Introduction
Italian practice prior to August 2021
2020 ECJ judgment
Interpretation of competent Italian authorities
Criticism of competent Italian authorities' interpretation
Suggested solution
Comment
On 5 February 2020, the European Court of Justice (ECJ) issued a judgment following a request for a preliminary ruling from the Council of State of the Netherlands.(1) The judgment provided an interpretation of the Schengen Borders Code(2) in relation to the time limits for non-EU seafarers to validly remain within the Schengen area.
In August 2021, the competent Italian authorities (the border police) started to apply the ECJ's judgment in a particularly strict manner. They changed the Italian rules for the entry and stay of non-EU seafarers from the practice that had generally been adopted in the past.
Italian practice prior to August 2021
Prior to August 2021, Italy had adopted a practice according to which the competent authorities would affix an exit stamp from the Schengen area to the passports of non-EU seafarers arriving in the Schengen area by land or by air when they signed on with a vessel already located in European waters and flying non-EU flags for the purpose of working on board. This practical application of the rules of the Schengen Borders Code always ensured the regular entry and stay in Europe of non-EU seafarers, in line with the specific nature of their work, which – by its very nature – is subject to cross-border movement.
The 2020 ECJ judgment established that where non-EU seafarers arrive in the Schengen area by land or by air in order to sign on with a vessel flying a non-EU flag in long-term mooring in a port of the Schengen area, the exit stamp from the Schengen area shall not be affixed when they sign on with the vessel while it remains berthed within the EU area. Instead, it shall be affixed when the master of that vessel notifies the competent national authorities of its imminent departure.
Interpretation of competent Italian authorities
The competent Italian authorities opted for a strict interpretation of the judgment whereby non-EU seafarers arriving in the Schengen territory by land or by air board vessels that are flying a foreign flag in long-term mooring in an Italian sea port cannot stay in the Schengen area for more than 90 days. On the contrary, the practice regarding non-EU seafarers arriving in the Schengen area by sea onboard the vessel on which they are working has not been modified.
Criticism of competent Italian authorities' interpretation
Italian operators in the various "blue economy" sectors (ie, chartering, services to super yachts, cruises and refitting areas) have strongly denounced the serious damage caused by such a rigid attitude on the part of the Italian authorities. The 90-day limitation referred to above seriously affects the normal management of crews of vessels that fly foreign flags and that remain in Italy for long periods, whether for commercial activities, technical stops for maintenance and/or repair work or for wintering in Italian marinas.
The crews of such vessels, and particularly those of super yachts, are largely made up of non-EU seafarers who, in the light of the interpretation provided by the Italian authorities, would no longer be able to make reference to the time limits provided in their respective employment contracts, but would have to comply with the 90-day period rule. Upon expiry of the 90-day period, they would no longer be allowed to remain legally in the Schengen area. Such an objective difficulty in managing crews would force shipowners to change their crews every 90 days or alternatively – and more realistically – direct their vessels to ports in other member states, such as France and Spain. The administrations of these countries have been more cautious in applying the 2020 ECJ ruling, and are not currently proposing a rigid interpretation of it.
Italian associations relating to the shipping industry have brought the problem to the attention of both the territorial institutions and, at a national level, the Italian Ministry of the Interior, with the aim of identifying possible solutions that are consistent with current EU and national legislation.
On 21 April 2022, a proposal to amend the Italian law governing immigration and the rules on the conditions of foreigners in Italy(3) was submitted to the Italian senate. According to the proposal, a specific authorisation should be granted to non-EU seafarers to work onboard vessels that are flying a non-EU flag and that are berthed in Italian ports for the period necessary to carry out their work and, in any case, for a period not exceeding one year.
The above proposed legislative amendment represents, for the time being, a solution to the problem caused by the Italian interpretation of the 2020 ECJ ruling, and Italian operators are waiting to hear whether it will be approved.
The Italian interpretation of the 2020 ECJ judgment might correlate with the premature exit of some super yachts from Italian ports, which might imply significant economic repercussions and great complications for operators in the sector.
With reference to the proposed legislative amendment, it should be noted that a specific authorisation for non-EU seafarers to remain within Italian territory for more than 90 days in order to carry out their employment onboard vessels that are flying a foreign flag and that are berthed for a long time in Italy would make it possible to overcome the problem of the (more or less rigid) interpretations on the matter provided by the Italian authorities.
Moreover, it can be said that the proposed introduction of a specific authorisation is a measure that takes into account the peculiar nature of employment onboard vessels. This is characterised by the need for workers to be able to move freely onboard the vessels on which they work for the entire period of employment provided for in their respective employment contracts, in accordance with the international conventions to which Italy is part concerning the status of maritime workers.
For further information on this topic please contact Carolina Pinto at Dardani Studio Legale by telephone (+39 010 576 1816) or email ([email protected]). The Dardani Studio Legale website can be accessed at www.dardani.it.
Endnotes