Key Benefits:
Council Two appeals against the law on the creation of the French International Register, adopted on 14 April 2005, were seized by more than sixty members and over sixty senators. The authors of the references call into question Articles 3 and 9 and Title II of the law.
Title II of the law referred to determines the status of seafarers residing outside France employed on board ships registered in the International Register French. Section 1 contains provisions on labour law applicable to this category of seafarer, governing in particular their contracts of employment or contracts for making available by a maritime labour undertaking, providing for Minimum conditions of employment, employment, work, life on board and remuneration, determining the duration of work and the period of leave, specifying the rules applicable to the trial period and at the end of the commitment contracts or To make available. Sections 2 and 3 include, for their part, provisions relating to the right to organise and social protection.
The provisions of this Title II of the law referred to apply to seafarers who reside outside France. Article 3 of the Act explicitly states that seafarers resident in France are not subject to the provisions of Title II. Section 9 of the Act deals with the conditions that must be met by marine undertakings so that they can be entered into contracts for making available.
Members of Parliament and Senators who are striking support, in the first place, The provisions of Article 3, as they do not explicitly specify the rules applicable to seafarers resident in France, would be vitiated by negative incompetence and disregard the constitutional objective of intelligibility and The
of the proceedings argue, second, that the provisions of Article 9 and Title II of the law referred to, in so far as they determine the rules applicable to seafarers residing outside France, would be Infringed the eighth preambular paragraph of the Preamble to the Constitution of 27 October 1946, infringed the principle of equality and would be contrary to the constitutional objective of intelligibility and Accessibility of the law and section 6 of the Environmental Charter.
This argument calls on the Government to make the following observations.
*
* *
I. -Regarding criticism from the negative incompetence and the constitutional objective of intelligibility and accessibility of the law
1. The petitioners first criticize the legislature for not having exhausted its jurisdiction under Article 34 of the Constitution and for having disregarded the constitutional objective of intelligibility and accessibility of the law, without having Explicitly specified which rules apply to seafarers who are resident in France and are employed on board ships registered in the French International Register.
Such criticisms can only be ruled
. Special rules intended to apply to seafarers residing outside France, which derogate from the general provisions, the legislature was under no obligation to reiterate, or even to recall explicitly, the content of the rules applicable to the Navigators residing in France. These general provisions are those of the common law laid down by the Code of Maritime Labour adopted by the law of 13 December 1926 and, where appropriate, the Labour Code and collective agreements or agreements. The general provisions of the Maritime Labour Code, in particular Articles 1 and 5, determine its scope: this code governs, in principle, any contract of engagement between a shipowner or his representative and a sailor, having for A service to be performed on board a French vessel for a maritime expedition. The legislation referred to does not repeal these general provisions in any way, but it establishes special provisions which derogate from it in a particular field. Apart from that particular field, strictly defined by the legislator as referring to the situation of seamen who are employed on board ships registered in the French International Register and who do not reside in France, the provisions General shall apply without any ambiguity in this regard.
Neither Article 34 of the Constitution nor the constitutional objective of intelligibility or accessibility of the law, which is derived from Articles 4, 5, 6 and 16 of the Declaration of human and citizen rights, did not require the legislator to state explicitly that, in accordance with the general provisions of Articles 1 and 5 of the Maritime Labour Code, the provisions of this Code remain applicable to the Navigators residing in France. The legislator was, a fortiori, certainly not obliged to repeat them.
It can be observed, moreover, that by referring to a decree the determination of the port of registration and the arrangements for the francization and registration of the Vessels in the French international register in the framework of a single window, the legislator has not heard that the regulatory authority can envisage a plurality of registry ports: only one port of registration will correspond to the register French international and it will necessarily be located in metropolitan France for reasons relating to the regulation of national cabotage in Community waters and to the communication of the European Commission on State aid Maritime transport (Communication C [2004] 43 of the Commission, OJ of 17 January 2004). It follows, in any event, that only seamen residing in France and employed on board ships registered in that register shall have the provisions of the Maritime Labour Code, to the exclusion of the applicable provisions
authors of the action also criticise the provisions of the law relating to seafarers residing outside France, in particular Articles 9, 12, 13 and 24, by supporting, in a similar way, that they would disregard Article 34 of the Constitution and the constitutional objective of intelligibility and accessibility of the law. These grievances are not well founded.
Article 34 of the Constitution reserves the right to determine the fundamental principles of labour law, the right to organise and social security. It does not, however, imply that the rules for the implementation of these fundamental principles are determined by the legislator itself. The regulatory power, in particular in the form of an intervention specially provided for by the law, may be led to specify certain rules for the application of the principles laid down by the legislator. On the basis of the eighth preambular paragraph of the Preamble to the Constitution of 27 October 1946, it is even open to the legislator to leave it to employers and employees to specify, after appropriate consultation, the practical arrangements Application of the standards it enacts (Decision No. 89-257 DC of 25 July 1989; Decision No. 96-383 DC of 6 November 1996; Decision No. 97-388 DC of 20 March 1997; Decision No. 99-423 DC of 13 January 2000; Decision No. 2004-494 DC of 29 April 2004)
It is also for the legislature to exercise its powers under Article 34 of the Constitution by adopting sufficiently precise provisions and using unambiguous formulae so that its intervention satisfies the Constitutional requirements relating to the clarity of the law, as well as its intelligibility and accessibility (Decision No. 99-421 DC of 16 December 1999; Decision No. 2002-455 DC of 12 January 2002; Decision No. 2003-475 DC of 24 July 2003; Decision No. 2004-494 DC of 29 April 2004; Decision No. 2004-500 DC of 29 July 2004).
But it is important to note that neither Article 34 of the Constitution nor the objective of intelligibility and accessibility require the legislator to take Measures in a specific sense. Within the framework of the competence which the Constitution assigns to it, it is open to the legislature to adopt the measures it considers appropriate and which will enable it to achieve the objectives of general interest that it
. Satisfies the requirements resulting from Article 34 of the Constitution and the objective of the constitutional value of intelligibility and accessibility of the law, by determining with sufficient precision and unequivocally the fundamental principles of the Social law applicable to seamen who are not resident in France and who are employed on board ships registered in the French International Register. That is the purpose of the provisions of Articles 10 to 26 which form Title II of the law referred to. In the case of articles explicitly criticised by the remedies, the following details can be provided.
(a) Article 12 of the Act provides that contracts of employment and the social protection scheme for seafarers residing outside France are Subject to the law chosen by the parties. It thus determines, for a particular category of contracts within an international framework and for social protection, a method of determining the law applicable to such contracts or schemes. In addition to that rule, the legislature also specified that the French provisions resulting from Title II of the law referred to in the law, which constitute rules of public social order, are in any case applicable to those legal relations and contracts Applicable in any case to seamen employed on board ships registered in the French International Register. The legislator also reserved the benefit of the more favourable terms of collective agreements or agreements applicable to non-residents. In this regard, Article 24 explicitly states that non-resident seafarers are likely to avail themselves of the terms of the collective agreements or agreements applicable under the law of which the contract of engagement falls within the framework of Article 12 of the Act which guarantees the benefit of the more favourable terms of collective agreements or agreements.
The method of determining the law of the contract, left to the choice of the parties, means, as the legislator expressly pointed out, Subject to compliance with the international commitments of France, in other words, in particular, as regards contractual obligations entered into in an international framework, the provisions of Article 6 of the Convention on the law applicable to Contractual obligations signed in Rome on 19 June 1980. In adopting these precise and unambiguous provisions, in order to determine the law applicable to legal situations involving persons of foreign nationality, the legislature has fully exercised its jurisdiction under Article 34 of the Constitution.
(b) Article 13 provides that conditions of commitment, employment, work and life on board a ship registered in the French International Register may not be less favourable than those resulting from the conventions of The International Labour Organization ratified by France. In addition, it provides for the principle of a fixed minimum remuneration, after consulting the representative organisations, by order of the Minister responsible for the merchant marine by reference to remuneration practised or recommended on the plan International. In the latter respect, the legislator has heard reference, on the one hand, to the basic minimum wage provided for by the International Labour Organisation and, on the other hand, to the salary scale according to the functions advocated by the Federation International Transport (ITF).
It appears that the legislator could, without disregarding Article 34 of the Constitution, after setting the principle of minimum remuneration, refer to a ministerial order the determination of the amount Of this minimum wage. The amount of this remuneration does not, in fact, fall within the fundamental principles of labour law. In addition, the legislator has specifically framed the empowerment given to the regulatory power by establishing a procedural obligation to consult professional organisations and by making explicit reference to practices and International recommendations.
(c) Article 9 lays down some of the conditions laid down by law for the conclusion of contracts for the provision of seafarers between a shipowner and a shipping company. It specifies that such contracts can be concluded only in so far as the maritime work undertaking has been approved by the authorities of the State in which it is established or, where there is no authorisation procedure or where the undertaking is established In a State where the International Labour Organisation Convention No. 179 does not apply, provided that the shipowner ensures that the undertaking complies with the requirements of this Convention No. 179 on the recruitment and placement of persons Seafer.
It is the legislator's jurisdiction to make the conclusion of the making available contracts subject to such conditions. However, by referring to the content of Convention No. 179 of the International Labour Organisation and the requirements it contains, Parliament has exercised its powers under Article 34 of the Constitution. It can be added that in practice shipowners are already implementing this type of control, which is most often exercised on the spot, on shipping companies.
II. -As regards the complaint under the eighth paragraph of the
to the Constitution of 27 October 1946
According to the eighth preambular paragraph of the preamble to the Constitution of 27 October 1946, every worker participates, by The intermediary of its delegates, the collective determination of working conditions and the management of enterprises. The applicants submit that the provisions of Title II of the law referred to in the Constitution would not be subject to the terms of those constitutional provisions by merely providing for the participation of seamen who do not reside in France at the election Of the delegates provided for by the Decree of 17 March 1978 applying the Maritime Labour Code.
It may be noted, however, that it is for the legislature, within the framework of its discretion, to determine the actual translation The terms of the eighth preambular paragraph of the Constitution of 27 October 1946 with regard to the subject matter and the scope of the provisions it adopts (V. For example, Decision No. 93-328 DC of 16 December 1993 or Decision No. 94-348 DC of 3 August 1994).
In the present case, it must be observed that the provisions criticised in Title II of the Act referred to are intended to apply, on ships Registered in the French International Register, to persons who are not resident in the national territory. Even assuming that, within this framework, the terms of the Preamble to the Constitution of 27 October 1946 are effective against the intervention of the legislator, it must be pointed out that the legislator has provided for the participation of non-resident seafarers, as Other seamen, in the election of the stewards provided for by Decree No. 78-389 of 17 March 1978. This form of participation, which is relevant to the organisation, working conditions and life on board ships, constitutes a translation of the terms of the eighth paragraph of the Preamble of 1946 which is adapted to the object and to the Scope of the law.
It can be added that the legislature expressly guaranteed, in Article 23, freedom for all seafarers to join the trade union of its choice and the exercise of the right to strike. It has also explicitly stated in Article 24 the possibility of invoking collective agreements or agreements.
None of these provisions is contrary to the constitutional requirements of the eighth paragraph of the Preamble of the Constitution of 27 October 1946. The Government considers that, in view of the purpose of the law which is to determine social provisions applicable to seagoing personnel who do not reside in France, the legislature was not obliged by the provisions The Constitution of the eighth paragraph, to adopt rules other than those laid down by it.
III. -As regards the principle of equality
The authors of the appeals argue that the law referred to, by organising a special scheme, in the field of labour law, right to organise and social protection, applicable to the Not resident in France, would disregard the principle of equality in that it shall apply to non-resident seafarers different provisions of those applicable to seamen residing in France
Does not support this analysis.
It is well known that the constitutional principle of equality does not preclude the legislator's rule differently from different situations, nor does it derogate from equality for reasons of interest Since the difference in treatment is in relation to the object of the law.
In the present case, it is true that the legislator adopted, in respect of seamen employed on board ships registered in the French International Register which does not Not in France, certain rules which differ from those applicable to seamen residing in France. It must be measured, however, that if some of these rules, which are of interest to the conditions of employment and remuneration, are different according to the country of residence, the same is not true for other rules, those concerning the conditions of Work on board ships, which are the same for all seamen on board the same vessel.
The conditions of pay, whether the level of the minimum wage or the payment of overtime, are the same as The social protection system. On these points, Title II of the Act lays down minimum guarantees for seamen who are not resident in France and who are employed on ships registered in the French International Register; but it is true that these guarantees have A different content from those enjoyed by seafarers residing in France.
On the other hand, the rules on working conditions shall be fixed in the same way for all seamen serving on the same ship, irrespective of their Country of residence. Thus, the organisation of work on board is fixed for all seamen by a single service board. This table shall be drawn up in accordance with the requirements of International Labour Organisation Convention No. 180. Article 16 of the Act referred to, but also the general provisions of Decree No. 2005-305 of 31 March 2005 on the duration of the work of seafarers, refer to this single document. This table establishes the duration of the services and the organisation of the work on board the ship; it takes account of the nature of the duties performed on board, the qualifications and patents of seamen and their qualifications, but it is by no means a function of the Country of residence or nationality of seafarers. On the other hand, it must be observed that, without prejudice to collective agreements, the law referred to has the effect of establishing at the same level, for non-resident seafarers and for resident seafarers, the rules on obtaining paid leave (V. Article 92-1 of the Maritime Labour Code and Article 17 of the Act referred to) and on weekly rest (V. Article 28 of the Maritime Labour Code and Article 17 of the law referred to).
Since the rules laid down are identical in relation to the organisation of work on board the ship, the complaint based on the principle of equality can only be rejected in that Measure. With regard to the conditions of employment, the Government considers that the legislator could establish different rules, without disregarding the principle of equality, taking into account objectively different situations of seamen according to their country of
this respect, it is important to point out that the ships cannot be regarded as, in itself, a portion of the French territory on which, as a matter of law, all the rules relating to French territoriality would apply. The 1982 United Nations Convention on the Law of the Sea recognises immunity from prosecution under Article 32 only to warships; however, other ships do not enjoy such immunity and they are May be subject to a plurality of legal rules, depending on whether they are on the high seas, in an exclusive economic zone or in territorial waters, rules which result from the legal order of the flag State and the order The legal status of coastal States. Thus, a ship is subject to the rules of a coastal state in its territorial waters even in the event of a safe passage. It can also be observed that, in the French legal order, the Act of 3 January 1967 on the status of ships does not further state that vessels, for which it determines the conditions of individualisation and of francization, would constitute a Part of the national territory.
In the absence of territorial application of the French rules, it can be accepted that the legal situation of the various persons employed on board ships registered in the French International Register is Governed by the status of each of these persons. However, with regard to the conditions of employment, remuneration and social protection, this status differs according to the country of residence. In those circumstances, the legislator could take account of these objective differences in order to establish different rules depending on whether the sailor resides in France. It should be noted that the criterion drawn from the country of residence certainly has an objective character, taking into account the country in which the sailor actually resides when he does not serve on board a ship, that is, where the centre of its Material and moral interests. This objective criterion is relevant and in relation to the provisions of the law which deal with the conditions of employment, remuneration and social protection.
It can also be observed that other European countries have put in place measures Similar to that resulting from the law referred to. All Member States of the European Union have adopted fiscal or social measures or established registers in order to make their flag attractive economically. This is the case in Denmark, the Netherlands, Spain, Italy, Germany, Luxembourg or Belgium. These foreign laws often take into account the criterion of seafarers' residence in order to determine the rules applicable to them. This is the case in particular of German legislation, which was found to be in conformity with the principle of equality by the Federal Constitutional Court of Karlsruhe (BVerfG). January 10, 1995, TranspK 6-95 p. 246).
This Act establishes a mechanism comparable to that already established by other European countries, in the general interest of the French fleet. It should be noted, in this regard, that France had no more than 221 vessels in 2004 compared to 798 in 1962 and is now ranked 29th in the world in terms of tonnage. This situation does not correspond to the commercial status of France nor to the role it intends to play in all matters relating to maritime transport. While it is a coastal state particularly exposed to maritime traffic (140 ships go offshore of Ouessant every day, 200 every day off Cape Gris-Nez), France, because it represents only 0.4 % of the world tonnage transported In the world, does not have a sufficient place in international fora such as the International Maritime Organisation. It must also be noted that the merchant navy is integrated into a major economic sector, with an interest of 315 000 jobs and a production value of EUR 35 billion. The commercial fleet accounts for only a total of 20 000 jobs for a production value of EUR 6.6 billion, but it carries 100 million tonnes of goods and 14 million passengers a year. This activity has a leverage effect on services activities (French banks specializing in maritime financing in Europe, French brokers in the charter market, sale of ships, maritime insurance). Finally, it is necessary to indicate that the ships are armed for part by French personnel, from a recognized training course for officers (four national merchant marine schools). The general interest of France in the attractiveness of its flag justifies the measures that have been adopted, within the framework of the law referred to, by Parliament.
IV. -With regard to Article 6
of the Charter of the Environment
The authors of the appeals take precedence, finally, under Article 6 of the Environmental Charter in order to argue that the provisions of Title II of the Legislation relating to the labour law applicable to non-resident seafarers would be of such a nature as to affect maritime safety and, as a result, the protection of the environment
Criticised provisions of the law referred to.
Constitutional Act No. 2005-205 of 1 March 2005 adopted the terms of the 2004 Charter of the Environment, which defines rights and duties to which, according to the amendment to the Preamble The French people solemnly proclaimed their attachment to the Constitution. Article 6 of the Charter thus provides for the impartiality of public policies to promote sustainable development by reconciling the protection and development of the environment, economic development and social progress. This article sets out an objective stated by the constituent power. Its scope is informed by the preliminary considerations of the Charter, according to which " In order to ensure sustainable development, choices to meet the needs of the present must not compromise the ability of future generations and other peoples to meet their own needs." In those circumstances, it can be accepted that it is for the legislature, as regards matters within its competence, to determine, within the framework of its power of political assessment, the measures which seem to it to be the most appropriate To translate this objective, that is, to reconcile the protection and development of the environment, economic development and social progress.
Perhaps, in this case, the question of whether the The provisions criticised in Title II of the Act relating to the rules of labour law and social protection applicable to seamen who do not reside in France fall directly within the scope of the forecasts of Article 6 of the Charter. The purpose of Article 6 is not to regulate directly labour law, right to organise or social protection, and it can be estimated that the link between such provisions and the environmental objectives pursued by the authorities It is too indirect to oppose the terms of Article 6 of the Charter to the impugned provisions of the law.
But, in any event, the Government considers that the law referred to, far from being against the purpose of the Sustainable development referred to in Article 6 of the Environmental Charter, has adopted provisions which contribute precisely to the implementation of this objective. It wishes to emphasise, as has been said in the course of parliamentary debates, that the rules laid down by the law referred to can only contribute to an improvement in maritime safety and to better preservation of the environment. It must be pointed out, in this regard, that all ships registered in the French International Register will be required to comply with international standards for the safety of ships; Article 4 of the Act referred to provides that vessels registered in the French International Register shall comply with international standards for the safety of vessels. French international register shall be subject to all the rules on maritime safety and security, training of seafarers and protection of the environment resulting from French law, Community law or international commitments Subscribed by France. It is not necessarily the same for vessels that are registered in the registers of other countries; by making the French international register attractive, the legislator does not affect maritime safety, but contributes to the contrary. Its improvement.
*
* *
For these reasons, the Government considers that the criticisms made by the authors of the references are not such as to justify censorship of the provisions Challenged by the law. It therefore considers that the Constitutional Council should reject the appeals before it.
