62002CC0047_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1. By the question it has referred for preliminary ruling, the Schleswig-Holsteinisches Oberverwaltungsgericht (Higher Administrative Court, Schleswig-Holstein) asks in substance whether the post of master (captain) on fishing vessels used in small-scale maritime shipping is
" employment in the public service"
within the meaning of Article 39(4) EC and whether a Member State is therefore entitled to reserve that post for its own nationals.
2. The present case raises questions of law largely similar to those in Case C-405/01
Colegio de Oficiales de la Marina Mercante Española
v
Administración del Estado, Asociación de Navieros Españoles (ANAVE) intervening, which concerns the posts of master and chief mate on Spanish merchant shipping vessels. My Opinion in that Case is also being delivered today. (2) In so far as the submissions in the present case and their analysis correspond in substance to those in
Colegio de Oficiales de la Marina Mercante Española, I shall refer to that Opinion.
II ─ Legal framework
A ─ Community law
3. Article 39 EC, which guarantees free movement of workers within the Community, does not extend to
" employment in the public service"
(Article 39(4) EC).
B ─ Public international law
4. The United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter
" Convention on the Law of the Sea" ) contains inter alia the following general provisions relating to shipping on the high seas:
" Article 91
Nationality of ships
1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.
...
"
" Article 92
Status of ships
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. ...
"
" Article 94
Duties of the flag State
1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
2. In particular every State shall:
...
(b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.
3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea ...
...
"
Article 94(5) provides that, in taking such measures, each State must take any steps which may be necessary to secure the observance of generally accepted international regulations, procedures and practices.
Article 97 provides inter alia that, in the event of a collision or any other incident of navigation concerning a ship on the high seas, no penal or disciplinary proceedings may be instituted against the master or any other person in the service of the ship
" except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national" . In disciplinary matters, the State which has issued a master ' s certificate or a certificate of competence or licence is alone competent to pronounce the withdrawal of such a document, even if the holder is not a national of the State which issued them.
C ─ National law
1. Provisions relating to qualifications to serve as master on board fishing vessels
(a) Schiffsbesetzungsverordnung (Ships ' Crews Regulation) of 26 August 1998 (BGBl. I, p. 323), as amended by Regulation of 29 October 2001 (BGBl. I, p. 2785) (hereinafter
" Ships ' Crews Regulation" )
5. Paragraph 2(2) of the Ships ' Crews Regulation provides:
" Irrespective of the gross registered tonnage, the master must be a German national within the meaning of the Grundgesetz (Basic Law) and hold a German certificate of competence."
(b) Schiffsoffizier-Ausbildungsverordnung (Ships ' Officers Training Regulation) of 11 February 1985 (BGBl. I, p. 323), most recently amended by Regulation of 29 October 2001 (BGBl. I, p. 2785) (hereinafter
" Ships ' Officers Training Regulation" )
6. The Ships ' Officers Training Regulation regulates the training of ships ' officers and the issue of certificates of competence.
7. Paragraph 21a provides that, subject to certain conditions, certificates of competence of nationals of another Member State or of a State party to the European Economic Area Agreement are to be recognised as equivalent to German certificates of competence.
8. Paragraph 21c provides that, on application, the Wasser- und Schifffahrtsdirektion Nord (Northern Authority for Waterways and Shipping) must issue a validation certificate in respect of certificates of competence recognised as equivalent under Paragraph 21a of the Regulation.
9. However, certificates of competence recognised as equivalent do not confer on persons who are not German nationals within the meaning of the Basic Law the right to command vessels sailing under the German flag. Specifically, Paragraph 24(2) of the Regulation provides:
" The issue of certificates of competence to persons who are not German nationals within the meaning of the Basic Law but who fulfil the conditions for the grant of certificates of competence (Paragraph 7) may be permitted. In that case, a certificate of seafaring competence shall not entitle the holder to command vessels sailing under the German flag. The certificate of competence shall bear an endorsement to that effect. ..."
2. Provisions concerning the duties and powers of masters
(a) Powers under the Seemannsgesetz (Law on Seafarers) of 26 July 1957 (hereinafter
" Law on Seafarers" )
10. Paragraph 106 of the Law on Seafarers provides inter alia:
" (1) The master shall be in command of all crew members (Paragraph 3) and of all other persons serving on board (Paragraph 4). Supreme authority shall be vested in him.
(2) The master shall be responsible for the maintenance of order and safety on board and may take the measures necessary for that purpose under the following provisions and the legislation in force.
(3) In case of direct danger to persons or the vessel, the master may enforce orders given to avert such danger, if need be by any necessary force, and temporary detention may be lawful. The fundamental rights under sentences 1 and 2 of Article 2(2) and Article 13(1) and (2) of the Basic Law may be curtailed. Where various means are available, those which involve the least prejudice to the persons concerned shall, as far as possible, be selected.
(4) Physical force and temporary detention shall be lawful only where other means appear, from the outset, to be insufficient or have been shown to be so.
Such measures shall be applied only so far as and to the extent that the performance of the master ' s duties under subparagraphs 2 and 3 requires them.
(5) If the master is not in a position to exercise them himself, he may delegate his powers under subparagraphs 1 to 4 to the chief mate or chief engineer in the course of their duties. ...
"
11. Paragraph 115 of the Law on Seafarers provides that refusing to follow a master ' s order is a criminal offence,
" where the order was given for the purpose of averting danger to persons, a vessel or its cargo, of avoiding disproportionately serious harm, of preventing serious disruption to the operation of the vessel, of fulfilling public-law safety requirements or of maintaining safety and order on board" .
12. Equally, misuse of the power to give such orders is a criminal offence (Paragraph 117 in conjunction with Paragraph 115(4) of the Law on Seafarers).
(b) Provisions relating to civil status under the Ausführungsordnung zum Personenstandsgesetz (Regulation implementing the Law on Civil Status) of 12 August 1957, as amended most recently by Regulation of 17 December 2001 (BGBl. I, p. 3752) (hereinafter
" Regulation implementing the Law on Civil Status" )
─ Paragraph 45(1) of the implementing Regulation provides that the birth or death of any person occurring on board a German sea-going vessel in the course of a voyage must be certified by the Registrar in the Berlin Registry Office I. Paragraph 45(2) of the implementing Regulation provides that the birth or death must be notified to the master at the latest on the following day. If the person obliged to give the notification terminates his passage before the expiry of that period, notification must none the less be given while he is still on board the vessel.
─ Paragraph 45(3) provides that the master must record the birth or death notification and must deliver his record to the first possible office for maritime registrations.
─ Paragraph 48(2) provides that births on board inland vessels are to be certified by the registrar in whose district the vessel next anchors or docks.
─ Paragraph 49 provides that deaths inter alia on inland vessels are to be certified by the registrar in whose district the deceased is removed from the vessel.
III ─ Main proceedings and the question referred
13. The appellants in the main proceedings, Albert Anker, Klaas Ras and Albertus Snoek, are Netherlands nationals employed as seamen on fishing vessels flying the German flag and engaged in small-scale deep-sea fishing. Each holds a
" diploma voor de Zeevisvaart SW V"
entitling them under Netherlands law to captain the class of seagoing vessel on which they are currently serving.
14. The background to the main proceedings is a legal dispute regarding permission for the appellants to serve ─ also ─ as masters on fishing vessels flying the German Federal flag.
15. By notice and decision on an objection, the Wasser- und Schifffahrtsdirektion Nord (the respondent in the main proceedings) rejected the appellants ' applications for the issue of certificates of wider competence under Paragraph 21c of the Ships ' Officers Training Regulation, relying on Paragraph 106 of the Law on Seafarers and Paragraph 24(2) of the Ships ' Officers Training Regulation.
16. By judgments of 14 November 2000, the Verwaltungsgericht (Administrative Court), the court of first instance, dismissed the actions against the decisions on the objections. The Verwaltungsgericht held Paragraph 24(2) of the Ships ' Officers Training Regulation, according to which foreign certificates of competence in navigation did not entitle a person
" to captain vessels sailing under the German flag", to be compatible with higher law, in particular Article 39(4) EC.
17. The national court now has to rule on the appellants ' appeal against those judgments of the Verwaltungsgericht.
18. According to the order for reference, the decision of the Oberverwaltungsgericht turns in law on whether Paragraph 24(2) of the Ships ' Officers Training Regulation is compatible with Article 39 EC. Before the national court, the appellants disagreed that the exception in Article 39(4) EC applied to them.
19. The national court states first that it does not doubt that the appellants can rely on the provisions on freedom of movement for workers. They intend to assume the activities of master, and would perform those activities under an employment contract with deep-sea fishing companies for remuneration. The national court considers that this also applies to the appellant Mr Ras, notwithstanding the fact that he is a shareholder in the deep-sea fishing company SC-25 GmbH, because this does not in any way alter the fact that he is ─ also ─ in an employment relationship with the deep-sea fishing company.
20. According to its order, the national court has considerable doubts as to the compatibility of Paragraph 24(2) of the Ships ' Officers Training Regulation with Article 39 EC, and in particular whether it can be justified by Article 39(4) EC.
21. The national court believes that there is overwhelming support for the view that, notwithstanding the powers of a master under Paragraph 106 of the Law on Seafarers, the activity of a master in small-scale deep-sea fishing in the form in which it is pursued in practice cannot, in the light of the case-law of the Court, be categorised as falling within the sphere of public service within the meaning of Article 39(4) EC.
22. The national court states in particular that these powers of the master are in all essential respects to be inferred directly from the general obligations under civil and criminal law to take action, and do not constitute a central feature of the post of master, so that even on the basis of national law it is at least doubtful whether a master exercises powers conferred by public law.
23. According to the order for reference, having regard to the case-law of the Court, the questions of law arising in the main proceedings as regards Article 39(4) EC depend principally on whether, first, a sector which does not even form part of the institutional public service under the law of a Member State can be at all part of the public service within the meaning of Article 39(4) EC and, second, whether the special powers of a master under Paragraph 106 of the Law on Seafarers involving the exercise of official authority characterise that activity to such an extent as to constitute its core. It is, the Oberverwaltungsgericht submits, reasonably obvious that both questions are to be answered in the negative.
24. However, in order to have its final doubts removed, the Fourth Chamber of the Schleswig-Holsteinisches Oberverwaltungsgericht, by order dated 31 January 2002, stayed the proceedings and referred the following question to the Court for preliminary ruling:
" Are provisions of national law which require the nationality of the flag State ─ in this instance German nationality ─ for the exercise of the activity of master (captain) of a vessel used in small-scale maritime shipping and flying the flag of that Member State compatible with Article 39 EC?"
IV ─ The essential submissions of the parties
25. In the present case, the
appellants
in the main proceedings, the
German Government
─ having the same representation as the
respondent
in the main proceedings ─ the
Danish Government, the
French Government
and the
Commission
have made submissions. With the exception of the appellants in the main proceedings, they have also all made submissions in Case C-405/01
Colegio de Oficiales de la Marina Mercante Española .
26. The view of the
appellants in the main proceedings
is that the question must be answered in the negative.
27. In the first place, they state that there is no doubt that the appellants Anker and Snoek are employees. That status might be doubtful as regards the appellant Mr Ras, who is a minority shareholder in Zeevisserijbedrijf Ras BV, which in turn is the sole shareholder of the deep-sea fishing company SC-25 GmbH, which operates the fishing vessel on which the appellant Mr Ras sails. However, according to the case-law of the Court, it is at least not impossible for Mr Ras to be an employee, particularly given that he is a minority shareholder and therefore cannot control the operations of Zeevisserijbedrijf Ras BV, or indirectly those of the deep-sea fishing company SC-25 GmbH, and the fact that he is registered in the commercial register as a director of the latter company does not make any difference. In any event, the Ships ' Officers Training Regulation also infringes the freedom of establishment.
28. All three appellants submit that the activity of a master on a sea-fishing vessel does not in any circumstances fall within the exception in Article 39(4) EC. They point out that this provision must be given a narrow, functional interpretation. It requires that the post in question should typically include the exercise of powers conferred by public law and that its incumbent is entrusted with responsibility for the general interests of the State.
29. According to the judgments in
Lawrie-Blum (3) and
Bleis, (4) an activity may be said typically to involve the exercise of powers conferred by public law only if the exercise of the powers conferred by public law constitutes the core of the activity; a subsidiary role alone is not sufficient. The core of a master ' s activity lies in being in charge of the ship and managing the crew. Such functions are normally carried out by production and line managers.
30. In the present case, not even the national provisions confer any public law powers on the master. The master ' s rights under Paragraph 106 of the Law on Seafarers are, rather, specific instances of general principles of civil and criminal law. Nor does the Convention on the Law of the Sea confer any public law powers. In particular, this does not require the necessary
" genuine link"
between the vessel and its flag State to be provided by the master ' s nationality. This link may equally be provided by ownership of the vessel, as provided for in Germany by Paragraph 1 of the Gesetz über das Flaggenrecht der Seeschiffe und die Flaggenführung der Binnenschiffe (Law relating to the right of sea-going vessels to fly a flag and to the right of inland vessels to use a flag,
" Law on flagging rights" ). (5)
31. Moreover, in practice, the situations in which a vessel encounters danger while on its own have become significantly less frequent, in particular because of modern methods of communication and the decrease in time spent at sea, which is restricted to working days in the case of small fishing vessels, which furthermore always fish close to the coast. In practice, therefore, a master does not exercise any powers conferred by public law, and certainly does not do so as a matter of course.
32. The appellants also submit that, in its judgment in
Commission
v
Greece, (6) the Court has already held that sea and air transport are not areas in which any specific public service activities are carried out, and that for that reason the onus is on the national authorities to prove that the conditions governing application of Article 39(4) EC are none the less satisfied. (7)
33. Finally, the appellants point out that the masters in issue in the present case do not fall within the institutional concept of public service, since masters and captains are employees not of the State but of private undertakings. The Court has developed the functional concept of public service in order to narrow the area opened up by the institutional interpretation of Member States ' public service. This functional approach should not, however, be used to extend the concept of public service.
34. As regards the essential submissions of the
German Government
─ which has the same representation as the
respondent
in the main proceedings ─ the
Danish
and the
French Governments
and the
Commission
on the interpretation of Article 39(4) EC, I refer in the first place to points 27 et seq. and 35 to 42 of my Opinion in
Colegio de Oficiales de la Marina Mercante Española, which I am also delivering today. In substance, these parties are in agreement that a Member State is entitled to impose a nationality requirement in relation to the post of master on a vessel used in small-scale maritime shipping and flying its flag.
35. The
German Government
explains further in this regard that there is in the international context an increasing demand that masters ensure observance of the flag State ' s obligations under public international law. It also refers to Community law in the areas of safety at sea, prevention of damage to the environment, living and working conditions on board and the fishing industry, for the implementation of which each Member State is responsible in regard to vessels flying its flag.
36. In the present case, the German Government refers to Paragraphs 106, 115 and 117 of the Law on Seafarers and to the master ' s powers in relation to civil status under Paragraph 45 of the Regulation implementing the Law on Civil Status as concrete examples of its submissions in
Colegio de Oficiales de la Marina Mercante Española .
37. The fact that in normal fishing practice it is not always necessary to exercise these public law powers does not negate their public law character. The central issue is that of the legal status of the measures which a master is authorised to take. The core of a master ' s special powers, when considered as a whole, clearly lie within the public law sphere.
38. Moreover, a vessel used in small-scale sea-fishing is in principle also not subject to any restrictions on its voyage, and there is thus no guarantee that such vessels will be confined to operating only in the coastal waters of the flag State or in the immediate vicinity of its coast.
39. The
Danish Government
also takes the view that the question should be answered in the affirmative, and it likewise refers to the reasoning which it has set out in
Colegio de Oficiales de la Marina Mercante Española .
40. It further submits that the Danish provisions on access to the post of master are similar to the German ones. In its view, there is direct participation in the exercise of powers conferred by public law, at least in so far as the post of master involves the exercise on board of powers of command which on land are vested in the police, for example powers to detain suspects and to take statements. Maintaining safety and order are types of duties the performance of which requires a particular allegiance to the State.
41. The fact that the present case involves a vessel used in small-scale maritime shipping does not result in any restriction on the power of the Member State to reserve the post of master for its own nationals, since situations in which it might be necessary to exercise powers conferred by public law may arise at any time.
42. Aside from that, the fact that the Member State in question has not exercised its right to impose a nationality requirement in the field of aviation is immaterial, since Article 39(4) EC merely confers a power on Member States in that regard.
43. The
French Government
submits in particular that the national court has in fact referred two questions concerning the interpretation of Article 39(4) EC, namely first, whether that article applies to the post of master even where not imputable to the State or a State organ and, second, whether such a post comes within that provision even where the exercise of powers conferred by public law constitutes only a very small part of the activity.
44. As regards the first question, it submits that a master clearly performs duties involving the exercise of powers conferred by public law; those duties are not to be confused with obligations incumbent on every citizen, business or work manager or aircraft captain.
45. By way of comparison, the French Government refers to the French provisions relating to masters and concludes that they confer true police powers on masters, such as the power of arrest, and that in exercising them masters participate in the maintenance of law and order. It states that these powers clearly go beyond those of any member of the general public who apprehends a criminal
in flagrante delicto .
46. The French Government takes the view that the post of master comes within Article 39(4) EC even where performed in the context of a private undertaking, since specific public service activities are carried out in the name of the State and on its behalf, and not on behalf of the private employer. The judgments in
Commission
v
Spain (8) and
Commission
v
Italy (9) are, it submits, inconsistent with the functional interpretation which the case-law of the Court has given to the term
" employment in the public service" .
47. By way of alternative submission, it argues that Member States are entitled to impose a nationality requirement in relation to those posts for public security reasons, as specified in Article 39(3) EC, because the posts involve the exercise of public power.
48. Concerning the second question, as to whether the exercise of powers conferred by public law must constitute the core of the activity in question, the French Government submits that the facts that a master exercises powers conferred by public law only rarely and that such powers play only a marginal role have no bearing on the applicability of Article 39(4) EC. According to the case-law of the Court, a post comes within the exception if it
" involves"
sovereign powers. (10)
49. Under reference to the judgment in
Reyners, (11) the French Government also observes that the powers conferred by public law which a master may exercise are not separable from his other activities.
50. The
Commission
first states that the answer to the question as to whether all the appellants in the main proceedings fulfil the requirements for being treated as employees within the meaning of Article 39 EC is a matter for the national court. (12) The national court has answered this question in the affirmative in relation to all three appellants.
51. The Commission also refers to its submissions in
Colegio de Oficiales de la Marina Mercante Española, according to which, although the activity of a private person having no institutional connection to the public service in principle does not come within the exception in Article 39(4) EC, the fact that vessels sail beyond the reach of State authorities could justify holding that a master entitled to carry out functions on behalf of the State does none the less come within that exception. It is for the national court to determine whether there has been the necessary transfer of public law powers.
52. In this connection, the Commission refers specifically to Articles 94 and 92(1) of the Convention on the Law of the Sea, which provides that vessels which sail under the flag of one State only are subject to the exclusive jurisdiction of the flag State on the high seas. To that end, a person on board a vessel flying the flag of a State but which as a matter of fact is beyond the reach of the flag State is given the right to exercise powers conferred by public law. Under German law, specifically Paragraph 106 of the Law on Seafarers, that person is the master.
53. If it should be held that national law has transferred public law powers to the master ─ and this is a matter for the national court ─ those powers constitute a permanent duty and are independent of the size of the vessel and the frequency with which they are actually exercised.
V ─ Analysis
54. According to the national court, a master in small-scale maritime shipping is an employee of a deep-sea fishing company and is subject to the orders of the shipowner. For that reason, I proceed, in the same way as the national court, on the basis that the taking up of such posts in principle falls within the provisions of Community law relating to free movement of workers.
55. Article 39(2) EC provides that free movement of workers also includes specifically a prohibition of discrimination as regards the taking up of employment. For that reason, a directly discriminatory restriction on access, such as a nationality requirement for employment as master on a vessel used in small-scale maritime shipping, can be compatible with the principles of free movement and equal treatment of workers only by virtue of the exceptions in Article 39(3) or (4) EC.
56. It is thus necessary to examine whether a nationality requirement for employment as master on a fishing vessel used in small-scale maritime shipping can be lawful by virtue of one of the exceptions in Article 39(3) and (4) EC. Since Article 39(3) EC can apply only where the exception in Article 39(4) EC for employment in the public service does not, (13) the latter provision is to be considered first.
57. I discuss the case-law of the Court concerning the lawfulness of a nationality requirement for a post in maritime shipping within the scope of application of the free movement of workers and the interpretation of the term
" employment in the public service"
according to the case-law of the Court generally in my Opinion in
Colegio de Oficiales de la Marina Mercante Española . That discussion applies
mutatis mutandis
in the present case. For that reason, I refer to points 50 to 72 of my Opinion in
Colegio de Oficiales de la Marina Mercante Española, which I am also delivering today.
58. The masters to whom the present case relates are employees not of the State but of private undertakings, and, as in
Colegio de Oficiales de la Marina Mercante Española, the first question is therefore whether application of the exception in Article 39(4) EC is precluded by the fact that in institutional terms their employment is not imputable to a State organ.
59. In points 73 to 79 of my Opinion in
Colegio de Oficiales de la Marina Mercante Española, I have already answered this question to the effect that in the case of captains, masters and their agents, the application of Article 39(4) EC is not in principle precluded by the fact that they are employed by natural or legal persons governed by private law.
60. My views in that regard are based on the premiss that a vessel is outside the sovereign territory of a State and beyond the reach of the general State authorities.
61. However, it is to be observed in the present case that this premiss apparently does not apply in relation to the sea-fishing vessels on which the appellants in the main proceedings are at present working. According to the national court, these vessels fish close to the coast of the Federal Republic of Germany. On the other hand, as the submissions of the German Government indicate, this clearly is not the case generally as regards the small-scale deep-sea fishing industry, which includes fishing activities outside German sovereign areas.
62. It is therefore necessary to examine whether posts having the characteristics of those the subject of the main proceedings come within the concept of
" public service"
within the meaning of Article 39(4) EC on a functional approach, that is to say by reference to the nature of the duties involved in them.
63. It is apparent that the activity of a master in the small-scale deep-sea fishing industry consists in commercial and technical management of the vessel and also (as appears from the decision of the national court) participation in catching and processing fish. While there is no doubt that the substance of the activity is not in the nature of administrative action, it has been suggested that the post also comprises functions carried out on behalf of the State.
64. According to the case-law, whether the activity of a master in small-scale maritime shipping comprises public service duties is a matter which depends on the criteria
" the exercise of powers conferred by public law"
and
" safeguarding the general interests of the State" ; the Court, however, has not thus far given any more detailed guidance as to the meaning of these criteria.
65. This is not unproblematic, since the need for a uniform interpretation of Article 39(4) EC means that these concepts cannot be interpreted solely from the various perspectives of national law.
66. One is entitled to assume at least that
" powers conferred by public law"
are powers going beyond those of every citizen, including in particular the power to exercise coercive force as an expression of the core of State sovereign authority. (14)
67. The Court also always refers to
" safeguarding the general interests of the State" . Since the Court ─ usually ─ uses the word
" and"
to join the criteria of participation in the exercise of powers conferred by public law and of safeguarding the general interests of the State, and since it is necessary to interpret the concept of public service narrowly, it has moreover been pointed out repeatedly that in principle both requirements must be satisfied cumulatively. (15)
68. As regards the powers inherent in the post in question in the present case, namely that of master on board a fishing vessel used in small-scale maritime shipping, it must first be pointed out that no inference can be drawn from the relevant provisions of the Convention on the Law of the Sea that masters or captains generally exercise sovereign jurisdiction or require to be invested with powers conferred by public law. Instead, Article 94 of the Convention provides that the flag State must effectively exercise its jurisdiction and control
over
ships flying its flag. It is of course open to the flag State, in allocating its powers, to ensure this through the master or by investing the master with specific powers or functions for that purpose. Accordingly, even having regard to the Convention on the Law of the Sea there is no uniform scope of the public law duties incumbent on masters and captains, and this has the consequence that a functional assessment of those posts for the purposes of Article 39(4) EC can reach a different result (16) from one flag State to another. (17)
69. It is also to be observed that the obligations of masters or captains as regards compliance with and implementation of public-law, international-law and Community-law obligations or conditions (as the German Government in particular has referred to in the areas of safety at sea and environmental protection) are not to be equated with powers conferred by public law.
70. Thus, as regards the functions and powers conferred on the master or captain by Paragraph 106 of the Law on Seafarers and German civil status law, I have much greater doubts than those in regard to the Spanish provisions in
Colegio de Oficiales de la Marina Mercante Española
relating to captains and first officers in the merchant navy as to whether these constitute powers conferred by public law and duties of safeguarding the general interests of the State within the meaning of the case-law of the Court.
71. In contrast to Case C-405/01, it is, according to the Oberverwaltungsgericht, extremely doubtful, even as a matter of national law, whether Paragraph 106 of the Law on Seafarers confers any powers on masters that go beyond general obligations and rights under civil and criminal law. In addition, the powers relating to civil status described by the German Government appear to be auxiliary functions rather than functions which the master in the employment in question himself performs in place of the registrar. Thus, for example, while the birth or death of a person must be notified to the master and he must make a record of it, formal certification is carried out by the competent registrar on land.
72. Indeed, even if one were to accept that the national regulations
provide for
powers conferred by public law and duties of safeguarding the general interests of the State, I do not think that one can automatically conclude that the activity is a
" typical public service activity" .
73. Rather, what is decisive is the duties
actually
involved in the post, and these are to be ascertained by looking at the post as a whole. Though it is difficult to extract any general criteria for the application of Article 39(4) EC from the extremely brief reasoning in the
Lawrie-Blum
judgment, on which the appellants in the main proceedings in particular rely, it appears to me that the decision in that case that the requirements for the application of the exception are not fulfilled in the case of a trainee teacher
" even if he does in fact take the decisions described by [the defendant]" (18) indicates that one ought to examine the substance of the post taken as whole.
74. As I have stated in point 94 of my Opinion in
Colegio de Oficiales de la Marina Mercante Española, the need to look at the post as a whole follows from the facts that, on the one hand, Member States undoubtedly have the power to organise their administrative services as they wish and to invest particular posts with public law powers, and, on the other, it is necessary to apply the exception for employment in the public service narrowly and uniformly.
75. If one bears in mind the fact that Article 39(4) EC is an exception to the principle of free movement whose scope is to be restricted to what is absolutely necessary, it appears to me to be incompatible with the correct application of that exception that the public law powers and duties normally conferred on an employment should be sufficient to exclude it from the principle of free movement of workers as
" employment in the public service" .
76. According to the national court, the post of master or captain on a fishing vessel engaged in small-scale maritime shipping is an employment consisting in being in charge of small vessels with small crews and engaged in catching and processing fish, and in which the exercise of functions on behalf of the State plays a very small role, if indeed any at all.
77. On an overall consideration of the duties and powers actually involved in employment as master (captain) on fishing vessels engaged in small-scale maritime shipping, I therefore conclude that those posts do not satisfy the
" very strict" (19) conditions for the application of the exception in Article 39(4) EC to the free movement of workers.
78. As to why Article 39(3) EC cannot be relied on to justify a nationality requirement, I refer to points 98 to 100 of my Opinion in
Colegio de Oficiales de la Marina Mercante Española . These apply
mutatis mutandis
to the present case. Article 39(3) EC cannot therefore justify a nationality requirement in relation to the pursuit of employment as a master (captain) in the circumstances of the present case.
VI ─ Conclusion
79. For the foregoing reasons, I propose that the Court reply as follows to the question submitted to it:
Article 39 EC precludes provisions of national law which, as in the circumstances of the main proceedings, impose a condition of nationality of the flag Member State for the exercise of employment as master (captain) of a fishing vessel used in small-scale maritime shipping and flying the flag of that Member State.
(1) .
(2) Opinion in Case C-405/01
Colegio de Oficiales de la Marina Mercante Española
v
Administración del Estado, Asociación de Navieros Españoles (ANAVE) intervening
[2003] ECR I-10391.
(3) Case 66/85 [1986] ECR 2121, paragraphs 26 to 28.
(4) Case C-4/91 [1991] ECR I-5627, paragraph 7.
(5) Paragraph 1 provides:
" (1) The Federal German flag shall be flown by all merchant shipping vessels and other vessels designed for sea voyages ( " seagoing vessels" ) whose owners are German and resident within the territorial scope of application of the Basic Law.
"
(6) Case C-290/94 [1996] ECR I-3285, paragraphs 34 and 35.
(7) The Court referred to the Opinion of Advocate General Léger in Case C-473/93
Commission
v
Luxembourg
[1996] ECR I-3207, points 110 to 112.
(8) Case C-114/97 [1998] ECR I-6717.
(9) Case C-283/99 [2001] ECR I-4363, paragraph 95.
(10) Case 149/79
Commission
v
Belgium
[1980] ECR 3881.
(11) Case 2/74 [1974] ECR 631.
(12) It refers to Case 75/63
Hoekstra (née Unger)
[1964] ECR 177, point 2.
(13) See
Commission
v
Belgium
(cited above in footnote 10), paragraph 10.
(14) See to that effect the definition of the concept of State power in the Opinion of Advocate General Mayras in
Reyners
(cited above, footnote 11); see also the Opinion of Advocate General Mancini in Case 307/84
Commission
v
France
[1986] ECR 1725, at p. 1729 et seq.
(15) See, for example, the Opinion of Advocate General Léger in
Commission
v
Greece
(cited above, footnote 6), paragraph 23, and that of Advocate General Lenz in
Lawrie-Blum
(cited above, footnote 3), at p. 2135.
(16) See, for example, the national law in
Colegio de Oficiales de la Marina Mercante Española
(cited above, footnote 2).
(17) Moreover ─ apart from the fact that in any event Member States in principle cannot rely on international treaties concluded with non-member countries to escape their obligations under Community law ─ the
" genuine link"
to the flag State required by Article 91 of the Convention on the Law of the Sea need not be provided by the nationality of the master. This follows from, for example, Article 97 of the Convention, according to which no penal or disciplinary proceedings may be instituted against the master
" except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national" . As the appellants in the main proceedings have explained, the Law on flagging rights provides that as regards German vessels, the
" genuine link"
between the vessel and the flag State must be provided by ownership in the vessel.
(18) Lawrie-Blum
(cited above, footnote 3), paragraph 28. See also the Opinion of Advocate General Lenz in the same case, at p. 2136, who refers in this connection to the principle of proportionality.
(19) Lawrie-Blum
(cited above, footnote 3), paragraph 28.