Royal Decree 1737/2010, of 23 December, approving the regulation of the regulation of inspections of foreign vessels in Spanish ports, incorporated into the Spanish legal order Directive 2009 /16/EC, of the European Parliament and the Council of 23 April on the control of ships by the port State.

The object of the aforementioned royal decree is to regulate in a harmonised way the inspections to which the foreign ships that call in the Spanish ports, in order to reduce significantly the number of ships that do not comply with the rules established by applying the measures contained in the rule itself.

Subsequently, Directive 2013 /38/EU of the European Parliament and of the Council of 12 August 2013 amending Directive 2009 /16/EC has been adopted. The amendment is intended to include references to the 2006 Maritime Labour Convention (MLC 2006), adopted by the International Labour Organisation (ILO) on 23 February 2006, between the international rules for implementation and compliance should be verified by the competent authorities of the coastal States of the European Union when carrying out the control of foreign vessels entering their ports.

The CTM 2006 aims to collect and articulate in a single and consistent instrument all the updated rules and precepts of the international conventions and recommendations in force on maritime labour, as well as the fundamental principles of other international labour agreements.

CTM 2006 establishes maritime labour rules for all seafarers-understanding as such to any person who is employed or engaged or who works in any post on board a ship to which the said Convention applies, in accordance with Article II (1) (f) thereof, irrespective of the nationality or the flag of the vessel in which they provide their services. It also contains implementing rules which define the responsibilities of the States exercising the port State control obligations, which must verify compliance with the 2006 CTM by merchant vessels. enter their ports, in order to ensure the safety and health of the crews of the vessels and to avoid distortion of competition.

In this sense, it should be specified that under no circumstances will the measures taken to implement Directive 2013 /38/EU serve as a justification for Member States to reduce the general level of the protection of crew members working on board vessels of those States, taking into account the rules of the European Union applicable in the field of employment.

It is also important to stress that Directive 2013 /38/EU not only concerns the substantive aspects of MLC 2006, but also reflects all that concerns the handling of complaints made on land in relation to the provisions of the convention.

finally, it should be noted that while the European Commission has been given broad powers of implementation in this field, these can never be an obstacle to the exercise of the functions of the inspectors. Port State of the port according to its professional criteria, or for the performance of the Ministry of Development's powers with the flexibility laid down in Directives 2009 /16/EC and 2013 /38/EU.

This royal decree is intended to incorporate into the Spanish legal order Directive 2013 /38/EU of the European Parliament and of the Council of 12 August 2013 amending Directive 2009 /16/EC on control of the ships by the port State.

In its virtue, on the proposal of the Minister of Public Works, with the prior approval of the Minister of Finance and Public Administrations, according to the State Council and after deliberation by the Council of Ministers at its meeting of the day 5 December 2014,

DISPONGO:

Single item. Amendment of the Regulation governing the inspections of foreign vessels in Spanish ports, approved by Royal Decree 1737/2010 of 23 December 2010.

The Regulation governing the inspections of foreign vessels in Spanish ports, approved by Royal Decree 1737/2010 of 23 December 2010, is amended as follows:

One. The following amendments are made to Article 2

(a) Paragraph 1 (g) is deleted.

(b) The following points (i), (j) and (k) are added to Article 2 (1

:

" i) The Maritime Labour Convention, 2006 (CTM 2006).

(j) The International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001 (AFS 2001).

(k) The International Convention on Civil Liability, born of damages due to oil pollution for ships fuel, 2001 (Bunkers Convention, 2001). "

(c) The following points 23 and 24 are added to Article 2 (2

:

" 23) Maritime work certificate: the certificate referred to in the CTM 2006 rule 5.1.3.

24) Declaration of maritime labour compliance: the declaration referred to in MLC 2006. "

Two. Article 3 (4) is read as follows:

" 4. Where a vessel flying the flag of a State which is not party to an agreement is inspected, the Ministry of Public Works shall ensure that no more favourable treatment than that given to a vessel flying the flag is given to that vessel or its crew. of a State which is party to the Convention. The vessel concerned will be subject to a more detailed inspection in accordance with the procedures laid down by the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982 (Paris MDA). '

Three. A new paragraph 6 is added to Article 3 with the following wording:

" 6. The measures taken to give effect to the provisions of this Regulation shall not entail a reduction in the overall level of protection of crew members who are engaged in the social right of the European Union in the fields in which it is applied. this regulation, in relation to the situation previously existing in Spain.

If the Ministry of Public Works, when implementing these measures, were aware of a clear violation of European Community legislation on board ships flying the flag of a Member State of the European Union, it shall immediately inform the competent authority of that Member State in order to take the actions it considers to be appropriate. '

Four. Two new paragraphs 3 and 4 are added to Article 17, with the following wording:

" 3. If, after a more detailed inspection, it is determined that the living and working conditions on board a ship are not in conformity with the requirements of the MLC 2006, the inspector shall immediately notify the master of the deficiencies of the ship's master, communicating the deadline set for its rectification.

In case the inspector considers that such deficiencies are significant or if they relate to a possible complaint under the CTM Annex V, Part A, 19, the inspector shall report the deficiencies to the Spanish professional associations or associations of maritime personnel and shipping companies and may also notify a representative of the flag State and provide the relevant information to the competent authorities of the following port of call.

4. With regard to matters relating to MLC 2006, the Ministry of Public Works may forward a copy of the inspector's report, together with the replies received from the competent authorities of the flag State, to the Director General of the International Labour Organisation (ILO), with the aim of taking appropriate and appropriate measures to ensure that such information is recorded and that it is brought to the attention of the parties that may be interested in making use of the relevant actions and resources. "

Five. Article 18 (2) is worded as follows:

" 2. The identity of the complainant shall not be disclosed to the master or to the vessel. The inspector shall take the necessary measures to ensure the confidentiality of the complaints lodged by the crew members, including those intended to ensure confidentiality during any questioning given to them. perform. "

Six. A new Article 18a is inserted with the following content:

" Article 18a. Procedures for land complaints related to the 2006 CTM.

1. Any complaint by a member of the crew of a vessel calling in a Spanish port relating to the non-compliance with the requirements of the CTM 2006 (including the rights of the crew members) may be lodged with an inspector of the maritime captaincy. In such cases, the inspector shall undertake an initial investigation.

2. In the context of the initial investigation, if it is appropriate and taking into account the nature of the complaint, consideration should be given to whether the procedures for handling complaints on board as set out in the CTM 2006 rule 5.1.5 have been followed. The inspector may also carry out a more detailed inspection in accordance with Article 13 of this Regulation.

3. If possible, the inspector shall ensure that the complaint is made on board the ship.

4. In the event that the investigation or inspection highlights a non-compliance relating to Article 19 of this Regulation, the provisions of that Article shall apply.

5. Where the above paragraph 4 does not apply and the complaint lodged has not been settled on board the vessel, the inspector shall immediately request advice from the flag State of the vessel, as well as the drawing up of an action plan for the vessel. to correct the non-compliance within a specified period. It shall be transmitted by electronic means to the inspection database referred to in Article 25 a complete report of the verified inspection.

6. Where the complaint has not been settled after proceeding in accordance with the provisions of the previous paragraph, the Ministry of Public Works shall transmit to the Director-General of the ILO a copy of the inspector's report. The report shall be accompanied by the replies of the competent authorities of the flag State received in time. It shall also be reported to the Spanish organisations or associations which group or represent maritime personnel and shipping companies.

In addition, the Ministry of Public Works shall regularly submit to the Director-General of the ILO statistics and information on complaints that have been resolved for the purpose of making it possible to maintain a record of such complaints. statistics and information and to inform the parties of their existence, including Spanish organisations or associations which bring together or represent maritime personnel and shipping companies which may be interested in the use of the shares and relevant resources.

7. The provisions of this Article shall be without prejudice to the provisions of Article 18. Article 18 (2) shall also apply to complaints relating to the matters governing the 2006 CTM. "

Seven. The following amendments are made to Article 19:

(a) A new paragraph 2 is inserted. (a) in Article 19, with the following wording:

" 2. (a) Where living and working conditions on board the vessel are clearly dangerous to the safety, health or protection of their crew or there are deficiencies which constitute a serious or repeated infringement of the provisions of the CTM 2006 (including the rights of crew members), the maritime captaincy shall proceed to immobilize the inspected vessel or to stop the operation in which the deficiencies have been observed.

The detention or detention of an operation shall not be lifted until such deficiencies have been resolved, or until the maritime captaincy has accepted an action plan to rectify these deficiencies and has been secured that the plan will be implemented promptly. Before accepting an action plan, the maritime captaincy may consult the flag State. "

(b) Article 19 (6) is worded as follows:

" 6. In the event of the detention of the vessel, the Ministry of Public Works shall immediately inform all the circumstances in which it was deemed necessary to intervene, in writing and including the inspection report, to the administration of the State of flag or, where this is not possible, to the consul or, failing that, to the nearest diplomatic representation of that State. In addition, where appropriate, the designated inspectors or recognised organisations responsible for the issue of the classification certificates or the regulatory certificates in accordance with the conventions shall also be informed.

If the ship is prevented from leaving because of a serious or repeated infringement of the requirements of the CTM 2006, including a violation of the rights of its crew, or because the living and working conditions on board are clearly dangerous for the safety, health or safety of the crew, the Ministry of Public Works shall immediately inform the flag State, shall be invited to be present, if possible, to a representative of the flag State, and ask that State to respond within a specified period of time, and shall immediately inform the Spanish organisations or associations which bring together or represent maritime staff and shipping companies. '

Eight. The following amendments are made to point 2B of Annex I, paragraph II.

(a) The fifth indent is read as follows:

" Ships that have been the subject of a report or complaint, including complaints made on the ground by the captain, a crew member or any person or entity with legitimate interest in operating security the ship, the living and working conditions on board or the prevention of pollution, unless the Directorate-General of the Merchant Navy considers such reports or complaints to be manifestly unfounded. "

b) A last indent of the following wording is added:

"Ships for which an action plan has been agreed to rectify the deficiencies referred to in Article 19 (2a) but whose implementation has not been supervised by an inspector."

Nine. Annex IV is amended as follows:

a) Numbers 14, 15 and 16 are worded as follows:

" 14. Medical certificates (see CTM 2006).

15. Indicative table of the organisation of work on board (see MLC 2006 and STCW 78/95).

16. Records of the working hours and rest of the crew (see CTM 2006). '

b) The following points 45, 46, 47 and 48 are added:

" 45. Maritime work certificate.

46. Declaration of Maritime Labour Compliance, Parts I and II.

47. International certificate of anti-fouling systems.

48. Insurance policy or other financial guarantee relating to civil liability for damages due to oil pollution. "

Ten. In Annex V, point A, the following points are added:

" 16. The documents required under the CTM 2006 are not presented, are not in rule or their content is false, or the documents presented do not include the information required by the CTM 2006, or they are not valid for other reasons.

17. The living and working conditions on board the ship do not comply with the requirements of the MLC 2006.

18. There are reasonable grounds for believing that the ship's flag has been changed in order to avoid compliance with the provisions of the MLC 2006.

19. There is a complaint that certain living and working conditions on board the ship do not comply with the requirements of MLC 2006. '

Once. Annex X is amended as follows:

(a) In point 3, paragraph 3.10 the title shall be: "Ambition regulated by the MLC 2006".

(b) The following numbers are added to paragraph 3.10 of Annex X:

" 8. Conditions on board clearly hazardous to the safety, health or safety of the ship's crew.

9. Failure to comply with these requirements constitutes a serious or repeated infringement of the provisions of the CTM 2006 (including a violation of the rights of seafarers) relating to the living and working conditions of the crew on board vessels as set out in the maritime labour certificate and in the declaration of maritime labour compliance. '

Additional disposition first. Reference changes.

All references that the regulation of inspections of foreign vessels in Spanish ports makes to conventions, international codes and resolutions, including those relating to certificates and other documents consider these conventions, international codes and resolutions in their updated versions.

Additional provision second. Staff costs.

The activities to be carried out as a result of the implementation of this royal decree will not result in any increase in the number of staff or salaries or other personnel costs.

Single repeal provision. Regulatory repeal.

All equal or lower provisions are repealed as soon as they are opposed, contravened or incompatible with the provisions of this royal decree.

Final disposition first. Competence title.

This royal decree is issued under the provisions of Article 149.1.20. of the Constitution, which attributes exclusive competence in the field of merchant marine to the State.

Final disposition second. Incorporation of European Union law.

By this royal decree, Directive 2013 /38/EU, of the European Parliament and of the Council of 12 August 2013 amending Directive 2009 /16/EC on the control of ships by the Member States, is incorporated into national law. the port State of the port.

Final disposition third. Entry into force.

This royal decree will enter into force on the day following its publication in the "Official State Gazette".

Given in Madrid, 5 December 2014.

FELIPE R.

The Minister for Development

ANA MARIA PASTOR JULIAN