Ships are often moored for a long – term in ports or shipyards, while seafarers are regularly on-board to carry out their tasks.
Up to 2020, extra-Schengen seafarers were regularly signed on with long-term moored ships where they could remain for the entire duration of their employment agreement. Indeed, a common practice all over Europe provided an interpretation of the EU legislation in force allowing seafarers to stay on board for the time needed and indicated in their contractual arrangements.
Specifically, based on Article 6 of Regulation (EU) 2016/399 (the “Schengen Borders Code”), extra-Schengen seafarers can enter the Schengen area for intended stays on the territory of the Member States of a duration of no more than 90 days in any 180 -day period, provided they are in possession of valid travel documents and a valid visa. Further, article 11 of the Schengen Borders Code regulated the entry and exit stamps to be affixed on the travel documents of the seafarers in compliance with the above rule.
In order to allow extra-Schengen seafarers to remain on board of ships in long-term mooring in ports or shipyards for more than 90 days, the above rules had been interpreted as follows:
- an entry stamp was affixed on the travel documents at the entrance of the seafarer in the Schengen territory (generally an airport):
- the seafarer reached the seaport by land, signed on with a ship in long-term mooring, and simultaneously went to the closest seaport border authority obtaining an exit stamp on the date of signing on (regardless of whether the ship with which he had signed on left the port shortly thereafter);
- thereafter, the seafarer remained on board the ship for the entire duration of his employment agreement (usually well beyond 90 days), as the exit stamp had been already affixed within the 90 days term.
This practice has been challenged by a Decision of the European Court of Justice dated February 5, 2020 (Case C – 341/18) stating that the exit stamp shall be affixed to the seaman’s travel documents when the master of the ship notifies the national competent authorities of the ship’s imminent departure.
Accordingly, based on such ruling, seafarers embarked on board of long-term mooring ships shall physically exit the Schengen area within the 90th day after the Entry stamp has been affixed on their travel documents.
As a consequence, according to this new interpretation of the Schengen Borders Code, extra-Schengen seafarers are no longer entitled to work onboard long-term mooring ships in the Schengen area for more than 90 days in a 180 days period.
This decision has been strictly implemented in Italy. Indeed, Italian State Border Forces have sent to the local shipping and forwarding agents associations clear warnings specifying that following the European Court’s decision, the exit stamp shall be affixed only when the master notifies the authorities of the ship’s imminent departure.
Unfortunately, at the moment, no viable route seems to exist in Italy to extend the duration of stay for seafarers on long-term mooring ships.
For this reason, a strong opposition movement led by Italian Shipyards, Refit Yards, Shipping Agents and Shipowners is making pressure to the Italian Ministry of Internal Affairs to review the interpretation of the rule and/or to grant a lawful alternative for extra-Schengen seafarers to remain on board of ships moored in Italy for more than 90 days.
Therefore, in order to avoid the risk of civil and criminal sanctions, it is fundamental to ensure that extra-Schengen seafarers embarked on ships in long – term mooring in Italy, strictly abide by the 90/180 days rule as explained above, at least until the Ministry of Internal Affairs provides clear guidelines on the lawful stay of such seafarers beyond 90 days.
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For more on this, please contact yachtingteam@pglegal.it