Explanatory Memorandum to COM(2004)530 - Authorisation of Member States to ratify the Seafarers' Identity Documents Convention of the International Labour Organization (Convention 185) - Main contents
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| dossier | COM(2004)530 - Authorisation of Member States to ratify the Seafarers' Identity Documents Convention of the International Labour ... |
|---|---|
| source | COM(2004)530  |
| date | 30-07-2004 |
1. Convention 185 of the International Labour Organization (hereinafter called the ILO) on seafarers' identity documents (revised) (hereinafter called 'the Convention') was adopted on 19 June 2003 by the General Conference of the ILO convened in Geneva by the Governing Body of the International Labour Office at its 91st session.
2. The ultimate aim of the Convention is to improve the system of identifying seafarers as a necessary means of ensuring a balance between security in the shipping sector and the promotion of decent living and working conditions for seafarers.
3. In order to attain these objectives, the Convention lays down certain rules on visas for seafarers taking shore leave; it also refers to the entry of seafarers into Member States' territory, notably in the event of transit, transfer or repatriation. However, in accordance with Title IV of the Treaty establishing the European Community (hereinafter called 'the Treaty'), competence over visas is a Community competence, which has been exercised.
4. In this context and in order to ensure compliance with the sharing of competences as laid down by the Treaty, the Commission proposes in the present document that the Council should authorise those Member States which are bound by Community rules in the area of visas to ratify the Convention in the interests of the Community.
5. The Convention is in keeping with the core mandate of the ILO, which is to promote decent conditions of work for seafarers, and takes account of the fact that, given the global nature of the shipping industry, seafarers need special protection.
6. The Convention seeks to make seafarers' identity documents more secure as a means of ensuring an important balance between strengthening the security of maritime transport and simplifying the conditions under which seafarers take shore leave in a country other than that of which they are a national.
7. Against this background, the Convention sets up a more secure system of identifying seafarers by including biometric factors, and as a result the measure of flexibility introduced by the Convention is not achieved at the expense of security.
8. The Convention recognises the principles embodied in the Seafarers' Identity Documents Convention, 1958, concerning the facilitation of entry by seafarers into the territory of Members for the purposes of shore leave, transit, transfer or repatriation.
9. The point of departure of this instrument is that seafarers work and live on ships involved in international trade and that access to shore facilities and shore leave are vital elements of seafarers' general well-being and therefore help to promote safer shipping.
10. In this context, the Convention lays down certain rules on visas for seafarers taking shore leave. Point 6 of Article 6 of the Convention, as revised, thus provides that 'For the purpose of shore leave seafarers shall not be required to hold a visa. Any Member which is not in a position to fully implement this requirement shall ensure that its laws and regulations or practice provide arrangements that are substantially equivalent'.
11. Point 7 of Article 6 of the Convention covers the situations of transit, transfer and repatriation of seafarers, providing that "Each Member for which this Convention is in force shall, in the shortest possible time, also permit the entry into its territory of seafarers holding a valid seafarers' identity document supplemented by a passport, when entry is requested for the purpose of:
(a) joining their ship or transferring to another ship;
(b) passing in transit to join their ship in another country or for repatriation; or any other purpose approved by the authorities of the Member concerned".
12. Title IV of the Treaty, 'Visas, asylum, immigration and other policies related to free movement of persons', introduces general Community competence over all elements of policy regarding visas, for both short and long stays (Article 62, point 2(b), and Article 63, points 3 and 4, of the Treaty respectively). In particular, Article 62, point 2(b)(i), provides that measures concerning the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement are within the field of competence of the European Community.
13. The Community has already exercised its competence in this area by adopting Council Regulation (EC) No 539/2001 of 15 March 2001 i listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement.
14. The Treaty of Amsterdam integrated, as soon as it entered into force, the Schengen acquis into the framework of the European Union i. The Schengen acquis includes provisions on short-stay visa policy the legal basis of which is Article 62, point 2(b), of the Treaty i.
15. More particularly, points 6.5.2 et 6.5.4 of Part II of the Common Manual on external borders i apply respectively to the conditions under which seafarers may go ashore and the circumstances in which they may enter the territory of the Member States in situations of transit, transfer and repatriation.
16. In fact, in accordance with the AETR case law of the Court of Justice on external competence, Member States are no longer free to ratify on their own initiative ILO Convention 185 on seafarers' identity documents as its provisions concerning the exemption of seafarers from the visa requirement for purposes of shore leave and the reference to the conditions governing the entry of seafarers into the territory of Member States for purposes of transit, transfer or repatriation affect the exercise of the Community's competence in this area.
17. In the light of the above considerations, application of the Community rules on visas should be preserved and a clear signal should be given to the rest of the world about the importance the Community attaches to the Convention.
18. An approach combining these two factors would be fully in keeping with the Convention's objective, which is, while providing guarantees as to the identity of seafarers, to facilitate their entry into the territory of Member States bound by the Community rules on visas, and it would enable those Member States to attain the Convention's aims.
19. It follows from the ILO's operating rules that the process of signature before ratification which exists in other forums is replaced here by a voting procedure (which took place at the International Conference in June) which is equivalent to signature, but the Convention has not yet entered into force. The Commission did not take part in the negotiations, although it was present as an observer. States and employers' and workers' delegates took part in the negotiations and the vote on the adoption of the Convention. Only States may accede to the Convention.
20. The Commission has taken note of the favourable vote of those Member States which took part in the negotiations on the Convention on the ground of its usefulness in promoting satisfactory working conditions for seafarers, as well as of the need for it to enter into force at the earliest opportunity.
21. In view of the fact that competence over visas is a Community competence, the Commission proposes in the present document that the Council should authorise those Member States which are bound by Community rules in this area to ratify the Convention in the interests of the Community.
22. This departure from the normal manner of exercising Community competence under Article 300 of the Treaty establishing the European Community can be justified exceptionally by the importance of the Convention to seafarers and by the need to ensure that it enters into force as quickly as possible. This Decision must nevertheless remain exceptional and must in no way form a precedent for the future.
23. The present Decision will therefore enable Member States to take without further delay all the steps necessary for ratification. What is more, common ratification arrangements may be envisaged to show the rest of the world the importance the Community attaches to the Convention.
24. In accordance with Article 4 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, that Member State applies measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders and measures relating to a uniform format for visas. This Decision is accordingly also addressed to Denmark.
25. Pursuant to Article 1 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of that Protocol, the present Decision applies neither to Ireland nor to the United Kingdom.
26. The present Decision is to be considered a development of the Schengen acquis as defined in Annex A to the agreement signed on 18 May 1999 between the Council, Norway and Iceland in order to associate those two States with the implementation, application and development of the Schengen acquis i.