Explanatory Memorandum to COM(2011)555 - Amendment of Directive 2008/106/EC on the minimum level of training of seafarers - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)555 - Amendment of Directive 2008/106/EC on the minimum level of training of seafarers. |
|---|---|
| source | COM(2011)555  |
| date | 14-09-2011 |
The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (the STCW Convention) was concluded in 1978 among the State Parties to the IMO (International Maritime Organization, the UN agency in charge of the international regulatory framework for shipping). The convention deals with the requirements for training of seafarers (mainly officers) and the relevant certification. The STCW Convention was significantly amended in 1995.
The Convention was integrated into Community law by Directive 94/58 on minimum training for seafarers i. As a matter of fact, the EU rules on maritime safety are largely aligned with international rules.
Directive 94/58 was amended several times and eventually replaced by Directive 2001/25, in turn replaced by Directive 2008/106, currently in force i. Over time EU rules were modified, mainly in order to transpose the amendments to the STCW Convention, but also to develop and streamline a system for the recognition of seafarers educated and trained outside the EU. Recognition of seafarers educated and trained outside the EU is in fact crucial in a business like shipping, globalized since forty years.
Against this background, in 2007 the IMO launched a comprehensive review of the STCW Convention to which both the Commission and the Member States actively contributed and which was achieved with the adoption of a series of significant amendments, agreed upon by the State-parties at the Manila Conference on 25 June 2010.
The Manila amendments to the Convention will enter into force on 1 January 2012. From that date onwards maritime training will have to meet the new requirements. Since the EU Member States are also parties to the Convention, and none of them opposed the Manila amendments, they will have to adapt their legislation to the new text of the Convention. Also EU law should align with international rules, as it has been done so far and in order to avoid any conflict between the international and the EU obligations of the Member States. Alignment with international rules is precisely the objective of the present proposal, which also includes a few features aiming to take the opportunity of this legislative initiative to slightly streamline the STCW Directive.
These features regard the introduction of a requirement for the Member States to provide already existing information concerning the certificates to the Commission for statistical purposes and the extension of an impracticable deadline from the procedure of recognition of third countries’ STCW systems.
The international character of shipping is well known. It also results in crews being trained in different countries and under different systems operating onboard the same ship. In this respect it is crucial that all such crew members have the capacities needed to perform their duties in a safe manner. Training, in fact, plays an important role in maritime safety.
For this reason in 1978, the Parties to the International Maritime Organisation (IMO) aiming to 'promote safety of life at sea and the protection of the marine environment by establishing in common agreement international standards of training, certification and watchkeeping for seafarers' adopted the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers ("STCW Convention"), which entered into force in 1984.
This Convention prescribes minimum standards which the State Parties are obliged to meet or exceed. As mentioned, the STCW Convention was significantly revised in 1995 and in 2010.
As for the structure and content of the Convention, while the introductory articles contain the general principles and the provisions on entry into force and amendment procedures, its Technical Annex – composed of 'Regulations' - contain the training, qualification and certification requirements for the different positions on ships (such as 'captain', 'first mate', etc.). Another annex to the Convention – the 'Code' – contains in its Part 'A' detailed tables with a precise description of the material skills (e.g., positioning, ship-manoeuvring, cargo-handling) that have to be learned by the candidates for the different positions onboard and tested by the competent bodies. Finally, Part 'B' of the Code contains guidance on the implementation of the whole of the STCW rules. Part 'B' of the Code is the sole part of the Convention which is not legally binding for the State parties.
In this context the 2010 revision of the Convention aimed, on the one hand, to improve its existing provisions (for example, by enhancing the rules on fraud prevention and medical fitness standards) and, on the other hand, to update it with the latest technological developments.
The Manila Amendments have also introduced a number of new features, such as training requirements for 'able seafarers' and 'electro-technical officers', which were not included in the former version of the Convention.
Since they were introduced, the EU rules on training and certification of seafarers have had a twofold objective:
· setting minimum common standards for training of seafarers working on EU-flagged ships, based on international standards;
· ensure that seafarers working on EU-flagged ships and holding certificates issued by non-EU countries are properly trained.
These two aspects are intertwined in the various directives that have followed the 1994 directive on minimum training for seafarers, which integrated for the first time the STCW Convention into EU law, the EU rules being afterwards amended as the STCW Convention was.
Thus, Directive 94/58 was amended by Directive 98/35/EC transposing the 1995 amendments to the Convention, and subsequently replaced by Directive 2001/25 introducing a procedure for the recognition of seafarers' certificates issued by third countries. Three further amendments followed, introduced by Directive 2002/84 (defining the comitology procedure for the recognition of third country certificates), by Directive 2003/103 (providing for a new procedure for the recognition of third countries), by Directive 2005/23 (introducing requirements for seafarers serving onboard passenger ships) and by Directive 2005/45 (concerning the mutual recognition of certificates issued by Member States). Finally, Directive 2008/106 replaced Directive 2001/25, while introducing new elements concerning the comitology procedure.
The main lines of this evolving legislative framework can be summarised as follows, taking into account the three policy objectives as indicated above:
· Common standards for training of seafarers working on EU-flagged ships, have been laid down reproducing those set out in the STCW Convention. Such standards, once integrated into EU law and therefore become part of it, are interpreted and implemented according to EU law principles and, if necessary, enforced like any other EU law provision. Under the directive currently in force, if minor changes to the STCW Convention occur, the directive itself may be updated through a comitology procedure; if significant changes are introduced at an international level, a new directive is necessary to update the one in force, like in the present case.
· Recognition of third countries. After the creation of the European Maritime Safety Agency (EMSA), the Commission has acquired the support necessary to achieve an accurate knowledge of non-EU countries' systems of training and certification of seafarers. The Commission has therefore been entrusted with the assessment of such systems by Directive 2003/103. In particular, the Commission is in charge of assessing, with the support of EMSA whether third countries comply with the requirements of the STCW Convention.
· The recognition of a third country, which has to be requested by a Member State, is carried out in the following way: at first, EMSA carries out an on the ground inspection of the maritime training and certification system and facilities in order to gather evidence regarding compliance with the standards of the STCW Convention; after that, on the basis of the findings of the inspection and the documents provided by the third country involved, the Commission Services gauge the STCW compliance of the system. The phase of assessment of compliance may entail a series of contacts with the involved third country, which may be willing to introduce adjustments to its legislation or practice to suit the Commission recommendations. The time needed for that depends on the nature and extent of those adjustments and the efforts made by the country in question. At the end of this process the Commission submits a draft decision (recognising the first country or withdrawing its recognition) to the Member States for their opinion, in the framework of a 'comitology' procedure. The decision is finally adopted by the Commission and published in the Official Journal. The Commission recognition implies that Member States may recognise the certificates issued by the recognised country and that seafarers from that country will be entitled to work onboard the ships flying the flag of that Member State. Member States, however, are not obliged to recognise certificates from those countries, despite the recognition by the Commission. On the contrary, seafarers from non-recognised countries are not allowed to work on ships with an EU flag.
As indicated above, the objective of the present proposal is to integrate into EU law the 2010 amendments to the STCW Convention, in order in particular to avoid any conflict between the international and the EU obligations of the Member States.
The 2010 amendments regard both the 'Regulations' annexed to the Convention and the more technical 'Code', whose Part 'A', as explained, is mandatory. The main amendments to the Convention, which are reflected in the present proposal, are:
– Strengthened provisions concerning training and assessment, the issuance of certificates of competency, as well as for prevention of fraudulent practices;
– Updated standards relating to medical fitness, fitness for duty as well as alcohol abuse;
– New requirements concerning certification for able seafarers, for electro-technical officers as well as security-related training for all seafarers;
– Updated requirements for personnel on certain types of ships;
– Clarification and simplification of the definition of 'certificate'.
Finally, the proposal has adapted the STCW provisions on watchkeeping, in order to bring them in line with the EU rules on working time for seafarers.
2.1.2. Extension from three to eighteen months of the deadline set by Article 19 i of Directive 2008/106
The proposal also aims to make more realistic the current three-month deadline for the recognition of third countries currently provided for in Article 19 i of Directive 2008/106. This provision is about the timeframe available to the Commission to decide on the recognition of a third country following a request by a Member State.
It should be emphasised that this deadline originates from the previous procedure for recognition of third countries, put in place by Directive 2001/25/EC. Under that procedure Member States wishing to recognise a third country had to send to the Commission the documentation supporting their request. The work at EU level was therefore carried out on the basis of pre-arranged paperwork and without any involvement of the third country. The Commission had three months to examine the documents.
The current mechanism for recognising third countries, introduced by Directive 2003/103/EC, is radically different and the experience has revealed that the three-month deadline inherited from the previous procedure is totally unrealistic.
Under the current system, in fact, the recognition of a third country follows an on-the-spot inspection by EMSA, a report laid down by the latter, an exchange of correspondence between the Commission and the third country, an assessment by the Commission, the comitology procedure and finally the adoption of a decision.
In this context, first of all, third-country inspections have to be planned by EMSA, which implies that the inspection of the third country is not necessarily performed immediately after the request of the Member State.
Moreover, the assessment of a third country implies that the authorities of that country are involved in a process of dialogue with the Commission. This requires time, especially for the administration of the third country to remedy any initially detected deficiencies.
The whole of that makes the three-month deadline completely unrealistic. The experience gained from the implementation of Directive 2008/106 reveals that a reasonable time-frame for carrying out the whole procedure is eighteen months. The present proposal includes a provision amending Directive 2008/106 to that effect.
Especially in the course of the last decade it has become clear to policy-makers both at European and national level that complete and accurate data on seafarers can hardly be gathered. While a number of studies do exist, these are either based on assumptions, or are not sufficiently detailed at EU level. This point has also been highlighted by the Task Force on Maritime Employment and Competitiveness i, which underlined the need for accurate statistics. A potential source of accurate data is the certificates and endorsements issued by the national administrations. Currently, under the STCW Convention State Parties are obliged to maintain registers of all certificates and endorsements and the relevant revalidations or other measures affecting them (Regulation I/2(14)). Similarly EU Member States, under Article 11 i of Directive 2008/106, have the obligation to maintain a register of issued certificates and endorsements. While this is an important source of data, the different formats used by each Member State, as well as statistical problems (such as potential double counting of seafarers having obtained certificates or endorsements from various Member States) do not allow for a complete picture. The Commission, therefore, considers that the collection of the already existing information in the national registries in a harmonised and consistent way and fully in line with the requirements for the protection of personal information would provide significant help in order to achieve a sound statistical picture of the seafaring profession in Europe.
It should be emphasised that EMSA has already developed a platform to provide for the collection and the analysis of such information, through the 'STCW Information System'. This system has been presented to the Member States, which have shown interest in its potential and usefulness. The system has been submitted to the European Data Protection Supervisor who cleared it by letter to EMSA of 9 April 2008. The Supervisor requested on that occasion some adjustments that have been accepted by EMSA.
In conclusion, the present proposal foresees a new provision requiring the Member States to provide standardised information to the Commission for the purpose of statistical analysis. It is the intention of the Commission to use the EMSA 'STCW Information System' as a platform for collecting the required information and for conducting statistical analysis as needed. The detailed content of such information is presented in a technical annex to the present proposal.
2.1.4. Adaptation to the new rules on 'comitology'
Under the system set up by Directive 2008/106 comitology is relevant in two respects.
The first one regards technical adaptations, now limited to (the newly introduced) information requirements (Annex V).
The second one regards the procedure for the recognition of third countries. As mentioned, Directive 2008/106 provides for a comitology procedure for the recognition of third countries by the Commission.
Against this background, the Treaty of Lisbon has introduced significant changes to the 'comitology' mechanism. Two categories of non-legislative acts have been created, that is, the 'delegated acts' and the 'implementing acts', both relevant to the present proposal.
In fact, under the new Treaty the procedure for technical adaptation of the directive is governed by the rules on 'delegated acts', while the decisions on recognition of third countries by those on 'implementing acts'.
The present proposal contains provisions to that effect.
The amendments to the STCW Convention agreed at Manila will enter into force on 1 January 2012 (under Article XII of the Convention and Attachment 1, Resolution 1 i of the Final Act of the Manila Conference). Since at that point in time the present proposal will not have been adopted yet, it has been foreseen that the proposed directive should enter into force as soon as it is published in the Official Journal.
The Manila agreement also includes transitional arrangements (contained in Regulation I/15) aimed to allow that candidates having started their curriculum before the Manila amendments enter into force may complete it under the same rules. The transitional arrangements, in the same way, allow for the renewal and revalidation of certificates issued before the entry into force of the amended Convention on 1 January 2012. Since certificates have to be revalidated or renewed after five years at the latest, and considering that the maximum possible length of a curriculum is five years, the Manila Convention provides that both new certificates and renewals/revalidations may be completed/realised under the old rules until 1 January 2017.
Against this background, it is proposed that the Directive should mirror the Convention also with respect to transitional arrangements. The Convention's transitional arrangements have been therefore reproduced in the proposal.
Article 100 i of the Treaty on the Functioning of the European Union
As the STCW Convention has been already transposed into EU law, it is justified that the amendments of the STCW Convention are transposed into EU law as well. Member States may not implement the STCW Convention on a homogenous level without the enforcement possibilities existing under EU law. If the Manila Amendments were not integrated into EU law, from January 2012 (when the amendments enter into force) Member States would breach either international law or EU law, a conflict which should be avoided.
If the Manila Amendments were not integrated into EU law, Member States would breach either international law or EU law, a conflict which should be avoided.
Since the measure to be amended is a directive, the most appropriate instrument appears to be a directive.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES
- 1.2. The STCW Convention
- 1.3. The STCW Directives
- 2. Legal elements of the proposal 2.1. The Content of the Proposal 2.1.1. Manila Amendments
- 2.1.3. Providing the Commission with existing information on certificates
- 2.2. Entry into Force and Transitional Arrangements
- 2.3. Legal basis
- 2.4. Subsidiarity principle
- 2.5. Proportionality principle
- 2.6. Choice of instruments
It should be emphasised from the outset that, since the Member States are parties to the STCW Convention, they had the opportunity to express their views in the framework of the revision of the Convention, at the Manila Conference in particular; actually Member States actively took part in the Conference with the Commission organising the co-ordination of the EU position. Furthermore, under the STCW Convention all the parties may oppose any amendment by notifying their opposition to the IMO (Article XII of the Convention). In the case of the Manila amendments, opposition had to be notified by 1 July 2011 and no Member State did so.
As for the proposed directive, the experts of the Member States were consulted on the review exercise in a meeting which was held in Brussels on 3 December 2010. On that occasion the Member States unanimously expressed their wish that the Manila amendments should be integrated into EU law, while they considered that no overhaul of the directive should be carried out.
An occasion to consult stakeholders was offered by the work of the Task Force on Maritime Employment and Competitiveness, an independent body set up in July 2010 which finalised its work in June 2011 and issued a Report i containing policy recommendations to the Commission and the social partners on how to promote the seafaring profession in Europe. The report also addresses the issue of STCW and clearly favours the integration of updated international rules into EU law i