Opinion of the Advocate General — ECLI:EU:C:2003:345
Date: 2003-06-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 
1. Freedom of movement for persons — Derogations — Employment in the public 
service — Meaning — Master and chief mate of merchant navy ships — Inclusion — 
Conditions 
(Art. 39(4) EC) 
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SUMMARY — CASE C-405/01 
2. Freedom of movement for persons — Derogations — Protection of public policy, 
public security and public health — General exclusion of nationals of other Member 
States from access to the posts of master and chief mate in the merchant navy — Not 
permissible 
(Art. 39(3) EC) 
3. Member States — Obligations — Implementation of Community law — Condition 
of reciprocity — Not permissible 
4. Freedom of movement for persons — Workers — Access of nationals of other 
Member States, subject to a condition of reciprocity, to the posts of master and chief 
mate in the merchant navy — Not permissible 
(Art. 39 EC) 
1. Article 39(4) EC must be construed as 
allowing a Member State to reserve for 
its nationals 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 in fact 
exercised on a regular basis and do not 
represent a very minor part of their 
activities. 
The scope of that derogation from the 
freedom of movement for workers 
concerning employment in the public 
service must be limited to what is 
strictly necessary for safeguarding the 
general interests of the Member State 
concerned, which would not be 
imperilled if rights under powers con­
ferred by public law were exercised 
only sporadically, even exceptionally, 
by nationals of other Member States. 
(see paras 44, 50, operative part 1) 
2. A general exclusion, by a Member 
State, of nationals of other Member 
States from access to the posts of 
master and chief mate in the merchant 
navy cannot be justified on the grounds 
of public policy, public security or 
p u b l i c h e a l t h m e n t i o n e d in 
Article 39(3) EC, since the right of 
Member States to restrict the free 
movement of persons on those grounds 
is not intended to exclude economic 
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COLEGIO DE OFICIALES DE LA MARINA MERCANTE ESPAÑOLA 
sectors such as that of merchant ship­
ping or occupations such as that of 
master or chief mate of merchantmen 
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. 
(see paras 48-49) 
3. The implementation of the obligations 
imposed on Member States by the 
Treaty or secondary legislation cannot 
be made subject to a condition of 
reciprocity. 
(see para. 61) 
4. Article 39 EC is to be construed as 
precluding a Member State from mak­
ing access by nationals of the other 
Member States to the posts of master 
and chief mate of merchant ships flying 
its flag subject to a condition of 
reciprocity. 
(see para. 61, operative part 2) 
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