kom (2016) 0235 - Ingen titel

Europaudvalget 2016
KOM (2016) 0235
Offentligt

EUROPEAN

COMMISSION

Brussels, 29.4.2016

SWD(2016) 144 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT

on the Agreement concluded between the General Confederation of Agricultural Co-

operatives in the European Union (COGECA), the European Transport Workers'

Federation (ETF) and the Association of National Organisations of Fishing Enterprises

(EUROPÊCHE) of 21 May 2012 as amended on 8 May 2013 concerning the

implementation of the Work in Fishing Convention, 2007 of the International Labour

Organisation

Accompanying the document

the proposal for a Council Directive

implementing the Agreement concluded between the General Confederation of

Agricultural Co-operatives in the European Union (COGECA), the European Transport

Workers' Federation (ETF) and the Association of National Organisations of Fishing

Enterprises (EUROPÊCHE) of 21 May 2012 as amended on 8 May 2013 concerning the

implementation of the Work in Fishing Convention, 2007 of the International Labour

Organisation

{COM(2016) 235 final}

{SWD(2016) 143 final}

kom (2016) 0235 - Ingen titel

Table of Contents

PROBLEM DEFINITION .......................................................................................... 6

1.1. Specific problems affecting the sector and its workers ..................................... 9

1.1.1. Problem 1: Risk and the seriousness of accidents are high in the

sector ................................................................................................... 9

1.1.2. Problem 2: Risk and the seriousness of occupational diseases are

high in the sector ............................................................................... 11

1.2. Main drivers .................................................................................................... 12

1.2.1. Work related factors .......................................................................... 12

1.2.2. Ineffective legal framework .............................................................. 14

1.3. Who is affected and how? ............................................................................... 17

1.4. How is the problem likely to evolve?.............................................................. 19

WHY SHOULD THE EU ACT? .............................................................................. 20

2.1. Why could Member States not achieve the objectives of this initiative? ........ 21

2.2. What is the EU added value? .......................................................................... 21

2.3. Assessment of the representativeness of the EU social partners and the

legality of the clauses ...................................................................................... 24

2.3.1. Representativeness of the EU social partners.................................... 24

2.3.2. Legality of the clauses ....................................................................... 25

WHAT SHOULD BE ACHIEVED? ........................................................................ 26

3.1. General Objective ............................................................................................ 26

3.2. Specific objectives........................................................................................... 26

3.3. Consistency with other EU policies and the Charter of Fundamental Rights. 26

POLICY OPTIONS................................................................................................... 27

4.1. Option 1 Baseline Scenario. ............................................................................ 27

4.2. Option 2 Implementation of the agreement by a Council Directive in

accordance with Article 155 TFEU ................................................................. 28

4.3. Legal analysis of the differences between the agreement provisions, the

existing EU provisions and the national level ................................................. 29

4.3.1. Scope and applicability ..................................................................... 30

4.3.2. Minimum requirements for work on board fishing vessels ............... 31

4.3.3. Working time ..................................................................................... 34

4.3.4. Fisherman’s work agreement ............................................................ 36

4.3.5. Repatriation ....................................................................................... 38

4.3.6. Food and water on board ................................................................... 39

4.3.7. Right to medical treatment on board and ashore ............................... 40

4.3.8. Protection in case of work-related injury sickness and death ........... 41

4.3.9. Occupational safety and health: risk assessment ............................... 43

WHAT ARE THE IMPACTS AND WHO WILL BE AFFECTED? ...................... 44

5.1. Background ..................................................................................................... 44

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5.2.

5.3.

5.4.

5.5.

5.6.

5.7.

5.8.

Impact on the Member States .......................................................................... 45

Impact on workers ........................................................................................... 46

Impact on employers ....................................................................................... 47

Impact on employment .................................................................................... 50

Impact on competitiveness, SMEs and consumers ......................................... 51

Impact on third countries................................................................................. 52

Overview of costs and benefits ....................................................................... 52

COMPARISON OF THE OPTIONS ........................................................................ 55

HOW WOULD ACTUAL IMPACTS BE MONITORED AND EVALUATED? .. 57

7.1. Monitoring of the impacts ............................................................................... 57

7.2. Evaluation of the agreement ............................................................................ 57

ANNEXES ................................................................................................................ 58

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List of abbreviations

BMI

DCF

EU LFS

EU OSHA

ESAW

FTE

GDP

ILO

ILC

IMO

IUU

NACE

OSH

STCW-F

TFEU

Body Mass Index

Data Collection Framework in the context of the

Common Fisheries Policy

European Union

European Labour Force Survey

EU Occupational Safety and Health Agency

European Statistics Accidents at Work

Full-Time Equivalents

Gross Domestic Product

International Labour Organisation

International Labour Conference

International Maritime Organisation

Illegal, Unreported and Unregulated fishing

Nomenclature Générale des Activités Economiques dans

l'Union Européenne

Occupational Safety and Health

Standards of Training, Certification and Watch keeping

for Fishing Vessel Personnel

Treaty on the Functioning of the European Union

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Background

In accordance with Articles 152-155 of the Treaty on the Functioning of the European Union

(TFEU), the European Union promotes the dialogue between the social partners at European

level, including through consultations on EU social policy initiatives, and support to

negotiations and joint actions of the social partners. According to Article 155(2) TFEU,

agreements between the European social partners can either be implemented autonomously by

the signatory parties and their affiliates in accordance with the procedures and practices

specific to management and labour and the Member States, or if they concern matters covered

by Article 153 TFEU, through EU legislation by means of a Council Decision

further to a

proposal from the Commission. According to the Treaty, the EU social partners make the

decision to negotiate an agreement on an autonomous basis.

In 2002, the International Labour Organisation (ILO)

started discussions and the preparation

of complete and up-to-date international social standards for working conditions in the fishing

sector, taking into account the technological progress in the sector. The ILO had already

developed and adopted five Conventions relating to fishermen

. The last Convention had been

adopted in 1966. The new standards would also address critical issues such as safety and

health and take into account the existing differences in fishing operations, employment

arrangements, methods of remuneration and other aspects

The EU, its Member States,

employers' representatives (in particular fishing vessel owners), and workers' representatives

(in particular fishermen representatives) actively participated in the negotiations and

conclusion of the Work in Fishing Convention, 2007 (also referred to as ILO Convention C

188), which was adopted at the 96

International Labour Conference (ILC) of the ILO in

2007

All EU Member States voted in favour of the Convention. The objectives of this

Convention are to ensure that fishermen have decent living and working on board fishing

vessels with regard to working time, the details of their work agreement, accommodation and

food, occupational safety and health protection, medical care and social security. It contains

global minimum requirements. It will apply to all fishermen and fishing vessels engaged in

commercial fishing operations. It consolidates the four out of five existing ILO Conventions

relating to fishermen

The implementation of a social partner agreement in EU law, normally takes the form of a Directive. See for

example Directive 2009/13/EC, which implements the EU social partners' agreement on the ILO Maritime

Labour Convention, 2006. The content of the ILO Maritime Labour Convention is similar to that of the ILO

Fishing Convention. However, the first is applicable to seafarers and not to fishermen. Another example is

Directive Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term

work concluded by ETUC, UNICE and CEEP.

The International Labour Organisation is a specialised agency of the United Nations with a tripartite structure,

www.ilo.org

C112 - Minimum Age (Fishermen) Convention, 1959 (No. 112), C113 - Medical Examination (Fishermen)

Convention, 1959 (No. 113), C114 - Fishermen's Articles of Agreement Convention, 1959 (No. 114) C125 -

Fishermen's Competency Certificates Convention, 1966 (No. 125), C126 - Accommodation of Crews

(Fishermen) Convention, 1966 (No. 126)

ILO Report " Conditions of work in the fishing sector: The constituents’ views" Report V(2) submitted to the

International Labour Conference 2004.

http://www.ilo.org/public/english/standards/relm/ilc/ilc92/pdf/rep-v-2.pdf

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312

333:NO

C112 - Minimum Age (Fishermen) Convention, 1959 (No. 112), C113 - Medical Examination (Fishermen)

Convention, 1959 (No. 113), C114 - Fishermen's Articles of Agreement Convention, 1959 (No. 114), C126 -

Accommodation of Crews (Fishermen) Convention, 1966 (No. 126)

kom (2016) 0235 - Ingen titel

The EU social partners in the sea fisheries sector ETF, Europêche and COGECA decided to

enter into negotiations with an aim of reaching an agreement concerning the ILO Work in

Fishing Convention, 2007

at the end of 2009. Firstly their objective was to promote the

ratification of the ILO Convention in order to create a level playing field for the sector in the

EU. Secondly they wanted to undertake a first step towards codification of the EU social

acquis in the sea fishing sector. They wanted to merge the provisions from the EU acquis and

the ILO Convention C.188, in order to create a higher level of protection for fishermen in the

EU. The EU social partners were of the opinion that EU provisions currently applicable to

their sector were in need of updating. Thirdly, the EU social partners sought to improve the

image of the sector, which they considered had deteriorated due to environmental issues, the

decline in fish stocks, general disinvestment in the sector but also unattractive working

conditions for young and skilled workers

. The agreement was concluded on 21 May 2012,

and later amended on 8 May 2013. On 10 May 2013, the EU social partners requested the

Commission to implement their agreement by a Council decision according to Article 155(2)

TFEU.

The objective of the agreement is, in line with Article 153(1)(a) and (b) TFEU, to improve the

working and living conditions of workers on board sea fishing vessels with regard to

minimum requirements for work on board (e.g. minimum age, medical certificate), conditions

of service (e.g. content of the fisherman's work agreement, working time limits, right of

repatriation), accommodation and food, occupational safety and health protection and medical

care, i.e. medical treatment on board and ashore, based on the ILO Convention's provisions.

When management and labour jointly request implementation of their agreement by a Council

decision based on a proposal of the Commission, in accordance with Article 155 (2) TFEU,

the Commission can either accept or reject this request, but it cannot amend the text of the

agreement. In accordance with the Better Regulation Guidelines

, and in order for the College

to take an informed decision, the Commission services have prepared this proportionate

impact assessment which includes an assessment of the representativeness of the signatories,

the legality of the agreement vis-à-vis the EU legal framework (See Section 2) and the respect

of the subsidiary and proportionality principles. An external study was commissioned to

support the assessment of cost and benefits of the agreement. This study was conducted by

ICF International

. Given the transparency of the process and the role entrusted to the social

partners by Article 155 TFEU, no additional public consultation has been carried out

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312

333:NO

ICF International, Study on Costs and Benefits of a Council Decision implementing the European sectoral

social partners' Agreement concerning the implementation of the Work in Fishing Convention, 2007 of the ILO,

November 2015

SWD(2015) 111 final

ICF International, "Study on Costs and Benefits of a Council Decision implementing the European sectoral

social partners' Agreement concerning the implementation of the Work in Fishing Convention, 2007 of the ILO",

December 2015.

http://ec.europa.eu/smart-regulation/guidelines/tool_7_en.htm

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PROBLEM DEFINITION

Characterisation of the sector

At a global level, Asia dominates the production in the fishing sector worldwide. It has the

largest percentage of the world's fishing fleet (73%), followed by Africa (11%)

. China and

Indonesia count for a quarter of the global fish harvest. Asian countries dominate the

production worldwide, but typically consume most of the fish production domestically. This

is in particular the case in China

. The EU fisheries industry is the fourth largest in the world.

Fishing provides jobs for over 100,000 people. It supplies some 6.4 million tonnes of fish

each year

Global trade in fish products is still dominated by EU Member States. Denmark, Spain and

the Netherlands belong to the global top ten trading nations next to Norway, Canada, the

United States and Chile. This dominance and the fact that the EU is one of the biggest

importers of fish products, allow the EU to set standards that influence production and

processes worldwide.

The sea fishing sector involves 23 EU Member States, which are coastal states. According to

the 2015 Annual Economic Report on the EU Fishing Fleet (STECF 15-07),the amount of

Gross Value Added (GVA) and gross profit (all excl. subsidies) generated by the EU fishing

fleet (excl. Bulgaria, Cyprus, Greece and Malta

) in 2013 was €3.4 billion and €1.3 billion,

respectively. GVA as a proportion of revenue was estimated at 49% and gross profit margin at

20%. With a total net profit of €506 million for the EU fleet in 2013, 7.8% of the revenue was

retained as net profit. Sixteen out of nineteen member states (excludes Bulgaria, Cyprus,

Greece and Malta) generated net profits in 2013; the remaining three Member States

(Belgium, Finland and Portugal) generated net losses.

In most Member States, the share of single-vessel enterprises by far outweighs those with

several vessels. The share of such enterprises

is largest in Lithuania (where 100% of

enterprises consist of only one vessel), Belgium (98%), Finland (97%), Malta (97%), and the

United Kingdom (96%). Conversely, Latvia is the country with a highest number of

enterprises with more than 5 vessels, although this remains a comparatively low proportion of

the total number of enterprises (5%)

. More than 100,000 people work on board vessels in

The Work in Fishing Convention, 2007 (No. 188): Getting on board, Issues paper for discussion at the Global

Dialogue Forum for the promotion of the Work in Fishing Convention, 2007 (No. 188), Geneva, 15–17 May

2013/International Labour Office, Sectoral Activities Department. Geneva, ILO, 2013, p. 2.

OECD (2015) Executive Summary, OECD Review of Fisheries: Policies and Summary Statistics 2015, OECD

Publishing, Paris.

http://europa.eu/pol/fish/index_en.htm

OECD (2015) Recent trends in OECD fisheries and aquaculture in

OECD Review of Fisheries: Policies and

Summary Statistics 2015,

OECD Publishing, Paris

Data from these Member States are not included in the 2015 The 2015 Annual Economic Report on the EU

Fishing Fleet (STECF 15-07), due to data quality issues (see p. 3 of the report).

In terms of applicability of the EU OSH legislation to fishing vessels, the main parameter size is size.

Directive 93/103/EC applies to fishing vessels 15 or 24 meters and over, whilst Directive 29/92/EEC (Medical

treatment on board vessels, also including fishing vessels) as well as Directive 89/391/EEC and its individual

directives (where relevant) apply in full to all fishing vessels irrespective of size.

ICF study, p. 14-16

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this sector. Greece, Italy and Spain have the largest fleets in terms of number of vessels

Consequently, the number of enterprises in the sea fisheries sector is highest in those Member

States with the biggest fleet in terms of vessels, gross tonnage and engine power. In 2012,

Greece was the country with the largest number of fishing enterprises (almost 14,000),

followed by Spain, Italy, France, the United Kingdom and Portugal (See Annex 5).

Structure of the sector

Box 1: Some data concerning sea fisheries sector

Number of enterprises in the sector within the EU:

Number of EU fishing vessels

Total number of fishermen in the EU

Total number of employed fishermen

Total number of self-employed without workers

Total number of self-employed with workers

Turnover sea fisheries sector:

61,274

80,468

108,482

59,665

29,290

15,187

6.9 billion Euros

In terms of employment, the countries with the largest fleet (Greece, Italy, Spain, Portugal,)

account for around more than half of the employment within the EU. Taking into account the

countries with a larger fleet such as France, the Netherlands, Poland, and the United

Kingdom, these eight countries make up 84% of the sector in total employment terms and

87% in terms of FTE (See Annex 5).

Greece had the largest fleet in 2013 (>16,000 vessels), followed by Italy (>14,000 vessels) and Spain (>10,000

vessels)

Employment data is published as part of the Labour Force Survey (EU-LFS) (agriculture, farming and

fisheries). Data on the fisheries sector (level 3 NACE data) was requested specifically for this study. However,

employment data is only available for 16 countries and is missing for BE BG, CY, DK, IE, LV, and SI. The EU

LFS data was supplemented with national sources, ICF study, p.20-21

EU vessel data

This includes employed, self-employed and family workers, ICF Study, p.24

Calculation based on ICF study, table 7 Employment, self-employment and family workers in the fisheries

sector, 2014

Total number of self-employed without workers ICF study p. 24

This metric from the EU-LFS indicates the share of self-employed individuals who have employees. As the

only available relevant data, this has been used as a proxy for the share of self-employed working on the same

vessel with employees, ICF Study p, 24

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Table 1: Employment: workers, family workers and self-employment in the EU fisheries

sector in 2014, by share of category out of total employees

Self-

employed

with

employees

(out of total

employees)

13%

31%

18%

14%

13%

17%

18%

17%

37%

15%

14%

Self-

employed

without

employees

(out of total

employees)

18%

16%

20%

30%

27%

29%

26%

61%

41%

36%

72%

78%

76%

27%

Row Labels

Employee

Family

worker

Total self

employed

Lithuania

Portugal

Spain

Germany

Croatia

Italy

Poland

Romania

France

United

Kingdom

Finland

Estonia

Netherlands

Sweden

Malta

Greece

EU28

100%

71%

67%

65%

62%

56%

51%

49%

39%

36%

27%

20%

22%

55%

17%

27%

29%

35%

38%

44%

27%

42%

43%

44%

61%

58%

73%

80%

78%

90%

41%

Source: LFS data available by special request [stapro].

The share of self-employed in the sector proved difficult to determine, due to the lack of

comparable, sufficiently disaggregated data

and also due to the fact that the definition of

self-employed is determined at national level. An attempt was made to determine the number

of self-employed based on the form of payment. Most fishermen who are paid on the basis of

"crew share

" are often self-employed. Some Member States like the United Kingdom and

the Netherlands consider fishermen paid on the basis of crew share as self-employed while

other Member States consider them as employees. According to the data available

, self-

This metric from the EU-LFS indicates the share of self-employed individuals who have employees. As the

only available relevant data, this has been used as a proxy for the share of self-employed working on the same

vessel with employees.

Due to the size of the sector, the data in the sea fisheries sector are for statistical purposes aggregated with

aquaculture and processing. In terms of employment data it is often aggregated further with agriculture and

forestry.

This form of payment consists of a share of a catch minus costs.

The data of the EU-LFS indicates the share of self-employed individuals who have employees. As the only

available relevant data, this has been used as a proxy for the share of self-employed working on the same vessel

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employment is limited in Estonia, Spain, Finland, France, Italy, Latvia, Portugal, Romania

and Lithuania. Self-employment makes up around 30% of total employment in Cyprus,

Denmark, Finland, Italy, Malta, and Poland. On the other hand, in Greece, Ireland, Slovenia

and the UK, the share of self-employment in the sector is estimated between 60-90%

. No

data exist, which links employment to vessel size. For the EU as a whole the share of self-

employed fishermen stands at 41% of total individuals working in the sector. Between 2008

and 2014, EU-LFS data records stability in the share of self-employment in the sector at 41%

(See Annex 5 for more details on employment in the sector).

With regard to employment relationships, the sector is characterised by different employment

relationships such as part-time or seasonal, informal employment relationships, or

employment contracts for a number of voyages. The shares of part-time employment were

highest in the Netherlands (24%), followed by Romania (23%) and Finland (20%) and lowest

in Poland (4%), Greece (5%) and France (7%)

. In Spain, there is no obligation to have a

written employment contract. In some Member States, such as Slovenia fishing is a seasonal

and part-time occupation.

In terms of vessel size, fleets with the greatest share of vessels of 24 metres and over are

registered in Belgium (44% of the Belgian fleet), Lithuania (28%), the Netherlands (20%) and

Latvia (16%). Smaller fishing vessels (i.e. under 12 meters)

were more prevalent in

Romania (98%) and Finland (97%), Bulgaria (96%), Cyprus (96%), Greece (94%) and

Estonia (94%).

Across those Member States making up the largest share of the EU fishing fleet, large vessels

above 24 metres were relatively more prevalent in Spain (8%), whereas small vessels

predominated in Greece (94%)

1.1.

Specific problems affecting the sector and its workers

1.1.1. Problem 1: Risk and the seriousness of accidents are high in the sector

Comparing the risks of accidents in the fishing industry with those for other occupational

categories worldwide reveals that fishing is one of the most dangerous occupations worldwide

both in terms of accidents at work and of occupational diseases. In 1999, the ILO estimated

24,000 deaths among workers in the sector each year in the world, representing an incidence

rate of 80 per 100,000 workers. The risk is not proportional to the size of the sector. In

addition, 24 million non-fatal accidents were estimated to take place per year. In the UK, the

incidence rate of fatal accidents in the fisheries sector was 15 times higher than the national

average. In Sweden it was 22 times higher than the national average and in Spain 8 times

higher than the national average. In Denmark, from 1989 to 1996, the incidence rate was 25-

with employees. The self-employed working on the same vessel alongside employees fall under certain

conditions within the scope of the agreement in the context of occupational safety and health conditions (see

section 4.3)

ICF study and European Foundation for the Improvement of Living and Working Conditions (2012)

Representativeness of the European social partner organisations: Sea fisheries. Available at:

http://www.eurofound.europa.eu/eiro/studies/TN1105068S/tn1105068s_3.htm

ICF study, p. 21

In terms of scope of the existing OSH legislation, the parameter (size) is however slightly different, as small

vessels are vessels less than 15 meters in length.

ICF Study p.14

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30 times higher than the rate for those employed on land

. This trend remains within the EU

and worldwide

. Although the number of fatal accidents decreased over the period 2007-

2012 with an overall reduction of 11%, the national trends are very different. In six Member

States the number of accidents increased. 17 Member States saw no change in the number of

accidents. In four Member States, the number of accidents decreased

The number of non-fatal accidents has been decreasing. However, they still occur at rates

much higher than the national average. Furthermore, underreporting of this type of accidents

in the sector needs to be taken into account. Cuts, scratches, injuries, lashes and bruises are

generally not even considered as accidents, but simply as part of the job

. The risk of being

involved in a non-fatal accident is 2.4 times greater in the fishing activity when compared

with other industrial sectors. The scale of employment in the sector alone does not explain

these results

. According to research, almost 70% of the accidents happen at sea. In a 2009

survey

, 69% of persons working in the sector reported that their most recent accident at

work or in the course of the work resulted in sick leave in the past 12 months

. Because of

the seriousness of the accidents occurring in the sector, workers are normally absent longer

than in other sectors. Out of 4,453 total non-fatal accidents in the sector, a large proportion led

to 7 and more days of absence in 2012, whereas the proportion of accidents leading to less

than 6 days of absence was relatively small. This leads to increased social security costs and

reduced output for the employer

Table 2 Working days lost linked to accidents in the fishing and aquaculture

sector (2012), by total number of accidents

Less than one

week

2008

217

2012

142

more than six

one week to one one month to six months

month

months

(permanent

incapacity)

2008

1,668

142

2012

1,311

460

2008

915

414

2012

908

340

2008

2012

FAO Fisheries Circular no.966: Safety at sea as an integral part of fisheries management, 2001

Handbook for improving living and working conditions on board fishing vessels, ILO 2010

ICF study, p. 34-36

Report From The Commission To The Council, The European Parliament, The European Economic And

Social Committee And The Committee Of The Regions on the practical implementation of Health and Safety at

Work Directives 93/103/EC, COM(2009)599 final (fishing vessels) and 92/29/EEC (medical treatment on board

vessels)

ICF study, p. 33

TNO (2009); Health and safety at work: Results of the Labour Force Survey 2007 ad hoc module on accidents

at work and work-related Health and safety at work

This is likely an underestimate for the sea fisheries sector, as non-fatal accidents are, as explained,

underreported in the sector.

ICF study, p.32

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Less than one

week

EU28

310

348

more than six

one week to one one month to six months

month

months

(permanent

incapacity)

2,011

2,002

1,114

1,389

154

Source: ICF study: analysis of EU-LFS

[hsw_n2_04]

data

1.1.2. Problem 2: Risk and the seriousness of occupational diseases are high in

the sector

At EU level, in 2007, 13.6% of fishermen reported one or more work-related health problems

in the past 12 months. This is slightly higher than the EU average for all activities which is

12.8%. In 2007, 20.6% of persons in the EU fishing sector also reported exposure to factors

that can adversely affect mental well-being, such as stress and long working hours. This

number is higher than in all activities where this amounts to 16.6%. However, this percentage

dramatically increases when this concerns factors affecting physical well-being. In 2007,

64.8% of persons in the EU fishing sector reported exposure to factors that can adversely

affect physical well-being, such as weather conditions and working with heavy equipment.

The average EU percentage for all NACE

activities amounted to 39.8%

(See for detailed

explanation section 1.2).

The NACE code system is the European standard for industry classifications and was introduced in 1970. In

1990 a revised version became applicable. NACE stands for "Nomenclature Generale des Activites

Economiques dans I`Union Europeenne" (General Name for Economic Activities in the European Union).

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1.2.

Main drivers

1.2.1. Work related factors

This has been confirmed by international, EU and national studies from the UK, Greece and

France over the years

. Fishermen have to work in a cramped and slippery workplace that is

constantly moving. Due to increasing competition in the sector and due to fact that fishers

depend on fish stock, they often work, irregular hours which causes fatigue and thus increases

the risks to safety and health. They are not only exposed to risks when at sea but also when at

port, while loading or unloading the catch, making reparations and boarding or leaving the

vessel. In addition fishing vessels are normally isolated from immediate health care and the

medical facilities available on shore.

According to a report by the European Parliament

on this issue, the four main categories of

factors leading to accidents at work in the fishing sector are:



The first category is human-related factors. This can be fatigue, stress, poor

maintenance, and routine or navigation errors. These are the main causes for accidents.

Another cause of accidents lies in technical factors such as failure to respect parallel

standards during the design, the use of outdated and/or worn out equipment, the

absence or the poor functioning of alarm systems and fire-fighting systems. About a

quarter of the accidents are caused by these factors.

The nature of the work itself and tasks involved, such as heavy lifting, risks of slips

and trips on board vessels and work with potentially hazardous equipment in difficult

environmental conditions also has a role to play.

Finally, external environmental factors which mainly include meteorological

conditions are also the causes of accidents at work in the sea fisheries sector.



There is a relation between accidents caused by human factors and the working conditions on

board vessels. Accidents are often caused by fatigue due to long working hours, inadequate

health and safety circumstances or working conditions. The risk of accidents to crews of small

fishing vessels seems higher

than on large vessels due to the small number of crew and the

many tasks carried out - often at the same time

Regarding illnesses, the prevalence of the following diseases seem to be linked to the working

conditions in the sector:



musculoskeletal (musculoskeletal problems have been identified by several studies

because of the use of heavy equipment and heavy manual work, e.g. handling the

fishing gear and the catch, reparation of nets)

ICF study, p. 40

A detailed overview is presented in the ICF study, p.34.

European Parliament, Directorate for Research: Safety and the causes of accidents in The fisheries sector,

2000

Incidence rates for accidents tend to be higher on small vessels (Ref. e.g. Jensen et al., 2014 - A review of

fatal accident rate trends in Fishing, http://czasopisma.viamedica.pl/imh/article/download/IMH.2014.0011/27190

European

Agency

for

Safety

and

Health

Work,

FAQ

fisheries

http://www.beswic.be/en/faq/osha_help_center_view?SearchableText=&category=fisheries

kom (2016) 0235 - Ingen titel



respiratory (often caused by weather conditions

, breathing gases, personal habits and

life style)

Cardiovascular incidents, (data on Body Mass Index (BMI)

and mortality show that

fishermen are a particularly exposed occupational group. The BMI of fishermen seems

to be larger than average (BMI is considered as an indicator for e.g. cardiovascular

diseases and diabetes.)

hearing impairment as an effect of exposure for several hours to the continuous noise

of the boat’s engine,

stress, fatigue and psychological problems, for example, due to long working hours

unevenly divided between periods of intense activity, pressure to work fast, prolonged

isolation, lack of private space, sleep disturbance and disturbed sleep rhythm, night

work, and other working conditions such as noise

, ship motions

As an example, a study on Andalusian fishermen found that the main disorders reported were

musculoskeletal disorders, respiratory diseases, diseases of the digestive system, eye problems

and skin problems. A total of 72% fishermen participating in the study reported taking some

self-prescribed medication, and 60% of fishery workers smoked. Nine percent of fishery

workers admitted taking illicit drugs and 3% reported using illicit drugs on board. The

workers indicated that diets on board were poorly balanced. While on board, 62% of crews

reported a subjective significant worsening of their previous health condition. Some

fishermen were reportedly still going to sea with conditions incompatible with working at sea,

such as insulin dependent diabetes and angina. According to the study prevention and medical

checks before being allowed or considered to work are therefore very important

A study on Polish coastal fishermen reports the same main illnesses as the Andalusian study.

In order to improve fishermen's health and their working conditions the report indicates the

importance of good quality food and water, working time limits and risk assessment to

eliminate or reduce risks related to the work environment and the importance of medical

checks prior to employment on board. In addition, self-awareness of risks should be raised

At EU level, the percentage of persons reporting one or more work-related health problems in

the past 12 months in 2007 is higher in the EU fishing sector than the average for all activities

with 13.6% (compared to 12.8%). In 2007, 20.6% of persons in the EU fishing sector also

reported exposure to factors that can adversely affect mental well-being. This number is

higher than in all activities where this amounts to 16.6%. However, this percentage

Weather conditions (unprotected exposure to UV-radiation and decreased immune system from working in

cold conditions) can also have an impact in the health of the workers.

Body Mass Index (BMI) is an established measure utilized by physicians and health experts to determine

weight status (i.e. underweight, overweight or within a healthy weight range).

An OSH hazard that may contribute to fatigue is noise (e.g. from and in the engine room). Noise also impedes

concentration and communication and can cancel other noises related to safety, e.g. alarms. Rest periods on

board can also be not long enough for the ear to recover, which is worsened by the fact that workers often do not

leave the vessel once their working day is finished. Noise is a constant feature during rest hours as well as

working hours often affecting the entire crew. (Rodriguez et al., 2012 –International regulations on labour health

and safety applied to fishing and maritime transport sectors. Are maritime workers under-protected?, Int Marit

Health 2012; 63,3:117-124.

ICF study, p. 39

Novalbos Et Al.: Occupational Health In Andalusian Fisheries, Occupational Medicine 2008;58:141–143

Maria Jezewska, Marta Grubman-Nowak, Irena Leszczyñska, Bogdan Jaremin, Occupational hazards for

fishermen in the workplace in Polish coastal and beach fishing — a point of view, Int Marit Health,2012; 63, 1:

40–48

kom (2016) 0235 - Ingen titel

dramatically increases when this concerns factors affecting physical well-being. Indeed, the

same year, 64.8% of persons in the EU fishing sector reported exposure to factors that can

adversely affect physical well-being which is by far more important than the average EU

number for all NACE activities amounting to 39.8%

1.2.2. Ineffective legal framework

International legal framework for fishermen has not entered into force

There is a number of international Conventions for the sea fishing sector, which have been

concluded within the framework of the International Maritime Organisation (IMO) that deal

with the safety on board the vessel, such as the Torremolinos International Convention for the

Safety of Fishing Vessels 1977, the 1993 Torremolinos Protocol, the Cape Town Agreement

of 2012

and the International Convention on Standards of Training, Certification and Watch

keeping for Fishing Vessel Personnel, 1995 (STCW-F)

(see Annex 6). However, with the

exception of the STCW-F., they have not entered into force due to lack of ratifications by

IMO Member States. The slow pace of ratification has different reasons depending on the

country and the Convention: some countries mention the complexity of implementation and

the narrow scope of application, developing countries considered the 1993 Torremolinos

Protocol would be too onerous for them to apply, while other countries believed that their

fishing fleet was already adequately covered by national legislation. The 2012 Cape Town

agreement amended the Torremolinos Protocol in an attempt to trigger further ratifications,

but this has only resulted in five ratifications as of January 2016.

While previous ILO conventions concerning the living and working conditions of fishermen

have been ratified. They have only been ratified by a few EU Member States

Table 3: Ratification by EU Member States of ILO Conventions in the sea fisheries

ILO Convention

Ratifications by EU Member States

Total

C.112 Ratifications of C112 - Convention 112 was superseded by 28

Minimum Age (Fishermen) Convention 138 on the minimum age,

Convention

which is a fundamental ILO Convention.

It applies to all workers. It is ratified by

all 28 Member States. Therefore

Convention 112 was denounced.

C.113 Medical Examinations

C.114 Fisherman’s Agreement

BE, BG, DE, ES, FR, HR, NL and PL

BE, CY, DE, ES, FR, IT, NL and UK

ICF report, p. 35

http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/The-Torremolinos-International-

Convention-for-the-Safety-of-Fishing-Vessels.aspx

https://www.imo.org/en/OurWork/HumanElement/Pages/STCW-F-Convention.aspx Only five EU Member

States have ratified it so far: Denmark, Spain, Latvia, Lithuania and Poland.

http://www.ilo.org/dyn/normlex/en/f?p=1000:11001:0::NO:

Previous ILO Conventions have been ratified by

eight or nine of the 23 EU Member States see www.ilo.org.

http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300 _INSTRUMENT_ ID:312257

kom (2016) 0235 - Ingen titel

C.125

Fisherman’s BE, DE and FR

Competency Certificates

C.126

Crews

Accommodation

of BE, DE, EL, ES, FR, NL, SI and UK

Belgium, France and Germany have ratified all the ILO Conventions mentioned above. The

Netherlands and Spain have ratified four out five Conventions. As shown by Table 3, these

Conventions dealt only with a few aspects of the living and working conditions for fishermen.

They did not include important issues such as the quality of food and water on board, health

and safety at work, the content of the employment agreement, working time, medical

treatment on shore, and repatriation. Some Member States found the previous Conventions,

such as Convention C. 126 on accommodation too detailed

. Due to the developments in the

sector, these Conventions, dating from the 1960s, were considered outdated. In 2002, the ILO

started working on a complete and up-to-date set of international standards for the fishing

sector, in order to guarantee proper protection for fishers on a global scale

The resulting ILO Work in Fishing Convention, 2007 which all EU Member States and the

representative organisations of employers and workers supported at the time of adoption, has

not yet entered into force

. It will only come into force twelve months after ratification by ten

Member States of the ILO, of which eight are coastal States. According to the ILO database,

as of January 2016, seven countries

had ratified the Convention.

Voting in favour of an ILO Convention does not automatically lead to its ratification. The EU

can authorise the Member States to ratify this Convention, but it cannot oblige the Member

States to do so. The EU authorised Member States to ratify the ILO Work in Fishing

Convention, 2007 by Council Decision 2010/321/EU

. The decision to ratify an ILO

Convention is taken by the legislative authority of each EU Member State. As Member States

are not obliged to ratify or give reasons for not ratifying, it is therefore not sure whether (and

if so, when) all 23 Member States will ratify. This process can take several years. Currently,

only France ratified the ILO Work in Fishing Convention, 2007. In case of a similar

Convention, the ILO Maritime Labour Convention, ratification by all the EU Member States

has not yet been completed, almost 10 years after the signing of the Convention.

Furthermore, some EU Member States might delay ratification as they are aware of the

request of the EU social partners to implement their agreement in EU law. They expect the

EU to come forward with a proposal.

B. Saenen (2014)

The Causal Relation Between the European Union's Coherence and Effectiveness in

International Institutions,

Centre for European Studies, University of Ghent.

ILO Handbook for improving living and working conditions on board fishing vessels, 2010

http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---ector/documents/publication/wcms_162323.pdf

The Convention was adopted during the International Labour Conference, 2007 of the ILO with 437 votes in

favour, 2 votes against, with 22 abstentions. http://www.ilo.org/public/english/standards/relm/ilc/ilc96/pdf/pr-

25.pdf

Argentina, Bosnia-Herzegovina, Congo, France, Morocco, Norway, and South Africa

Council Decision of 7 June 2010 authorising Member States to ratify, in the interests of the European Union,

the Work in Fishing Convention, 2007, of the International Labour Organisation (Convention No 188)

OJ L 145, 11.6.2010, p. 12–12

kom (2016) 0235 - Ingen titel

Ratification by some of the EU Member States would lead to continuing different standards,

in particular, on issues which are not yet included in the EU acquis, such as medical

certificates for fishermen, the right to repatriation, medical treatment on shore. Different

working conditions for fishermen within the EU would exist. In addition, this would lead

different competitive positions between the Member States who have ratified the Convention

and who have not.

EU Framework exists but is fragmented and not fully adapted to the specific features of the

sector

EU legal provisions relevant to fishermen's living and working conditions are laid down in a

number of legal instruments, notably EU labour law Directives and the EU occupational

safety and health (OSH) legislation

However, despite the fact that quite a number of OSH issues are already covered and

addressed by the existing EU OSH acquis, a number of OSH provisions are limited to vessels

of 15 meters and over (e.g. requirements on accommodation on board vessels such as

ventilation, lighting, emergency exits etc.). The vessels below 15 meters are not covered by

those specific provisions. The agreement covers in principle all fishing vessels

. Some

provisions are specifically addressed to vessels of a length of 24 meters or more or normally

staying more than three days at sea.

Certain aspects of the living and working conditions such as the right to medical treatment on

shore, compensation in case of occupational diseases and injuries and an obligatory medical

certificate certifying the fitness for work of fishermen

are not featured in the existing EU

OSH acquis. Other issues are covered by the EU acquis but in a broader way than in the ILO

C.188 Convention. For example the current acquis only contains specific provisions on

refrigerators or low-temperature food-storage equipment

and the precaution measures to be

taken in relation to cooking and domestic appliances using heavy gases

, but it does not

contain a right to food of sufficient quality and quantity and the right to potable water to be

provided to fishermen who live and work on the vessel

. An obligation of an employer to

carry out a risk assessment exists, but it does not foresee active participation of workers in

A detailed description of the relevant acquis is provided in section 4

Article 1(h) of the agreement: "fishing

vessel or vessel means any ship or boat, flying the flag of a Member

State or registered under the plenary jurisdiction of a Member State, of any nature whatsoever, irrespective of

the form of ownership, used or intended to be used for the purpose of commercial fishing";

Which already exists for seafarers - Clause 13 of the Annex to Council Directive 1999/63/EC of 21 June 1999

concerning the Agreement on the organisation of working time for of seafarers concluded by the European

Community Shipowners’Association (ECSA) and the Federation of Transport Workers’ Unions in the European

Union (FST), OJ L 167, 22.7.1999, and p.33-37.

Directive 93/103/EC Annex I, point13.3 and Annex II point 13.2

Directive 93/103/EC contains the requirement for cooking and domestic appliances using heavy gases to be

used only in well ventilated spaces with care being taken to avoid dangerous accumulation of gas. (Annex I,

point 2.9 and Annex II, point 2.9

Directive 93/103/EC contains the requirement for cooking and domestic appliances using heavy gases to be

used only in well ventilated spaces with care being taken to avoid dangerous accumulation of gas. (Annex I,

point 2.9 and Annex II, point 2.9

kom (2016) 0235 - Ingen titel

. On many of these issues, Member States have taken very different approaches

(see legal

analysis in 4.3 below) leading to an unlevelled playing field among EU firms in the sector.

Similarly EU labour law Directives, apply to fishermen. However, these rules apply to all

workers, and are not adapted to the fisher's specific working conditions. Contrary to shore

workers, sea fishermen often live and work at their workplace. The right to medical treatment

ashore and the right of repatriation when a vessel enters into a foreign port are for instance not

covered by the current EU Labour Law rules, while similar provisions exist for seafarers

The employment agreement of the fishermen needs to specify the number of voyages for

which the fisherman is hired. This is an important aspect for fishermen who can be hired for

one or more voyages and for the fishermen who do not have at this moment a written

employment agreement. The owner of the fishing vessel is often the employer. He may not

always be on board. Since the skipper of the vessel has a number of responsibilities during the

voyage with regard to the crew, he would need to have access to the employment agreement

while the fishermen are on board of the vessel. There are however no provisions on the need

to carry the employment agreement of the fishermen on board.

Inspections tend to focus on safety first. Working and living conditions come second In

addition the difficulty of performing inspections of actual working conditions is the major

practical problem: these are seldom carried out at sea, when the fishermen are actually

working. Therefore involvement of the social partners and fishermen who work on the vessel

is important in this respect. In terms of prevention, their involvement in risk assessment is

indispensable. Risk assessments are compulsory under the current acquis. Practice shows that

sometimes it is done as a simple check-list, which has no effect. Where risk assessments have

been really implemented in practice, the experience shows that it has encouraged a discussion

on the risks and preventative measures

1.3.

Who is affected and how?

Workers

The sector differs from the land based sectors in that the work takes place on board, in a

closed and often times cramped workplace. It is an isolated workplace, normally at some

distance of the nearest land. This is particularly the case for the distant water fleet. Fishermen

often live and work often for days on board of the vessel in difficult circumstances with heavy

equipment. They often do not return to their homes on a daily basis, so they are dependent on

their employer,

inter alia,

for medical care on board, food, potable water, and

accommodation.

Article 11 1) and 2) c) of Directive 89/391/EEC foresees that the employer shall consult workers and/or their

representatives and allow them to participate in discussions on all questions relating to safety and health at work

and participate or be consulted in advance in regard to the information relating to the assessment of the risks.

ICF study page 72

According to the agreement the fisherman has the right to repatriation in case of individual dismissal or

inability to carry out his duties or in case his employment contract expires.

Report from the Commission to the Council, the European Parliament, the European Economic And Social

Committee and the Committee of the Regions on the practical implementation of Health and Safety at Work

Directives 93/103/EC, COM(2009)599 final

kom (2016) 0235 - Ingen titel

The workers in this sector are at a high risk of both fatal and non-fatal accidents. The high

number of accidents cannot be explained by the size of the sector as the risk faced by the

fishers is not proportional to the size of the sector. Fatal accidents lead to loss of lives and, for

the dependants of the worker, to a loss of income. Non-fatal accidents lead to absences from

work and loss of income. Il-health due to occupational diseases or the after-effects of injuries

and accidents have a negative impact on workers' well-being and push them to leave the

sector. In a 2009 survey

, 69% of persons working in the sector reported that their most

recent accident at work or in the course of the work resulted in sick leave in the past 12

months. At EU level, the percentage of persons reporting one or more work-related health

problems in the past 12 months in 2007 was higher in the EU fishing sector than the average

for all activities with 13.6% (compared to 12.8%). The high numbers cited, do not, however,

reflect the real figures as accidents and injuries are underreported in the sector. This could be

linked to the perception amongst fishers that cuts bruises and injuries are not occupational

accidents, but simply part of the job. However, the members of the International Maritime

Organization (IMO) decided that the collection and analysis of statistical information on

casualties, including fishing vessels and fishermen, should be prepared on an annual basis,

they acknowledged in 1999 that there had been very limited response

. (For a detailed

description, see section 1.1.1 and 1.2.1).

Employers

For employers, a high rate of accidents, occupational injuries and diseases leads to employers'

loss of output and higher costs due to the absences and the need to replace staff. Accidents in

the fisheries sector tend to lead to long periods of absence. In 2012, a total of 4,423 non-fatal

accidents were reported at EU level. About 45% resulted in an absence of between a week and

a month, 31% to an absence of 1 to 6 months, and 3% to 6 months to a year

Occupational diseases also lead to a higher staff turn-over as trained and skilled staff can no

longer work in the sector and tends to leave the sector. Hard working conditions and a high

rate of accidents and injuries makes fishing unattractive for young and skilled workers

In Member States where the employer has to pay sickness benefit in case of a prolonged

period of time, it leads also to higher costs for the employer. In case of compensation for

occupational injury and death, this can lead to higher insurance premiums.

National authorities

For national authorities a high number of occupational accidents, injuries and diseases in a

sector have consequences in terms of social security costs (sickness benefits, incapacity

benefits, and social assistance) and healthcare costs.

TNO (2009); Health and safety at work:

Results of the Labour Force Survey 2007 ad hoc module on accidents

at work and work-related Health and safety at work

FAO (2001) Fisheries Circular N0. 966 FIIT/C966:

Safety At Sea as an Integral Part of Fisheries

Management

ICF study, p.38

ICF study, p. 45. With regard to young people this is reportedly the case in Belgium, where finding an

appropriate crew remains a challenge for many vessel owners. Young potential fishermen prefer to work for

dredging companies or in the tourism industry.

Source: 2015 Annual Economic Report on the EU Fishing Fleet,

p. 25.

The British Safety Council also indicated this: British Safety Council (2015) Safety Management, the

Troubled Waters of the European Fishing Industryhttps://sm.britsafe.org/troubled-waters-european-fishing-

industry

kom (2016) 0235 - Ingen titel

A report published by the European Commission (2011)

, indicates that overall

approximately 4% of the world’s Gross Domestic Product (GDP) is spent on the costs of

addressing work related accidents and health problems. Economic growth would be favoured

by a healthy of the workforce.

The external study shows that very limited information is available on the costs linked to

occupational accidents and illnesses in the sector beyond the data on absences linked to

accidents. Limited data was provided by national stakeholders on the number of claims for

occupational disability in the context of the external study. In Spain the number of claims for

occupational disability linked to accidents rose from 726 to 760 between 2008 and 2013.

Claims for occupational disability linked to occupational illness rose in Spain between 2008

and 2014 from 96 to 113. In Italy the number of claims for occupational disability linked to

accidents declined from 175-152. In Poland there were 10 claims for occupational disability

linked to accidents in 2012, with a cost to the insurer of around 10,700 Euros. In France 235

claims for occupational disability linked to occupational illness were made in 2012

1.4.

How is the problem likely to evolve?

If no further specific legislation concerning working and living conditions is developed, it is

reasonable to assume that the occupational safety and health problems in the sector will

remain. Awareness, training and enforcement activities have led to a decrease of occupational

accidents, injuries and disease. However, trends have shown that despite these measures the

incidence rate of accidents has remains high compared to the national average in the EU

Member States. In 2012, there were 154 accidents in sector in the EU which led to permanent

incapacity. This accounts for 1% of the sector, and is over twice that of 2008 levels (72).

The incidence of occupational diseases and injuries remains high in the sector, compared to

other sector. Any changes in the incidence of occupational accidents/illnesses in the fisheries

sector are likely to be driven by changes in the workforce size. The sector will remain

unattractive for young and skilled workers.

Any changes in the level of awareness of the health risks amongst workers and employers by

prevention or risk assessments done together by employers and workers or their

representatives could have a positive effect. Considerable challenges are linked to performing

satisfactory risk assessments on fishing vessels. One such challenge is the fact that the work

environment changes when the vessel is at sea and because risk assessments are often

performed in port, some risks may not be reflected (e.g. changing weather conditions when

operating, which may have an impact in the risks and hazards faced by the fishers),

additionally risk assessments are often performed by management not necessarily working at

sea (particularly for larger vessels). Risk assessment provisions tailored for the specific work

environment (i.e. fishing vessels) and for the workers in the sector are key to make risk

assessments an effective tool for improving OSH conditions on board. Actively involving the

workers in the risk assessment would thus prove to be a very positive measure. Also

prevention in the form of regular medical examination and certification would have positive

effects on the occupational health and safety problems in this sector

European Commission (2011) Socio-economic costs of accidents at work and work related ill-health; Report

prepared by de Greef et al on behalf of the European Commission. The study used a series of case studies to

assess the costs and benefits of measures to improve health and safety in the workplace.

ICF study, p. 44

ICF study, p. 137

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France is the only Member State who has so far, ratified the ILO Work in Fishing

Convention, 2007. According to the information available to the Commission, it seems that

Denmark, Estonia

, the Netherlands

, and the United Kingdom

have established working

groups to prepare for ratification. In Spain discussions have taken place between the Spanish

authorities and representatives of the EU sectoral social dialogue committee in the sea

fisheries sector in order to encourage ratification

. In view of the inaction of some Member

States and the different pace in preparing for ratification of others, different national

approaches to health and safety in the fisheries sector will maintain the existing divergent

level of protection and unlevelled playing field.

As a consequence, fishermen in the different EU Member States will not enjoy the same

minimum protection levels. For example, in the case of an accident or serious illness, workers

could be repatriated by some Flag States or abandoned in a foreign port by others. In addition,

as sometimes ships fish in the waters of another Member State and their fish captures (or

derived products) are sold across the single market, not acting would also entail a competitive

advantage for Member States which have less favourable working conditions, compared to the

Member States who have standards in place in accordance with the agreement.

HY SHOULD THE

EU ACT?

This initiative fits within the Commission's priority for a deeper and fairer Internal Market, in

particular its social dimension. It is in line with Commission's work to establish a fair and

truly pan-European labour market, which provides workers with decent protection and

sustainable jobs

. This includes among others, occupational safety and health protection,

working time, social protection, and rights connected to the employment contract.

In its 2007 Communication reassessing the regulatory social framework for more and better

seafaring jobs in the EU

, the Commission sought to determine, against the background of

the already extensive body of international conventions and standards, to what extent action

may be needed to improve legal protection and working conditions for maritime professions

in the EU and enhance the competitiveness of the EU maritime sector, including the fisheries

sector.

The 2007 Communication also initiated a first phase of consultation of the EU social partners

pursuant to Article 154 TFEU and invited them to

"examine the possibilities of a joint

initiative to promote the application within the EU, of the provisions of the recent ILO Work

in Fishing Convention, 2007".

http://www.riigikogu.ee/tegevus/eelnoud/eelnou/c3837e93-26b4-47c0-a842-

f5770f817a57/Rahvusvahelise%20T%C3%B6%C3%B6organisatsiooni%20kalandust%C3%B6%C3%B6%20ko

nventsiooni%20(nr%20188)%20ratifitseerimise%20seadus/

Letter of the Minister of Social Affairs and Employment to the chair of the Parliament of 17 June 2013,

parliamentary year 2012-2013, 29 427, nr.

95http://www.tweedekamer.nl/kamerstukken/brieven_regering/detail?id=2013Z12347&did=2013D25432

The UK working timetable aims for ratification at the end of 2016. However, this could change depending on

the national political context and legislative preparations. Ratification is subject to approval of the national

legislative authorities. Source: Seafish Industry briefing - Labour issues in the fishing and aquaculture sector

Focus: Working on UK fishing vessels, December 2014

http://www.thefishsite.com/fishnews/26781/spain-encouraged-to-ratify-ilo-work-in-fishing-convention-C.188/

President Juncker's State of the Union address in the European Parliament on 9 September 2015

COM(2007) 591 final

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Social partners were convinced of the need for action in the area and they therefore decided in

2009 to negotiate an agreement at Union level in accordance with Article 155(1) TFEU.

Within their agreement they sought to consolidate and modernise the working and living

conditions of fishermen taking into account the EU acquis. In order to align their agreement

with the ILO Convention, C.188, they stipulated that their agreement will enter into force,

when the ILO Convention C.188 enters into force

. Subsequently, they asked this agreement

to be implemented by a Council decision following a proposal from the Commission pursuant

to Article 155(2) TFEU. Article 155 is therefore the legal basis for a proposal of a Directive

implementing this EU social partner agreement.

2.1.

Why could Member States not achieve the objectives of this initiative?

The fact that EU Member States voted in favour of its adoption, does not lead automatically to

ratification. The decision whether or not to ratify lies with the legislative authorities in each

Member State. As Member States are not obliged to ratify or give reasons for not ratifying, it

is therefore not certain whether (and if so, when) all 23 Member States, which have a sea

fishing sector, will ratify the ILO Work in Fishing Convention, 2007. This process can take

several years

.Despite the Council Decision to authorise Member States to ratify the ILO

Convention C.188

, the pace of ratification has been slow. Eight years after its adoption, only

France has ratified the Convention. A few Member States (DK, EE, NL, and the UK) are

preparing for ratification. Furthermore, Member States might be delaying ratification as they

are aware of the request of the EU social partners to implement their agreement in EU law.

They expect the EU to come forward with a proposal. Ratification by only some Member

States would not allow ensuring a similar level of decent living and working conditions within

the EU for fishermen and a level playing field in terms of competitiveness between the EU

Member States. The agreement will ensure this by bringing about the simultaneous entry into

force and uniform transposition in all Member States of the standards of the ILO Work in

Fishing Convention, 2007 to which it refers .

2.2.

What is the EU added value?

Fishing is a cross-border sector which operates worldwide. Fishing vessels sail under different

EU flags, they operate also outside the territorial waters of the EU Member State concerned,

in waters under jurisdiction of other Member States and in international waters. For example,

ten Member State fleets operated in the NE Atlantic region in 2013; Belgium, Denmark,

France, Germany, Ireland, Lithuania, the Netherlands, Portugal, Spain and the United

Kingdom

. The EU distant-water fleet

operates in international waters (high seas) and

The ILO Convention enters into force a year after 10 ILO Member States of which 8 coastal states ratify the

Convention. At this moment seven ILO Member States have ratified the Convention. France is the only EU

Member State who has ratified this Convention up till now. According to the information available, Denmark,

Estonia, the Netherlands and the United Kingdom are preparing for ratification.

In case of a similar Convention, the ILO Maritime Labour Convention, ratification by all the EU Member

States, which have a maritime sector, has not yet been completed, almost 10 years after the adoption of the

Convention:

http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312331

Council Decision 2010/321/EU of 7 June 2010 authorising Member States to ratify, in the interests of the

European Union, the Work in Fishing Convention, 2007, of the International Labour Organisation (Convention

No 188).

The 2015 Annual Economic Report on the EU Fishing Fleet (STECF 15-07), p. 104

kom (2016) 0235 - Ingen titel

through bilateral agreements with countries outside the EU. These include fishing areas in the

North, South and Central Atlantic, Indian, Pacific and Antarctic (or Southern) Oceans.

While fishermen on board fishing vessel are nationals of the Member State which flag the

vessel flies, fishermen of another EU Member State or third country often also work on board

of fishing vessels. According to the available data, within the EU 95% of the fishermen is of

the Member State's nationality in which the fishing vessel is registered or which flag it flies.

There are differences between the EU Member States, for example 79% of the crew on

Estonian flagged vessels is of Estonian nationality, while 100% of the crew is of Polish

nationality on Polish flagged vessels

The EU already has a shared approach to fishing through the Common Fisheries Policy. As

we have seen, that is not the case for labour standards in the fisheries sector, where national

differences persist. These differences have an impact on competitiveness, because they

impose different costs on operators. As a consequence, EU action leading to a consolidated

EU legal framework for the sea fishing sector would help create a more level playing field,

aligning the situation of fishermen with that of other maritime professions

. Such a

framework would build on existing international and EU standards, taking into account the

specific work environment in this sector the EU legal framework would contain minimum

standards for living and working conditions on board of EU fishing vessels. This would be in

line with suggestions made by some Member States and social partners, who indicated that a

general alignment of the EU acquis with the provisions of ILO Convention C. 188 would be

desirable

An EU framework would lead to an EU level playing field across the EU Member States in

the sea fishing sector. Fishermen would have the same minimum protection, across the EU,

All Member States would have to implement the same minimum rules, also on the issues

which are now not part of the EU acquis such as medical certificates for fishermen and

medical treatment ashore and the right to repatriation. On these issues the Member States have

taken diverging approaches. For example as the legal analysis in section 4.3.2 will show, on

the issue of a medical certificate, some Member States, such as the UK, Slovenia and

Romania have no specific legislation in place for the fisheries sector, some Member States,

e.g. Ireland, Italy and Sweden have fewer medical checks as prescribed by the agreement.

Portugal exempts small vessels. The Latvian authorities indicated that they have to introduce

minor changes to comply with the agreement. Other Member States

provided for a medical

certificate for fishermen in accordance with the provisions of the agreement. (See for further

details section 4.3.2). This leads to an uneven level playing field within the EU in terms of

working conditions. The working conditions of fishermen are different depending on the

nationality of the vessel. Also while working on the same vessel, fishermen could have

different working conditions. Fishermen sailing on board Spanish flagged vessels have a right

In 2013: Spain, France, Lithuania, Portugal, Poland, Latvia, UK, Germany, Netherlands, Denmark, Estonia

and Ireland operated in distant waters. Source: The 2015 Annual Economic Report on the EU Fishing Fleet

(STECF 15-07), p. 135

ICF study, p.23 and Data Annex to this study

Such a legal framework already exists in EU law for seafarers: Council Directive 2009/13/EC of 16 February

2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA)

and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and

amending Directive 1999/63/EC, OJ L 124, 20.5.2009, p. 30–50

Results of the public consultation on International Ocean Governance by DG MARE,

http://ec.europa.eu/dgs/maritimeaffairs_fisheries/consultations/ocean-governance/index_en.htm

BE, DE, EE, EL, ES, FI, FR, HR, LT, NL, PL

kom (2016) 0235 - Ingen titel

to repatriation according to the Spanish legislation, if they are registered under the Spanish

social security legislation See section 4.3.6). Fishermen working on board Italian fishing

vessels have no right of repatriation. This could mean that Member States not having some

standards in place would have a competitive advantage against the Member States who have

these rules in place.

In addition, a transparent, flexible, up to date legal framework is expected to foster a culture

of prevention and compliance. It is expected to contribute to the image of the sector and make

it more attractive for young and skilled workers.

This initiative will also give additional protection to workers and employers as it will enable

stakeholders in the sea fisheries sector to make use of the complaint procedures at EU level in

case of a breach of the national legislation with the requirements of the agreement.

As mentioned in section 1, EU Member States belong to the top ten trading nations in fishing

products and one of the biggest importers of fishing products. The implementation of the

agreement in EU legislation will set an example and give the EU a stronger position to

encourage ratification of the ILO Convention C.188 worldwide. This is particularly important

in the context of the fight against illegal, unreported and unregulated (IUU) fishing

, within

EU waters as well as beyond. Vessels engaging in IUU fishing seek to evade control by flag,

coastal and port States, which makes it extremely difficult to enforce labour standards. As

UNODC has highlighted ''the […] most disturbing finding […] was the severity of the abuse

of fishers trafficked for the purpose of forced labour on-board fishing vessels''

IUU fishing is often associated with substandard vessels and fishermen working on board in

very poor conditions. Sometimes this amounts to labour exploitation

. It leads to unfair

competition for vessel owners who respect the rules and provide decent living and working

conditions

100

. IUU fishing fleet in some areas are so accustomed to act in breach of the rules

in relation to quotas limitations, catch documentation and gear restrictions, that contraventions

of marine living resource management and conservation regulations is often linked to forced

labour or trafficking in persons.

IUU fishing damages fish stocks, negatively affecting the fishing communities and workers

who rely on them for their income. At the same time the offence of IUU fishing is committed

by fishermen often driven by difficult circumstances (low fish stock, unemployment). It has

been argued that if fishermen are protected by standards ensuring decent living and working

conditions, the likelihood that the offence is committed will be considerably reduced

101

Moreover, fishing operators who exploit their crew enjoy an unfair competitive advantage

because of lower labour costs. The Convention would provide an additional legal basis to

fight labour abuses, thereby reducing the profitability of criminal activities linked to IUU. An

Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent,

deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC)

No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999

UNODC study: "Transnational Organized Crime in the Fishing industry", UNITED NATIONS Vienna, 2011

ILO (2015), International expert meeting on labour exploitation in the fishing sector in the Atlantic region,

Oslo,

Norway,

25‐26

November

2015,

http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_429048.pdf,

p. 2

100

FAO fisheries report No. 637, 2000.

101

Uilapesca-CRES (2012), IUU Fishing and its Relation to the Rights of Fishworkers in International Law, p.

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EU action in this sense supports the IUU EU policy and ensures its consistency inside EU and

as regards third countries.

2.3.

Assessment of the representativeness of the EU social partners and the legality of

the clauses

When the Commission receives a request of the EU social partners to implement their

agreement in EU legislation, it can accept or reject the request, but it cannot change the text of

the agreement. The Commission also has to assess the representativeness of the EU social

partners who are the signatories to the agreement and the legality of the clauses. The detailed

analysis can be found in Annex 1.

2.3.1. Representativeness of the EU social partners

When assessing a request from EU social partners to implement their agreement in EU law

according to Article 155 TFEU, the Commission looks at representativeness and mandate of

the social partners for the area concerned by the agreement. This ensures that the request is in

line with the provisions of the TFEU and that the agreement can count on a broad support

amongst those actually concerned.

In accordance with Article 1 of Commission Decision 98/500/EC of 20 May 1998

102

, social

partners at the European level should fulfil the following criteria:

a. they shall relate to specific sectors or categories and be organised at European level;

b. they shall consist of organisations which are themselves an integral and recognized

part of Member States’ social partner structures and have the capacity to negotiate

agreements, and which are representative of several Member States;

c. they shall have adequate structures to ensure their effective participation in the work

of the [Sectoral Dialogue] Committees.

These conditions should be fulfilled at the time when the agreement was signed. At the

moment of signature of the agreement, Croatia was not yet a member of the EU at the time of

the conclusion of the agreement. In order to assess the representativeness of the EU social

partners, the European Foundation for the Improvement of Living and Working Conditions

(Eurofound) conducted a study in 2012

103

The agreement concerns working conditions in the sea-fisheries, which matches with the

sectoral delimitations of the sea-fisheries sectoral social dialogue Committee. Therefore,

congruence between the coverage of the Committee and of the agreement is given.

The social partners participating in the Committee are Europêche and Cogeca on the employer

side and ETF on the workers side.

For Europêche, the Eurofound representativeness study from 2012 identifies members in 11

Member States, namely BE, DE, DK, ES, FR, EL, IT, NL, PL, SE and UK.

102

Commission Decision 98/500/EC of 20 May 1998 on the establishment of Sectoral Social Dialogue

Committees promoting the dialogue between the social partners at European level, OJ L 225, 12.8.1998, page 27

103

http://www.eurofound.europa.eu/sites/default/files/ef_files/docs/eiro/tn1105068s/tn1105068s.pdf

kom (2016) 0235 - Ingen titel

As the economic situation of the sector has deteriorated since 2012/13, keeping the

membership is a challenge for the employer organisations at EU and national level. However,

Europêche has managed to secure cooperation of the Latvian and Lithuanian employer

associations.

Cogeca represents the general and specific interests of European agricultural, forestry,

fisheries and agri-food co-operatives. It has members related to sea fisheries in the following

11 Member States: CY, DE, EE, ES, FR, EL, IE, IT, MT, NL and SI. This means that on the

employer side, altogether 16 countries are represented in the committee.

104

On the workers side, ETF had membership related to sea-fisheries in 11 countries, namely

BE, BG, DE, DK, ES, FR, IT, NL, PL, PT and UK, which leaves – beyond the

aforementioned landlocked countries - fishermen in 11 Member States, i.e. CY, EE, EL, IE,

FI, LV, LT, MT, RO, SE, SL not represented. According to the employment figures for the

sector, for most of these countries the numbers of employees are around a 1000 workers (in

most of these countries, employment is considerably smaller). While IE, EL, RO and SE have

more than 1000 fishermen, a very large share of the fishermen is self-employed

105

In conclusion, with the exception of Portugal and Romania, there are no Member States where

employer organisations active in sea-fishing are not represented at the European level, taking

into account that the sector is relatively small in Romania. This leads to the conclusion that

European level dialogue is on the side of employer organisations highly inclusive and that

Europêche and Cogeca can together be considered as representative for the employers in the

sector. As indicated above the same is true for ETF on the workers' side. The eight Member

States

106

which make up 84% of the sector in total employment terms and 87% in terms of

FTE are represented within the EU social dialogue. This leads to the conclusion that the social

partners who have signed the agreement are representative of the sector and can therefore

justly request the Commission for implementation of an agreement according Art. 155 TFEU.

2.3.2. Legality of the clauses

The Commission has examined the legality of the agreement. It has scrutinised each clause

and has not found any to be contrary to EU law. The obligations which would be imposed on

the Member States do not arise directly from the agreement between the social partners. They

would rather result from its implementation by means of a Council decision, i.e. a directive.

The scope and content of the agreement remains within the fields listed in Article 153(1)

TFEU. Article 3(3) of the agreement contains a non-regression clause, which safeguards the

existing level of protection of workers. Article 4 of the agreement states that it shall not affect

any law, award or custom, or any agreement between fishing vessel owners and fishermen,

which ensures more favourable conditions to fishermen than those provided for in the

agreement. In addition, the necessary safeguards of the acquis will be included in the proposal

for a Council directive (more favourable provisions and non-regression), to which the

agreement will be an annex.

104

105

Joining the EU on 1 July 2013, Croatia was not yet a member of the EU at the time the agreement was signed.

According to the ICF study, EL would have more than 1000 employees. For EL table 1 indicates that 76% of

the fishermen are self-employed without employees.. More than 70% of the fishermen in SE are self-employed.

IE has also a large number of self-employed. About 40% of the RO fishermen are self-employed.

106

Greece, Spain, Italy, France, the Netherlands, Poland, Portugal and the United Kingdom.

kom (2016) 0235 - Ingen titel

3.1.

WHAT SHOULD BE ACHIEVED?

General Objective

The general objective is to enhance the working and living conditions for fishermen working

on vessels flying the flag of an EU Member State.

3.2.

Specific objectives

In order to reach the general objective set above, the present agreement has the following

specific objectives:



3.3.

To improve occupational safety and health for fishermen within the EU;

To establish a consolidated legal framework which is adapted to working conditions

for the sea fishing sector.

Consistency with other EU policies and the Charter of Fundamental Rights.

The ex post evaluation of the EU OSH acquis is ongoing and a number of key issues for the

revision of the acquis have not been defined yet, namely in relation to the new architecture

and exact content of the provisions of the future OSH regulatory framework. During the

preliminary work, stakeholders indicated the need to align the current OSH provisions for the

maritime and fisheries sector with the recent ILO Conventions, such as the ILO Work in

Fishing Convention, 2007. It is clear that the agreement complements the current OSH acquis

and aligns it with the Convention. The future revision of the EU OSH framework will have to

take the agreement into account.

The EU also contributes to improving fishermen's conditions through the Common Fisheries

Policy (CFP). The objective of the CFP is to ensure that fishing and aquaculture activities

contribute to long-term environmental, economic, and social sustainability. Indeed, healthy

fish stocks will in turn benefit fishermen. Managing resources in a sustainable manner will

increase the competitiveness of the EU fisheries sector, creating new jobs.

The objectives of the CFP are also promoted internationally, ensuring that EU fishing

activities outside EU waters are based on the same principles and standards as those

applicable under EU law, and promoting a level–playing field for EU operators and third-

country operators. To this end, the EU actively seeks to lead the process of strengthening the

performance of regional and international fisheries organisations in order to better enable

them to conserve and manage marine living resources under their purview, including

combating illegal, unreported and unregulated (IUU) fishing

107

. In line with recent

international case law, flag, coastal, port or market States have due diligence to fulfil their

duties incumbent upon them under international law

108

. The EU cooperates with third

countries and international organisations for the purpose of improving compliance with

international measures, including the respect of human rights, through in particular safe

working conditions. This constitutes an essential element of sustainable fisheries partnership

107

Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent,

deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC)

No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999

108

See ITLOS case No 21 retrieved:

https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_227_EN.pdf

kom (2016) 0235 - Ingen titel

agreements, which contain a specific human rights clause. This is consistent with the overall

Union development policy objectives.

Several studies have confirmed that low health and safety standards and poor working

conditions are both a driver of IUU fishing and one of its consequences. On one hand,

operators may choose to engage in IUU fishing because of the lower cost of limited health

and safety checks and other controls over working conditions

109

. On the other hand, workers

on IUU vessels are vulnerable to all sorts of labour violations, as there is no way of ensuring

decent working conditions on a vessel engaging in illegal activities. This also has negative

impacts on international efforts to promote better ocean governance by undermining efforts to

achieve international progress on social standards for fishermen. Improving the social

situation of fishermen is expected to reduce the risk of abuses and increase the cost of

engaging in IUU fishing, making it a less attractive option

110

. Thorough implementation of

ILO Conventions worldwide would therefore have a positive impact both on fishermen's

working conditions and on the incidence of IUU fishing. By incorporating the agreement of

the ILO social partners on the ILO work in Fishing Convention in EU legislation, the EU will

be in a stronger position to promote their implementation in partner countries worldwide.

The objectives of this initiative are also in line with the protection of the rights mentioned in

the EU Charter of Fundamental Rights of the European Union, in particular the rights

protected under Articles 20 (equality before the law), 31 (fair and just working conditions)

and 32 (prohibition of child labour and protection of young people at work) of the Charter.

POLICY OPTIONS

The Commission can consider only two options:



No EU action (the baseline scenario):

The current EU labour and occupational safety

and health legislation applicable to fishermen in the sector will remain in force.

Propose the implementation of the agreement by a Council decision in

accordance with Article 155 TFEU:

The EU acquis will be complemented by a

Directive which will provide more specific rules at EU level on living and working

conditions for the sea fisheries sector.

Option 1 Baseline Scenario.

4.1.

With the exception of France, EU Member States have not yet ratified the ILO Work in

Fishing Convention.

The current EU acquis with regard to living and working conditions would remain in force. At

this moment no other specific EU initiatives in the field of labour law, social security or safety

and health of workers are planned for the sea fisheries sector.

With regard to the different subjects covered by the EU social partner agreement, this would

mean that the fishermen would remain covered by the EU labour law Directives, such as the

109

Agnew, D. and Barnes, C., Economic aspects and drivers of IUU fishing: building a framework, in Gray, K.

et al. (Ed.) (2004). Fish piracy: combating illegal, unreported and unregulated fishing, P. 14

110

European Parliament: Beke, M. and Blomeyer, R., Illegal, Unreported and Unregulated fishing: sanctions in

the EU, July 2014, p. 27

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Written Statement Directive

111

, the Working Time Directive

112

, and the Temporary Agency

workers Directive

113

. The current EU rules on the coordination of social security are would

remain applicable to sea fishermen (See Annex 6 for further details).

The EU OSH Directives apply to all economic sectors, both public and private

114

. Directive

89/391/EEC and its relevant individual directives apply to workers in all fishing vessels

irrespective of size. Two specific Directives were introduced to tackle the specific risks and to

promote the occupational health and safety of fishermen. Directive 93/103/EEC

115

defining

the minimum safety and health requirements for work on board fishing vessels and Directive

92/29/EEC

116

on the minimum safety and health requirements for improved medical treatment

on board vessels. Directive 93/103/EC lays down minimum safety and health requirements

applicable to new fishing vessels

117

with a length between perpendiculars of 15 m or over and

to existing fishing vessels with a length between perpendiculars of 18 m or over. In addition,

EU OSHA produced a Risk assessment for small fishing vessels as well as information

material on safe maintenance of fishing vessels

4.2.

Option 2 Implementation of the agreement by a Council Directive in accordance

with Article 155 TFEU

The agreement is based on the ILO Work in Fishing Convention, 2007. It covers most areas

of the Convention itself. It contains minimum requirements concerning minimum age and

medical examination, manning requirements, limits to daily and average weekly working

time, health protection and medical care in case of sickness, occupational injury or death,

fisherman's work agreement, private labour market services, and occupational safety and

health and accident prevention. The agreement does not cover the provisions concerning

remuneration or pay

118

, and compliance and enforcement of the ILO Convention

119

, as these

fall outside the scope of Article 153 of the Treaty.

The agreement will apply to fishermen employed on all fishing vessels engaged in

commercial sea fishing. It will also apply to all other fishermen (self-employed) who are

present on the same vessel with employed fishermen, in order to ensure protection of the

workers' health and safety on board the vessel.

The agreement provides minimum standards. When the EU Member States transpose the

agreement in national legislation; they are allowed to maintain more favourable standards. In

addition, the agreement provides for some flexibility by providing for a possibility to

111

Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the

conditions applicable to the contract or employment relationship, OJ L 288, 18.10.1991, p. 32–35

112

Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain

aspects of the organisation of working time, OJ L 299, 18.11.2003, p. 9–19

113

Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary

agency work, O.J. L 327, 5.12.2008, p. 9

114

Article 2(1) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage

improvements in the safety and health of workers at work, OJ L 183, 29.6.1989, p. 1

115

Directive 93/103/CE of 23 November 1993 concerning the minimum safety and health requirements for work

on board fishing vessels, OJ L 307, 13.12.1993, p. 1

116

Directive 92/29/EEC of 31 March 1992 on the minimum safety and health requirements for improved medical

treatment on board vessels, OJ L 113, 30.4.1992, p. 19

117

New vessel in this context means that the Directive applies to vessels whose building contract was placed

after 23 November 1995.

118

Article 23-24 of the ILO Work in Fishing Convention, 2007

119

Articles 40-44 ILO Work in Fishing Convention, 2007

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gradually transpose the agreement for specific categories of vessels or fishermen within a

period of 5 years, in case of substantial problems

120

The national authorities of the Member State are obliged to consult the national social

partners on the transposition of the agreement in national law. This could facilitate the

implementation of the agreement as these organisations will be able to support and advise the

national authorities during the process

121

As is the case with the current acquis, the national authorities will have to ensure the

enforcement of their national legislation transposing the agreement. This normally will be

done by the national labour inspectorates, fisheries or maritime authorities and by the judicial

authorities. It is up to the Member State to nominate the competent enforcement authorities.

National social partners could also support enforcement authorities to improve working

conditions as they will have the expertise on working conditions in the sector and have an

important role to play in supplying information and raising awareness.

Once the Directive implementing the agreement in EU legislation has entered into force,

citizens will have the possibility to complain to the Commission via the normal Commission's

complaint procedures if they are of the opinion that the national legislation is in breach of the

agreement

122

4.3.

Legal analysis of the differences between the agreement provisions, the existing

EU provisions and the national level

Before assessing the impacts of implementing the proposed agreement, the substantial

changes as compared to the current situation need to be identified. This is a challenging task

as there is a very complex set of existing rules in place. In the remainder of section 4.3, for

each of the areas of the agreement, first the substantial changes are identified, followed by a

table which aims to indicate which Member States already have legislation in place for the sea

fisheries sector which is equivalent or more favourable for the protection of workers when

compared to the provisions of the agreement, and which Member States have less favourable

provisions than the agreement

123

Provisions of the agreement which are similar to the provisions of the existing EU Directives

already applicable to the sea fishing sector, or which are limited to establishing further

specification are not compared (e.g. manning requirements, and the obligation of a crew list,

private labour market services).

120

121

Article 3 of the agreement

This obligation to consult national social partners in the sea fisheries sector is for example provided if

national authorities consider exemptions of on the minimum age and exemptions on the obligation of the

fishermen to have a medical certificate.

122

The experience with Directive 2009/13/EC concerning the EU social partner agreement on the

implementation of the ILO Maritime Labour Convention, which is a similar Convention for the maritime sector,

shows that seafarers and other stakeholders in the sector make use of the possibility to inform the Commission

on alleged breaches of this Directive in the national legislation of a Member State.

123

The provisions in the agreement are compared to the national legislation of the Member States. If a Member

State's provisions on working time are considered being more favourable, it means that these provisions contain

more protective provisions. Less favourable provisions means that the provisions are less protective than the

provisions in the Agreement

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Information on the national legislation of the different Member States is mainly based on the

information obtained from the research and from the information supplied by national

authorities of the different Member States as part of the external study carried out in support

to this impact assessment

124

. While, in the context of this study all 28 Member States have

been contacted with the request to supply information, information from certain Member

States was not received. Consequently, any information on these Member States is based on

further desk research.

125

4.3.1.

Scope and applicability

Article 1(e) of ILO Convention C.188, defines fishermen as “every person employed or

engaged in any capacity or carrying out an occupation on board any fishing vessel, including

persons working on board who are paid on the basis of a share of the catch but excluding

pilots, naval personnel, other persons in the permanent service of a government, shore-based

persons carrying out work aboard a fishing vessel and fisheries observers”. This definition

includes both employed as self-employed fishermen.

As the social partner’s agreement addresses fields covered by Article 153 TFEU, the

agreement applies to fishermen who are employed on board a vessel (i.e. workers). The

agreement is extended to self-employed working alongside workers on the same vessel,

whenever there is a link (direct or indirect) to the protection of the health and safety of

workers employed on the same vessel This corresponds to the current scope of Directive

93/103/EC and Directive 92/29/EEC in the sense that provisions therein are also extended to

the self-employed whenever there is a link (direct or indirect) to the protection of the health

and safety of workers employed on the same vessel

126

While the ILO Convention C.188 applies to vessels irrespective of the ownership, the

agreement applies to vessels registered within the plenary jurisdiction or flying the flag of a

Member State. Directive 93/103/EC

127

and Directive 92/29/EEC

128

also refer to the plenary

jurisdiction or the flag of the Member State.

Table 4 Scope and applicability

124

ICF Study: "Costs and Benefits of a Council Decision implementing the European sectoral social partners'

Agreement concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour

Organisation", November 2015

125

In the context of the external study, Austria, Czech Republic, Hungary, Luxembourg and Slovakia replied that

they do not have a sea fishing sector due to their geographical location. No information was received in the

course of this study from Bulgaria, Cyprus, Malta, Poland and Romania. Any information on these five countries

is based on further desk research (ICF, p.68).

126

This is also indicated in recital 12 of the Agreement.

127

Article 2(a) of Directive 93/103/EC Council Directive 93/103/EC of 23 November 1993 concerning the

minimum safety and health requirements for work on board fishing vessels (thirteenth individual Directive

within the meaning of Article 16 (1) of Directive 89/391/EEC).

128

Article 1(a) of Directive 92/29/EEC on the minimum safety and health requirements for improved medical

treatment on board vessels.

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EU acquis

129

Agreement

MS having equal MS having less

more favourable

favourable

standards or no

standards

standards in this

area

BE, BG, CY, DK SE

DE, EE, EL, ES, FI,

FR, HR, IE, IT, LT,

LV, MT, NL, PL,

PT, RO, SI and UK

Employed

fishermen and self-

employed fishermen

working on board

the same vessel in

the context of health

and

safety

protection

Vessel flying the

flag or registered

under the plenary

jurisdiction of a

Member State

Employed

fishermen and self-

employed fishermen

working on board

the same vessel in

the context of health

and

safety

protection

Vessel flying the

flag or registered

under the plenary

jurisdiction of a

Member State

BE, BG, CY, DE

130

, ES, HR, and PT

131

DK, EE, EL, FI,

FR, IE, IT, LT, LV,

MT, NL, PL, RO,

SE, SI and UK

4.3.2. Minimum requirements for work on board fishing vessels

Minimum age

According to the ILO Convention, the minimum age for working on a fishing vessel is 16

years of age. The competent authority may authorise a minimum age of 15 for persons who

are no longer subject to compulsory schooling as provided by national legislation, and who

are engaged in vocational training in fishing. Night work is forbidden under the age of 18.

Night is defined as the period between midnight and 5 am. Under certain conditions, the

competent authorities after consultation of the national social partners can authorise

exemptions in the context of training.

The agreement provides the same age limits as the ILO Convention, but adds that young

people between the ages of 16-18 at work need to be supervised both during the day and

during the night.

As concerns night work, the agreement defines night as a period of at least 9 hours, instead of

8 hours starting not later than midnight and ending not earlier than 5 am. In that sense the

agreement complements Directive 94/33/EC and provides for more protective measures for

young people as regards the definition of night period and consequently the prohibition of

night work under the age of 18.

Table 5: Minimum age

132

129

130

Directive 93/103/EC and Directive 92/29/EEC

According to the ICF study national authorities in DE are discussing the notion of “plenary jurisdiction”, as

Germany has an international shipping register which falls under the plenary jurisdiction of the Member State,

but allows for the application of different labour legislation.

131

According to the information provided for the ICF study, these Member States have different regulations for

the Flag State or for the vessel owner registry.

kom (2016) 0235 - Ingen titel

EU acquis

133

Agreement

MS having equal MS having less

more favourable

favourable

standards or no

standards

Minimum age 16,

15 under certain

conditions when in

context vocational

training

Night

work

forbidden for under

18. Only allowed in

context of training

when supervised

Night defined as 8

hours

either

between 10 pm and

6 am or 11 pm and

7 am

Minimum age 16, DE, DK, EE, ES, EL and SE provide

15 under certain FI, FR, IT, LT, LV, for exemptions for

conditions and in PL and UK

occasional work for

context vocational

family members

training

Night

work DE, DK, ES, FI, BE, EE, EL, HR

134

forbidden for under FR, IT, LT, LV, PL IE, NL, PT

135

, SE

18. Only allowed in and UK

and SI

context of training

when supervised

Night defined 9

hours starting not

later than midnight

and ending not

earlier than 5 am

Medical certificate

Articles 10-12 of the ILO Convention introduce the obligation for all fishermen to have a

medical certificate before being admitted to work on a fishing vessel. The ILO Convention

provides for some flexibility as Member States could limit the obligation of a medical

certificate to workers working on a vessel of 24 meters and over or vessels remaining at sea

for more than 3 days. Article 11 states that the Member State can provide for rules with regard

to the nature and content of the certificate and other administrative requirements. Article 12

delimits the examination required (eyesight and hearing) and the fact that the certificate has to

state that the fisherman does not suffer from any condition which would be aggravated by

working at sea or which would endanger the safety and health of the persons working on

board the vessel. The agreement, in its article 7-9, provides for the same as the

aforementioned provisions of ILO Convention C.188. Hence Member States can limit the

obligation of a medical certificate to workers working on a vessel of 24 meters or over or

vessels remaining at sea for more than three days.

On the other hand, the existing EU OSH directives do not contain a similar obligation

regarding medical certificates. Article 14 of Directive 89/391/EEC

136

on occupational safety

and health contains a general requirement for the Member States to implement measures

132

133

ICF study p. 70

Directive 94/33/EC on the protection of young people at work

134

These countries do not refer to specific safety and health conditions when granting exceptions.

135

PT: night work also permitted for light work, not only for training purposes

136

Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements

in the safety and health of workers at work, OJ L 183, 29.6.1989, p. 1–8

kom (2016) 0235 - Ingen titel

whereby health surveillance at regular intervals should be made available for workers who

wish to receive such health surveillance. The measures regarding health surveillance apply to

employed fishermen.

In 13 Member States

137

, medical certificates are already compulsory for all seafarers,

including fishermen, irrespective of the time spent at sea or the type of the vessel. Portugal

exempts small fishing vessels from this obligation. In some Member States, such as Ireland,

Italy and Sweden the medical certificate includes fewer checks than the ones required by the

agreement. The United Kingdom's legislation contains a medical certificate for seafarers, but

fishermen are at the moment excluded. Slovenia does not have any specific occupational

safety and health legislation in place for fishermen. A general medical examination for all

workers exists, but there are no specific rules for fishermen.

137

BE, DE, EE, EL, ES, FI, FR, HR, LT, LV, NL, PL and PT

kom (2016) 0235 - Ingen titel

Table 6 Medical Certificate

138

EU acquis

Agreement

MS having equal MS having less

more favourable

favourable

standards or no

standards

BE, DE, EE, EL, IE and IT

141

, RO

142

ES, FI, FR, HR, LT, SE, SI, and UK

143

139

, NL, PL and

140

Member States have

to introduce health

surveillance

measures

Each worker may

receive

health

surveillance

regular

intervals,

possibly as part of a

national

health

system

Medical certificate

is obligatory for

workers on vessels

of 24 meters and

over.

may

extend

this

vessels under 24

meters.

Eyesight

and hearing and any

conditions

which

make them unfit or

will be aggravated

by work at sea

4.3.3. Working time

Working time

The provisions on working time are laid down in Article 13 paragraph 2 of the ILO

Convention C.188. They apply to all vessels, regardless of their size, which are for more than

three days at sea. They establish limits on hours of rest and hours of work for the purpose of

the protection of safety and health of workers and for limiting fatigue. In emergency situations

such as the immediate safety of the vessel, or giving assistance to other vessels, the skipper

might temporarily suspend the schedule of hours of rest until the normal situation is restored.

After the normal situation is restored, the skipper must schedule a rest period for the

fishermen who worked their rest period.

144

Within EU law, Article 21 of the general Working Time Directive

145

which lays down certain

minimum requirements to protect the health and safety of workers applies to fishermen.

Member States must ensure adequate rest and that the average working week amounts to a

maximum of 48 hours calculated over a 12 month reference period. For the safety and health

138

139

ICF study p.71-72

LV seems to have a medical certificate for fisherman in place, but the national authorities supplying

information in the context of the ICF study estimate that they would need to do some moderate changes to the

national legislation to comply with the agreement.

140

PT: exemption small vessels.

141

These Member States do not provide for all checks prescribed by the agreement.

142

Romanian Labour Law seems to contain a general obligation for all employees to have a medical certificate.

http://knowledge.leglobal.org/wp-content/uploads/LEGlobal_Memo_Romania.pdf

143

No certificate for fishermen

144

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:3

12333:NO

145

Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain

aspects of the organisation of working time, OJ L 299, 18.11.2003, p. 9–19

kom (2016) 0235 - Ingen titel

protection of workers limits on the hours of work and rest must be established. Exceptions to

the rules may be permitted by Member States. These must as far as possible comply with the

limits laid down in the Directive but may take account of more frequent or longer leave

periods or granting compensatory leave. Like the ILO rules the EU provisions give the

skipper of the vessel the right to suspend the normal schedule in emergency situations.

The Agreement lays down similar provisions and limits to hours of work and rest that are

similar to Article 21 of the general Working Time Directive. It adds that the limits to working

time and hours of rest are not only laid down for the safety and health of workers, but also for

the purposes of limiting fatigue caused by long irregular working hours, which would occur

often on fishing vessels. Alternative requirements are possible, but they should be

substantially equivalent to the provisions of the agreement and shall not jeopardize the safety

and health of fishermen.

At national level, 16 Member States

146

comply with the provisions of the Agreement.

According to the information received by the national authorities, two Member States, Spain

and Portugal will need to implement rules relating to compensatory rest and introduce a

definition of fatigue. No information was received from the Romanian national authorities; a

2003 ILO report indicates that Romania has no specific working time rules for fishermen; the

working time rules for shore workers and a decree for vessels seem to apply to fishermen

147

The Swedish authorities indicated that they will need to change their working time legislation,

but did not provide any further details

148

Table 7 Working Time

149

EU acquis

Agreement

150

having

equal or more

favourable

standards

MS having less

favourable

standards or no

standards in this

area

Average

working week

of 48 hrs over a

month

reference period

Maximum work

hours 10 hours

per 24 hours

72 hours within

a seven day

period

Average

working

week of 48 hrs over

a 12 month reference

period

Maximum

work hours

10 hours per

24 hours

hours

within

seven

day

period

BE, DE, DK, ES, PT

151

, RO and

EE, EL, FI, FR, SE

HR, IE, IT, LT,

LV, NL, PL, SI

and UK

146

147

BE, DE, DK, EE, EL, FI, FR, HR, IE, IT, LT, LV, NL, PL, SI and UK

http://www.ilo.org/public/portugue/region/eurpro/lisbon/pdf/rep-v-1.pdf,

p. 70

148

ICF Study, p.75

149

ICF study p. 75

150

No information on this issue received from: BG, MT, and CY.

151

Minor changes to introduce notion of fatigue.

kom (2016) 0235 - Ingen titel

4.3.4. Fisherman’s work agreement

Articles 16-20 and Annex II of the ILO Convention C.188 provide for the obligation of the

fishing vessel owner for every fisherman/worker on all vessels to have a written fisher's work

agreement that is comprehensible to them and provides them with decent living and working

conditions. Annex II contains provisions concerning the content of a fisher's work agreement

which, except for the name of both employer and employee, also needs to contain clauses

concerning, among others, the capacity the fisherman is going to work in, the number of

voyages for which the fishermen is hired, the place of joining the ship, wage, paid annual

leave, social security, including the compensation in case of sickness, injuries or death,

medical coverage, as well as the right to repatriation. The fisherman needs to have time to

review and seek advice concerning his agreement before it is concluded and the agreement

needs to be carried on board of the vessel

152

Articles 14-18 and Annex I of the Agreement contain identical provisions concerning the

fisherman's working agreement.

Directive 91/533/EEC

153

establishes the employer’s obligation to inform employees of the

conditions applicable to the contract or employment relationship. This Directive contains the

obligation for employers to provide the employee with a written contract of employment

containing the essential elements such as name of the parties, wages, duration of the contract,

length of working week, function of the employee and tasks. The differences between the

agreement and the current acquis are mainly the parts of the agreement which are specific for

the sea fisheries sector, such as the place where the fisherman needs to embark, the voyage or

number of voyages the fisherman is engaged for, social security and health coverage and

protection in case of injury, sickness or death. In addition, the Agreement clearly specifies

that a fishermen needs to have time to review and seek advice concerning his agreement

before it is concluded. Finally, the agreement indicates that it is the responsibility of the

fishing vessel owner to ensure that each fisherman on board has a written agreement, which

ensuring him decent working conditions. The fisherman work agreements have to be carried

on board of the vessel.

At national level 10 Member States

154

already comply with the rules set out in the Agreement.

In Poland, the fisherman’s work agreement has the same requirements as the seafarers'

employment agreement and in addition it must contain provisions on the food board, the

provision of working clothes and the individual protective equipment.

155

In Greece and Portugal, the national authorities indicated that the current rules do not comply

with all the provisions regarding the content of fisherman's work agreement as set out under

152

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:3

12333:NO

153

Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the

conditions applicable to the contract or employment relationship, OJ L 288, 18.10.1991, p. 32–35

154

BE, DE, EE, FI, FR, HR, LV, NL and SE

155

Ustawa z dnia 5 sierpnia 2015 r. o pracy na morzu, Dz.U. 2015 poz. 1569 published

9/10/2015,

www.isip.sejm.gov.pl

kom (2016) 0235 - Ingen titel

Annex I in the Agreement. Along the same line, Ireland finds that current provisions need to

be updated and indicates that not all particular statements of Annex I are covered by its

national legislation.

In Slovenia, only general rules on work agreements apply to fishermen thus do not provide for

the specificities of the sector. Spain does not have an obligation to provide for a written work

agreement thus does not comply with the compulsory information set out in the Annex I. Also

the United Kingdom does not set out any provisions defining the fishermen’s work agreement

nor the particular information as set out in Annex I.

The obligation to carry the work agreement on board the vessel is complied with by the

majority of Member States, with the exception of Ireland, Portugal, Spain and United

Kingdom.

Latvia and Slovenia have general provisions in place that specify that the work agreement

shall be carried by the employer but do not specifically refer to the sector. This may mean that

these countries need to provide for more sector specific legislation.

In conclusion, in 10 countries no additional requirements are needed. There are 4 countries

that do not comply with the requirements of the Agreement and thus a new standard of the

format of the fisherman’s work agreement would have to be issued. Only currently Spain does

not impose any written agreements, thus requiring more significant changes to the national

system. For 2 countries, only minor changes are expected as these relate to some of the

clauses entailed in written agreements. This only requires a change in the way agreements are

written (higher administration efforts). For 7 countries, no information from the national

authorities was received.

156

Table 8 Fisherman's Work Agreement

EU acquis

Agreement

157

having

equal or more

favourable

standards

MS having less

favourable

standards or no

standards

- General provisions for

all sectors concerning a

written agreement in

which essential details

concerning the name of

156

157

Written fisherman's BE, DE, EE, FI, SI and LV

158

work

agreement FR, HR, LT, NL, IE, PT, ES, EL

159

containing all details PL, and SE

160

and RO

161

provided

for

Annex 1, which

ICF study, p.76

No information received from BG, MT, CY, LT, PL

158

No sector specific provisions

159

EL: According to the ICF study, table 7 self-employed without personnel make up 80% of the total

employment. Only workers would have to comply with the agreement, so this is likely an overestimate.

160

EL, IE, PT, ES, and UK: According to the information received by the national authorities, the national

legislation does not contain the obligation to carry the fisherman's work agreement on board of the vessel. ES's

national legislation does not contain any provision concerning a written fisherman's work agreement.

161

Title II of the Romanian Labour Code on individual employment contracts complies with the content of the

employment contract required by Directive 91/533/EC. It also includes a provision on employee seeking advice

of third parties before concluding the contract. http://www.codulmuncii.ro/en/title-2/page-1. There seems no

specific legislation on employment contracts for fishermen.

kom (2016) 0235 - Ingen titel

the

parties,

the

function, wages, start

and if applicable end

date of the contract.

includes

sector

specific details such

as name of the

vessel, health care

and

protection

against

disability

injury, and sickness,

number of voyages.

- employee has the

time to review and

seek advice before

concluding

the

agreement

fisherman's work

agreement has to be

carried on board of

the vessel.

4.3.5. Repatriation

Repatriation is a right for fishermen whose employment agreement has expired or is

terminated for justified reasons or the fishermen can no longer carry out the duties required.

The fishing vessel owner has to pay for the repatriation of the fishermen to the country of

origin. If the fishing vessel owner fails to provide for repatriation, this obligation falls on the

Member State.

The ILO Convention C.188 provides for a right of repatriation when a fishing vessel enters a

foreign port. The provisions in the Agreement are based on the ILO Convention. There is no

current EU acquis concerning repatriation for fishermen. Directive 2009/13/EC

162

solely

contains a provision on repatriation for seafarers in the merchant navy, but it does not apply to

sea fishermen.

Some Member States have already extended the repatriation rights for seafarers to sea

fishermen

163

. Some Member States, like Belgium, have created a special fund to cover the

funds of repatriation. Some Member States like Bulgaria

164

and Croatia might not have a

statutory right of repatriation because their sea fisheries sector fishes in coastal waters, so that

the fishing vessels do not reach or enter foreign ports.

162

Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European

Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the

Maritime Labour Convention, 2006, and amending Directive 1999/63/EC, OJ L 124, 20.5.2009, p. 30–50

163

ICF Study section 3.3.2.7

164

European

Parliament

Note

Fisheries

Bulgaria,

2001,

http://www.europarl.europa.eu/RegData/etudes/note/join/2011/460049/IPOL-PECH_NT(2011)460049_EN.pdf

kom (2016) 0235 - Ingen titel

Table 9 repatriation

EU acquis

Agreement

165

having

equal or more

favourable

standards

MS having less

favourable

standards or no

standards

No EU acquis

Right

the

fishermen to be

repatriated from a

foreign port to the

country of origin in

case their contract is

expired

terminated.

BE, DE, EE, FI, BG, ES

167

, HR

168

FR, LV, NL, PL. IE

169

, IT

170

, LT

171

PT, SE, SI and

166

4.3.6. Food and water on board

Article 25 of ILO C.188 provides that food carried and served on board be of a sufficient

nutritional value, quality and quantity. Potable water must be of sufficient quality and

quantity. This is an important requirement given the high incidence of occupational diseases

in the sector (see section 1.2), both in terms of quality and quantity. As the fishermen are at

sea several days or even weeks, they are dependent on the food and water provided on board.

Food and water shall be provided by the fishing vessel owner at no cost to the fishermen. This

cost can be recovered as an operational cost if the collective agreement governing a share

system or a fisher's work agreement so provides. Article 24 of the agreement contains a

similar provision. This provision applies to all vessels. There is no similar provision in the

current EU acquis

172

. In addition, annex II of the agreement contains specific technical

requirements on food storage, conservation, food preparation, and kitchen utensils. These

requirements will apply to vessels for which the building or major conversion contract has

been placed on or after the date of the entry into force of this agreement (See Annex 6).

Ten Member States already have this provision in their national legislation. In five Member

States minor changes are expected to add to the general standard of healthy and safe living

165

166

No information received: BG, MT, CY, PL, RO

In the context of the ICF study, the UK national authorities indicated that they intend to provide general

protection on repatriation also for self-employed fishermen as per the ILO Convention C.188

167

Repatriation right exists, but only for fishermen registered under the Spanish social security legislation and

sailing on a fishing vessel flying under Spanish flag.

168

According to the information received from the national authorities in the context of the ICF study, the

Croatian fishing fleets sails in coastal waters, so the repatriation clause would not be applicable. The Bulgarian

fishing fleet is also concentrated on its Black Sea coastal zone, see footnote 116

169

Irish national authorities indicated in the context of the ICF study that the legislation needs to be updated.

170

In the context of the ICF study the national authorities indicated that there was no national legislation

regarding the repatriation of fishermen.

171

Analysis

done

the

ministry

for

social

affairs

Lithuania,

www.socmin.lt/download/.../analize_tdo%20konvencija%20188_bendra.doc

172

Directive 93/103/EC does contain some provisions on food, but not to this level of detail. It contains the

requirement for cooking and domestic appliances using heavy gases to be used only in well ventilated spaces

with care being taken to avoid dangerous accumulation of gas. (Annex I, point 2.9 and Annex II, point 2.9

kom (2016) 0235 - Ingen titel

conditions on board as already applicable through the result of Directive 93/103/EC, the

specific aspect of food and quality of food and water.

Table 10 Food and water on board

EU acquis

Agreement

having

equal or more

favourable

standards

MS having less

favourable

standards or no

standards

No EU acquis

The food carried and DE, DK, EE, FI, BE, ES

173

IE, HR,

served on board FR, IT, LV, SE, NL

174

, and PT

must be of a SI, and UK

sufficient nutritional

value, quality and

quantity.

Potable water must

of sufficient

quality and quantity.

The food and water

shall be provided by

the fishing vessel

owner at no cost to

the fisherman;

4.3.7. Right to medical treatment on board and ashore

Medical treatment on board and ashore is an important right in a sector where there is a great

risk to injuries and accidents on board of vessels. This is illustrated among others by a study

done on 187 medical treated injuries on board fishing vessels. Medical treatment ashore was

delayed for more than 24 hours in 35% of the injuries.

175

Directive 92/29/EC

176

sets out standards for medical equipment on board as well as for on

board medical consultation by radio, which imply a right to medical care on board the vessel;

the agreement however adds a requirement of satellite communication to be made available to

the workers in this context and the right to medical care on shore (nearest port which can also

be outside the country normally responsible of the fisherman’s social security). A right to

medical treatment ashore is not yet been provided for in the EU acquis.

The ILO Convention C.188 contains a right for fishermen to receive medical treatment ashore

as well as to be taken ashore for medical treatment in a timely manner in case of serious

173

174

These Member States only cover this right implicitly in their legislation

Right is explicitly covered but for fisheries only if stated in the work agreement

175

Jensen OC1, Christensen S, Larsen S, Soerensen L., Occupational injuries among fishermen, Bull Inst Marit

Trop Med Gdynia. 1996;47(1-4):11-8.

176

Council Directive 92/29/EEC of 31 March 1992 on the minimum safety and health requirements for improved

medical treatment on board vessels, OJ L 113, 30.4.1992, p. 19–36

kom (2016) 0235 - Ingen titel

injury or disease (Article 29(e) of the Convention). The Agreement contains a similar

provision in Article 26(a).

At national level, 12 Member States

177

already have provisions in place concerning medical

treatment abroad and ashore in accordance with the Agreement. 5 Member States

178

have

indicated that they do not fully comply with the provisions.

Table 11: Medical treatment on board and ashore

EU acquis

Agreement

179

having

equal or more

favourable

standards

MS having less

favourable

standards or no

standards

Workers on board must

be granted access to

medical consultation by

radio

facilitate

assistance in case of

injury or emergency

180

Right

for

free

medical treatment on

board and abroad.

Satellite

communication

needs to be made

available.

BE, DE, EE, EL, ES

181

, IE, IT, LV,

FI, FR, HR, LT, SI

182

NL, PL, PT, SE,

have

No similar provision

Right

treatment ashore or

in the EU acquis

to be transported to

the shore in a timely

manner to receive

medical treatment.

BE, DE, DK, IE, IT, LV, PT, and

EE, EL, FI, FR, SI

185

183

, NL, LT

184

SE and the UK

4.3.8. Protection in case of work-related injury sickness and death

Articles 38 and 39 of the ILO Convention C.188 contain provisions to ensure that in case of a

work-related injury, or sickness, the fishermen shall have the right to appropriate medical

care. Also, in case of work-related disease, injury or death, the fisherman or his descendants

have the right to compensation. If the national social security system does not provide for it,

the fishing vessel owner is responsible for the protection and medical care of a fishermen

while on board of the vessel or in a foreign port until he is repatriated. This liability might be

177

178

BE, DE, DK, EE, EL, FI, FR, HR , NL, LT, SE and the UK

IE, IT, LV, PT and SI

179

No information was received in the context of the ICF study from BG, CY, ES, MT, PL, RO, and SI

180

Directive 92/29/EEC, this Directive also contains provisions on the type and quantity of medicaments on

board to be used on board if necessary.

181

ES: No clear information was received in the context of the ICF study, p.79.

182

Only general provisions applicable to all workers on access to medical care.

183

In the context of the ICF study the Croatian national authorities indicated that in their view the national

legislation complies with the provisions of the Agreement.

184

Source: www.socmin.lt/download/.../analize_tdo%20konvencija%20188_bendra.doc

185

SI has a fleet which predominantly is composed of small scale fishing in coastal waters. Hence this fleet is not

expected to land at foreign port and not to stay at sea for a prolonged period of time.

https://stecf.jrc.ec.europa.eu/documents/43805/1034590/2015-07_STECF+15-07+-+AER+2015_JRC97371.pdf

kom (2016) 0235 - Ingen titel

covered via a system for fishing vessel owner's liability or a national compulsory insurance or

other scheme

186

The Agreement provides is to the extent consistent with national legislation, medical care

shall be provided free of charge on board and abroad. The fishing vessel owner shall pay the

costs in case the social security system does not cover it. It leaves it for Member States to

decide about the rights ensured under their national social security system and about the

height of benefits

The EU acquis provides for a coordination of social security

187

. These rules ensure that

citizens making use of their right of free movement will be insured the social security system

of one Member State. The same goes for sea fishermen who reside in one country and are

employed on vessels flying the flag of another Member State. As said above, the EU rules do

not determine the right to a social security benefit such as the right to medical care abroad or

in case of occupational injury or accident. The height of the benefit is also determined by the

Member States themselves.

12 Member States

188

seem to comply with the provisions in the agreement. Latvia and Spain

estimate that some additional provisions need to be implemented, but did not specify this

further in the context of the study. For Ireland, Italy and Croatia the information received in

the context of the external study

189

did not allow to make estimations on gap between the

national legislation and the agreement.

Table 12 Right to compensation in case of occupational injury, sickness, or death

EU acquis

Agreement

190

having

equal or more

favourable

standards

MS having less

favourable

standards or no

standards in this

area

Right to compensation in case

of occupational injury, sickness

or death in so far as it is

consistent with the national

social security system.

Ship-owners to pay the costs if

social security system does not

cover it.

BE, DE, DK EE, ES, IE, IT and LV

EL, FI, FR, LT,

NL, PT, SE and

186

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:3

12333:NO

187

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the

coordination of social security systems (Text with relevance for the EEA and for Switzerland),OJ L 166,

30.4.2004, p. 1–123

188

BE, DE, DK EE, EL, FI, , LT, NL, PT, SE and UK

189

ICF study p. 80

190

EE, ES, HR, IE, IT, LT, MT, PL, RO and SI

kom (2016) 0235 - Ingen titel

4.3.9. Occupational safety and health: risk assessment

In the context of occupational safety and health, Article 33 of the ILO Convention C.188

provides that risk evaluation shall be conducted, as appropriate, with the participation of

fishers or their representatives.

191

The Agreement contains an identical obligation in its

Article 36.

Directive 89/391/EEC

192

contains an obligation on the employer to carry out a risk assessment

and be in the possession of the respective documentation

193

. Employers shall consult workers

or their representatives and allow them to take part in discussions on all questions relating to

health and safety at work

194

. A similar obligation on information and consultation of

employees exists in Directive 93/103/EC on the safety and health requirements in the sea

fishing sector

195

As all Member States have transposed both Directives in their national legislation, most

Member States

196

estimate that only minor adjustments have to be made to allow workers to

participate in the risk assessment.

Table 13: Risk assessment

EU acquis

Agreement

197

having

equal or more

favourable

standards

MS having less

favourable

standards or no

standards in this

area

Workers

their

representatives must be

consulted

occupational safety and

health matters.

appropriate DE, DK, FR, IT, EE, EL, FI, HR

198

workers or their LT, SE and UK

IE, LV, NL, PT and

representatives shall

participate in the risk

evaluation.

191

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:3

12333:NO

192

Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements

in the safety and health of workers at work, OJ L 183, 29.6.1989, p. 1–8.

193

Article 6(3) a and 9(1) a of Directive 89/391/EEC

194

Article 11 of Directive 89/391/EEC

195

Article 11 of Directive on Council Directive 93/103/EC of 23 November 1993 concerning the minimum

safety and health requirements for work on board fishing vessels (thirteenth individual Directive within the

meaning of Article 16 (1) of Directive 89/391/EEC), OJ L 307, 13.12.1993, p. 1–17

196

In the context of the ICF report DE, DK, FR, IT, SE and UK indicated that their national provisions on the

risk assessment carried out with participation of fishermen or their representative comply with the Agreement.

EE, EL, HR, FI, IE, LV, NL, PT and SI indicated that information and consultation rights are in place with

regard to risk assessment, ICF study p.80-81

197

In the context of the ICF study no information was received from, BE, BG, CY, LT, MT, PL, RO and SI, p.

81.

198

Probably minor adjustments.

kom (2016) 0235 - Ingen titel

5.1.

HAT ARE THE IMPACTS AND WHO WILL BE AFFECTED

Background

This section will look at the likely economic and social impacts of the agreement. In addition

it will look at the impacts on competitiveness and on SMEs. There are no environmental

aspects to be expected from the agreement. It will describe who will be affected. In this

context companies, fishermen, national administrations, consumers and possibly third

countries will be affected

199

as sea fishing has a third country aspect in the context of the

Common Fisheries Policy.

The unit of analysis used to estimate the population is represented by the number of

stakeholders which are affected by each article of the agreement. The estimation of the

affected population was based as much as possible on EU level statistics or data collected at

national level. In accordance with the applicability of the agreement workers, self-employed

working alongside workers on the same vessels

200

, were included in the analysis

201

. Self-

employed workers not working alongside workers were excluded from all calculations, since

they are not covered by the provisions of the Agreement). No data is available on employment

per vessel. Given that precise data identifying relevant populations were not directly available

for all aspects of the agreement assumptions were needed to produce estimates. For the

calculations over a 5 year period were made. Calculations were based on a low, best and high

estimate. These figures are presented in section 5.2 and further.

For each Article of the Agreement, the size of the affected population depends on the existing

legislative framework at national level. In order to obtain comparable figures in the context of

the external study, EU level datasets, triangulated with national datasets and information from

interviews have also been used as in many cases there is not clear and reliable data on the

affected population. To approximate the population affected by articles of the Agreement

mainly secondary data appearing in the Annual Economic Report (AER) 2014 under the

following reference Scientific, Technical and Economic Committee for Fisheries (STECF)

"The 2014 Annual Economic Report on the EU fishing Fleet (STECF 14-16)", 2014., EU-

LFS and EU-LFS ad-hoc modules data have been used. A sensitivity analysis has been

conducted as part of the quantitative analysis (see Annex 2).

The detailed comparison of the options developed in section 4 assists in identifying the types

of impacts and reasons for those impacts associated with the articles of the Agreement. This

analysis is therefore taken into account when assessing quantifiable and non-quantifiable costs

and benefits of the Agreement

202

Particular attention will be paid in this section to the consequences in Spain, Italy, Portugal,

Greece, the Netherlands, Poland and the United Kingdom as these countries make up 84% of

the sector in total employment terms and 87% in terms of FTE within the EU (See Annex 5).

199

200

http://ec.europa.eu/smart-regulation/guidelines/tool_8_en.htm

As said in section 4.3.1, The agreement is extended to self-employed, whenever there is a link (direct or

indirect) to the protection of the health and safety of employed workers on the same vessel

201

The proxy used for the category of self-employed working alongside workers was the EU-LFS category ‘self-

employed with employee’ (see box 1). It is acknowledged that this is only an approximating of the relevant

category of worker, but no other proxy was available. The self-employed excluded are captured by the EU-LFS

category ‘self-employed without employees’ (see box 1). Again, this is the only available approximation of the

relevant category.

202

See annex 2 for details on the methodology used to quantify costs and benefits

kom (2016) 0235 - Ingen titel

France will not be impacted by the agreement as they have ratified the ILO Convention itself

in October 2015. The Estonian national authorities submitted the law to ratify the ILO

Convention to the national Parliament in November 2015. Therefore it is assumed that the

agreement will have no impact on Estonia

203

, as their national legislation will be compliant

with the ILO Convention. DK, NL, and UK are preparing for ratification. It could be assumed

that ratification in these countries will take place in 2016-2017.

The agreement contains minimum standards. It contains also more favourable provisions and

a non-regression clause. As a consequence, Member States are allowed to maintain or

introduce more favourable legislation on the subjects addressed by the agreement. Therefore,

the agreement will have no direct impact on the situation in Member States that already have

equal or more favourable provisions than the agreement. It will have an impact on Member

States that have no or less favourable provisions, than the minimum requirements set out by

the agreement, in their national legislation.

In addition, the agreement contains some clauses to allow for its progressive implementation

in national law in a period of 5 years for cases where the implementation of the agreement

would entail substantial problems for limited categories of fishermen or vessels. If a Member

State wishes to use this possibility of progressive implementation, the national social partners

in the sector need to be consulted.

Only the provisions of the agreement which are likely to add significantly to existing

international and already transposed EU legal acquis have been assessed. This means that a

number of articles have not been considered for an assessment of quantitative and qualitative

impact, either because they are already covered by the existing international or EU legal

acquis, because they provide significant leeway for national interpretation and/or because they

only add some further specification in relation to existing provisions at the margins. These

concern the provisions on manning requirements, minimum age, crew list and private labour

market services.

5.2.

Impact on the Member States

As a result of the analysis in Section 4, it can be concluded that out of the 23 Member States

that have a sea fishing sector Belgium, Estonia, Denmark, France, Finland, and Germany do

not need to make amendments to comply with the provisions of the agreement, as their

national rules are already equivalent or more favourable than the agreement. For Croatia,

Greece, Lithuania, the Netherlands, Poland, Romania and Sweden only minor amendments to

national provisions are needed. Thus in total 13 countries out of 23 Member States do not

need to make any major changes to implement the Agreement. No major implementation

challenges are therefore expected for these Member States. For three Member States

(Bulgaria, Cyprus, Malta) no assessment was possible due to the fact that no information was

supplied by these Member States in the context of the external studies.

This means seven Member States still need to streamline their national legislation. For Spain,

Portugal, Ireland Latvia, and Italy, Slovenia and the UK amendments to legislation will be

necessary. Some amendments will be minor such as the obligation to carry the fisherman's

203

http://www.riigikogu.ee/tegevus/eelnoud/eelnou/c3837e93-26b4-47c0-a842-

f5770f817a57/Rahvusvahelise%20T%C3%B6%C3%B6organisatsiooni%20kalandust%C3%B6%C3%B6%20ko

nventsiooni%20(nr%20188)%20ratifitseerimise%20seadus/

kom (2016) 0235 - Ingen titel

work agreement on board of the vessel

204

, or the introduction of certain additional health

checks to obtain the medical certificate

205

. For the UK, the implementation of the medical

certificate may need significant changes. For Spain, the introduction of a written work

agreement will lead to changes. The right of repatriation needs to be introduced in Italy.

Slovenia needs to introduce sector specific legislation but this may not have in practice a

strong impact due to similar general labour law provisions. While these changes are more

significant, no specific implementation challenges are expected. Most Member States,

concerned already have similar provisions in their national legislation for seafarers. Hence it

would be a case of extending this legislation to sea fishermen.

In terms of level playing field, even if Member States will retain some flexibility, the scope

for divergence is narrower than presently as the same standards will apply to all of them. For

example all Member States will need to introduce an obligation for fishermen to have a

medical certificate before allowing fishermen to work on board. They could be more or less

prescriptive regarding the medical examination required (although some essential checks are

prescribed by the agreement).

As a result of the agreement, Member States benefit from a decrease in occupational illnesses,

injuries and workplace accidents through lower social security costs. Out of those, only the

impact linked to the reduction in hospital admissions could be quantified. The decrease was

estimated to be €70,000 per year for illnesses and €100,000 for accidents. The largest

decreases in hospital spending for accidents was estimated to be in the United Kingdom,

Portugal, Spain, Ireland and Italy (all estimated to save over €10,000 per year), with the

United Kingdom, Spain and Portugal also saving over €10,000 per year from the reduction in

illnesses. For the national enforcement authorities, it would support the enforcement of

obligations stemming from the national labour law.

The benefits to national authorities will also persist beyond the full five year period analysed,

with the total benefit estimated to be over €0.8-€1.5 million for illnesses and accidents. for

that 5 year period

206

For the other provisions of the agreement, the impact of the agreement on public authorities is

also likely to be limited, as in most cases enforcement mechanisms exist. Having one legal

framework for the living and working conditions for fishermen, might facilitate the

enforcement of the living and working conditions. It will also lead to more attention being

given to the working conditions on board. In addition, it would foster coordination by the

different enforcement authorities. Beyond the quantified impacts on health care systems,

further impacts on benefits or disability schemes are likely to be minimal as there is unlikely

to be a significant (negative) employment effect which may lead to further calls on the benefit

system.

5.3.

Impact on workers

The Agreement aims to introduce certain provisions (medical certificate, working time,

occupational safety and health provisions on food and water, accommodation, equipment,

204

205

This is a minor adjustment for IE, PT, ES, and UK

IT and IE

206

ICF study, p. 115

kom (2016) 0235 - Ingen titel

medical treatment on board, and risk assessments) which, if complied with, would reduce the

safety and health risks for workers in this sector. It would improve working conditions, in

particular occupational safety and health. In addition, the introduction of a written fisherman's

work agreement and a right to repatriation would improve legal certainty. It would lead to less

risk of undeclared work and of abandonment of fishermen in a foreign port.

In terms of positive impacts with regard to better health outcomes and improved well-being

(and an associated greater likelihood to be able to work in the sector for longer), provisions on

working time and medical certificates are most likely to show some positive impact. Such an

impact would occur, in particular in those Member States that need to make some changes to

their legislation such as Ireland, Italy, Spain, Romania and United Kingdom. In particular, the

United Kingdom would need to introduce legislation on medical certificates.

It is being assumed that the medical certificate would lead to a reduction of workplace

accidents and occupational illnesses. As no base line data could be found on the impact of

legislation on accidents and illnesses, the assumption of a 5% reduction rates was made.

207

Using information on illnesses and accidents from the EU-LFS, the analysis estimated that the

introduction of the legislation would result in 200 fewer workplace accidents and 130 fewer

occupational illnesses per year in the 20 Member States have been analysed.

Involvement of the fishermen themselves or their representatives in risk assessment will

encourage the discussion of risks and preventative measures and might foster a culture of

prevention which is currently lacking in the sector. This will encourage the further

improvement of working conditions on board

208

The reduction in workplace accidents and occupational illnesses would persist over the full

five year period analysed. In total in the 20 Member States, it was estimated that over the five

year

209

period betweem1,000-2,000 workplace accidents and between 700-1,300 episodes of

occupational illness would be avoided.

5.4.

Impact on employers

Changes in expenditure

One off costs

207

A scenario analysis was made. In the external study the assumption was being made that where a Member

State has to alter their approach to managing health and safety following the introduction of new legislation, the

Member State will experience a reduction in the number of workplace accidents and occupational health

conditions of 5% (taking account of research that accident risk doubles after 12 working hours). This 5%

reduction has been adjusted depending on how far away from the agreement current Member State legislation is.

(ICF study, p. 96).

208

Report From The Commission to The Council, The European Parliament, The European Economic and Social

Committee and The Committee of The Regions on the practical implementation of Health and Safety at Work

Directives 93/103/EC, COM(2009)599 final(fishing vessels) and 92/29/EEC (medical treatment on board

vessels)

209

Given the nature of the external study, the timeframe used to assess the baseline costs, should in principle

reflect the numbers of years required for the full health impacts to come into effect. This, would require reliable

information on the period of latency of certain illnesses such as musculoskeletal disorders or other illnesses

prevalent in this sector, which was generally lacking. Therefore a reasonable timeframe was used, which was

considered to be five years; as a longer period would increase the uncertainty of the estimates.

kom (2016) 0235 - Ingen titel

It is likely that there will be costs to employers to implement the requirements detailed in the

Agreement, some of these likely to be both one off costs. For example drafting or amending

fisherman’s works agreements to meet the new standards and storing copies on board of the

vessel. Employers in the six Member States

210

will be the most impacted. The average labour

cost in the sector for these countries is estimated between 8 and 17 euro per hour

211

. In order

to draft or amend a workers agreement and store it on board the vessel. It is assumed that an

administrator would spend 2 hours per worker (see sensitivity analysis in Annex 2), i.e. 16-34

euro per worker to draft or amend the agreement and make sure it is on board the ship. To

ensure that the agreements are carried on board, the additional costs would be one hour per

worker. Taking into account the number of workers involved in this sector in the Member

States, this would lead to €0.6 million. Taking into account the number of enterprises in the

country concerned, this would lead to an average cost of €30 per enterprise

212

. Due to the high

number of employed workers in the sector, Spain, and Portugal would be relatively more

impacted.

Other costs involve the training to make skippers of the vessel and the crew familiar with their

rights and obligations under the agreement which is estimated at €1.7 million euro. This

training is not an obligation provided for in the agreement, but seems logical. The experience

with a similar agreement in the maritime sector shows that EU and national social partners

also provide information and training to workers in the sector. Improving the working

conditions and in particular, the occupational health and safety culture among fishermen,

demands information and training. Member States indicated previously that they consider that

training essential and that it needs to be more adapted to the circumstances of fishermen in

terms of level of education, availability, traditions and culture, etc. and should include more

practical exercises

213

.The cost of a training session has been estimated as €115 in the United

Kingdom

214

. The number of skippers requiring training has been estimated taking into account

the number of vessels that are not run by self-employed individuals with no employees (using

information from the LFS), as this article of the Agreement. The cost of paying for training

for skippers’ was estimated to be €1.7 million. This cost is also a one-off cost, not extending

over the five year period. This estimate does not take into account the possibility that national

social partners might also be involved in the training and in providing information on the

rights and obligations of the agreement. The costs to employers of paying for training and

allowing skippers’ to attend training is highest in Greece, Croatia and Finland, as larger

countries already comply with this aspect of the Agreement. However, this might be

overestimated as both Greece and Finland have a high number of self-employed (61% and

71%) who consequently do not fall within the scope of the agreement.

Recurrent costs

210

LV, RO and SI will need to adjust their general written agreement to the specific features of the sector. IE,

PT, and the UK do have a written sector specific agreement, but their national legislation does not contain the

obligation to carry the fisherman's work agreement on board the vessel. ES does not seem to have written

agreement for fishermen.

211

See Annex 2

212

This is an estimate as the employment per enterprise is not known.

213

Report From The Commission to The Council, The European Parliament, The European Economic and Social

Committee and The Committee of The Regions on the practical implementation of Health and Safety at Work

Directives 93/103/EC, COM(2009)599 final(fishing vessels) and 92/29/EEC (medical treatment on board

vessels)

214

See Annex 2. This value has been adjusted using exchange rates and PPP values to give country specific

values.

kom (2016) 0235 - Ingen titel

Recurrent costs would be related to the provision of food and water, medical certificates,

covering the cost of repatriation, medical treatment on board and ashore, risk assessment).

The provision of food and water

of sufficient quality and quantity will be recurrent costs. The

costs will depend on the number of crew on board and the time spent at sea. These costs will

impact employers with a distant water fleet who remain longer at sea, more than employers of

a coastal fleet which returns to shore every day or within a few days. This cost could not be

quantified but it is expected not to have a significant impact since ships that stay longer at sea

would have to have food and water of sufficient quantity and quality on board for the crew's

health and safety.

With regard

to the medical certificate

Italy, Sweden and Ireland need to make some

adjustments with regard to the content of the medical examination required, but the medical

certificate as such exists. In the United Kingdom authorities indicated in the context of the

study that it has no certificate for fishermen, as it has for seafarers. The assumption is being

made that the UK would then introduce a medical certificate for all fishermen, which would

cost 115 euro per worker. The cost of a certificate is estimated at an average of 300 euro per

enterprise. These are recurrent costs as the certificate needs to be renewed every two year. It

is possible that in some Member States the national insurance system might reimburse the

costs of the medical certificate.

Repatriation rights

impact the Member States with a fishing fleet which is active in distant

waters have already a right to repatriations. This would mainly bring costs to Italy who does

not seem to have a right to repatriation for fishermen. Spain will be impacted to a lesser

extent, as a right to repatriation exists. It will need to expand it to fishermen which do not fall

under the scope of its national social security system. There is no data on the number of

fishermen which falls in to this category

215

It is assumed that 1% of illnesses and accidents required repatriation, and the on-off cost of

repatriation was €10,000 per repatriation (see Annex 2). Hence the costs per year would be

€110.000

216

. This can be considered as a high estimate regarding Spain, where a large part of

the fishermen are already covered by the right to repatriation. Italy who currently does not

have right for repatriation would be the most impacted.

In the context of the medical treatment on board and ashore,

the provision that the vessel

owner defers all costs that were not covered under social security if abroad is new. Systems of

private insurance for example could ensure that the vessel owner can actually in practice

apply the provisions. The Member States most impacted by the provision are Ireland, Italy,

Latvia, Portugal and Spain. Sea fisheries’ activities in Slovenia are limited to coastal waters

and seem to have a part-time and seasonal character, therefore, the impact is considered to be

limited.

Risk assessment,

the agreement contains a requirement for fishermen or their representatives

to take part in risk assessment as appropriate. This is a requirement which has already been

introduced by a few Member States

217

in their legislation. However, for the Member States,

where this is not the case, this could imply specific guidance from national (enforcement)

authorities and potentially specific training for fishermen or their representative who

215

216

See section 5.1.4.

ICF study, p. 117

217

DE, DK, FR, IT, SE and UK

kom (2016) 0235 - Ingen titel

participate in the risk assessment. In Member States where this requirement already exists,

trainings were estimated to cost between 98 and 180 euro per person for training

218

. This

would lead to a total cost of 1 million euro. This would be one-off costs due to agreement

entering into force. The training might need to be repeated periodically for fishermen entering

the profession and for new representatives. In addition, a risk assessment would need to be

performed for example whenever new fishers enter into service, new equipment is installed or

used, or new work methods are introduced. The cost of carrying out a risk assessment for

Member States who do not have the provisions in place is estimated on €0.1 million

219

. Based

on an assumption that 10,000 vessels (see Annex 2) would need to be assessed this would

come to €10 euro per vessel.

Production gains

The agreement would be expected to lead to production gains resulting from a reduction in the

incidence and severity of occupational illnesses and accidents which require workers to take

sick leave in this sector. This will lead to a reduced volume of absence due to a reduction in

the number of occupational health conditions and accidents.

This benefit has been estimated in monetary terms, using estimates of the duration of absence

from an accident or illness (from the EU-LFS), the 5% reduction rate per year and the cost of

labour. The benefits to employers will not only materialise during the full five year period

analysed but also beyond. The total benefit in terms of reduction in lost productivity from

occupational illnesses and accidents for employers for that five year period is estimated to be

between €0.8-1.6 million for occupational illnesses and €1.9-3.8 million for accidents

220

Reduced staff turn-over

A reduction in the number of workplace accidents and occupational health issues will have a

positive effect on staff retention. However, no evidence was found which estimated

quantitatively the relationship between accidents and occupational health. The reduction in

staff turnover would persist every year. Therefore a reduction in staff turnover is likely to

have a moderate impact, in particular on the countries that have a large number of employees

in the sector, such as Spain, Italy and the United Kingdom.

Reduced insurance fees

Reduced accidents and illnesses rates would lead to reduced insurance fees for employers

because of a reduction of claims. However, no evidence was discovered of how much

employers in the fishing industry pay for insurance, or how much this would reduce if the new

legislation was introduced. Therefore this impact could not be assessed quantitatively. Impact

on the national administration

5.5.

Impact on employment

The implementation of the agreement is unlikely to impact overall employment opportunities

in the sector, with the potential exception of countries where regulations on working time may

218

219

Prices quoted in the UK and DE. See Annex 2.

ICF study section 129-130

220

ICF Study, p. 119

kom (2016) 0235 - Ingen titel

lead to the necessity to recruit additional staff. However, this eventually appears limited as the

working time limits set on the agreement are the same as the current EU acquis.

As most of the measures foreseen mainly impact employees (rather than self-employed), one

might argue that their implementation could have displacement effect with employers

preferring to recruit self-employed fishermen rather than issuing contracts of employment.

However, since the impact of the agreement is limited, it is not expected that the impact of the

Agreement is sufficient to have significant displacement effects of this nature at Member

State level

221

5.6.

Impact on competitiveness, SMEs and consumers

Nearly 90% of businesses in this sector are micro-businesses with only one vessel. Although

no data are available on the average number of employees per vessels, it can be assumed

(based on the data on self-employed without employees), that an important share of these are

owner operated vessels or vessels operated by a skipped with one or two other self-employed

or employees on board.

The Agreement will have no impact on owner operated micro enterprises as its provisions do

not apply to them. The impact on small businesses will be limited to those with employees or

where self-employed work alongside employees.

The overall quantitative and qualitative impact of the Agreement on businesses is of limited

significance, although it presents differences by country. Therefore, while there is inevitably a

greater impact on SMEs, it is proportionate of their share in the sector and is unlikely to

impact their competitiveness when compared to the situation under existing legislative

provisions. In addition, the agreement provides the possibility for Member States to exclude

certain categories of fishermen or vessels, if its application raises special problems of a

substantial nature in the light of the particular conditions of service or operations of the

vessels. For these categories Member States can progressively implement the agreement in

these sectors over a period of 5 years. Furthermore, some provisions, like the provision on

medical certificates are limited to vessels of 24 meters and over. It is left to the Member

States to decide whether or not to extend them to other vessels. Even if Member States will

retain some flexibility, the scope for divergence is narrower as the same standards will apply

to all of them. For example all Member States will need to introduce an obligation for

fishermen to have a medical certificate before allowing fishermen to work on board. They

could be more or less prescriptive regarding the medial examination required although some

essential checks are prescribed by the agreement.

It therefore unlikely, that the Agreement will have impact negatively the competitiveness or

competition in the sector or vis-à-vis vessels of third countries. This impact would be more

significant (and potentially beneficial to the EU fishing fleet) if the implementation of the

Agreement were to lead to the ratification of the ILO Convention 188 also by countries

outside the EU (see section 5.7). Here differences in labour standards are currently seen to

have a negative impact on the competitiveness of the EU fleet which could be improved if

non-EU countries were required to enforce similar labour standards as are already in place in

most EU countries. Due to the EU's strong position in trading of fishing products, this will

221

ICF study, p. 129

kom (2016) 0235 - Ingen titel

promote ratification on third countries. The EU Member States will also have an incentive to

promote ratification

222

Given the limited impact of the agreement on businesses, it would be unlikely that the

agreement would lead to a substantial increase in the price of fish for the consumers.

5.7.

Impact on third countries

The impact of the agreement on third countries in the context of the CFP and the fight against

IUU fishing could be beneficial to the EU fishing fleet Indeed, the implementation of the

Agreement in the EU acquis would give the EU a stronger position to promote the ratification

of the ILO Convention C.188 by third countries (See section 3.3).

For example, in the context of IUU fishing

223

, the European Commission has put Thailand on

formal notice for not taking sufficient measures in the international fight against illegal

fishing. Such a procedure could lead to a ban on import, in case the country does not take

measures to improve the situation. This has triggered discussions with the Thai authorities on

the working conditions in its national fishing sector

224

, which exports its products mainly to

the US and the EU.

5.8.

Overview of costs and benefits

The table below shows that in the first year the costs of implementing the Agreement are

estimated to outweigh the benefits, mainly due to the costs to familiarise workers with the

new provisions and to implement the agreement in practice (frontloading). In the full five year

period

225

, in the most conservative scenario, benefits and costs cancel themselves out. In the

average and optimistic scenario the benefits will outweigh the costs. However, it should be

noted that it was not possible to quantify and monetise all costs and benefits

226

. For the

calculations over a 5 year period were made a low estimate, a best estimate and a high

estimate. These figures are presented in the table below.

Actor

Impact

Value first Value

Value over

year

over

5 5 years

years

(best

(Low

estimate)

Value over

5 years

(high

estimate)

Benefits

Workers

Reduction

numbers

1,000

222

223

ICF study, p. 126

In the context of IUU fishing, the European Commission has put Thailand on formal notice for not taking

sufficient measures in the international fight against illegal fishing (IUU). http://europa.eu/rapid/press-

release_IP-15-4806_en.htm

224

http://www.theguardian.com/world/2016/jan/21/eu-investigators-to-decide-on-thai-fishing-industry-ban-over-

slave-labour

225

arising from it under the assumptions used to model the impacts

226

For estimated costs per Member State, please see Annex 4.

kom (2016) 0235 - Ingen titel

accidents

Reduction

numbers

occupational

injuries

200

130

2,000

130

700

1,300

Value of accidents

avoided

€0.9

million

€0.4

million

€4.1 million

€12,4

million

Employers

Reduction in lost

productivity from

€0.4

accidents

million

Reduction in the

lost

productivity

from occupational €0.2

illness

million

€0.4

million

€3.8 million

€1.9 million

€0.2

million

€1.6 million

€0.8 million

Administrators Reduction

hospital costs due to

accidents

and

occupational

€0.2

diseases

million

Total Benefits

Costs

Employer

One-off costs

Drafting

amending

fisherman’s work

agreement

and

ensure it is on board €0.5

the vessel

million

Recurrent

Medical

certificate

227

repatriation

227

€0.2

million

€0.8 million

€1.5 million

€1.7

million

€1.2

million

7.5 million

€19,7million

€0.3

million

€0.5 million

€0.5

million

€0.1

€0.8

million

€0.1

€1.3

million

228

€0.5 million

€4.8 million

€1.9 million

For vessels over 24 meters only, based on providing the certificate and lost output due to providing the

certificate, based on the assumption that fishermen need to take time of work to obtain the certificate.

228

Certificate needs to be renewed every 2 years.

kom (2016) 0235 - Ingen titel

million

Risk assessment

Total costs

€0.4

million

€1.5

million

€0.1

million

€1.3

million

€0.7 million

€2.9 million

€0.8 million

€8 million

kom (2016) 0235 - Ingen titel

OMPARISON OF THE OPTIONS

Assessment of

the change

from baseline

to agreement

Baseline

Agreement

Effectiveness

The agreement will help reduce

injuries and accidents and

The rate of occupational

therefore improve occupational

accidents and injuries

safety and health of the workers

will remain high

in this sector.

The legal framework

The sea fisheries sector will

will remain fragmented

have

coherent

legal

framework, which will increase

legal certainty.

The costs of the agreement are

limited as it brings limited

changes. However, costs are to

be expected in the Member

States who need to adjust their

provisions. Costs can be -/+

mitigated by flexibility clauses

in the agreement. Costs are set

off against the benefits.

Efficiency

The high rate of

accidents and injuries in

the sector, leads to costs

of both the employer

and

the

national

administrations,

and

workers

Coherence

The agreement fits in the

objective of the Commission to

improve the living and working

conditions of workers in the

maritime

sector

including

fisheries. It enhances the

protection of the labour rights

mentioned in the EU Charter of

Fundamental Rights of the

European Union.

Effectiveness

Compared to the baseline situation, the agreement will improve occupational safety and health

for fishermen within the EU. It will provide a consolidated legal framework which is adapted

to working conditions for the sea fishing sector.

kom (2016) 0235 - Ingen titel

Efficiency

The high rate of accidents and injuries in the sector, leads to costs of both the employer and

the national administrations. For the employers it leads to a loss of production and a high

turnover of staff. For national authorities this results in costs in terms of health care costs and

social insurance. For workers: a high risk of accidents and occupational injuries leads to a loss

of income in case of incapacity or disease and it might lead to an early leaving of the sector.

The costs of the agreement are limited as it brings limited changes. However, costs are to be

expected in the Member States who need to adjust their provisions:

Continuously cost for the employers:

One-off:

a) training and familiarisation with the new rules;

b) drafting or adjusting fisherman's work agreements and store them on board of the

vessel;

c) adaptation of the national legislation to the requirements of the agreement

The costs seem to be limited and in direct relation with the intentions of the initiative. The

permanent costs are set of against an expected continuing reduction of non-fatal accidents and

injuries in the sector

There will be an increase of costs, but also benefits in particular for the employers in the

Member States that would need to introduce health and safety measures and where a

reduction in accidents can be expected.

The costs can be mitigated as the agreement provides for flexibility on some clauses such as

medical certificates and also by the possibility to gradual implement the agreement over a

period of 5 years.

Coherence

The agreement fits in the objective of the Commission to improve the living and working

conditions of workers in the maritime sector including fisheries.

It enhances the protection of the labour rights mentioned in the EU Charter of Fundamental

Rights of the European Union

The Agreement is consistent with the European Policy and measures to fight against IUU

fishing activities. Better working conditions will increase the attractiveness of the sector

operating legally, boosting competition among employers to get the best personnel on board

and for this purpose indirectly ensure a healthier social climate.

Proportionality

The agreement makes a step forward to achieve the objectives set to improve the safety and

health protection of workers and provide for a coherent legal framework. It does so at overall

medical certificate;

repatriation costs;

training on risk assessment;

costs on medical treatment on board and ashore;

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reasonable costs. The action is based on an agreement concluded by employers’ and workers’

representatives in the sector. The agreement would be implemented in EU legislation via a

Council Directive which establishes minimum requirements and would leave the Member

States the possibility to keep or set more favourable standards for workers. In addition, the

agreement leaves the Member States flexibility to take into account specific features of their

national situation. Therefore the Commission considers the agreement as an appropriate way

forward.

7.1.

OW WOULD ACTUAL IMPACTS BE MONITORED AND EVALUATED

Monitoring of the impacts

Without prejudice to the provisions of the agreement on the follow-up and review by the

signatories, the European Commission shall monitor the implementation of the directive.

The following data will be examined:

Operational objective

Operational indicator

Data sources

Reduction of the numbers 1. Total number/incidence rate Monitoring by the signatories

accidents

and of fatal/non-fatal accidents

of the agreement.

occupational injuries

Occupational safety and health

survey both at European (LFS

data) and national level.

Data on absenteeism from work

due to injuries and accidents

1. number of days absent in the

sector

number

occupational

illnesses.

3. Total number/incidence rate

work-related

health

problems in the past 12 months

Improvement in living Number

complaints

and working conditions in received by national authorities

the sector

Number of complaints reported

by the national enforcement

authorities

Reduction

health

problems taking other

aspects such as the

increased average aging

of the population working

in the sector into account;

Data on employment in the

sector

Health surveys at national and

EU level

Specific health surveys in the

sector

Satisfaction surveys within the

sectors at national level will

need

conducted.

Questionnaires to the national

authorities and national social

partners.

7.2.

Evaluation of the agreement

The directive implementing the agreement into EU legislation would be evaluated by the

Commission services five years after the date of its entry into force. The evaluation will be

based on data gathered from the monitoring exercise, complemented by the results of the

monitoring and of the review by the signatories of the agreement as well as by information

collected from Member States and other stakeholders.

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In order to evaluate the results and the impact of the directive, the evaluation will focus on its

effectiveness, efficiency, relevance, coherence and added value. Potential questions to be

answered by the evaluation are: What have been the impacts on the main stakeholders in the

sector? To what extent has the directive led to a reduction of occupational accidents and

injuries. To what extent did the living and working conditions in the sector improve? Did the

agreement support the fight against IUU fishing?

NNEXES

Annex 1: Process

Lead DG: DG EMPL

Background

At international level, in 2002, the International Labour Organisation (ILO)

229

started the

discussions and preparations of complete and up-to-date international standards for the fishing

sector, in order to guarantee proper protection for fishermen on a global scale and ensure a

level playing field, taking into account the technological progress in the sector. The new

standards would also address critical issues such as safety and health and take into account

differences in fishing operations, employment arrangements, methods of remuneration and

other aspects

230

. The EU, its Member States, employers' representatives (in particular fishing

vessel owners), and workers' representatives (in particular fishermen representatives) actively

participated in the negotiations and conclusion of the Work in Fishing Convention (2007) C

188, which was adopted at the 96th International Labour Conference (ILC) of the

International Labour Organization ILO in 2007

231

The objectives of this Convention are to

ensure that fishermen have decent conditions of work on board fishing vessels with regard to

minimum requirements for conditions of service, accommodation and food, occupational

safety and health protection, medical care and social security. It applies to all fishermen and

fishing vessels engaged in commercial fishing operations. It consolidates the existing ILO

Conventions relating to fishermen.

On 10 October 2007, the EU Commission adopted a Communication

232

reassessing the

regulatory social framework for more and better seafaring jobs in the EU. This

Communication constituted the first phase of consultation of the EU social partners pursuant

to Article 154 TFEU, by which the latter were invited to "examine

the possibilities of a joint

initiative to promote the application within the EU of the provisions of the recent ILO Work in

Fishing Convention, 2007".

The EU social partners in the sea fisheries sector considered the Commission’s invitation and

decided to enter into negotiations at the end of 2009. The agreement under consideration was

concluded on 8 May 2013. By letter of 10 May 2013 the EU social partners requested the

implementation of their agreement in EU legislation through a Council Decision in

accordance with Article 155 TFEU.

229

The International Labour Organisation is a specialized agency of the United Nations with a tripartite

structure, www.ilo.org

230

ILO Report " Conditions of work in the fishing sector: The constituents’ views" Report V(2) submitted to the

International Labour Conference 2004.

http://www.ilo.org/public/english/standards/relm/ilc/ilc92/pdf/rep-v-2.pdf

231

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C188

232

COM(2007) 591 final

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Representativeness of the EU social partners, who are the signatories of the agreement

When assessing a request from EU social partners to implement their agreement in EU law

according to Article 155 TFEU, the Commission looks at representativeness and mandate of

the social partners for the area concerned by the agreement. This ensures that the request is in

line with the provisions of the TFEU and that the agreement can count on a broad support

amongst those actually concerned.

The criteria are thereby interpreted in accordance with Article 1 of Commission Decision

98/500/EC of 20 May 1998

233

, which states that social partners at the European level should

fulfil the following criteria:

a. they shall relate to specific sectors or categories and be organised at European level;

b. they shall consist of organisations which are themselves an integral and recognized

part of Member States’ social partner structures and have the capacity to negotiate

agreements, and which are representative of several Member States;

c. they shall have adequate structures to ensure their effective participation in the work

of the [Sectoral Dialogue] Committees.

These conditions should be fulfilled at the time when the agreement was signed. A first

version of the Sea Fisheries social partners' agreement was signed in May 2012 at the

occasion of the 2012 Maritime Day in Gothenburg. As some of the clauses of this agreement

were problematic as regards the criteria of legality

the EU social partners signed an amended

agreement. In order to assess the representativeness of the EU social partners, the European

Foundation for the Improvement of Living and Working Conditions (Eurofound) conducted a

study in 2012

234

The agreement concerns working conditions in the sea-fisheries, which matches with the

sectoral delimitations of the sea-fisheries sectoral social dialogue Committee. Therefore,

congruence between the coverage of the Committee and of the agreement is given.

The social partners participating in the Committee are Europêche and Cogeca on the employer

side and ETF on the workers side.

For Europêche, the Eurofound representativeness study from 2012 identifies members in 11

Member States, namely BE, DE, DK, ES, FR, EL, IT, NL, PL, SE and UK.

Cogeca represents the general and specific interests of European agricultural, forestry,

fisheries and agri-food co-operatives. It has members related to sea fisheries in the following

11 Member States: CY, DE, EE, ES, FR, EL, IE, IT, MT, NL and SI. This means that on the

employer side, altogether 16 countries are represented in the committee. In some of these

countries, the employer organisation is not involved in collective bargaining – also because of

very small numbers of employees – and more a sort of professional association. The countries

233

Commission Decision 98/500/EC of 20 May 1998 on the establishment of Sectoral Social Dialogue

Committees promoting the dialogue between the social partners at European level, OJ L 225, 12.8.1998, page 27

234

http://www.eurofound.europa.eu/eiro/studies/TN1105068S/tn1105068s_1.htm

kom (2016) 0235 - Ingen titel

not represented on the employer side are the landlocked countries AT, CZ, LU, HU and SK,

where no workplaces in sea-fisheries are available and FI, LV, LT, PT, RO, BG

235

In Bulgaria, Finland, Latvia and Lithuania, no sector-related employer organisation was found

during the representativeness study. With the exclusion of Latvia, where company-level

bargaining was reported, no significant industrial relations activities were recorded in these

countries.

236

It also means that with the exception of Portugal and Romania, in all countries

where an employer organisation was found to exist, there was at least one organisation

affiliated to either of the two employer organisations active in the EU Sectoral Social

Dialogue Committee and only six of the recorded 36 employer organisations had no affiliation

to either Europêche or Cogeca.

On the workers side, ETF had membership related to sea-fisheries in 11 countries, namely

BE, BG, DE, DK, ES, FR, IT, NL, PL, PT and UK, which leaves – beyond the

aforementioned landlocked countries - fishermen in 11 Member States, i.e. CY, EE, EL, IE,

FI, LV, LT, MT, RO, SE, SL not represented. According to the employment figures for the

sector, for most of these countries the numbers of employees are around a 1,000 workers (in

most of these countries, employment is considerably smaller). While IE, EL, RO and SE have

more than 1,000 fishermen, a very large share of the fishermen is self-employed

237

Looking at trade unions active in the sector in the Member States, it appears that the large

majority is actually a member of ETF, a few trade unions have – mostly additionally –

membership with EFFAT, in Italy three trade unions (of the six active in the sector) are part

of CESI

238

and in Portugal as well as in Slovenia the representativeness study found trade

unions without European level affiliation. It justifies that ETF represents the sector well.

As the economic situation of the sector has deteriorated since 2012/13, keeping the

membership is a challenge for the employer organisations at EU and national level. However,

Europêche has managed to secure cooperation of the Latvian and Lithuanian employer

associations.

In conclusion, with the exception of Portugal and Romania, there are no Member States where

employer organisations active in sea-fishing are not represented at the European level, taking

into account that the sector is relatively small in Romania. This leads to the conclusion that

European level dialogue is on the side of employer

organisations highly inclusive and that

Europêche and Cogeca can together be considered as representative for the employers in the

sector. As argued above the same is true for ETF on the workers' side. This leads to the

conclusion that the social partners who have signed the agreement are representative of the

sector and can therefore justly request the Commission for implementation of an agreement

according Art. 155 TFEU.

235

236

Joining the EU on 1 July 2013, Croatia was not yet a member of the EU at the time the agreement was signed.

the

2012

Eurofound

representativeness

study,

http://www.eurofound.europa.eu/sites/default/files/ef_files/docs/eiro/tn1105068s/tn1105068s.pdf

237

According to the ICF study, EL would have more than 1000 employees, but as for EL table 7 indicates a self-

employment rate at 100% for costal fisheries and almost 95% of the vessels smaller than 12 m, the large majority

of the work-force will be self-employed. More than 70% of the fishermen in SE are self-employed. IE has also a

large number of self-employed. About 40% of the RO fishermen are self-employed.

238

As EFFAT and ETF are members of ETUC, the ETF delegation to the sectoral social dialogue can also

include members of trade unions which are affiliated to EFFAT only.

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Legality of the clauses