51997AC0460

Opinion of the Economic and Social Committee on the 'Proposal for a Council Directive amending Directive 94/58/EC on the minimum level of training of seafarers` () (97/C 206/07)

On 17 October 1996 the Council decided to consult the Economic and Social Committee, under Article 84 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport and Communications, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 9 April 1997. The rapporteur was Mr Chagas.

At its 345th plenary session (meeting of 23 April 1997), the Economic and Social Committee adopted the following opinion with 123 votes for, one vote against and three abstentions.

1. Background

1.1. Council Directive 94/58/EC ()on the minimum level of training of seafarers was based on the 1978 IMO STCW () Convention.

1.2. The directive also contained provisions on the language skills of the crew and enabled the Port State Control to check the ability of seafarers to communicate between themselves and whether the training level meet the standards of the STCW Convention, especially on passenger vessels.

1.3. In its opinion on the proposed directive the Committee noted that the proposed text would have to be amended shortly after adoption since the revision procedure of the 1978 STCW Convention at IMO level was expected to be completed by 1995.

2. The revision of the 1978 STCW

2.1. The 'human factor` is commonly held responsible for 80 % of maritime accidents and is an important agenda item for international organizations. As part of its work on the 'human factor` the IMO revised the 1978 STCW Convention.

2.2. The IMO Circular which provides guidelines on the revised STCW Convention advises that in the late 1980s it was realized that the 1978 STCW Convention was not achieving its purpose, which was to establish uniform international minimum standards, and was losing credibility. The main reason for this was that it lacked precise standards and often said 'to the satisfaction of the Administration`, which led to widely varying interpretation of the standards and a perception that STCW certificates could not be relied upon.

2.3. The IMO Circular also notes that the knowledge and sea service requirements contained in the STCW Convention did not define the skills and competencies which should be gained. It was suggested that the effectiveness of on board training was being undermined by:

- crew reductions;

- faster turn-around times;

- more frequent crew changes; and

- different mixes of backgrounds due to multi-national manning.

2.4. The IMO Circular additionally recalls that since the adoption of the STCW Convention there had been changes in the structure of the world fleet and the supply of seafarers had shifted from the traditional maritime nations. It was also said that there had been changes to the traditional organization on ships and the duties and responsibilities of the crew and that there was a need to tackle the human related causes of accidents.

2.5. The main aims of the revision process were to:

- transfer all the detailed technical requirements to an associated code;

- clarify the skills and competence required and to take account of modern training methods;

- require Administrations to maintain direct control over and endorse the qualifications of those masters, officers and radio personnel they authorize to serve on vessels flying their flag;

- make Parties to the Convention accountable to each other, through IMO, for their proper implementation of the Convention and the quality of their training and certification activities; and

- have amendments enter into force for all Parties to the Convention with the least possible delay.

2.6. In summary, the principle aim was to ensure that the STCW Convention was up to date and established guaranteed unified minimum standards of competence.

2.7. The revised STCW Convention consists of the following:

- the original Articles of the 1978 STCW Convention (unamended);

- the Regulations (which have been heavily revised);

- Part A of the STCW Code (which is mandatory);

- Part B of the STCW Code (which is a recommendation and aims to provide additional guidance in the interpretation of the mandatory requirements); and

- a number of STCW Conference Resolutions.

2.8. The format of the revised STCW Convention is:

- Chapter I - General provisions;

- Chapter II - Master and deck department;

- Chapter III - Engine department;

- Chapter IV - Radio communication and radio personnel;

- Chapter V - Special training requirements for personnel on certain ship types;

- Chapter VI - Emergency, occupational safety, medical care and survival functions;

- Chapter VII - Alternative certification; and

- Chapter VIII - Watchkeeping.

2.9. In order to clarify the linkage between the alternative certification provisions found in Chapter VII and the provisions found in Chapters II, III and IV, the following seven functions were identified:

- navigation;

- cargo handling and stowage;

- controlling the operation of the ship and care for persons on board;

- marine engineering;

- electrical, electronic and control engineering;

- maintenance and repair; and

- radio communications.

2.10. The revised STCW Convention also distinguishes between the following three levels of responsibility:

- 'Management level` - which means the level of responsibility associated with serving as a master, chief mate, chief engineer officer or second engineer officer. The level of responsibility covered relates to ensuring that all functions within the designated area of responsibility are properly performed.

- 'Operational level` - which means the level of responsibility associated with serving as officer in charge of a navigational or engineering watch or as designated duty engineer for periodically unmanned machinery spaces or as a radio operator. The level of responsibility covered is associated with maintaining direct control over the performance of all functions within the designated area of responsibility in accordance with proper procedures and under the direction of the individual serving in the management level for that area of responsibility.

- 'Support level` - means the level of responsibility associated with performing assigned tasks, duties or responsibilities under the direction of the individual serving in the operational or management level.

2.11. The various functions at the three levels of responsibility are established in Part A of the STCW Code in the form of comprehensive tables which set out in detail the:

- competence;

- knowledge, understanding and proficiency;

- methods for demonstrating competence; and

- criteria for evaluating competence.

2.12. The revised STCW Convention is therefore a much more complex instrument than the previous Convention and each part is integral to the others.

The Committee recalls that when the Directive 94/58/EC on the Minimum Level of Training of Seafarers was adopted, Article 9(3)(a) required the Commission to propose a set of criteria for the recognition of types of certificates issued by institutes or administration which would be defined by the Council before 1 July 1995, in accordance with the conditions of the Treaty. They have now done so in Article 9(3)(a) of the amending directive.

3. General Comments

3.1. The Committee is of the opinion that nothing should be done which could in any way undermine the integrity and enforceability of the revised STCW Convention at the international level and considers that the revised STCW Convention is a complex instrument which can only be read in its entirety.

3.2. The Committee is of the view that a European directive giving effect to the revised STCW Convention could complement this Convention provided:

- it does not cause any unnecessary duplication of requirements and will not require frequent revision;

- it will not create legal uncertainty or a legal conflict between the international and national obligations of Member States who are also Parties to IMO Instruments;

- it is fully in line with the undertakings of the Commission, as contained in the Communication on Safe Seas COM(93) 66 final ();

- it does not prejudice the aims the IMO articulated when it adopted the revised STCW Convention;

- it does not contain any provisions which could be interpreted as permitting any watchkeeping arrangements which contradict the provisions of the revised Convention.

3.3. The Committee is of the opinion that the amending directive should fully reflect the clarification of the revised STCW Convention transitional provisions and the implementation dates for the various requirements which have been agreed within the IMO.

3.4. The amending directive very properly introduces a new Article 51 covering fitness for duty which reproduces the minimum rest provisions in Chapter VII of STCW 95. However the Committee cannot ignore the fact that the ILO has more recently adopted its new Convention No 180 on seafarers' hours of work. It might be appropriate for the Commission to develop in due course and following the entry into force of Convention No 180 with its accompanying Resolutions a single instrument addressing both the IMO and ILO standards so as to avoid any confusion as to the measures to be applied by Member States.

3.5. The amending directive only contains some of the regulations found in the annex of the revised STCW Convention and does not reproduce Part A and Part B of the IMO STCW Code. Moreover, it fails to make clear whether the amending directive seeks to give full effect to the international obligations of the Member States who are also Parties to the STCW Convention or is supplementary and provides complementary European obligations.

3.6. Although the preamble of the current proposal for a Council directive states that 'the provisions of the revised STCW Convention should be properly reflected in the directive as soon as possible in order to ensure that Member States act in consistency with their obligations at international level`, as presently drafted it fails to achieve this aim.

3.7. The revised STCW Convention requires that officers at management level have a knowledge of the national (flag State) legislation. In the Explanatory Memorandum (paragraph 16) of the Commission's proposal it is suggested that Member States can meet the requirement merely by providing a summary and some form of written test which is completed and forwarded to the Administration. The Committee is doubtful as to whether this is in conformity with the revised STCW Convention as it will not be possible to ensure that adequate control procedures can be exercised and that quality assurance standards can be applied. As such, the Committee is concerned that such guidance may be in breach of both the letter and the spirit of the revised STCW Convention.

3.8. The Committee noted that the IMO had agreed that the 69th session of the Maritime Safety Committee would, at a meeting scheduled to be held in May 1997, adopt a number of amendments to the revised STCW Convention, and agreed that it is clear that a suitable mechanism must be put into place to ensure that the amended directive will give effect to the international obligations of the Member States. The proposed amendments are:

- an addition to Regulation V/2 (Mandatory minimum requirements for the training and qualifications of masters, officers, ratings and other personnel on ro-ro passenger ships) in the form of an addition to Regulation V/2.3;

- a new Regulation V/3 (Mandatory minimum requirements for the training and qualifications of masters, officers, ratings and other personnel on passenger ships other than ro-ro passenger ships);

- replacement of some of the current text in Section A-V/2 of Part A of the STCW Code (Mandatory minimum requirements for the training and qualifications of masters, officers, ratings and other personnel on ro-ro passenger ships);

- the addition of a new paragraph 5 in Section A-V/2.5 of Part A of the STCW Code (Crisis management and human behaviour training); and

- the addition of a new Section A-V/3 in Part A of the STCW Code (Mandatory minimum requirements for the training and qualifications of masters, officers, ratings and other personnel on passenger ships other than ro-ro passenger ships).

3.9. The requirements contained in the proposed new text of Article 9(3)(a) are in conformity with the requirements of Regulation I/10 of the revised STCW Convention, insofar as the STCW Regulation requires the competent administration to confirm, through all necessary measures, which may include inspection of facilities and procedures, that the requirements concerning standards of competence, the issue and endorsement of certificates and record keeping, are complied with. The Committee recommends that such inspections will indeed take place, on a random basis, and/or whenever there seems to be a good reason for that.

3.9.1. The Committee agrees with this provision. However, the following aspects have to be carefully considered:

- the practicability of such a mandatory provision as it would require the inspection of individual maritime colleges,

- the respect of such a measure in the case of existing non-EU seafarers currently serving on EU flag vessels and the necessity of such a requirement in the case of all non-EU countries seafarers, in view of the requirements contained in Regulations I/7 and I/8 of the revised STCW Convention,

- the need for the amending Directive to contain adequate control and enforcement provisions.

3.9.2. In view of the above, the Committee suggests that the criteria for the inspection of non-EU training institutions contained in Article 9(3)(a) sub-paragraphs 2 and 3 should be retained. However, provided it does not undermine the objectives of ensuring harmonized and qualified training and certification activities, consideration should be given as to whether sub-paragraphs 2 and 3 would be better presented by way of recommendatory guidance.

3.10. The Committee recalled the statement contained in paragraph 1.4 of the opinion it had provided () on the inclusion of other relevant international instruments relating to the training of seafarers. Including ILO Conventions 53 (Officers' Competency Certificates) (1936), 74 (Certification of Able Seamen) (1946), 69 (Certification of Ships' Cooks) (1946) and 164 (Health Protection and Medical Care of Seafarers) (1987) as the majority of the EU Member States have ratified these ILO Conventions.

3.11. Finally, the Committee notes that neither the Directive 94/58/EC nor the 1978 STCW or the 1995 STCW Conventions apply to fishing vessels and that a parallel convention was adopted by the IMO (the STCW-F Convention). It urges the Commission to encourage the Member States to ratify the new convention in order to ensure an harmonized EU approach on the standards of training and certification of fishing vessels crews.

4. Specific Comments

4.1. The amending directive could clearly and unequivocally establish the principle that it does not in any way interfere with the obligations those Member States who are also Parties to the STCW Convention have to the IMO. The Committee recommends that an express clause to this effected be added to the Articles of the amending directive.

4.2. The Committee also recommends that the amending directive should also contain an express provision to the effect that the amending directive establishes a minimum European standard and that the Member States are free to adopt higher national standards of competence. Although such a provision is implied by Article 2 of the directive the Committee feels that an express clause to this effect should be inserted into the preamble of the amending directive.

4.3. The Committee further suggests the inclusion of an additional paragraph in the preamble to the amending directive to the effect that:

'Recognizing that the revision of the 1978 STCW Convention was undertaken using the "tacit acceptance" method provided for in Article XII of the Convention and this directly imposes obligations on those Member States which are Party to the Convention.`

4.4. The amending directive fails to revise Article 8 of Council Directive 94/58/EC. However, Article 8(1) is not in conformity with the new Regulation V-13(c) of the IMO SOLAS () Convention which enters into force on 1 July 1997. The new IMO SOLAS Regulation, contained in Chapter V under the sub-heading 'Manning`, states:

'On every passenger ship to which Chapter I applies, to ensure effective crew performance in safety matters, a working language shall be established and recorded in the ship's log book. The company or the master, as appropriate, shall determine the appropriate working language. Each seafarer shall be required to understand and, where appropriate, give orders and instructions and report back in that language. If the working language is not an official language of the State whose flag the ship is entitled to fly, all plans and lists required to be posted shall include a translation into the working language`.

4.5. The Committee noted that the IMO SOLAS Conference which adopted the new SOLAS requirement also adopted a Conference Resolution (No 10) calling for such a requirement to be extended to all ships. The Committee therefore recommends that the Commission utilizes this opportunity to adopt a requirement that there is a single working language on all ships flying European flags and those, irrespective of flag, which call at European ports as it did in the case of passenger ships when it adopted the directive.

4.6. The amending directive should also contain the key definitions which are contained in Article II of the 1978 STCW Convention. Article 4 of the amending directive which corresponds to Regulation I/1 of the revised STCW Convention (definitions and clarifications) omits a definition of 'month` and contains a revised definition of 'approved`. The Committee recommends that the definition of 'month` be added and the definition of 'approved` brought into line with that found in the revised STCW Convention.

4.7. Article 5(a)(4) restricts the rights of Member States to make their own judgements and decisions concerning the definition of near coastal voyages and the standards to be prescribed for them by requiring approval through the procedure under Article 13. The Committee notes that Article 5(a) does not include the corresponding provisions in STCW Regulation I/3, paragraph 5, which states that 'Nothing in this Regulation (concerning near coastal voyages) shall, in any way, limit the jurisdiction of any state, whether or not a Party to the Convention`.

4.8. In Article 5b, which corresponds to Regulation I/5 of the revised STCW Convention (national provisions), the replacement of 'any Party` by 'any Member State` in paragraph 4 of the amending Directive changes the meaning of the text and could be interpreted as meaning that a Member State is not required to co-operate with non-EU States with regard to non-compliance by companies located in the EU. As such, this requirement is not in compliance with the provisions of the revised STCW Convention and the Committee recommends that it should be revised in line with the requirements found in the revised STCW Convention.

4.9. Article 5d corresponds to Regulation I/9. Paragraph 4.2 of the amending directive imposed a condition of the requirement to make available information to non-EU States and companies to there being in existence a reciprocal agreement, which is not the case in the revised STCW Convention. The Committee is of the view that this is unnecessary and recommends that the text be amended to reflect the requirements of the revised STCW Convention.

4.10. The Committee notes that paragraph 1.5.3 of Article 9(3)(a) of the amending directive could be interpreted as requiring all foreign seafarers to have completed an approved ARPA simulator course. This Committee considers that this provision should be clarified so that it is limited to those officers assigned to a navigational watch.

4.11. The Committee considers that there is some ambiguity in the criteria for the approval of maritime training institutions as the provision could be interpreted as requiring that maritime training institutions must be able to provide living accommodation [Section 2 sub-paragraph 2.1.1 of Article (9(3)(a)]. As many training institutions do not possess their own living accommodation facilities and such a requirement would have nothing to do with the conduct of education and training programmes and courses, the Committee considers that this requirement would be unnecessary and recommends that the potential ambiguity must be removed.

4.12. In Section 2 of Article 9(3)(a), sub-paragraphs 2.6 and 2.7, there is a requirement that a maritime training institution must provide the Member State with computerized copies of their records. The Committee considers that it would be reasonable to provide an alternative method of meeting this requirement through the provision of records in a suitable written form.

4.13. The Committee notes that the amending directive does not contain any provisions equivalent to those contained in Regulation I/13 of the revised STCW Convention (conduct of trials). The Committee is firmly of the view that the watchkeeping provisions should be retained in the amending directive and that the Commission should use this opportunity to ensure that solo watchkeeping during periods of darkness cannot be carried out on European flag vessels nor within European waters by foreign flag vessels. The European Parliament in a Resolution on safety at sea () urged the Commission to move in that direction too.

4.14. The Committee suggests that the contents of paragraph 1 of chapter 1 of the annex to the amending directive, which contain references to Parts A and B of STCW Code, should be more appropriately contained in an Article within the amending directive. Perhaps, with a view to ensuring greater clarity, into Article 1.

Brussels, 23 April 1997.

The President of the Economic and Social Committee

Tom JENKINS

() OJ No C 367, 5. 12. 1996, p. 1.

() OJ No L 319, 12. 12. 1994, p. 28; OJ No C 34, 2. 2. 1994, p. 10.

() International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW).

() OJ No C 34, 2. 2. 1994, p. 47.

() International Convention for the Safety of Life at Sea.

() OJ No C 47, 19. 2. 1996, p. 27.