Considering the energy crisis emergency deriving from the war in Ukraine and its impacts on the supply networks of fossil energy products, oil and natural gas, Europe has no choice but to diversify its production and supply sources, in particular by relying in the short term on the revival of nuclear power to quickly meet its energy needs.
Aware that only an ecological transition will make it possible to be less dependent on fossil fuels and to fight against climate change, the European States are investing heavily in renewable energies, such as wind power, solar power and methanisation. France in particular has 17 offshore wind projects currently under development, with an announced total target of 50 by 2050.
In this context, Law No. 2023-175 of 10 March 2023 was published in the Official Journal on 11 March 2023. It focuses on the acceleration of renewable energy production, and its Title III concerns the development of offshore wind energy, including a section with significant impacts on labour law.
In particular, Article 64 of the law adapts the legal regime applicable to non-seafarers (“non-gens de mer” in French), i.e. workers, technicians or engineers on board vessels assigned to exploration or operation activities related to offshore works or facilities, and harmonises the rules on flag reservation and tackling social dumping.
1. The legal regime applicable to non-seafarers
1.1. Flexibility regarding the organisation of working time for non-seafarers
The construction, servicing and maintenance of offshore wind farms requires the involvement of personnel who fall into the categories of "Seafarer seamen" (“gens de mer marins” in French) (1), "Seafarers other than seamen" (or “gens de mer autre que marins”) (2) and "Non-seafarers" (or “non-gens de mer”) (3).
Specialised technical teams working on offshore wind turbines are likely to fall into the non-seafarer category.
To take account of the continuity of activities carried out at sea, port limitations or the protection of the vessel or installations and equipment at sea, company or establishment agreements enable the organisation of the working time of these personnel by spreading such working time over a period of two consecutive working weeks, followed by two consecutive weeks of rest (French Transport Code, art. L.5544-1-1)
The new provisions incorporate the legal and operational issues raised with the administration by the sector’s main players and afford more flexibility to the arrangements for distributing working hours over work cycles, which may now be less than two weeks. However, this remains a maximum limit.
In the end, the legislator did not keep the extension of these work cycles to four weeks, which were under consideration in the preliminary draft law.
However, for seafarer and non-seafarer employees covered by Article L.5541-1-1 of the French Transport Code, the weekly rest period may be postponed for up to six weeks and, where a collective agreement so provides, this postponement may be for the duration of the on-vessel period, without exceeding six months (4).
1.2. Arrangements concerning working hours applicable to personnel working alternately at sea and on land
In principle, the French Transport Code is intended to apply to employees at sea, while the French Labour Code applies to any work carried out on land.
The development of offshore wind turbines presents a legal difficulty when an employee works alternately at sea and on land.
Indeed, both regimes may apply, even though it is impossible to apply two different weekly or annual working time regimes.
According to the Transport Code, employees working at sea can benefit from a two-week work cycle and work up to 14 hours per day or 72 hours per seven-day period (5) and the weekly rest period can be postponed. Under the Labour Code however, the maximum working time is 10 hours per day and 48 hours per week, with a compulsory weekly rest period, in principle on Sunday.
It was therefore necessary to determine the labour law regime applicable to personnel working alternately at sea and on land.
Article 64 of the Law now provides for the application of the Transport Code's working time regime to non-seafarers, so long as they work at least half their time at sea.
This extension was expected as it meets the needs of the industry both for the construction phase and for the maintenance periods of wind farms in operation.
It is however regrettable that these new provisions do not deal with the specific situation of those employees who work mainly on land but who supervise employees carrying out work at sea. Indeed, it would have been appropriate to ensure a certain stability of contact points between onshore and offshore teams.
Similarly, the Law does not provide a clear answer or precise legal framework as regards the possibility of allowing these employees to benefit from an annual day working time package agreement.
Indeed, the working time arrangement provided for in Article L.5541-1-1 of the French Transport Code does not exclude the use of other working time arrangements in application of the provisions of the French Labour Code. Consequently, working time package agreements in days could be entered into, subject to compliance with the legal conditions.
There is, however, still some uncertainty as to the implementation of such a package agreement for those employees carrying out part of their activity at sea.
The application of a package agreement is indeed questionable for these employees since their dependence on the vessel's schedule to go to sea and move around the wind farm leaves them very little room for manoeuvre in organising their schedule. One can therefore question the application of such a package agreement to these employees who also work partly on land.
2. Flag reservation rules and fight against social dumping
2.1. Application of a flag reservation and introduction of the "port base" rule
The construction and operation of offshore wind farms involves the transport of personnel and equipment between port bases and installations, and between the installations themselves.
In order to encourage investment projects by French or EU operators in offshore energy supply in waters under French sovereignty or jurisdiction, the law in its final version:
- reserves to vessels flying the flag of the European Union or the European Economic Area the responsibility for travel between a port and an artificial island located in the territorial sea (6) or between artificial islands for routine maintenance operations (excluding the work and heavy maintenance phases);
- provides that the port bases used for the start or end of such travel to installations in the French territorial sea and exclusive economic zone must be located in the territory of a Member State of the European Union or of the European Economic Area.
A decree specifying the application conditions of these provisions is expected.
The standardisation of flag reservation and the creation of a "port base" rule should level the playing field for this activity, contribute to basing the value chain in France, and to acquiring an autonomous capacity to exploit offshore renewable energy.
2.2 Extension of the scope of the host State scheme
The law applicable to vessels depends on their flag. Thus, French law applies to vessels flying the French flag, whereas on board vessels flying a French flag other than the 1st register or a foreign flag, employees are not fully subject to French law. Only a minimum of social conditions defined as part of the "host state" system is required in order to combat social dumping.
The host state system enables authorities to guarantee the application of uniform rules as regards labour law, minimum staffing levels, minimum remuneration and social protection on board vessels engaged in maritime cabotage or providing a service in French territorial or inland waters.
Anticipating the development of projects located in the exclusive economic zone over the next few years, the new law extends the application of the host state scheme to this zone in order to guarantee fair competition conditions for French shipowners.
Article L.5561-1 of the French Transport Code in particular sets out the scope for the application of the host country’s labour conditions to those vessels used to provide a service mainly carried out in French territorial or inland waters. It now extends this scope to include vessels "used for any service activity carried out on the continental shelf or in the exclusive economic zone with for the construction, installation, maintenance and operation of installations relating to the production of renewable energy at sea".
Consequently, the minimum set of French legal provisions should apply to all foreign vessels used on renewable energy projects in waters under French sovereignty or jurisdiction.
The law on the acceleration of renewable energy production thus makes it possible to secure the working conditions of personnel by considering the specificities of work at sea. However, a certain number of questions remain, and some industry players were hoping for more from this law.
Given the energy emergency in which Europe and France find themselves, it is understandable that this law was adopted relatively quickly as it will enable and facilitate the development of offshore wind power in new areas. However, considering the remaining uncertainties about the regime for non-seafarers, new discussions would be welcomed on these subjects in the very near future.
(1) Personnel assigned to the operation of the vessel, i.e. professional activities relating to the operation, steering, maintenance and activities necessary to ensure all the functions of the vessel (Art. L. 5000-2 of the French Transport Code)
(2) All employed or self-employed persons carrying out a professional activity on board a vessel, in any capacity whatsoever (art. L. 5511-1 and R. 5511-2 of the French Transport Code)
(3) Personnel listed in Article R.5511-5 of the French Transport Code and non-seafarers, whose on-vessel time is less than 45 days, continuous or not, over a period of 6 consecutive months.
(4) Article L.5544-18 of the French Transport Code and Article 1 of Decree No 2007-1843 of 26 December 2007
(5) Article L.5544-4 of the French Transport Code
(6) Until now, flag reservation existed for transport between French ports or to offshore installations located in the exclusive economic zone or on the continental shelf, but not for installations located in the territorial waters (Article 37 of Ordinance no.2016-1687 of 8 December 2016 and Article 257 of the French Customs Code)
