EUROPEAN UNION
EN
ECOS-V-052
COMMITTEE OF THE REGIONS
22nd ECOS meeting
18 February 2014
DRAFT OPINION
Commission for Economic and Social Policy (ECOS)
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS FOR SEAFARERS
COM(2013) 798 final
_________________
Rapporteur: Paul Lindquist (SE/EPP)
Member of Lidingö Municipal Council
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EN

Auteur
Author
Am. 1
DE VITS Mia
Am. 2
DE VITS Mia
Am. 3
DE VITS Mia
Am. 4
DE VITS Mia
Am. 5
DE VITS Mia
Am. 6
DE VITS Mia
ORDRE D'EXAMEN DES AMENDEMENTS
ORDER OF EXAMINATION OF AMENDMENTS
CdR n°
Point No
Conséquence sur les Position du autres amendements rapporteur
Position of the
Impact on other amendments rapporteur
17
Supprimer le paragraphe
Delete the point
18
Supprimer le paragraphe
Delete the point
19
Modifier
Amend
20
Modifier
Amend
Nouvelle recommandation d'amendement après la recommandation d'amendement 1
New recommendation for amendment after recommendation for amendment 1
Article 3, 3
Supprimer
Delete
Recommandation d'amendement 2
Recommendation for amendment 2
Article 4
Modifier
Amend
Résultat
Outcome
COR-2014-00103-00-00-AMC-TRA - AM. 1-8

Auteur
Author
Am. 7
ANCISI Alvaro
Am. 8
DE VITS Mia
CdR n°
Point No
Nouvelle recommandation d'amendement après la
Conséquence sur les Position du autres amendements rapporteur
Position of the
Impact on other amendments rapporteur recommandation d'amendement 2
New recommendation for amendment after recommendation for amendment 2
Article 5
Supprimer
Delete
Nouvelle recommandation d'amendement après la recommandation d'amendement 2
New recommendation for amendment after recommendation for amendment 2
Article 5, 3
Supprimer
Delete
Résultat
Outcome
COR-2014-00103-00-00-AMC-TRA - AM. 1-8

DE VITS Mia
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS
FOR SEAFARERS
ECOS-V-052
Point 17
Delete point:
Draft opinion considers that reservations based on the risks of putting EU businesses at a competitive disadvantage – even if Member States that also apply the protection requirements of the directive to seafarers have not reported any obviously negative consequences for competitiveness – should be taken seriously given that individual
Member States are best placed to assess the impact of mandatory implementation of a given rule according to the conditions under which a business is operating;
Amendment considers that reservations based on the risks of putting EU businesses at a competitive disadvantage – even if Member States that also apply the protection requirements of the directive to seafarers have not reported any obviously negative consequences for competitiveness – should be taken seriously given that individual
Member States are best placed to assess the impact of mandatory implementation of a given rule according to the conditions under which a business is operating;
Reason
The argument here does not stand up. Why would Member States be better placed than, say, the social partners given that activities are not conducted exclusively within the territorial waters of a given Member State? The point also duplicates point 7 to a large degree.
Am. 1
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DE VITS Mia
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS
FOR SEAFARERS
ECOS-V-052
Point 18
Delete point:
Draft opinion considers that it should still be left to each
Member State to decide, on the basis of local conditions, whether protection rules should apply to seafarers alongside the right to information and consultation in cases of transfer of an undertaking and collective redundancies, and to what extent these rules should apply;
Amendment considers that it should still be left to each
Member State to decide, on the basis of local conditions, whether protection rules should apply to seafarers alongside the right to information and consultation in cases of transfer of an undertaking and collective redundancies, and to what extent these rules should apply;
Reason
This would lead to legal fragmentation, and might distort competition and encourage ship-owners to change flag and register in those Member States that derogate most from the periods of protection afforded to shore-based workers.
Am. 2
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DE VITS Mia
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS
FOR SEAFARERS
ECOS-V-052
Point 19
Amend as follows:
Draft opinion shares the Commission's view that exclusions under Directives 2001/23/EC and 98/59/EC should be limited to situations in which the transfer of an undertaking consists solely in the sale of a vessel or where a collective redundancy is the result of a future sale of one or more vessels; with regard to the Collective
Redundancies Directive, also shares the
Commission's view that exclusions should only be possible with respect to the length of the
"cooling-off" period;
Amendment shares rejects the Commission's view that exclusions under Directives 2001/23/EC and
98/59/EC should be limited to situations in which the transfer of an undertaking consists solely inof the sale of a vessel or where a collective redundancy is the result of a future sale of one or more vessels; with regard to the Collective
Redundancies Directive, also shares the
Commission's view that exclusions should only be possible with respect to the length of the
"cooling-off" period;
Reason
Assets, whether means of transport or any other essential equipment, have to be sold in all sectors: why should workers enjoy less protection where ships are concerned?
Am. 3
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DE VITS Mia
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS
FOR SEAFARERS
ECOS-V-052
Point 20
Amend as follows:
Draft opinion questions the proposal to amend Directive
98/59/EC by defining "transfer" with reference to
Directive 2001/23/EC, and sees no reason to allow derogations with respect to the "coolingoff" period in Directive 98/59/EC on the grounds that the sale of a vessel constitutes a transfer of an undertaking within the meaning of Directive
2001/23/EC. Implementing the rules in this way would also produce considerable legal uncertainty because it is often difficult to judge in advance the extent to which the transfer of an undertaking constitutes a transfer within the meaning of Directive 2001/23/EC;
Amendment questions the proposal to amend Directive
98/59/EC by defining "transfer" with reference to
Directive 2001/23/ECso as to reduce the 30-day minimum protection period. This is an extremely important right that, applied to on-shore workers, ensures that planned collective redundancies cannot take effect until 30 days after the relevant authority has been informed. There is absolutely no justification for treating seafarers differently from on-shore workers., and sees no reason to allow derogations with respect to the "coolingoff" period in Directive 98/59/EC on the grounds that the sale of a vessel constitutes a transfer of an undertaking within the meaning of Directive
2001/23/EC.
Assets - whether means of transport or other essential equipment – have to be sold in all sectors: why should workers enjoy less protection where ships are concerned?Implementing the rules in this way would also produce considerable legal uncertainty because it is often difficult to judge in advance the extent to which the transfer of an undertaking constitutes a transfer within the meaning of Directive 2001/23/EC;
What is more, this amendment could distort competition and encourage ship-owners to change flag and register in those Member States that derogate most from the periods of protection granted to on-shore workers.
Am. 4
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DE VITS Mia
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS
FOR SEAFARERS
ECOS-V-052
New recommendation for an amendment to follow
Amendment 1
Article 3
Amend as follows:
Text proposed by the Commission
Directive 2002/14/EC is amended as follows:
Article 3(3) is replaced by the following:
3. Member States may derogate from this Directive through particular provisions applicable to the crews of vessels plying the high seas, provided that such particular provisions guarantee an equivalent level of protection of the right to information and consultation and its effective exercise by the employees concerned.
Draft opinion Amendment
Directive 2002/14/EC is amended as follows:
Article 3(3) is replaced by the following:
3. Member States may derogate from this
Directive through particular provisions applicable to the crews of vessels plying the high seas, provided that such particular provisions guarantee an equivalent level of protection of the right to information and consultation and its effective exercise by the employees concerned.
Reason
As highlighted by the Task Force on maritime employment and competitiveness, progress in communication technology means that exclusions based on the inherently itinerant nature of seafaring and difficulties in communicating with vessels at sea can no longer be justified.
Am. 5
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DE VITS Mia
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS
FOR SEAFARERS
ECOS-V-052
Amendment 2
Article 4
Amend as follows:
Text proposed by the Commission
Directive 98/59/EC is amended as follows:
(1) Article 1 is amended as follows:
(a) In paragraph 1, the following point (c) is added:
(c) "transfer" is interpreted in the meaning of Directive 2001/23/EC.
(b) In Article 1(2), point (c) is deleted.
(2) In Article 3(1), a new second subparagraph is inserted:
When the projected collective redundancy concerns members of the crew of a seagoing vessel, the notification shall be made to the competent authority of the State of the flag which the vessel flies.
(3) In Article 4, the following paragraph 1a is inserted:
1a. When projected collective redundancies of members of a crew, are carried out in connection with or deriving from a transfer of a seagoing vessel, Member States may, after consulting the social partners, grant the competent public authority the power to derogate, in full or in part, from the period provided for in paragraph 1 in the following circumstances:
(a) the object of the transfer consists exclusively of one or more seagoing vessels,
(b) the employer only operates one seagoing vessel.
Am. 6
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Draft opinion
Directive 98/59/EC is amended as follows:
1. Article 1 is amended as follows:
(a) In paragraph 1, the following point (c) is added:
‘(c) ´transfer´ is interpreted in the meaning of
Directive 2001/23/EC.’
(b) In Article 1(2), point (c) is deleted.
2. In Article 3(1), a new second subparagraph is inserted:
‘When the projected collective redundancy concerns members of the crew of a seagoing vessel, the notification shall be made to the competent authority of the State of the flag which the vessel flies.’
3. In Article 4, the following paragraph 1a is inserted:
‘1a. When projected collective redundancies of members of a crew, are carried out in connection with or deriving derive exclusively from a transfer sale of a one or more seagoing vessels,
Member States may, after consulting the social partners, grant the competent public authority the power to derogate, in full or in part, from the period provided for in paragraph 1. in the following circumstances:
(a) the object of the transfer consists exclusively of one or more seagoing vessels,
(b) the employer only operates one seagoing vessel.’
Amendment
Directive 98/59/EC is amended as follows:
1. Article 1 is amended as follows:
(a) In paragraph 1, the following point (c) is added:
(a) In paragraph 1, the following point (c) is added:
‘(c) ´transfer´ is interpreted in the meaning of
Directive 2001/23/EC.’
‘(c) ´transfer´ is interpreted in the meaning of
Directive 2001/23/EC.’
(b) (b) In Article 1(2), point (c) is deleted.
2. In Article 3(1), a new second subparagraph is inserted:
"When the projected collective redundancy concerns members of the crew of a seagoing vessel, the notification shall be made to the competent authority of the State of the flag which the vessel flies and to the competent public authority of the country in which the employer is established.’
3. In Article 4, the following paragraph 1a is inserted:
‘1a. When projected collective redundancies of members of a crew, are carried out in connection with or deriving derive exclusively from a transfer sale of a one or more seagoing vessels, Member States may, after consulting the social partners, grant the competent public authority the power to derogate, in full or in part, from the period provided for in paragraph 1. in the following circumstances:
(a) the object of the transfer consists exclusively of one or more seagoing vessels,
(b) the employer only operates one seagoing vessel.’
Am. 6
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Reason given in the opinion
To establish whether a transfer of an undertaking or part of an undertaking has taken place within the meaning of the Transfer of Undertakings
Directive, assessment of a given case must show the undertaking to have retained its identity after the transfer. Under EU case law, all the circumstances of the individual case should be taken into account when deciding whether an undertaking can be regarded as having retained its identity after a transfer (see in particular the
Spijkers case). It is by no means guaranteed that the circumstances when a vessel is sold always involve a transfer within the meaning of the
Transfer of Undertakings Directive.
The grounds invoked for derogating from the
"cooling-off" period under the Collective
Redundancies Directive should apply regardless of whether a sale of one or more vessels constitutes a transfer within the meaning of the
Transfer of Undertakings Directive. With the
Commission's proposed wording, it will be difficult to determine beforehand in a given case to what extent the derogation is admissible. The exclusion should therefore instead be explicitly linked to a collective redundancy concerning only the sale of one or more vessels, and the reference to the concept of transfer within the meaning of the Transfer of Undertakings
Directive should be dropped.
Amendment to the reason
The state of the flag which the vessel flies very often has no connection with the state in which the employer is established and has no authority in that country.
The proposal to reduce the 30-day minimum protection period is not acceptable. This is an extremely important right that, applied to onshore workers, means that planned collective redundancies cannot take effect until 30 days after the relevant public authority has been notified. There is absolutely no justification for treating seafarers differently from on-shore workers.To establish whether a transfer of an undertaking or part of an undertaking has taken place within the meaning of the Transfer of
Undertakings Directive, assessment of a given case must show the undertaking to have retained its identity after the transfer. Under EU case law, all the circumstances of the individual case should be taken into account when deciding whether an undertaking can be regarded as having retained its identity after a transfer (see in particular the Spijkers case). It is by no means guaranteed that the circumstances when a vessel is sold always involve a transfer within the meaning of the Transfer of Undertakings
Directive.
Assets, whether means of transport or any other essential equipment, have to be sold in all sectors: why should workers enjoy less protection where ships are concerned?
What is more, this amendment could distort competition and encourage ship-owners to change flags and register in Member States that derogate most from the protection periods afforded to on-shore workers.
The grounds invoked for derogating from the
"cooling-off" period under the Collective
Redundancies Directive should apply regardless of whether a sale of one or more vessels constitutes a transfer within the meaning of the
Transfer of Undertakings Directive. With the
Am. 6
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Commission's proposed wording, it will be difficult to determine beforehand in a given case to what extent the derogation is admissible. The exclusion should therefore instead be explicitly linked to a collective redundancy concerning only the sale of one or more vessels, and the reference to the concept of transfer within the meaning of the Transfer of Undertakings
Directive should be dropped.
Am. 6
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ANCISI Alvaro
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS
FOR SEAFARERS
ECOS-V-052
New proposal for an amendment after proposal for an amendment 2
Article 5
Delete:
Text proposed by the European Commission
Article 5
Amendments to Directive 2001/23/EC
Directive 2001/23/EC is amended as follows:
Article 1 is amended as follows:
(1) Paragraph 2 is replaced by the following:
2. This Directive shall apply, without prejudice to paragraph 3, where and insofar as the undertaking, business or part of the undertaking or business to be transferred is situated within the territorial scope of the Treaty.
(2) Paragraph 3 is replaced by the following:
3. This Directive shall apply to the transfer of a seagoing vessel registered in and/or flying the flag of a Member State and constituting an undertaking, business or part of an undertaking or business for the purposes of this Directive, even when it is not situated within the territorial scope of the Treaty.
(3) The following paragraph 4 is added:
4. Member States may, after consulting the social partners, provide that Chapter II of this Directive does not apply in the following circumstances:
(a) the object of the transfer consists exclusively of one or more seagoing vessels,
(b) the undertaking or business to be transferred operates only one seagoing vessel.
Draft opinion Amendment
Article 5
Amendments to Directive 2001/23/EC
Directive 2001/23/EC is amended as follows:
Am. 7
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Article 1 is amended as follows:
(1) Paragraph 2 is replaced by the following:
‘2. This Directive shall apply, without prejudice to paragraph 3, where and insofar as the undertaking, business or part of the undertaking or business to be transferred is situated within the territorial scope of the
Treaty.’
(2) Paragraph 3 is replaced by the following:
‘3. This Directive shall apply to the transfer of a seagoing vessel registered in and/or flying the flag of a Member State and constituting an undertaking, business or part of an undertaking or business for the purposes of this Directive, even when it is not situated within the territorial scope of the Treaty.’
(3) The following paragraph 4 is added:
‘4. Member States may, after consulting the social partners, provide that Chapter II of this
Directive does not apply in the following circumstances:
(a) the object of the transfer consists exclusively of one or more seagoing vessels,
(b) the undertaking or business to be transferred operates only one seagoing vessel.’
Reason
The directive does not protect EU seafarers and their level of employment. Article 5 creates a gap between EU companies and others. A vessel cannot be defined as an economic entity as per Directive
2001/23. Paragraph 3 gives rise to unequal treatment of seafarers in the EU.
Am. 7
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DE VITS Mia
AMENDMENT OF THE DIRECTIVE ON EXCLUSIONS
FOR SEAFARERS
ECOS-V-052
New recommendation for an amendment to follow
Amendment 2
Article 5(3)
Amend as follows:
Text proposed by the Commission
3) The following paragraph 4 is added:
4. Member States may, after consulting the social partners, provide that Chapter II of this Directive does not apply in the following circumstances:
(a) the object of the transfer consists exclusively of one or more seagoing vessels,
(b) the undertaking or business to be transferred operates only one seagoing vessel.
Draft opinion Amendment
(3) The following paragraph 4 is added:
4. Member States may, after consulting the social partners, provide that Chapter II of this Directive does not apply in the following circumstances:
(a) the object of the transfer consists exclusively of one or more seagoing vessels,
(b) the undertaking or business to be transferred operates only one seagoing vessel.
Reason
It is necessary to avoid any form of discrimination against seafarers as compared with on-shore workers.
Am. 8
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