Take a stance ultimately by 22 August 2018 in the proceedings before the European Court of Justice against incorrect interpretation of European Union law by the Netherlands.
The Netherlands’ interpretation about the entry and exit of seafarers isn’t in line with the uniform Schengen rules, allows unrestricted access of non-EU seafarers to Schengen, because implementation problems and triggers an exodus of maritime business to non-EU ports.
Seafarers and vessels cross borders all the time. For security and trade purposes,it’s important that these border crossings take place in an efficient and pragmatic way. Within the Schengen area, the Schengen Borders Code regulates border crossings. This Code provides for a uniform system that is to be applied consistently throughout Schengen.
Seafarers who are non-EU, get an exit stamp before signing on the vessel. This exit stamp is provided irrespective of the date of departure of the vessel. Their stay within the Schengen area is limited to their transit-time; the day to travel from the airport to the port of their vessel. After receiving an exit stamp, these seafarers are deemed to have left the Schengen area.
But from 2016 the border authorities in Rotterdam started applying their own random rules. Only in this port, exit stamps were refused if the non-EU seafarer would not depart with the vessel immediately. This change caused immediate problems for seafarers and shipping companies.
Since that time, the proceedings have been ongoing. The highest administrative court in the Netherlands has now requested the European Court of Justice to answer the question at which moment a non-EU seafarer should receive an exit stamp according to the Schengen Borders Code. If the European Court follows the interpretation of the Dutch Minister of Migration, this can have a tremendous impact on the maritime sector in Schengen.
According to the Code, seafarers are only in Schengen when travelling to and from their vessel. When seafarers sign on at the vessel, they cross the external border of Schengen in the sea port. In future, the seafarers can only stay on board the vessel or within the area of the port of call. The Minister’s interpretation is in breach of these rules.
The Minister’s opinion means that non-EU seafarers who signed on their vessels, can still move freely throughout the Schengen area.
Having authorities place exit stamps at the moment a vessel departs, as the Minister argues, is impracticable, if not impossible, especially for larger ports.
Due to the limited amount of days that non-EU seafarers can stay in Schengen, larger vessels that are in port for a longer period of time will divert to ports outside the Schengen area, taking their business with them.
Also, since 2016, over 300 seafarers, their employers and several shipping companies started proceedings against the Dutch Minister of Migration, because the refusal of exit stamps is in breach of EU-law.
The answer to this question is very important for seafarers, shipping companies, ports, border authorities and the maritime sector in general.
If the European Court of Justice supports the stance of the Dutch government, this will mean that all throughout Schengen non-EU seafarers won’t be able to receive an exit stamp until a vessel (actually) departs. This will cause significant and costly operational problems for companies, ports and border authorities.
If the interpretation of the Dutch Minister of Migration is followed, this causes serious problems for the crewing operations of vessels. Non-EU seafarers are only allowed to stay a maximum amount of days in Schengen, being 90 days in every 180 days. If seafarers would only receive an exit stamp at the moment a vessel actually departs, their days in Schengen are not limited to their transit time to and from the vessel. Days between signing on the vessel and the actual departure of the vessel would then count as well.
If vessels lay in port a longer period of time, or if vessels frequent different Schengen− ports, these seafarers could overstay the minimum of days. This is especially the case:
- when the rotation of crew is 2/3 of the time on board followed by 1/3 of the time leave (for instance: 12 weeks on board followed by 6 weeks leave) or
- when the seafarer works more than 90 consecutive days.
Due to changing itineraries, routes and assignments, it is impossible for shipping
companies to calculate beforehand when the maximum amount of days is reached.
Offshore vessels, cruise vessels, (large) fishing vessels, super yachts and any other vessel that may plan a longer stay in port or that frequent Schengen ports regularly are confronted with this problem if the interpretation of the Dutch Minister is followed by the European Court of Justice. Vessels stay in port for a longer period of time for a variety of reasons such as mobilisation for a new project, maintenance, docking, awaiting cargo.
To avoid overstaying of seafarers, ship owners will be forced to:
- sail with more crew members due to adjustment of the rotation, so that seafarers sail a shorter time and enjoy a longer time leave
- sail in and out port every time crew members have signed on the vessel
- have crew sign on via an intra-vessel transfer at sea and/or with a helicopter
These measures are very expensive, while no border security interest is being met. For a large vessel operator/owner, the additional costs are estimated at millions of euros annually.
If the Dutch Minister’s is right, ship owners will face significant cost increases to manage their crewing schedules. Diverting to a non-Schengen port may be the most cost-efficient option for ship owners. It goes without saying that this will be an economic setback for the maritime sector in the Schengen area.
So, who will be right, we will know only in August. Because/Cuz Member States are called upon to lodge their written observations before 22 August 2018 in the preliminary ruling proceedings before the European Court of Justice against the incorrect interpretation of the Dutch Minister of Migration.