Social protection affiliation
1. Crew members residing in France
Crew members employed aboard vessels registered with the RIF who have their residence in France mandatorily come under the special system for seamen (ENIM) irrespective of their nationality.
Reference article L. 5612-6, Book VI of the Transportation code: "Crew members resident in France are subject to the provisions of titles ... and V (social protection for sailors) of Book V (sailors)"
1.1. If there is a direct employment contract with the shipping company
| Nationality of the crew member | ENIM system |
|---|---|
| French | yes |
| European EU/EEA/Swiss | yes |
| Foreigner from a State with which there is a convention | yes |
| Foreigner from a State with which there is no convention | yes |
1.2. If there is a provision contract concluded between the shipping company and the manning company and an employment contract concluded between the manning company and the crew member
| Nationality of the crew member | ENIM system |
|---|---|
| French | yes |
| European EU/EEA/Swiss | yes |
| Foreign from a State with whom there is a convention | yes |
| Foreign from a State with whom there is no convention | yes |
2. Crew members residing outside of France
2.1. Nationals of a Member State of the European Union or from a State which is party to the agreement on the European Economic Area or from the Swiss Confederation
Reference article L. 5631-2, Book VI of the Transportation code: "Crew members who are nationals of the European Union or from a State which is party to the agreement on the European Economic Area (or from the Swiss Confederation) ... enjoy social protection under the conditions provided by the European Regulations on the coordination of social security systems ... which are applicable to them."
European regulations
The new European Regulations have been in force since 1st May 2010, these being the base Regulation - (EC) no. 883/2004 of the European Parliament and the Council of 29 April 2004 on the coordination of social security systems, as well as the implementation Regulation (EC) no. 987/2009 of the European Parliament and the Council of 16 September 2009 which sets out the methods for implementing the Regulation (EC) no. 883/2004.
The new Regulations are applicable in the Member States of the European Union [1].
The former Regulation (EEC) no. 1408/71 no. 574/72 repealed remains in force for the three Member States of the European Economic Area (EEA) [2]and the Swiss Confederation pending the integration of these new elements into the agreement on the EEA and agreement with Switzerland.
Determining the applicable legislation for crew members aboard vessels registered with the RIF
Within the European framework the unity of the applicable law is the rule. Each individual may only be subject to the law of one single Member State [3]. The aim is to prevent the same person being subject to no legal system (negative conflict, i.e. where two courts disclaim jurisdiction) or to the legal system of more than one Member State (positive conflict, i.e. where more than one court claims jurisdiction).
Under Regulation 1408/71 the principle was that the applicable law was that of the State of the employment. The new base Regulation (884/2004) established the principle of applicable law of the place of work for employees.
1st case: a crew member who is a national of a Member State of the EU (resident) or from a State that is party to the agreement on the EEA or from the Swiss Confederation but is not residing in France and has an employment contract with a French shipping company mandatorily comes under the special system for sailors.
2nd case: a crew member who is a national of a Member State of the EU (resident) or from a State that is party to the agreement on the EEA or from the Swiss Confederation but is not residing in France and has an employment contract with a French manning company comes under the special system for sailors.
| Article 11-1 a) | A person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State |
| Article 11-4 1st sentence | For the purposes of this Title (Title III), an activity as an employed or self-employed person normally pursued on board a vessel at sea flying the flag of a Member State shall be deemed to be an activity pursued in the said Member State. |
Derogation from mandatory membership in the ENIM system where the law of the flag of the vessel applies
Within the framework of the European regulations there is a derogation from mandatory membership in the special system forcrew in two situations, i.e. where the seaman is posted to another location or where he/she resides in the same State as his/her employer:
a) Posted to another location
A sailor who is normally on board a vessel flying the flag of a Member State on behalf of an employer and pursuing their activities, and who is posted by this employer in order to work on behalf of the employer on board a vessel registered with the RIF is on a secondment. In this case, the seaman remains under the system of the usual State of employment for a limit of 2 years.
Mandatory membership in the special system for seamen (ENIM) is waived for a period of 2 years. The sailor must be in possession of European form E101 or A1, which certifies this crew member’s continued membership with the dispatch State.
| Article 12-1 a) | A person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to perform work on that employer’s behalf shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed 24 months and that he/she is not sent to replace another person. |
b) Residence in the same State
The sailor and his/her employer are residing in the same Member State; this sailor, on board a vessel registered with the French Flag RIF, receives social protection from the State of residence.
| Article 11-4 (2nd sentence) | .... However, a person employed on board a vessel flying the flag of a Member State and remunerated for such activity by an undertaking or a person whose registered office or place of business is in another Member State shall be subject to the legislation of the latter Member State if he/she resides in that State. The company or person paying the remuneration shall be considered as the employer for the purposes of the said legislation. |
Mandatory membership of the special system for sailors (ENIM) is waived subject to form E101 [4] or A1 [5] being produced, which certify membership in the State of residence.
Summary table
| Place of residence | Under contract with the shipping company directly (registered office in France) | Under contract with a maritime labour company (established abroad) |
|---|---|---|
| Community nationals, resident in a Member State of the European Union or in a State of the European Economic Area or in the Swiss Confederation | European Regulations: Law of the State under which the flag flies = ENIM |
European Regulations: Law of the State under which the flag flies = ENIM, except for derogation, particularly in view of article 11-4 of the new Regulation 883/2004 |
2.2. Crew members who are nationals of a State linked with France by way of a bilateral social security agreement/convention
Reference: Article L. 5631-2, Book VI of the Transportation code: "Crew members who are nationals ... of a State linked with France by way of a bilateral social security agreement/convention ... enjoy social coverage under the conditions provided by the bilateral agreement/convention which are applicable to them."
Territorial field: exclusively companies located in either of the States that are party to the agreement
Scope of staff: exclusively nationals of the two States (+ refugees, stateless persons)
| Place of residence | Under contract with the shipping company directly (registered office in France) | Under contract with a maritime labour company (established abroad) |
|---|---|---|
| Nationals from a State linked with France by way of a bilateral agreement | Bilateral agreement: in principle the law of the State under which the flag flies = ENIM |
Bilateral agreement: the law of the State under which the flag flies = ENIM except for posting by the employer if the maritime labour company is located in the same State as the crew member (limited period) |
In order to be exempted from mandatory membership in the special system for seamen a crew member recruited by a maritime labour manningthe provisions of a bilateral social security agreement of a State linked with France by way of this agreement must be in possession of the certificate or attestation provided in the agreement, which must be duly filled in by the membership organisation of the State under which it comes and attest to the membership in this organisation.
2.3. Crew members who are not resident of France, not nationals of a Member State of the European union, the European Economic Area or the Swiss Confederation, and not nationals of a State linked with France by way of a bilateral social security agreement.
Crew members on board vessels registered with the French Flag RIF who are not resident of France and do not come under the European regulations or a bilateral social security agreement with France are subject to the law selected by the parties with the minimum social protection provided by the ILO, which was enacted by article L.5631-4 in relation to theRIF.
Reference article L. 5631-3, Book VI of the Transportation code: "Crew members residing outside of France and who are not covered by the provisions of article L.5631.1 and L.5631.2 are insured against the risks stated in article L.5631-4.
Their social protection system is subject to the law selected by the parties. Collective agreements or conventions applicable to non-residents may provide more favourable provisions.
Social protection may not be less favourable than that arising from the conventions of the International Labour Organisation which are applicable to crew members and have been ratified by France.
The employer contributes at least 50% of the cost of the financing."
| Article L.5631-4 | In applying article L.5631-3, social protection includes: Responsibility for all medical costs, hospital and repatriation costs in the event of illness and accident occurring in the vessel’s service, which also includes: a) In the event of illness, payment of the base salary for a limit of 120 days; b) In the event of an accident, payment of the base salary until recovery or until a medical decision is made regarding permanent incapacity: The payment of compensation in the event of death following an illness or an accident occurring in the vessel’s service: a) To the seman ’s wife , or if there is no spouse to his/her entitled beneficiary; b) To each dependent child under the age of 21 years, up to a limit of three children; In the case of pregnancy of a female crew member, responsibility for the corresponding medical costs and hospital treatment and payment of her base salary for a period of two months; The payment of a life annuity or compensation proportional to the incapacity defined in the employment contract, in the event of permanent incapacity following an illness or an accident occurring in the vessel’s service; The awarding of an old-age pension the level of which is not less, for each year of service at sea, than a percentage of the gross remuneration received each year by the sailor depending on the age at which the activity ceases.. |
[1] Member States of the European Union: Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
[2] Member States of the European Economic Area: Iceland, Liechtenstein and Norway.
[3] article 11-1 of base Regulation no. 883/2004
[4] from 1st May 2010, the documents from the E series have been replaced by portable documents. However, a transitional period of 2 years is authorised. E1 decision from 12 June 2009.
[5] A1: portable document replacing both E101 and E102