MHG Insurance

COMPLIANCE WITH FRENCH SOCIAL SECURITY AS IT AFFECTS FRENCH RESIDENT SEAFARERS

671763714As has been broadly reported, the French government implemented legislation in 2017 requiring employers of French resident crew to pay into ENIM, the French social system fund for seafarers.

THE ISSUE

Applicable to both commercial and private vessels, the intent of the French government
is reportedly to align seafarers with other French residents in regard to social security
protection. By ratifying MLC, France committed itself to providing its resident seafarers
on commercial vessels with access to all nine branches of social security, yet the reality
is that ENIM is only set up to deal with employers rather than individual seafarers and, as
ENIM have stated to us, only an exceedingly small number of foreign employers have
sought to arrange contributions in respect of their French resident crew, leaving many
others with no way of either paying into or enjoying the benefits of the social system
scheme to which they are entitled. The most publicised case which triggered the
legislation was that of the French crew employed on the Condor Ferries services out of
St. Malo. France has attempted to address that flaw in the system by requiring foreign
employers to pay into ENIM in respect of their French resident crew (with certain
exceptions). An employer who fails to fulfil that obligation risks serious sanctions and it is
doubtful that the French authorities will be understanding of employers simply claiming
ignorance as to the residency of their crew.

THE IMPACT

This legislation has, however, had serious economic consequences for France with the
French shipyards as well as many other businesses which depend on the yachting sector
suffering catastrophic losses of business (compounded by separate issues relating to
VAT on fuel). There is also widespread talk of French resident seafarers being avoided
by yacht employers. In a first attempt to stem the bleeding, an amendment was
implemented in January 2018 which allowed employers to use a private scheme rather
than contribute to ENIM but only if the private scheme provides “equivalent protection”
to that provided by the French social security code. This is, however, of limited help
because the French authorities, including ENIM, are resisting any requests for them to
deem a particular private scheme to be compliant and indeed all indications are that this
will not change in the future. As such, any claims from crew insurance providers that a
particular plan is “compliant” in this context should be treated with a healthy dose of
scepticism and caution! Private international schemes serve an important purpose but
they do have limitations too, some of which risk leading to dissatisfaction in the long-run
amongst seafarers relying on them as a stand-alone solution rather than in combination
with a home country social system.

PRACTICAL APPLICATION

Much of the concern surrounding this issue has focused on the fear of port state control
inspections. With limited resources, it seems highly unlikely to us that port state control
inspections will in fact present the greatest risk of unwanted attention by the authorities
in this regard. If an inspector finds a properly maintained Maritime Labour Certificate and
DMLC, it is questionable whether they will be digging any further than that unless there
has been a complaint from a seafarer and that, in fact, is where we see a far greater risk.
So, while it is worth considering carrying a Maritime Labour Certificate and DMLC even if
not required to do so (e.g. the vessel is under 500gt), even more importantly it would be
advisable for employers to ask their seafarers to state their country ties and document
those answers. This could be as brief as asking the seafarer to state their country of
residence but could also encompass other ties such as the repatriation destination and
the country of the bank account to which the salary is being paid. The seafarer should be
required to notify the employer in the event of changes to this information. Where the
answers indicate that the seafarer may be a French resident, advice can be sought and
contributions to ENIM can be arranged if appropriate. Where the answers do not
indicate French residency, the employer now has back-up documentation showing good
faith in the event of the seafarer later seeking to claim that the employer has failed to
arrange the necessary contributions to ENIM. We understand that some employers are
already requiring their seafarers to answer such questions.

WHAT’S NEXT

The French social system rules themselves do talk of the concepts of “stable” and
“regular” residence in France, “stable” meaning that it is continuous for three months or
more (to be documented by, for example, confirmation of rent payments, electricity
bills, phone bills etc.) while “regular” is a requirement for non-EU citizens and means that
the individual must have an appropriate “titre de séjour”. British crew working on a
foreign (non-EU) flagged vessel but living in shore-based accommodation in France are
the sort of situation that does need to be more fully understood on an individual basis
in order to minimise the risk of problems and again a questionnaire about country ties
can help with this.

CONTACT

Looking forward, further developments are expected to try to curb the unintended
consequences to the French economy and seafarers. Meanwhile, any other countries
trying to figure out how to fulfil their social security obligations under MLC will no doubt
be watching carefully in an effort to avoid similar challenges.

For more information, please contact Peter Dudzinski at peterd@mhginsurance.eu or
Mark Bononi at markb@mhginsurance.com.