The bureaucratic saga of French legislation imposing social security obligations on seafarers has been watched intensely by the yachting industry. From initial consultations to the legislation taking effect in July 2017, and vacillations ever since, interested parties have remained confused as to their new obligations and justly indignant that their voices have not been listened to.
The changes have already affected every area of the sector stoking fears that marinas are emptying and the local economy is feeling the consequences. The employability of French resident crew is suffering as are the many ancillary businesses based on French soil since the jurisdiction has become less attractive for charter yachts and visiting vessels.
However, prominent association ECPY (the European Commitee for Yachting Professionals) has not ceased lobbying the French government for amendments and clarifications. A petition started by ECPY and endorsed by MYBA has garnered almost 3,000 signatures at this date, and can be found here. Further background information on the developments, observed closely by OnboardOnline, can be found here and here.
ECPY has participated in a consultative group made up of its own members, representatives of Refit La Rochelle, Ince & Co, the Mediterranean shipyards, CCINCA and government and administrative officials, with the aim of obtaining necessary modifications and clarifications. As a result of negotiations, ENIM has consented to several positive modifications which are explained in the text below and which will be written into legislation in the form of an ammendment.
The results make important specifications regarding the definition of residency in French territories (extended from 3 months to 6 months), the concept of residence on a vessel, social security obligations and the position of crew on ships undergoing maintenance and refit work.
Below is our translation of the document released from ENIM on May 2 covering the clarifications to the legislation which will soon be made official by an ammendment. The official French version can be read here.
The Concept of Residence in France
The period of stable and regular residence, as in Article L5551-1, is understood in relation to the guidelines already established in article R111-2 of the social security code.
The condition of residence is satisfied by the ownership or rental of a permanent home in France or by having France as one's principal country of residence, which is to say residing in France or its Overseas Territories for at least 6 months per 12 month period. Established methods to verify residence will be used: proof of lease, bills, contracts etc.
The Concept of Residence Aboard a Vessel
For seafarers who reside on board their vessel for the length of their contract(s) and who do not have a residence in French territories, the period of residence is defined by the seafarer's presence in French waters, inland or offshore, for 6 months or more (per 12 month period).
Indeed, a seafarer on a foreign-flagged vessel is not exempt from the rule of law of the State in whose waters the seafarer is present. The right to the sea (le droit de la mer) permits the inclusion in calculations of residency period of any and all time periods when the seafarer is sailing on inland or territorial waters for leisure purposes, in the application of article L5551-1 of the Transport Code.
The obligation to pay contributions comes into effect upon the signing of the contract when the length of time that the signatory will spend in French territorial waters over the course of 12 months is equal to 6 months or more. When a series of contracts are signed with the same employer, the totality of successive contracts falls under the obligations ensuing from article L5551-1.
Residence of a Discontinuous Nature
The period of 6 months need not be continuous. The requirements of article R111-2, which does not demand a continuous presence, set the precedence.
The Concept of at least Equal Social Security Provision
Social security cover, whether guaranteed by a social security scheme or by private insurance, must cover all branches mentioned in the aforementioned article L. 111-1.
It must therefore guarantee the cover of
the cost of healthcare for the seafarer and his/her dependents
compensation in case of lost salary due to illness or accident, whether domestic or in the workplace
compensation in case of disability incapacitating the seafarer's ability to work
pension contributions including payment to dependents following death, and family contributions to provide for children.
Compliance if Taking out Private Insurance Cover
The obligations can be fulfilled in part by the seafarer by taking out a private policy, taking into account that the owner of the vessel has certain obligations to make contributions on the seafarer's behalf.
Vessels in Shipyards
Regarding seafarers on foreign-flagged vessels who are on French territory to accompany the vessel for a period of maintenance, according to the terms stipulated in article L. 5552-16 of the Transport Code and in R8 (II) of the Code of Seafarers' Pension & Retirement, those concerned do not acquire the right to a pension contribution during periods of refit and repair*. It is not legitimate to oblige these seafarers to affiliate themselves under article L5551-1 of the Transport Code to the title of French resident for the period of maintenance.
Consequently, periods of work when the vessel is immobilised or in a shipyard are excluded from the purview of the application of article L5551-1 for seafarers who are not resident in French territories.
*Seafarers cannot claim right to pension contributions during these periods beyond the first 2 months of maintenance work, unless upon special authorisation by the director of ENIM (limited to 4 months).
Contentious Cases of Affiliation
Contentious affiliation applications must, as a matter of course, be conferred upon the Sub-direction of Judicial Affairs, the only office capable of dealing with such matters, with the additional aim of guaranteeing coherence in all actions taken by ENIM.