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Enforcement of the ILO Maritime Labour Convention in EU Law

Following a public consultation on the enforcement of the ILO MLC in EU law, in which the shipping industry indicated that it did not consider additional or specific EU rules for compliance and enforcement necessary, the European Commission, nevertheless, proposed that two new Directives should be adopted, as per below: a) A draft Directive amending Directive 2009/16/EC on port state control, which went above and beyond the MLC in that it would allow port state control inspectors "to make a tour of the ship to get an overview of the crew and ship's condition including engine room and accommodation and see whether they meet the appropriate standards".

The Directive would also extend the scope of inspections to new items, such as the existence of an adequate labour contract signed by both parties, for each seafarer with the required clauses in the contract, and would distort the complaint and resolution procedures provided in MLC.

Furthermore, while the MLC states that a more detailed inspection of a ship may be carried out where there are reasonable grounds to believe that a ship has changed flag for the purpose of avoiding compliance with the MLC, the proposed Directive appeared to suggest that a more detailed inspection is required whenever a ship has changed flag for any reason.

Subsequently, the European Parliament and the Council started negotiating a compromise agreement on the Commission's proposal which was eventually reached in April.

The main discussion items were as follows:

- Non-regression clause – On this point both agreed that under no circumstances should the new Directive constitute grounds for Member States justifying a reduction in the general level of protection of seafarers onboard EU flagged ships under the applicable EU social legislation.

- Non-ratification as a risk factor – When inspecting a ship flying the flag of a State which is not a party to the MLC, Member States shall ensure that the treatment of such a ship and its crew is not more favourable than that of a ship flying the flag of a State party to the MLC. Such a ship shall be subject to a more detailed inspection in accordance with procedures established by the Paris MOU.
Fundamental rights of seafarers – Originally the European Parliament had proposed to allow port state inspectors to check the violation of fundamental rights, or seafarers' economic and social rights.

Following successful lobbying by international shipping organisations and National Associations versus national administrations, the original EP proposal was watered down to a simple reference in the following provision: "In the case of working and living conditions on board which are clearly hazardous to the safety, health or security of seafarers, or deficiencies which constitute a serious or repeated breach of MLC 2006 requirements (including seafarers' rights), the competent authority where the ship is being inspected shall ensure that the ship is detained or that the operation in the course of which the deficiencies are revealed is stopped".

- The transposition period of the new Directive – Member States have to comply with the new Directive by latest 15 months after the date of entry into force of the new Directive. The new Directive enters into force on the date of entry into force of the 2006 ILO MLC.

b) A Directive amending Directive 1999/63/EC, concerning the flag State responsibilities of Council Directive 2009/13/EC, which would implement the Agreement concluded by ECSA and the ETF on the MLC. Whilst a compromise agreement was reached on the Commission's proposal to enforce the MLC port state control provisions, difficult discussions are going on between the European Parliament and the Council as regards the Commission's proposal to enforce the MLC flag state obligation provisions. This is because the European Parliament Plenary has adopted a number of controversial amendments, which had previously been rejected by the EP Employment Committee. These amendments came in addition to a number of unacceptable amendments previously adopted by the EP Employment Committee. At the time of writing this report the Council and the EP had not yet managed to reach a compromise agreement.