EU nationals are on board. This is not always the case, because there is no real mechanism to ensure that EU money is invested in employing EU 1 Is the Commission s Maritime Package An ocean of possibilities or An ocean of deceptions? - an initial ETF statement on the set of measures on an Integrated Maritime Policy for the European Union put forward by the European Commission on 10 October

3 nationals. In ETF s view, active measures to increase the number of EU seafarers aboard will contribute to multiply the positive effects of allowing the full inclusion of seafarers into the scope of labour directives and the revision of SAG are one of these policy measures that should accompany the current reassessment of the regulatory framework for seagoing jobs Besides, the ETF would like to make clear that Seafarers representatives do not share the Commission s statement affirming that an appropriate level of protection for seafarers by EU community law should not undermine the competitiveness of EU maritime sectors. ETF opposes the idea that the competitiveness argument be used as an excuse to justify any future resistance to the complete removal of the current exclusions which affect seagoing workers. International competition has been used too long to justify any attempts to invest in the human factor. ETF points out that one of the most competitive factors of the EU maritime industry is the high level of qualification of its workers. In fact, by providing an adequate and better protection for seagoing jobs, the industry can avoid having to face shortages of skilled personnel and the number of candidates might even exceed those on offer. ETF supports competition but, that is, fair competition within a legally compliant industry which offers terms and conditions of employment fit for a 21 st Century workforce. If radical steps are not taken to redress the situation, there will be a further lurch towards the use of FOCs; lower pay and poorer working conditions; short-cuts on Health and Safety. As a result, there will be a terminal decline in the number of EU nationals entering the industry and the maritime cluster, unless the regulatory regime is tightened. Not only are there compelling economic reasons to extend the concerned Directives to the maritime sector: the EU has arguably the most sophisticated anti-discrimination framework in the world, yet it chooses to exclude or allow derogations from employment and social protection legislation to a vast number of workers in this crucial sector. As for the ETF and the Trade-union national organizations it represents, this flies in the face of some of the most important equality principles of the EC Treaty. The responses to the questions below explain the reasons why the ETF calls in favour of a full inclusion of seagoing workers into the scope of the directives concerned. 1. Do you share the Commission s analysis of the justifications for the exclusions and derogations from EU labour legislation concerning seafaring professions? Broadly speaking, the ETF supports the general approach of the Commission in terms of the legislation listed within the consultation exercise, and the move toward the attempt to bring the EU shipping and fisheries industries in line with shore based industries. However, the ETF does not share entirely the Commission s analysis of the justifications for the exclusions and derogations concerning seafaring professions, and therefore feels the need to complement, deepen or sometimes contradict what it is stated in this Communication when deemed necessary. As a general comment, it is worth noting that for those directives which give Member States the option to introduce exclusions in their national legislation 3

4 when transposing directives 2, a significant majority of Member States, and in particular those with a strong maritime interest, make no use of the exclusion possibilities. This tends to prove that the opting-out possibility is extremely questionable and that the exclusions are not really justified. Besides, the full removal of the current exclusions would allow uniformity in the way the European law is transposed and implemented in all the Member States. Council Directive 2002/74/EC Protection of employees in the event of the insolvency of their employer Article 1(2) allows Member States to exclude claims by certain categories of employees from its scope to the extent that other forms of guarantee exist which provide adequate protection for employees in the event of the insolvency of their employers. As mentioned by the Commission, only six Member States used exclusion possibilities under Article 1(2) regarding seafaring professions. But we know that at least in one of these Member States, there are significant exemptions applied to the maritime sector by the implementing legislation, and there is no degree of protection equivalent to the measures set down in the Directive. For example, in the United-Kingdom, there are four important rights from which merchant seamen are excluded: payments of employers debts out of the National Insurance Fund, for instance; arrears of pay (maximum 8 weeks); notice pay; holiday pay (maximum 6 weeks), and basic award for unfair dismissal. In the event of insolvency of the employer, there are very serious difficulties of enforcing the maritime lien and the UK for instance does not provide adequate protection for employees as is required by the Community Directive. Besides, the ETF is of the view that very little is done in terms of checking the extent to which Member States have supposed to have enacted other but equivalent levels of protection. Against this background, the ETF affirms that there is simply no good reason why seamen should be excluded from the scope of the Directive 2002/74/EC. Seafarers should have access to the employment tribunal system in respect of the above-mentioned matters. The rationale stated above is also valid for fishermen, also in the light of the peculiar remuneration system that is in place in some fisheries of some member states. Council Directive 94/45/EC European Works Councils (EWC) Article 1(5) of this Directive states that: Member States may provide that this Directive shall not apply to merchant navy crews. ETF disagrees with the Commission when it suggests that one possible option is to change the existing possibility of exclusion into an authorisation to adapt the national provisions to the specific situation of merchant navy crews, particularly long-haul crew members 3. On the contrary, we believe Member States should not be given a general discretion to exclude the provisions of this Directive from the maritime sector just because it may be more difficult to bring crews and management together. ETF supports the removal of this exemption for the three reasons given in the Communication, being: (i) the highly internationalised workforce needs transnational information and consultation procedures; 2 European Works Council Directive, the Directive on information and consultation, the Directive on protection of employees in case of insolvency 3 We believe long-haul crew members is not entirely appropriate. Deep sea crew members would be a proper way of referring to the seafarers who are not ferry workers or persons not normally working on voyages of duration of less than 48 hours. 4

5 (ii) the majority of the Member States make no use of the option to exclude merchant navy crews; (iii) the provisions of the Directive are flexible (the information and consultation mechanism are negotiated in order to adapt them to company characteristics). Having said that, there are other reasons as to why the exclusion should be removed. Any obstacles resulting from being outside the jurisdiction are easily surmountable through today s sophisticated electronic and satellite communication systems onboard ships and at foreign ports, which enable contact by and telephone. Directive 2002/14/EC Information and Consultation Article 3(3) states that Member States may derogate from this Directive through particular provisions applicable to the crews of vessels plying the high seas. ETF agrees with the Commission s view that the Directive does not grant Member States an unconditional discretion to exclude its provisions from the maritime sector, but they may derogate from this Directive through particular provisions of an equivalent level of protection. This implies that there must be equivalent provisions across an entire sector, which is not always the case, as far as we know. There is the case where the application of the national regulation has been limited to the ferry sector, and has completely excluded deep-sea crew members. Instead of examining the legal conformity of the provisions implemented pursuant to this Directive by the Member States which have made use of the option under Article 3(3), the ETF would rather encourage the Commission to put all EU Member States on an equal footing by removing the possibility to introduce equivalent level of protection. ETF sees this as a matter of principle. Besides, ETF shares the Commission view that a highly internationalised workforce such as workers at sea, does need an information and consultation procedure such as it is put in place for land based companies. The justification used at the time of the adoption of such directives, that seagoing workers spend too much time away from the place of consultation is seen as irrelevant. For similar reasons to those regarding Directive 94/45/EC, the sophistication in the communication methods on board and in foreign ports through information and communication technologies and the use of and telephone enables sea workers to overcome potential difficulties arising from serving on a vessel plying in the high seas. In addition, short sea shipping and maritime passenger trade such as Ferry services in European waters cover shorter distances and thus allow seafarers to shore leave more regularly than deep sea voyages. Due to those reasons, consultation and notification requirements are in no way incompatible with the special nature of the contract of employment relationship of sea-going vessels, and as a consequence, any exclusion in this respect should be considered as unjustified. The same rationale stated above applies also to employed fishermen employed in high-sea fisheries. As for the small-scale, coastal fisheries, the situation can be easily compared to that of workers employed onboard ferries. Council Directive 98/59/EC - Collective redundancies Article 1(2)(c) states that this Directive will not apply to the crews of seagoing vessels. For similar reasons given in relation to the EWC and Information and Consultation Directives, ETF is of the view that this Directive should apply to the maritime and fisheries sectors within the EU. ETF believes that EU Directives 5

6 should apply to the crews of all ships and fishing vessels registered in a Member State, regardless where they operate. The domestic base of seafarers is the country of domicile, and it would be unfair to consider the majority of those residing in EU countries are not available for consultation. What is more, the flag country law is applicable on board merchant ships and fishing vessels Further, the sophistication in communication methods (as referred to in our comments above in relation to the Directives on Information and Consultation and on EWC) enables all seafarers to take part in the collective consultation process. Due to those reasons, ETF agrees with the Commission s views that the information, consultation and notification requirements are in no way incompatible with the special nature of the contract of employment or employment relationships of sea-going vessels and that the exclusion is unjustified. Council Directive 2001//23/EC Transfer of undertakings Article 1(3) states: This Directive shall not apply to seagoing vessels. ETF supports the application of this Directive to the entire maritime and fisheries sectors, there being no impediment to the inclusion of seafarers. It provides important protections so that workers can keep their jobs after there is a transfer of a business. This is not incompatible with employment contracts or relationships in the maritime and fisheries sectors. Although there are information and consultation provisions within this Directive these can, as the Commission proposes, be dealt with in a way which is consistent with the methods to be adopted in respect of the Collective Redundancies and Information and Consultation Directives, with ETF noting again the sophisticated channels of communication which enable participation. The Unions note that the main benefit in this Directive for employees is their right to keep their jobs after a business transfer, with the information and consultation provisions within this Directive only being ancillary to that end. As has been noted, there are no difficulties in complying with the information and consultation provisions; therefore there is no basis on which to exclude the job transfer provisions from seafarers. ETF is also concerned by the continued liberalisation and privatisation of the transport sector and in particular in the specific case, as regards the lifelong ferry services in mainland and island cabotage. The gradual implementation of the regulation applying the principle of freedom to provide services to maritime transport within Member States imposed for a number of services the obligation to go through a public tender or concessions. ETF was informed by the European Commission that the directive on transfer of undertakings does not apply to situations of call for tenders, therefore the replacement of a service provider by a new one due to a process of tendering brings a lot of uncertainty and insecurity for workers as there is no obligation on the new employer to keep the previous workforce. The ETF believes the only solution is to expand the scope of the directive 2001/23 as to ensure the protection of jobs for those workers involved in a tendering process and the safeguarding of rights and obligations arising from the previous employment relationships and agreed in a collective bargaining agreement (and as prescribed by directive 2001/23). Directive 96/71/EC Posting of workers Article 2(1) of the Directive states that: This Directive shall not apply to merchant navy undertakings as regards seagoing personnel. ETF disagrees with the argument used by the Commission for justifying the exclusion of seagoing personnel in view of the specific nature of the itinerant work done by this group of workers and the practical difficulties associated with monitoring them. The argument of itinerancy should not be used abusively as a mean to discourage the inclusion of seafarers into the scope of the Directive 6

7 under consideration. ETF acknowledges that workers who are carrying out a work on a vessel do not serve under the territory of any Member State; they are rather regulated under the flag of the vessel. And the itinerancy does not prevent any worker to benefit from a definite regulation, possibly the one of an EU Member State. The effect (even if this be described as an indirect effect 4 ) of the Directive on posted workers is to make it unlawful to discriminate on the grounds of nationality on pay and working conditions. However, this protection is generally enjoyed by all sectors except seagoing personnel. Furthermore, it is precisely the absence of such anti-discriminatory provisions which could be applied in the maritime sector which enables operators to exploit EU seafarers on the basis of employment costs. This directive was thought by legislators to prevent discrimination in other industries; therefore ETF does not see any justification to treat seafarers on a different basis. The ETF highlights that a review of the scope of this Directive should explore ways in which its provisions could be applied to a maximum extent within the maritime sector, and as a minimum, to intra EU maritime activities like the ferry sector. Furthermore, the ETF considers the statement by the Commission, namely that the exclusion of these undertakings from the scope of the Directive does not exempt seagoing personnel from the application of the rules of private international law (Rome Convention) as totally unsatisfactory. Article 6 paragraphs 2 (a) and (b) of the Rome Convention states that a contract of employment shall be governed: (a) by the law of the country in which the employee habitually carries out is work in performance of the contract, even if is temporarily employed in another country; or (b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which was engaged is situated; It is worth noting that paragraph (b) of the above-mentioned article would have the opposite effect from that which the Posting of workers Directive is supposed to achieve. Thus, by referring to the Rome Convention provisions, the Commission justifies the use of the principle of the country of origin and enables operators, once again, to exploit EU seafarers on the basis of employment costs, while justifying possible discriminatory practices which disregard the rule of equal pay for equal work. For all these reasons, the ETF asks the Commission firstly, to provide authoritative evidence on the fact that seagoing personnel on a vessel plying in the high seas are not to be considered as being posted to the territory of another Member State which is questionable according to the ETF and, secondly, to give further thoughts on the way to adapt the existing Directive so as to include the above-mentioned categories of workers. In this respect, further consideration should be paid to the appropriateness of treating a ship of a particular flag as if it is a workplace in the flag State. 2. Should the elimination of the exclusions that are no longer justified lead to the inclusion of seafaring professions within the general scope of 4 It is indirect in that the directive applies not on the basis of nationality, but on the basis of being posted by a Member State. However, it is envisaged that the vast majority of workers who are posted by Member States will be nationals of that Member State. 7

8 application of relevant directives? Which should be the priorities in this respect? What emerges from the response to question 1 is that ETF does not believe that there is any compelling reason to exclude seafarers from the protections and provisions in respect of the six directives listed in chapter 3 paragraphs (a) to (f) of the present Communication 5. The ETF even believes that none of the exclusions foreseen were ever justified. Therefore, the ETF urges the European Commission which has alone the legislative initiative over the European Community, to make formal proposals aimed at removing all the exclusions or derogations affecting seagoing workers, so as to include them into the general scope of application of the relevant directives. When it comes to establish priorities in this respect, ETF is of the views that the full set of directives should be revised in conjunction. The process which will lead to the revision of the relevant Community law might be time-consuming and will require the involvement of the European Parliament, amongst others. Therefore, there is a need to step up the pace and set the revision process in motion so as to simplify and ease the procedure, thus allowing seagoing workers to enjoy the same rights as it is guaranteed to land based workers without any further delay. 3. In the case of exclusions that you consider justified due to the particularities of the sector or other reasons, is an equivalent level of protection for seafaring professions guaranteed by other means? Do you consider that specific regulation within the relevant directive or a specific legal instrument of EU law for the seafaring professions could be warranted? ETF does not see any current exclusions or derogations as being justified because of the particularities of the sector. The labour and social EU legislation should apply to all persons regardless of the place where they work. Therefore, ETF believes that seafarers should be covered by the full text of the relevant directives, and firmly demands an immediate revision of both the directives which explicitly exclude seafarers from their scope and those directives which allow Member States to introduce in the national transposing legislation exclusions from the scope of application. As a matter of fact, it is quite clear that when they are given the possibility to do so, Member States do not provide an equivalent level of protection by other means. Examples can be seen in the UK for instance, regarding: How the maritime lien as a remedy for an individual in cases where their employer becomes insolvent is completely inferior to the State provisions that apply to land based workers (as outlined earlier). As pointed out in our response relating to Information and Consultation Directive 2002/14/EC, where Member States were given the opportunity to derogate from the Directive through particular provisions, but not to exclude a sector as a whole, the UK expressly provided in their implementing Regulations that they would not apply to long haul crew members, which is a clear failure to implement the Directive fully. This shows the attitude that Members States take when they are given the opportunity to provide an equivalent level of protection by other means. The result is that they either do not provide any protection at all, or any protection provided is inferior. 5 EU Legislation on Working Conditions and Information and Consultation 8

9 With regard to the need for a specific regulation for EU seafarers, ETF has claimed for a long time, a specific legal instrument aimed at improving and harmonising working conditions for EU workers and ensure for those working in another Member State than the one where they reside receive the same treatment and enjoy the same conditions as for resident workers. This is particularly urgent for the Ferry Sector which despite the argument that shipping is a global sector, operates mainly in the geographical territory of EU Member State and could therefore be regulated at regional level. The ETF has been deploring constantly that, since the withdrawal of the manning Directive by the European Commission in 2004, a legal instrument to address the problem of social dumping in the European Ferry sector is still pending. ETF has on many occasions expressed its concern over the discrimination suffered by EU seafarers coming for instance from Eastern European countries on the basis of their nationality. Although Article 43 of the Treaty pronounces the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment and the right to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State, this principle of non discrimination has been often disregarded by ship-owners. If a specific legal instrument is to be put in place, this should contain provisions ensuring the concept of equal pay for equal work is guaranteed. The Commission has to include this in its list of priority actions if the aim of this consultation is to find the appropriate measures to give the seafaring professions the protection they deserve.. 4. What mean do you find more appropriate in order to enhance health and safety on board? With respect to merchant vessels the Commission has set out the position whereby seafarers are covered by specific health and safety legislation. Whilst noting these provisions, further consideration should be given to the fact that safety of seafarers will be enhanced if there were effective controls on the implementation of existing regulations (control on hours of work for instance), which are often disregarded by shipowners and are the cause of persistent accidents at sea. With respect to health and safety standards, the Commission should carefully re-consider the issue in the light of the recent Social Partners Agreement (SPA) between ETF and ECSA which incorporates certain provisions of the ILO MLC 2006 and in particular the clauses relating to health and safety, notably title IV on health protection, medical care and welfare. Those provisions, amongst others, will soon enter into the aquis commuautaire via a directive incorporating the recently signed SPA. ETF is particularly worried about the increasing number of accidents at sea involving seafarers on board. A recent study 6 on mortality rates among workers in the UK shipping and fishing sectors showed that, in the period the fatal accident rate in UK merchant shipping was 12 times higher than in the general workforce of Great Britain. It was 2.5 times higher than in the construction industry and 8.5 times higher than in manufacturing. As to causes of fatal accidents, human error featured heavily in the statistics. ETF would like to reiterate the concept by which security at sea can be put in danger if the shipping industry cannot rely on well-trained, skilled, motivated and committed personnel. 6 A study by Stephen Roberts of Swansea University undertaken, for the Maritime & Coastguard Agency. 9

10 Fatigue, long working hours, insufficient rest time only to mention that, is a prime underlying cause of accidents at sea. Actions to improve health and safety at sea should seriously address the problem of how to reduce the risk of such fatal accidents by reducing the above-mentioned causes. Disregarding those causes would mean allowing more seafarers to put at risk their life in their every day job. The ETF reiterates what it said in many occasions: regulation on health and safety is crucial as long as there are enough crew members on board so as to ensure vessels are safely manned. For instance, most of the captains and officers serving aboard European flagged vessels work according to the so-called two watch system. Especially a lot of feeder ships are manned with only one captain and one officer. Beside a 12-hours-watch, they have to cope with an increasing workload - organizing the shifting of ships in the ports of call, taking responsibility for the surveillance of the engine, etc. As a consequence, the increased level of stress and fatigue contribute towards the multiplication of accidents at sea. In order to prevent such a deplorable state of affairs, the twowatch-system should be questioned, and in any case, the idea of adding another officer to the crew should be regarded as an appropriate way of addressing this issue. As for the fisheries sector in particular, we judge satisfactory the provisions established by the existing EU legislation (mainly directive 93/103/CE). Nevertheless, the enforcement of those provisions at national level is rather poor: figures show that fisheries are by far the most dangerous of all occupations. Moreover, contrary to other sector, the situation worsened over the last few years, and the number of fatal accidents increased notwithstanding the decrease of fishing activities. This is mainly due to the fact that the great majority of the operating fishing vessels and equipments are obsolete. Therefore, efforts should be put at both community and national level to promote the enforcement of the current legislation and to address the problems related to the funding of new vessels and improvement of those already existing. Further to that, and beside the obvious need of strengthening inspections and spreading a culture of prevention and safety at work, which is still quite poor in the sector, the most appropriate means would be to link respect and proper enforcement of health and safety regulation to the grant of aid, especially in the framework of the European Fisheries Fund. For these reasons, the ETF welcomes the fact that one of the measures envisaged in the maritime policy s action plan is an evaluation study of the way directive 93/103/EC is enforced and calls the European Commission to fully involve social partners in this exercise. As far as small fishing vessels are concerned, we agree on the fact that the legislation in place for bigger vessels is not fully applicable on the very small ones, both for technical and ownership-related reasons. However, we find it not acceptable that small vessels, which represent a significant segment of the EU fishing fleet, lack of specific regulations on health and safety. For this reason, we believe it could be appropriate to launch a specific consultation and investigations with a view to adapt the general rules and make them applicable to small fishing vessels. As for the rationale often adduced that it would be to costly for owners to fully apply H&S legislation, the ETF believes that protection of employees H&S is one of the duties that the entrepreneur is required to assume. 5. Taken into account the division of legal responsibilities between the Community and Member States as regards social security, what means of action do you consider more appropriate in order to improve the social security protection of workers in seagoing professions? 10

11 With regards to the last question, ETF agrees with the Commission and reiterates that although social security is a national competence, the freedom for a Community worker to find a job in another EU Member State and to live there for this purpose requires a good level of coordination of the national security systems with a view to ensure the same level of treatment and avoid discrimination. This principle is extended to seagoing workers, with the specificity that the law applicable is that of the flag state. Nonetheless, ETF would like to add that not always the flag state is the same where the vessel is registered in the EU; in this respect, ITF/ETF are fighting against the use of Flags of Convenience (FOCs), which are used by shipowners precisely in the attempt to circumvent Community legislation. It is useless to say that if there is no link between the State of the flag and the beneficial ownership (which is at the core of the ITF FOC campaign), and if there is no active measure to encourage shipowners to register their vessels in the EU, Community seafarers working on FOC vessels will be deprived of their basic rights, which are ensured in Europe for other categories of workers. Therefore, the ETF strongly encourages the Commission to adopt more effective policies to combat FOC in European waters, through for example a revision of the current guidelines on State Aids. ETF seizes the opportunity of the Social Partner s consultation for urging the Commission to consider the case of non-eu seafarers particularly those who are not domiciled in an EU country working on board EU flagged vessels, and who do not always fully benefit from EU social security schemes. ETF recalls that under the United Nations Convention of the Law of the Sea (UNCLOS), the flag State is required to effectively exercise its jurisdiction and control in administrative, technical, and social matters over ships flying its flag. UNCLOS also provides that the flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. It is therefore unacceptable that EU flag states can be permitted to deny non-eu citizens rights. On the contrary, this category of workers should be completely entitled to the benefits established by the law of the EU flag state concerned. Therefore, the ETF urges more action from the Commission to ensure EU social security schemes are fully applied to non-domiciled third countries seafarers serving on board Community vessels. Once again, ETF emphasises the importance to encourage a speedy ratification of the ILO Maritime Labour Convention 2006 which contains minimum standards as regards social security. It should be noted that, given that on social security the EU has not competence, it could not be included in the Social partners agreement on the ILO MLC. What stated above is also applicable to the fisheries sector, which equally sees the presence of FOC vessels owned by European capitals. Moreover, it should also be considered the case of third countries fishermen working on board EU fishing vessels: again those workers are entitled to the benefits established by the law of the flag state, as long as they are on board. However, under certain circumstances sick leave, retirement or periods of non activity-, they can be in a situation of legal uncertainty, where it is not clear whether the applicable legislation is the one of the country of origin or that of the flag state. The ETF finds this situation unfair, since most of the non-eu fishermen come from countries where poor or no social security regimes is in place. 11

12 Conclusions: The ETF expresses the wish that its views will be duly taken into account, and that the Commission will feel prompted to launch quickly the second phase of the consultation of the social partners provided for by Article 138 (3) of the Treaty. This with a view to speed up a Community action aimed at eliminating the exclusions and derogations from EU labour legislation concerning seafaring professions. With the inclusion of seafaring professions within the general scope of application of all the directives mentioned in its Communication, the Commission will put an end to an unfair and unacceptable situation where seagoing workers are considered as second class workers. The ETF remains at Commission s disposal to provide more detailed elements as regards the practical amendments to be made in order to fully include seafaring jobs in Community labour and social legislation. Having said that, the ETF would like to reiterate what it says in the foreword section, namely that the review of EU labour law exemptions for the shipping and fisheries sectors is a step in the right direction, so as to put seafarers and fishing vessel crews on an equal footing with land-based workers. However, the proposed attempt to put an end to the existing discriminatory treatment cannot be portrayed by the Commission as a major step forward. In our views, the current assessment exercise by no means exempts the proposed integrated maritime policy from failing to properly address the social shortcomings, nor it fills the vacuum left for the social dimension and will not solve the problem. Furthermore, the ETF notes with much interest, as it is also mentioned by the Commission, that European Institutions which particularly personify the democratic face of the EU making, namely the European Parliament and the European Economic and Social Committee, tend to have the same approach as the one the ETF developed above. Both institutions had, in a recent past, deplored explicitly the exclusion of seagoing workers, requested that all workers have access to the same level of protection, and that efficient legislation applies to all persons regardless of the place where they work 7. Such appeals should prompt the European Commission to tighten as soon as possible the labour and social regulatory regimes, by removing any discriminatory treatment between offshore and land-based workers. Finally, in ETF views, it is of utmost importance that the setting up a European Maritime Space without barriers (see also the ETF contribution to the relevant consultation) should be accompanied by the full inclusion of seagoing workers in the EU labour and social law. In this regard, the ETF strongly encourages the Commission to expand the scope of the internal market to the European maritime space, while ensuring that Community labour and social law fully apply to all persons regardless of the place where they work, in order to put seafarers as well as fishing vessel crews on an equal footing with land-based workers. February European Parliament resolution of 11th July 2007 on modernising labour law to meet the challenges of the 21st century (2007/2023(INI)) 12