Explanatory Memorandum to COM(2018)315 - Amendment of Directive 2008/106/EC on the minimum level of training of seafarers - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)315 - Amendment of Directive 2008/106/EC on the minimum level of training of seafarers. |
|---|---|
| source | COM(2018)315  |
| date | 24-05-2018 |
1. CONTEXT OF THE PROPOSAL
1.1.Reasons for and objectives of the proposal
The importance of the human element for the safety of life at sea and the protection of the marine environment has been recognised at the Union level since the beginning of the 1990's 1 . Enhancing maritime education, training and certification of seafarers were considered particularly important elements to attain a high level of safety. At EU level this was achieved through Directive 2008/106/EC, as amended 2 , by setting minimum training and education standards. This Directive integrates at the EU level the international framework on the training, certification and watchkeeping requirements for seafarers developed under the International Maritime Organisation (IMO) and prescribed by the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended (STCW Convention).
Directive 2008/106/EC also contains a common EU mechanism for the recognition of the systems of maritime education, training and certification of seafarers from third countries. In addition, it requires regular verification, by the Commission assisted by the European Maritime Safety Agency (EMSA), of compliance of the Member States and of third countries with the requirements of the Directive 2008/106/EC and STCW Convention, respectively.
Fostering the professional mobility of seafarers within the EU, by facilitating the mutual recognition of seafarers' certificates issued by the Member States, was the objective of Directive 2005/45/EC 3 . The Directive introduced a simplified procedure for the recognition of seafarers' certificates issued by the Member States. The purpose was to ensure that all seafarers, who are qualified in a Member State and hold such certificates, will be permitted to serve on board ships flying the flag of any Member State.
An evaluation has been carried out and concluded that both Directives are fit for purpose and have met to a great extent the initial objectives and expectations. However, it also identified elements that have hindered the effectiveness and the efficiency of the legislative framework. This proposal aims to tackle the problematic issues identified.
The overarching objective of this revision is therefore to simplify and streamline the existing EU regulatory framework on seafarers' training and certification in order to: i) keep the EU rules aligned with the international framework; ii) revamp the centralised mechanism for the recognition of third countries in order to increase its efficiency and effectiveness; and iii) increase legal clarity regarding the mutual recognition of seafarers certificates issued by the Member States.
1.2.Consistency with existing policy provisions in the policy area
The proposal is fully in line with the goals of the 2018 Maritime Transport Strategy 4 that called for continuous alignment of the European framework with the STCW Convention and the establishment of a level playing field in the implementation of the international framework between EU and the third countries. In addition, since the introduction by Directive 2005/45/EC of the scheme for the mutual recognition of seafarers' certificates issued by the Member States, the provisions for recognition of professional qualifications under Directive 2005/36/EC of the European Parliament and of the Council 5 are not applicable with regard to the recognition of certificates of seafarers under Directive 2008/106/EC.
1.3.Consistency with other Union policies
The proposal ensures that the existing legislation is simple and clear, does not create unnecessary burden and keeps pace with evolving political and societal developments at the European and International level. The proposal is fully in line with the 2011 White Paper for the future of transport 6 by ensuring the harmonised implementation of the STCW Convention requirements in the Union and safeguarding a level playing field between the Member States and the third countries.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
2.1.Legal basis
Given that the proposal amends the current Directive 2008/106/EC and repeals Directive 2005/45/EC, the legal basis remains Article 100(2) TFEU (ex Article 80(2) TEC), providing for measures in the field of sea transport.
2.2.Subsidiarity (for non-exclusive competence)
The EU legislation on the training and certification requirements for seafarers has been mainly modelled and shaped on international requirements, namely the STCW Convention. As the STCW Convention has been already transposed into the Union law in its entirety and all the Member States are parties to the Convention, the Directive needs to be aligned with the recent amendments to the international framework.
Considering the global nature of shipping, a conflict between the international commitments of Member States and their Union commitments should be avoided. In this respect it is fundamental that the STCW Convention is implemented, across the Union, in a harmonised way so that a level playing field between the Member States is maintained.
Moreover, the centralised mechanism for the recognition of third countries incorporates, at the Union level, the obligation of the Member States under the STCW Convention to evaluate the systems of training, education and certification of third countries whose seafarers' certificates are recognised by them. The evaluation showed that the centralised mechanism contributed to levelling the playing field between EU and third countries while in parallel resulted to a considerable cost reductions compared to a situation under which inspections would be performed in the third countries by each Member State individually.
The proposed measures will ensure that the international framework is applied by the Member States in a harmonised way while they will safeguard the efficient allocation of the available human and financial resources engaged under the centralised mechanism for the recognition of third countries.
2.3.Proportionality
In view of the latest legal developments and the amendments to the STCW Convention, the proposal to align the existing Union requirements with the international requirements, increase the efficiency of the centralised mechanism for the recognition of third countries and clarify the definition of seafarers' certificates recognised between the Member States, is considered as the only proportionate and coherent option. It ensures that the current high level of safety is not compromised and allows for the better use of the available resources.
2.4.Choice of the instrument
A Directive is considered as the most suitable form for achieving the identified objectives. It establishes common principles and a harmonised safety level, ensures the enforcement of the rules, but leaves the choice of legal and technical procedures to be applied by each Member State. In particular, the proposed measures are related to minimum training requirements for seafarers and it is considered that a Directive leaves the necessary freedom to the Member States to introduce higher requirements in their training systems, if they considered it appropriate.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
3.1.Ex-post evaluations/fitness checks of existing legislation
The Commission evaluated the EU regulatory framework on the minimum level of training and certification requirements for seafarers and on the mutual recognition of seafarers' certificates issued by the Member States 7 in the context of its regulatory fitness and performance programme (REFIT). The REFIT evaluation showed that the EU framework related to seafarers' training and certification attained largely its key objectives and remains relevant. In particular, the EU framework has contributed to the elimination of substandard crews working on board the EU-flagged ships by the enhancement of maritime education, training and certification while a level playing field was achieved between seafarers trained in the Union and seafarers employed from third countries through the establishment of the EU centralised mechanism. Moreover, the mutual recognition of seafarers' certificates under Directive 2005/45/EC has fostered the mobility of seafarers among the EU flagged vessels.
The REFIT evaluation also showed some shortcomings in its efficiency and the proportionality of some of the regulatory requirements which concern:
(a)The administrative framework regarding the recognition and re-assessment procedure of third countries is lacking effectiveness and efficiency:
·The timeframe set out in the legislation for the recognition of new third countries, is unrealistic as it does not sufficiently take into account all the necessary procedural steps.
·The available financial and human resources involved in the process for the recognition of third countries are not used in an efficient manner. The procedure currently does not take into consideration the number of masters and officers likely to be employed from the third countries.
·The re-assessment procedure for third countries, is not performed in a proportionate manner. The timeframe for re-assessment does not take into account the rate of compliance of a country with the requirements of the STCW Convention and the number of endorsements issued by the Member States.
(b)The scope of the scheme for the mutual recognition of seafarers' certificates issued by the Member States lacks clarity and legal certainty.
(c)The Directive 2008/106/EC needs to be aligned in regular intervals with the latest amendments to the STCW Convention. In this respect, the current procedure for incorporating amendments of the STCW Convention causes considerable delays and poses the risk of the Union law to be inconsistent with the international framework for a significant period of time.
3.2.Stakeholder consultations
Given the technical nature of the envisaged proposal, a targeted consultation has been carried out. National experts in the STCW, shipowners' associations and seafarers' trade unions have been consulted through an online survey for a period of 4 weeks. A workshop was organised where the Member States as well as the European associations of shipowners and seafarers participated and shared their views on the envisaged measures. The consultation summary, as well as, detailed feedback on comments raised during the consultation process is provided in the staff working document accompanying the proposal. The envisaged measures were supported by the large majority of the national experts and the stakeholders participated. Only the stakeholders representing the shipowners expressed some concerns on revamping the centralised mechanism by introducing a discussion between the Member States on the need to recognise new third countries. Nevertheless, their concerns were fed into the final measures in order to balance any efficiency measures with the need to maintain competiveness of the European fleet by allowing the requesting Member State to unilaterally recognise the third country until a decision on its recognition is reached.
3.3.Collection and use of expertise
This proposal builds primarily on the data collected during the REFIT evaluation as reported in the relevant Commission Staff Working Document 8 .
In addition, a workshop was organised in the context of the preparation of this proposal with national experts and stakeholders. Moreover, technical expertise was gathered internally in cooperation with the European Maritime Safety Agency.
The results of the workshop and the discussions with the national experts and the views of other relevant stakeholders are reported in the Staff Working document accompanying the proposal.
3.4.Impact assessment
The proposal is an immediate follow-up to the REFIT evaluation that identified the issues for the need of alignment with the international framework, increase of efficiency regarding the centralised mechanism for the recognition of third countries and the need for legal clarity regarding the recognition of seafarers' certificates. The envisaged measures are not expected to have any significant impacts (i.e. beyond legal clarity, certainty or simplicity) and there are no materially different solutions available. In line with the Commission's Better Regulation Guidelines, a fully-fledged impact assessment has not been carried out.
Nonetheless, the proposal is accompanied by a Commission Staff Working Document that explains the rationale of the proposed solutions from the technical and the legal perspective and summarizes the views of the stakeholders consulted during the preparation of this initiative.
3.5.Regulatory fitness and simplification
As this is a revision of an existing piece of legislation falling under the Commission's Regulatory Fitness and Performance Programme REFIT, the Commission has looked at opportunities to simplify and reduce burdens.
The analysis shows that significant simplification is possible through the repeal of Directive 2005/45/EC, and the alignment of Directive 2008/106/EC to the international framework.
The main element related to the increase of the efficiency is the revamp of the centralised mechanism for the recognition of the maritime education and certification systems of third countries. By introducing a discussion among the Member States on the need to recognise a new third country, the whole process will become more transparent in relation to the need to proceed with such a recognition. This would result to a more reasonable and efficient use of the available human and financial resources since a thorough consideration will take place in relation to the cost to be accrued by the recognition compared to the competitive advantage for the EU fleet by employing seafarers from the relevant third country.
In addition, the extension of the reassessment period for the already recognised third countries on the basis of defined priority criteria will release resources which are currently used in an inefficient way. In particular, the available resources will be redirected from countries which provide a low number of seafarers to the EU fleet and pose a minor safety threat to countries which shall be reassessed more often since they provide the highest proportion of the seafarers certified outside of the Union.
In this vein, the de-recognition of third countries, which for at least five years period have not provided any master or officer in the EU fleet, will release resources for the recognition of new third countries with more potential to supply labour on board the European vessels. Given the lack of available data and the legal nature of the changes, the simplification elements have not been quantified.
3.6.Fundamental rights
The proposal has no consequences for the protection of fundamental rights.
4. BUDGETARY IMPLICATIONS
The proposal has no implications for the Union budget.
5. OTHER ELEMENTS
5.1.Implementation plans and monitoring, evaluation and reporting arrangements
The current proposal has a very technical scope in relation to the measures required to be transposed by the Member States while it is amending only a very limited number of the existing legal obligations. Therefore, an implementation plan is not required, in view of the limited actions needed by the Member States in order to implement the proposed measures.
5.2.Explanatory documents (for directives)
Explanatory documents are not required as the proposed measures that need to be transposed by the Member States are not of substantial nature.
5.3.Detailed explanation of the specific provisions of the proposal
Contents
- Definitions and scope
- Mutual recognition of seafarers' certificates issued by the Member States
- Alignment to the international framework
- Recognition of seafarer' certificates issued by third countries
- Reassessment of third countries
- Information regarding endorsements attesting recognition of certificates issued by third countries
- Amendment procedure and committee procedure
Article 1 is amended in order to provide for new definitions related to the new Regulation V/3 and Regulation V/4, introduced in the Annex to the Directive 2008/106/EC. In addition, a new definition in relation to the host Member State was considered necessary following the introduction of the new Article 5b and also in order to clarify the application of the current Article 8.
Article 2 is also amended in order to incorporate the scope of the repealed Directive 2005/45/EC.
A new Article 5b is added in order to incorporate the scheme for the mutual recognition of seafarers' certificates issued by the Member States. Article 5b reflects mainly the repealed Article 3 of Directive 2005/45/EC, clarifying which certificates shall be recognised mutually for the purpose of allowing seafarers' certified by another Member State to work onboard vessels flying the flag of another Member State.
Article 12 and Annex I incorporate the new amendments to the STCW Convention in relation to new training and qualification requirements for seafarers working onboard passenger ships and ships falling under the IGF Code and the Polar Code.
Article 19 is amended in order to provide for an implementing decision on the need to initiate the procedure for recognising new third countries. This new procedural step will allow the requesting Member State to present the reasons for submitting the recognition request while the Member States will have an opportunity to discuss and decide on the relevant request.
In addition, the deadline for adopting a decision on the recognition of the third country is extended from 18 months to 24 months and in case that the third country needs to implement major corrective actions, including amendments to its legislation, the relevant deadline is further extended to 36 months. The extension of the deadlines is not expected to have negative impacts since the requesting Member State is allowed to unilaterally recognise the third country pending the final decision on the recognition of the third country.
In Article 20 a new paragraph is added, introducing a distinctive reason to derecognise a third country on the basis of not providing any seafarers for at least 5 years to the EU fleet.
Article 21 is amended in order to extend the interval of reassessment to up to 10 years on the basis of priority criteria. Third countries which provide limited numbers of seafarers onboard the EU fleet and which pose a minor risk in terms of safety should be reassessed on longer intervals in comparison with the major labour supplying third countries.
Information regarding endorsements attesting recognition of certificates issued by third countries
Article 25a is amended in order to make possible to use the information provided by the Member States on the number of endorsements attesting recognition of certificates issued by third countries for the purpose of derecognizing and prioritizing the reassessment of third countries. In the same vein, Article 5a is replaced in order to be aligned to the new Article 25a.
Article 27 is amended in order to empower the Commission to amend, through delegated acts, the necessary provisions of Directive 2008/106/EC so that could be aligned with future amendments to the STCW Convention.
Article 27a is replaced in order to be brought in line with the Interinstitutional Agreement on Better Law-Making of 13 April 2016 9 .