Opinion of the Advocate General — ECLI:EU:C:2021:474
Date: 2021-06-10
Language of the case: Danish
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Denmark

Translation C-71/20 — 1 
Case C-71/20 
Request for a preliminary ruling 
Date lodged: 
12 February 2020 
Referring court: 
Østre Landsret (Denmark) 
Date of the decision to refer: 
10 February 2020 
Respondent: 
Anklagemyndigheden 
Appellant: 
VAS Shipping ApS 
  
S146600L-JJ 
EXTRACT 
FROM 
THE RECORDS OF THE ØSTRE LANDSRET 
 
ORDER 
Made on 10 February 2020 by the 20th Chamber of the Østre Landsret (Eastern 
Regional Court) 
[...] 
Anklagemyndigheden (Public prosecutor) 
v 
VAS Shipping ApS 
EN 
REQUEST FOR A PRELIMINARY RULING OF 10. 2. 2020 — CASE C-71/20 
 
2  
(formerly Sirius Shipping ApS) 
[...] 
In the criminal appeal proceedings pending before it, the Østre Landsret has 
decided to refer a question concerning the interpretation of Article 49 of the 
Treaty on the Functioning of the European Union (TFEU) to the Court of Justice 
of the European Union, pursuant to Article 267 TFEU. 
A. Facts of the case 
1 The case concerns whether VAS Shipping ApS (formerly Sirius Shipping ApS) 
should be found guilty, in criminal proceedings, of infringing Paragraph 59(4) of 
the Udlændingeloven (Law on foreign nationals), in conjunction with 
Paragraphs 59(5) and 61 thereof, by, as managing part owner, having allowed 
vessels to enter Danish ports with foreign crew members, despite the fact that 
those crew members did not hold a work permit or were not exempted from 
holding one. 
2 The Danish-registered partnership VAS Shipping ApS, which is the managing 
owner within the meaning of Paragraph 103 of the Søloven (Law on shipping) in 
respect of four part-owner shipping companies, consisting of various Swedish 
limited companies (part owners), is charged before the Østre Landsret with 
having, in the period from 22 August [OR. 2] 2010 to 22 August 2011, by 
entering Danish ports on more than 25 occasions with four vessels registered in 
the Danish International Shipping Register (DIS), engaged crew members from 
third countries (that is to say countries outside the EU and EEA), despite the fact 
that those crew members did not hold a work permit or were not exempted from 
the requirement to hold such a permit under Paragraph 14 of the 
Udlændingeloven. 
3 VAS Shipping ApS is wholly owned by the Swedish company Sirius Rederi AB 
and registered [...] in Denmark. The company was formed on 16 March 2010 and 
is managed by a director resident in Sweden and three board members, two of 
whom are resident in Denmark. According to the information provided, all the 
company’s board meetings are held in Denmark and all the meetings of the part-
owner shipping companies have been held in Denmark since the four vessels in 
question were registered in the DIS. 
4 The four part-owner shipping companies, consisting of the part owners (limited 
companies) established in Sweden, chose to carry on their shipping business in 
Denmark by having the four vessels in question registered in the DIS and 
designating the Danish-registered partnership VAS Shipping ApS as managing 
owner, whereafter that company had, under Paragraph 104 of the Søloven, 
mandatory authority to conclude any legal transactions normally concluded by a 
shipping company. The four vessels are thus an instrument by which the part-
owner shipping companies pursue economic activity in Denmark and registration 
ANKLAGEMYNDIGHEDEN 
 
3 
in the DIS cannot therefore be separated from the exercise of the freedom of 
establishment (see Case C-221/89, Factortame and Others). 
5 VAS Shipping ApS stated that that no seaman who is a third-country national 
leaves the vessel at any time during entries into Danish ports and that all work on 
land is performed by Danish land-based personnel employed by the port of call. 
6 The facts of the case, including whether and how many third-country nationals 
were on board the four vessels, the period during which they were present, and on 
how many occasions the vessels concerned entered Danish ports, are disputed. 
B. Proceedings to date [org. 3] 
7 The Byretten i Odense (Odense District Court) delivered a judgment in the case at 
first instance on 4 May 2018 and ordered VAS Shipping ApS to pay a fine of 
DKK 1 500 000. The Byretten found that VAS Shipping ApS had infringed the 
provisions of the Udlændingeloven and that the provisions of the 
Udlændingeloven constituted a restriction on freedom of establishment under 
Article 49 TFEU, in conjunction with Article 54 thereof, but that the restriction 
was justified by overriding reasons in the public interest and did not go further 
than was necessary. The grounds of the decision of the Byretten i Odense state as 
follows: 
‘It is concluded that the provisions of the Udlændingeloven concerning vessels 
entering Denmark at the material time were such that a vessel with foreign crew 
with no work permit could enter Danish ports on 25 occasions per year from May 
2015, or on 28 occasions per year if three entries were related to shipyard visits 
and solely to such visits. The four vessels covered by the prosecution had 
employed foreign nationals without a work permit at the time stated in the 
prosecution. As the rules were administered, it was solely the entry of the vessels 
that was decisive. If the foreign nationals were on the vessel on the 26th or 29th 
occasion respectively that the vessel entered Danish ports, those concerned should 
have had a work permit. Thus, on the 26th or 29th occasion respectively the 
vessels could be regarded as vessels which had become a Danish place of work, 
for which a work permit was required. 
Sirius Shipping ApS was the managing owner of the four vessels and, in the 
period from 22 August 2010 to 22 August 2011, could enter Danish ports only on 
25 occasions because it had engaged foreign workers without a work permit on 
the vessels. It has been established that the vessels entered Danish ports on more 
than 25 occasions during that period. 
The witness Jan Anker gave a statement regarding the automatic identification 
system (AIS) and the Byretten found that that statement tallied with the recordings 
made by the vessels. The AIS may be regarded as comprehensive and far more 
reliable than Lloyd’s Register of Shipping. In so far as there are any discrepancies 
between the two, the Byretten found that the AIS could be taken as the basis for 
REQUEST FOR A PRELIMINARY RULING OF 10. 2. 2020 — CASE C-71/20 
 
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the vessel’s position, also in the light of the fact that the party prosecuted could 
have submitted, as evidence in rebuttal, logbooks and other records, which it did 
not do. Nor did the party prosecuted establish that there had been shipyard visits 
among the entries, which could have been proven or demonstrated by invoices and 
logbooks. 
The vessels were registered in Denmark and may be regarded as operated by 
Sirius Shipping ApS, and the vessels were flagged and thus deemed established in 
Denmark (see in that regard the agreement between the part-owner shipping 
companies which was submitted with regard to the vessel Lotus and, according to 
the statement by the lawyer Ringsted, presumably had the same wording as the 
agreements between the part-owner shipping companies in respect of the other 
vessels). The vessels may therefore be regarded as being operated in Denmark and 
Sirius Shipping may be regarded as the party which engaged and remunerated 
those on board the vessels. There are therefore grounds for bringing a prosecution 
against Sirius Shipping ApS, which is thus the correct party to be held liable in 
this case. The company was therefore required to comply with the Danish rules 
applicable in that respect. 
Various minor errors in the crew lists were found, which were presumably due to 
the way in which the crew’s names were entered, since the list had been processed 
by humans. It has essentially been established [OR. 4] that the lists are correct and 
that the shipping company infringed the rules in that respect. 
It may be regarded as common ground that the rules of the Udlændingeloven in 
that respect and the associated regulation etc. constitute a restriction on foreign 
companies which wish to become established in Denmark and thus a restriction on 
freedom of establishment under Article 49 TFEU, in conjunction with Article 54 
TFEU. In accordance with the case-law developed by the Court of Justice of the 
European Union, it may be concluded that restrictions on freedom of 
establishment which are applicable without discrimination on grounds of 
nationality may be justified by overriding reasons in the general interest, provided 
that they are proportionate, that is to say that they are appropriate for securing 
attainment of the objective pursued and do not go beyond what is necessary for 
attaining that objective. Given the context in which the rules of the 
Udlændingeloven governing third-country crews were introduced, it is justified 
not to undermine the Danish labour market, since Philippino labour has a 
competitive advantage over Danish labour on account of wage levels, and it may 
be regarded as being a restriction which is justified by overriding reasons in the 
general interest and does not go beyond what is necessary for attaining that object. 
The work permit requirement is an effective means of ensuring the stability of the 
labour market and thus avoiding disruption to the national labour market. 
Consequently, the Byretten found that the restrictions were lawful and there were 
no grounds for referring a question to the Court of Justice for a preliminary ruling. 
ANKLAGEMYNDIGHEDEN 
 
5 
The fact that it is incumbent on the public prosecutor to establish that there was 
justification for imposing restrictions on the freedoms enshrined EU law in no 
way affects the above statement regarding the reasons for the restrictions. 
In the present case there are aggravating factors in the prescription of the penalty. 
Foreign seafarers are paid less than Danish seafarers, that is to say a financial gain 
is obtained. It may be concluded that the infringement was deliberate and 
committed by several vessels and that the foreign nationals concerned did not 
have the right to be resident in Denmark. However, there is some uncertainty as to 
the number of seafarers who were on board and the extent to which the vessels 
entered Danish ports. It may further be observed that the duration of the 
proceedings was extremely long on account of the complicated nature of the case 
and issues of EU law therein, the fact that there were contacts between various 
departments and the public prosecutor and the prosecuted party’s lawyer, and, 
finally, the appeal concerning the lawyer Ringsted’s status during the proceedings. 
On the basis of an overall assessment, it is deemed appropriate to fix the fine at 
DKK 1 500 000 on the basis of Paragraph 59(4) of the Udlændingeloven, in 
conjunction with Paragraphs 59(5) of 61 thereof.’ 
C. The provisions of EU law 
8 The relevant rules of EU law are Articles 49, 52 and 54 of the Treaty on the 
Functioning of the European Union. 
D. The provisions of Danish law [org. p.5] 
9 The relevant provisions at that time, namely Paragraphs 13, 14, 59 and 61 of the 
Udlændingeloven, as consolidated by Law No 1061 of 18 August 2010, were 
worded as follows: 
‘Paragraph 13. A foreign national shall have a work permit to take paid or 
unpaid employment, to be a self-employed person or in order to provide services 
for consideration or otherwise in Denmark. A work permit shall also be required 
for employment on a Danish vessel or aircraft which, as part of regular services or 
otherwise, calls regularly at Danish ports or airports. However, reference is made 
to Paragraph 14. 
Subparagraph 2. The Minister for Refugee, Immigration and Integration Affairs 
shall lay down more detailed provisions on the extent to which work permits are 
required to work in territorial waters or on the continental shelf.’ 
‘Paragraph 14. The following foreign nationals shall be exempted from the work 
permit requirement: 
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(1) Foreign nationals who are nationals of another Nordic country within the 
meaning of Paragraph 1. 
(2) Foreign nationals covered by EU rules within the meaning of Paragraphs 2 
and 6. 
(3) Foreign nationals with a permanent residence permit. 
(4) Foreign nationals with a residence permit under Paragraphs 7, 8, 9, 9 b, 9 d 
or 9 e. 
(5) Foreign nationals with a residence permit under Paragraph 9 c(1), where the 
permit was granted immediately after a residence permit under Paragraph 9 
b. 
(6) Foreign nationals with a residence permit under Paragraph 9 c, where the 
permit was granted to a foreign national who applied for a residence permit 
under Paragraph 7. 
(7) Foreign nationals with a residence permit under Paragraph 9 c(1), where the 
permit was granted by virtue of a family tie with a person resident in 
Denmark. 
(8) Foreign nationals with a residence permit under Paragraph 9 c(4), where the 
work is naturally linked to the foreign national’s residence in Denmark on 
the basis of that residence. 
Subparagraph 2. The Minister for Refugee, Immigration and Integration Affairs 
may determine that other foreign nationals are to be exempted from the work 
permit requirement. 
‘Paragraph 59. 
… 
Subparagraph 4. Any person who employs a foreign national without the required 
work permit or in breach of the conditions laid down for a work permit shall be 
liable to a fine or a term of imprisonment of up to two years. 
Subparagraph 5. The fact that the infringement was committed deliberately or as 
a result of gross negligence, that a financial gain was obtained or sought by the 
infringement for the person concerned himself or for others, or that the foreign 
national does not have the right to be resident in Denmark shall be regarded as an 
aggravating circumstance in determining the penalty under subparagraph 5.’ 
‘Paragraph 61. Criminal liability may be attributed to companies etc. (legal 
persons) under the rules laid down in Chapter 5 of the Criminal Code.’ 
ANKLAGEMYNDIGHEDEN 
 
7 
10 At the time when the circumstances which gave rise to the prosecution occurred, 
Paragraph 33 of the Regulation on foreign nationals (bekendtgørelse nr. 270 af 22. 
marts 2010 om udlændinges adgang her til landet (Regulation No 270 of 
22 March 2010 on foreign nationals’ access to Denmark)) stated as follows: 
‘Paragraph 33. The following foreign nationals shall be exempted from the work 
permit requirement: 
… [OR. 6] 
(4) Personnel on Danish cargo vessels in international traffic which enter Danish 
ports on no more than 25 occasions, calculated continuously over the previous 
year, irrespective of the calendar year, where a work permit is required for that 
purpose, under Paragraph 13(1) and (2) of the Udlændingeloven. 
…’ 
11 As is clear, Paragraph 14(1) of the Udlændingeloven lists a number of categories 
of foreign nationals who are exempted from the work permit requirement under 
Paragraph 13(1) thereof. The provision was supplemented at the material time by 
Paragraph 33 of the Regulation on foreign nationals, which also refers to various 
categories of foreign nationals who are exempted from the work permit 
requirement, including the category referred to in Paragraph 33(4). 
12 Paragraph 33(4) of the Regulation on foreign nationals specifies the criterion 
‘regularly’ in Paragraph 13(1) and (2) of the Udlændingeloven so that a work 
permit is required only if a Danish vessel enters Danish ports on more than 25 
occasions, calculated continuously over the previous year. 
13 Paragraphs 103 to 104 of the Søloven (most recently consolidated by Law 
No 1505 of 17 December 2018), is worded as follows: 
‘Paragraph 103. A managing owner shall be selected for a ship owned by part 
owners. 
Subparagraph 2. A person, a limited company or a responsible company may be 
selected as managing owner, provided that party meets the conditions laid down in 
Paragraph 1(2) and 1(3) respectively.’ 
‘Paragraph 104. In relation to third parties, the managing owner shall, by virtue 
of his or its capacity, be entitled to conclude any legal transactions normally 
concluded by a shipping company. The managing owner may therefore engage, 
dismiss and instruct the master, take out ordinary insurance, and receive monies 
paid to the shipping company. The managing owner shall not, without special 
authorisation, sell or mortgage the vessel or charter out the vessel for more than 
one year.’ 
REQUEST FOR A PRELIMINARY RULING OF 10. 2. 2020 — CASE C-71/20 
 
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14 The rules governing the Danish International Shipping Register, at the time at 
which the circumstances which gave rise to the prosecution occurred, are set out 
in Law No 273 of 11 April 1997, as amended by Law No 460 of 31 May 2000, 
Law No 526 of 7 June 2006 and Law No 214 of 24 March 2009, and are worded 
as follows: 
‘Paragraph 10. Collective agreements on pay and working conditions for crew on 
ships entered in this register shall expressly state that they apply only to such 
employment. 
Subparagraph 2. Collective agreements as referred to in subparagraph 1, which 
are entered into by a Danish trade union, can cover only persons who are resident 
in Denmark [OR. 7] or who, under EU law or other international obligations 
entered into, are to be treated in the same way as persons deemed to be resident in 
Denmark. 
Subparagraph 3. Collective agreements as referred to in subparagraph 1, which 
are entered into by a foreign trade union, can cover only persons who are 
members of the trade union concerned or persons who are nationals of the country 
in which the trade union is established, provided that they are not members of 
another trade union with which an agreement as referred to in subparagraph 1 has 
been concluded. 
Subparagraph 4. The Law on the Labour Court shall also apply to cases to which 
a foreign trade union is party.’ 
15 At the time when the circumstances which gave rise to the prosecution occurred, 
the visa rules laid down in Regulation No 270 of 22 March 2010 on foreign 
nationals’ access to Denmark applied. Paragraphs 13, 16 and 19 thereof were 
worded, inter alia, as follows: 
‘Paragraph 13. Foreign nationals shall have their passport or other travel 
documents stamped (endorsed) before entry, unless the person concerned is 
exempted from having a visa under Paragraph 14’ 
‘Paragraph 16. A uniform visa valid for all Schengen countries may be issued, 
provided that the following conditions are fulfilled: 
(1) The person concerned must be in possession of a valid passport or other 
travel document granting the right to travel to Denmark and the other 
Schengen countries. If the passport is valid only for travel to one or more 
Schengen countries, the validity of the visa shall be limited to that country or 
those countries. It is not necessary to state in the passport or otherwise that 
the passport is not valid for return to the issuing country. 
(2) The person concerned must have sufficient means of subsistence for the 
period of the intended stay in the Schengen countries and for the return to 
their country of origin or domicile or for travel to a third country, into which 
ANKLAGEMYNDIGHEDEN 
 
9 
they are certain to be admitted, or be in a position to acquire such means 
lawfully. 
(3) Unless there are particular reasons to the contrary, the person concerned 
shall be in possession of travel insurance to cover any expenses that might 
arise in connection with repatriation for health reasons, urgent medical 
attention and emergency hospital treatment or death, during his or her 
intended stay. The travel insurance shall cover all Schengen countries and 
cover the entire duration of the intended stay or transit. The minimum 
amount of insurance cover shall be EUR 30 000. If an application has been 
made for a visa for more than two entries into the Schengen countries, the 
travel insurance shall cover only the period of the first intended entry and 
intended stay in the Schengen countries. In that case, the person concerned 
shall sign the declaration appearing on the visa application that he or she is 
aware of the need to have travel insurance at the time of future entry into 
and stay in the Schengen countries. 
…’ 
Paragraph 19. … 
… [OR. 8] 
Subparagraph 5 The Department for Foreign Nationals may grant a permit to re-
enter to a foreign national lawfully resident in Denmark. 
Subparagraph 6. Upon delegation from the Department for Foreign Nationals, the 
police may, in particular at the border, issue a visa for a stay of up to 15 days with 
one entry or a visa for transit under subparagraph 4(1). Subparagraph 4(2) and (3) 
shall apply mutatis mutandis. A visa as referred to in subparagraph 1 may not be 
issued if the foreign national is a person for whom an alert has been issued in the 
Schengen Information System or is prohibited from entering Denmark. Upon 
delegation from the Department for Foreign Nationals, the police may, in specific 
cases, grant a permit to re-enter pursuant to subparagraph 5.’ 
16 Paragraphs 10 and 11 of Circular No 70 of 10 August 2010 on the issuing of visas 
at the border to seafarers in transit subject to visa requirements set out the rules on 
issuing visas to seafarers. The provisions are worded, inter alia, as follows: 
‘Paragraph 10. Where a seafarer disembarks from a vessel which has entered a 
Danish port, or is expected to enter a Danish port, with a view to crossing an 
external border within the Schengen area, the following procedure shall be 
followed if he or she is to be issued with a visa on disembarkation: 
(1) The shipping company or the broker shall notify the police in the police 
district in which the port of call is situated that the seafarer subject to visa 
requirements will disembark in the port of call and subsequently cross an 
external border within the Schengen area. …  
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(2) The police in the police district in which the port of call is situated shall 
check as soon as possible and as far as possible that the information 
provided by the shipping company or broker is correct and whether the 
conditions laid down in Paragraph 5 are satisfied. As part of that 
investigation, the police shall check the seafarer’s route within the Schengen 
area. 
…’ 
‘Paragraph 11. Where a seafarer disembarks from a vessel which has entered a 
Danish port, or is expected to enter a Danish port, and embarks on another vessel 
in another port within the Schengen area, the following procedure shall be 
followed if he or she is to be issued with a visa on disembarkation: 
(1) The shipping company or the broker shall notify the police in the police 
district in which the port of call [is situated that the seafarer subject to visa 
requirements will disembark in the port of call] in order to embark on 
another vessel in another port within the Schengen area. … 
(2) The police in the police district in which the port of call is situated shall 
check as soon as possible and as far as possible that the information 
provided by the shipping company or broker is correct and whether the 
conditions laid down in Paragraph 5 are satisfied. As part of this 
investigation the police shall check the seafarer’s route within the Schengen 
area. 
(3) The police in the police district in which the port of call is situated shall, by 
telephone, fax, email or other means, ask the border control authority, at the 
port where the seafarer is to embark on the other vessel, to check that the 
vessel on which the seafarer is to embark has entered or is expected to enter. 
Information on fax numbers and other contact information for the border 
control authority at the external borders of the Schengen area shall be 
available and kept up to date on the police intranet. 
…’ [OR. 9] 
E. Uncertainties relating to EU law and the arguments of the parties 
Uncertainties relating to EU law 
17 Under the first paragraph of Article 49 TFEU, restrictions on the freedom of 
establishment of nationals of a Member State in the territory of another Member 
State are to be prohibited (primary establishment). Such prohibition is also to 
apply to restrictions on the setting-up of agencies, branches or subsidiaries by 
nationals of any Member State established in the territory of any Member State 
(secondary establishment). Under the second paragraph of Article 49 TFEU, 
ANKLAGEMYNDIGHEDEN 
 
11 
freedom of establishment is to include — subject to the provisions relating to the 
free movement of capital — the right to take up and pursue activities as self-
employed persons and to set up and manage undertakings, in particular companies 
or firms within the meaning of the second paragraph of Article 54, under the 
conditions laid down for its own nationals by the law of the country where such 
establishment is effected (see, for example, Case C-212/97, Centros, 
paragraph 19, and Case C-170/05, Denkavit Internationaal and Denkavit France, 
paragraph 20). 
18 Under the first paragraph of Article 54 TFEU, freedom of establishment 
encompasses companies or firms (i) formed in accordance with the law of a 
Member State and (ii) having their registered office, central administration or 
principal place of business within the European Union. 
19 For the purposes of the provisions of the chapter on establishment (and services), 
the abovementioned companies are to be treated in the same way as persons who 
are nationals of the Member States. 
20 A company or firm which falls within the scope of Article 54 TFEU may therefore 
set up agencies, branches or subsidiaries and carry on other forms of secondary 
establishment in other Member States without either the State of origin or the host 
State being entitled to restrict its right to do so. 
21 The concept of ‘establishment’ within the meaning of Article 49 TFEU is not 
defined more precisely in the Treaty, but, in accordance with the case-law of the 
Court of Justice, involves the actual pursuit of an economic activity through a 
fixed establishment in another Member State for an indefinite period (see, for 
example, C-161/07, Commission v Austria, paragraph 27, and Case C-221/89, 
Factortame and Others, paragraph 20). In that case, the Court of Justice further 
ruled that the registration of a vessel does not necessarily involve establishment 
within the meaning of the Treaty, in particular where the vessel is not used to 
pursue [OR. 10] an economic activity or where the application for registration is 
made by or on behalf of a person who is not established, and has no intention of 
becoming established, in the State concerned. However, the Court of Justice 
observed by extension that where the vessel constitutes an instrument for pursuing 
an economic activity which involves a fixed establishment in the Member State 
concerned, the registration of that vessel cannot be dissociated from the exercise 
of the freedom of establishment (See Case C-221/89, Factortame and Others, 
paragraphs 21 to 22). 
22 It is common ground between the parties that the work permit requirement laid 
down in Paragraph 13(1) of the Udlændingeloven, in conjunction with 
Paragraph 33(4) of the Regulation on foreign nationals, may constitute a 
restriction on freedom of establishment within the meaning of Article 49 TFEU. 
23 The objective of ensuring the stability of the labour market and thereby avoiding 
disruption to it can, in principle, justify restrictions on freedom of movement (see 
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12  
Case C-18/17, Danieli & C. Officine Meccaniche SpA, judgment of 14 November 
2018). 
Arguments of the Anklagemyndigheden 
24 The rules of Paragraph 13(1) of the Udlændingeloven, in conjunction with 
Paragraph 33(4) of the Regulation on foreign nationals, constitute a non-
discriminatory restriction on freedom of establishment since they are intended to 
ensure the stability of the labour market and thus to avoid disruption to it. 
25 The Danish rules are proportionate, that is to say appropriate for securing 
attainment of the objective pursued and do not go beyond what is necessary for 
attaining that objective. The Anklagemyndigheden therefore considers that the 
restriction on freedom of establishment is compatible with EU law. 
Arguments of VAS Shipping ApS 
26 The work permit requirement is not necessary to satisfy an overriding reason in 
the public interest, including the objective of ensuring the stability of the labour 
market and thus avoiding disruption to it. Sirius Shipping ApS therefore considers 
that the Danish rules at issue in this case are contrary to EU law. 
27 The rules are not appropriate for ensuring the stability of the labour market. That 
is because, inter alia, (1) the rules do not cover vessels registered in other 
countries’ shipping registers, (2) the crew must, in any event, have a work permit 
to work in the territory of the port [|OR. 11] or elsewhere in Danish land territory, 
(3) the rules do not prevent third-country nationals from entering a Danish port on 
more than 25 occasions because the sole decisive factor is how often the vessel 
concerned enters a Danish port, and (4) the Danish visa rules effectively meet the 
abovementioned objective of ensuring the stability of the labour market. 
28 On the one hand, the Danish rules are narrow in scope and, on the other, are very 
restrictive for shipowners who are obliged to change their employment policy. 
F. Background to the question referred by the Østre Landsret 
29 In a number of judgments, the Court of Justice has ruled on the factors which, 
under the TFEU, are to be included in an assessment of the proportionality of 
restrictions on an employer’s freedom to choose workers. 
30 However, that case-law mainly concerns the relationship with rules on services. 
Consequently, the earlier decisions of the Court of Justice do not provide reliable 
guidance for assessing the relationship between the Danish rules at issue and 
Article 49 TFEU on the freedom of establishment. 
ANKLAGEMYNDIGHEDEN 
 
13 
31 The Østre Landsret therefore considers that a ruling on whether Article 49 TFEU 
precludes rules similar to the Danish rules imposing a work permit requirement on 
third-country nationals working on vessels flagged in Denmark and owned by 
nationals of another EU Member State is necessary to enable it to give a ruling in 
the present case. 
32 Consequently, the Østre Landsret has decided to stay the criminal appeal 
proceedings in order to make a reference for a preliminary ruling to the Court of 
Justice, pursuant to Article 267 TFEU. 
33 In the light of the foregoing, the Court of Justice is requested to answer the 
question set out below. 
It is hereby ordered that: [OR. 12] 
The Østre Landsret request the Court of Justice of the European Union to answer 
the following question: 
Question 1 
Does Article 49 TFEU preclude legislation of a Member State which requires 
third-country crew members on a vessel flagged in a Member State and owned by 
a shipowner who is a national of another EU Member State to have a work permit, 
unless the vessel enters ports of the Member State on at most 25 occasions 
calculated continuously over the previous year? 
(Sign.) 
, , , 
[...]