# CE2004078EN.01025301.xml

| 27.3.2004 | EN | Official Journal of the European Union | CE 78/253 |
| --- | --- | --- | --- |

27.3.2004

EN

Official Journal of the European Union

CE 78/253

---

(2004/C 78 E/0254)

WRITTEN QUESTION E-3281/03

by Bartho Pronk (PPE-DE), Maria Martens (PPE-DE) and Albert Maat (PPE-DE) to the Commission

(5 November 2003)

Subject:   Follow-up to question E-1740/02 on the free movement of captains

Subject:

On 30 September 2003 the European Court of Justice gave his decision in the Anave case (C-405/01). This case concerned the relationship between Article 39 of the Treaty and the free movement of captains. The Commission deferred answering Written Questions E-1022/02 (1) and E-1740/02 (2) pending the outcome of the case.

1

2

| 1. | Now that the Commission knows the Court's decision in the Anave case, can it provide detailed answers to questions E-1022/02 (and the associated question E-2069/01 (3)) and E-1740/02? |
| --- | --- |

1.

Now that the Commission knows the Court's decision in the Anave case, can it provide detailed answers to questions E-1022/02 (and the associated question E-2069/01 (3)) and E-1740/02?

3

| 2. | Does the Commission not also consider that the position it expressed in answer to Written Question E-2069/01, namely the obligation to sail under a captain of the same nationality as the flag does not violate Community rules on the free movement of workers, is no longer tenable following the Court's judgment in the Anave case? |
| --- | --- |

2.

Does the Commission not also consider that the position it expressed in answer to Written Question E-2069/01, namely the obligation to sail under a captain of the same nationality as the flag does not violate Community rules on the free movement of workers, is no longer tenable following the Court's judgment in the Anave case?

| 3. | What measures will the Commission take in response to this judgment? Is the Commission planning to bring infringement proceedings against countries, such as Germany, where laws maintain nationality requirements for captains? |
| --- | --- |

3.

What measures will the Commission take in response to this judgment? Is the Commission planning to bring infringement proceedings against countries, such as Germany, where laws maintain nationality requirements for captains?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(23 December 2003)

(23 December 2003)

| 1 and 2. | On 30 September 2003, the Court rendered two judgements concerning the question whether it is compatible with the rules on free movement of workers that the posts of masters and chief mates are restricted to nationals of the State whose flag the ship flies (Case C-47/02 Albert Anker, Klaas Ras, Albertus Snoek v. Bundesrepublik Deutschland and case C-405/01 Colegio de Oficiales de la Marína Mercante Española v. Administración del Estado). Case C-47/02 concerned German vessels engaged in small-scale deap-sea fishing (Kleine Seeschifffahrt); case C-405/01 concerned Spanish merchant ships.
  The Court decided that Article 39(4) of the EC Treaty must be construed as allowing a Member State to reserve for its own nationals the posts of master of vessels flying its flag engaged in small scale maritime shipping (Kleine Seeschifffahrt) and the posts of master and chief mate of merchant ships flying its flag only if the rights under powers conferred by public law on masters and chief mates of such ships are actually exercised on a regular basis and do not represent a very minor part of their activities.
  The Court refers to its case-law on the interpretation of Article 39(4) of the EC Treaty: the concept of public service within the meaning of Article 39(4) of the EC Treaty (under which free movement of workers does not apply to employment in the public service) covers posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities and thus presume on the part of those occupying them, the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality.
  The fact that masters are employed by a private natural or legal person is not, as such, sufficient to exclude the application of Article 39(4) of the EC Treaty since it is established that, in order to perform the public functions which are delegated to them, masters act as representatives of public authority in the service of the general interest of the flag State.
  However, recourse to the derogation from the freedom of movement of workers provided for by Article 39(4) of the EC Treaty cannot be justified solely on the ground that rights under powers conferred by public law are granted by national law to holders of the posts in question. It is also necessary that such rights are, in fact, exercised on a regular basis by those holders and do not represent a very minor part of their activities.
  The Court also stated that the nationality condition cannot be justified by Article 39(3) of the EC Treaty: in this regard, it is sufficient to recall that the right of Member States to restrict the free movement of persons on grounds of public policy, public security or public health is not intended to exclude economic sectors such as fishing or occupations, such as master of fishing vessels, from the application of that principle as regards access to employment, but to allow Member States to refuse access to their territory or residence there to persons whose access or residence would in itself constitute a danger for public policy, public security or public health
  In reference to Written Question E-1022/02 by the Honourable Member and others, the Commission would like to express that Article 39(4) of the EC Treaty does not oblige Member States to restrict specific posts to their own nationals, but it gives the possibility if the conditions are fulfilled. Therefore, Member States rules may lead in certain areas to differences of application.
  In relation to question 5 of Written Question E-1022/02, the Commission would like to express that it is aware that in a number of Member States there are serious shortages of captains. It is confident that on the basis of the judgements of the Court this situation should be improved via cross-border mobility.
  In relation to Written Question E-2069/01 by Mr Martens and others, the Commission would like to express that, very recently, its attention was drawn to a possible new problem of recognition of diplomas of masters. On the basis of requested additional information the Commission will assess this issue. If the Honourable Members have additional information about this aspect, they are invited to send it to the Commission. |
| --- | --- |

1 and 2.

On 30 September 2003, the Court rendered two judgements concerning the question whether it is compatible with the rules on free movement of workers that the posts of masters and chief mates are restricted to nationals of the State whose flag the ship flies (Case C-47/02 Albert Anker, Klaas Ras, Albertus Snoek v. Bundesrepublik Deutschland and case C-405/01 Colegio de Oficiales de la Marína Mercante Española v. Administración del Estado). Case C-47/02 concerned German vessels engaged in small-scale deap-sea fishing (Kleine Seeschifffahrt); case C-405/01 concerned Spanish merchant ships.

The Court decided that Article 39(4) of the EC Treaty must be construed as allowing a Member State to reserve for its own nationals the posts of master of vessels flying its flag engaged in small scale maritime shipping (Kleine Seeschifffahrt) and the posts of master and chief mate of merchant ships flying its flag only if the rights under powers conferred by public law on masters and chief mates of such ships are actually exercised on a regular basis and do not represent a very minor part of their activities.

The Court refers to its case-law on the interpretation of Article 39(4) of the EC Treaty: the concept of public service within the meaning of Article 39(4) of the EC Treaty (under which free movement of workers does not apply to employment in the public service) covers posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities and thus presume on the part of those occupying them, the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality.

The fact that masters are employed by a private natural or legal person is not, as such, sufficient to exclude the application of Article 39(4) of the EC Treaty since it is established that, in order to perform the public functions which are delegated to them, masters act as representatives of public authority in the service of the general interest of the flag State.

However, recourse to the derogation from the freedom of movement of workers provided for by Article 39(4) of the EC Treaty cannot be justified solely on the ground that rights under powers conferred by public law are granted by national law to holders of the posts in question. It is also necessary that such rights are, in fact, exercised on a regular basis by those holders and do not represent a very minor part of their activities.

The Court also stated that the nationality condition cannot be justified by Article 39(3) of the EC Treaty: in this regard, it is sufficient to recall that the right of Member States to restrict the free movement of persons on grounds of public policy, public security or public health is not intended to exclude economic sectors such as fishing or occupations, such as master of fishing vessels, from the application of that principle as regards access to employment, but to allow Member States to refuse access to their territory or residence there to persons whose access or residence would in itself constitute a danger for public policy, public security or public health

In reference to Written Question E-1022/02 by the Honourable Member and others, the Commission would like to express that Article 39(4) of the EC Treaty does not oblige Member States to restrict specific posts to their own nationals, but it gives the possibility if the conditions are fulfilled. Therefore, Member States rules may lead in certain areas to differences of application.

In relation to question 5 of Written Question E-1022/02, the Commission would like to express that it is aware that in a number of Member States there are serious shortages of captains. It is confident that on the basis of the judgements of the Court this situation should be improved via cross-border mobility.

In relation to Written Question E-2069/01 by Mr Martens and others, the Commission would like to express that, very recently, its attention was drawn to a possible new problem of recognition of diplomas of masters. On the basis of requested additional information the Commission will assess this issue. If the Honourable Members have additional information about this aspect, they are invited to send it to the Commission.

| 3. | As a follow-up to the judgements of the Court, the Commission intends to monitor closely the correct application of this jurisprudence by Member States, including where appropriate by bringing matters before the Court on the basis of Article 226 of the EC Treaty. |
| --- | --- |

3.

As a follow-up to the judgements of the Court, the Commission intends to monitor closely the correct application of this jurisprudence by Member States, including where appropriate by bringing matters before the Court on the basis of Article 226 of the EC Treaty.

---

(1)  OJ C 229 E, 26.9.2002, p. 170.

1

(2)  OJ C 301 E, 5.12.2002, p. 220.

2

(3)  OJ C 40 E, 14.2.2002, p. 177.

3

---