3.

As regards the consequent examination therefore of the question whether the application is well-founded, one point can first of all be clarified. If the view is taken that the provisions referred to by the Commission (Article 48 of the EEC Treaty and Articles 1, 4 and 7 of Regulation No 1612/68) are applicable to workers in sea transport, there can be no doubt that the French provisions in question, as they appear from the Code du Travail Maritime of 13 December 1926 in conjunction with the aforesaid ministerial orders implementing them, are incompatible with Community law. The principle obtains in Community law that nationals of a Member State are entitled to take up employment for salaries or wages within the territory of another Member State in accordance with the provisions applying to workers of the Member State concerned. In this respect Article 4 of Regulation No 1612/68 is clear when it provides: ‘Provisions laid down by law, regulation or administrative action of the Member States which restrict by number or percentage the employment of foreign nationals in any undertaking, branch of activity or region, or at a national level, shall not apply to nationals of the other Member States.’ In contrast to this under the French Code du Travail Maritime certain employments on ships are completely and others partly reserved to French nationals. Special consent is required to except foreigners from this rule, which without doubt makes it more difficult for them and thus discriminatory. However, as already mentioned, the fundamental question in dispute is whether the Treaty provisions on freedom of movement for workers in fact apply to sea transport. Let me remind you first of all of the arguments of the French Government. This states that it appears clearly from the Treaty that a special system applies in the transport sphere and that a common policy must be developed in this sphere to attain the objectives of the Treaty. In recognition of the fact that special problems attach to sea transport, there is a special provision in Article 84 that the provisions on transport do not apply to it. It can therefore certainly be taken that the general provisions of the Treaty could not apply to sea transport. These general provisions could be applied to sea transport only by a special decision of the Council, reached unanimously and within the framework of a common policy. This is also true in the sphere of freedom of movement for workers, since the freedom of movement of seamen is an essential part of the aforesaid common policy. Against this the Commission takes the view that the EEC Treaty applies basically to all branches of the economy. The general provisions of the Treaty do not apply in a particular field only when a provision expressly so states. There is no such proviso for sea transport as regards freedom of movement for workers. In truth Article 84 can in no way be understood to mean that sea transport is completely excluded from the Treaty. The meaning of the provision is, rather, simply to exempt sea transport from the application of the special provisions of the Treaty on transport. In judging this dispute regard must be had to the position which the Title ‘Transport’ plainly occupies in the Treaty. It is significant that in principle integration under the EEC Treaty is of a comprehensive character and is not to take place separately according to the economic sector. This implies the principle that particular provisions, which relate to individual economic sectors, must be interpreted narrowly by reason of their exceptional nature. As regards the transport sector, for which the necessity of a common policy is embedded in the Treaty, it can therefore not be taken as a premise that this economic sphere is subject to special rules in every respect. Rather, special rules were considered necessary simply in the spheres which are expressly mentioned in the Title ‘Transport’. Such spheres are international transport to or from the territory of a Member State or passing across the territory of one or more Member States and the conditions under which non-resident carriers may operate transport services within a Member State (Article 75). Another is the sphere of transport rates and conditions (Article 78), the abolition of discrimination in transport within the Community (Article 79) or the sphere of rates involving an element of support within the meaning of Article 80. Such is, finally, the sphere of charges or dues in respect of the crossing of frontiers which are charged by a carrier (Article 81 of the Treaty). These rules however in no way exclude the application of the general provisions of the Treaty, especially the principle of freedom of movement for workers which is particularly significant for integration. An analysis of a few special provisions of the Treaty points in the same direction, perhaps even more persuasively. The Commission rightly refers in this connection to Article 61 (1) of the Treaty in which it is stated: ‘Freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport.’ It makes it clear that Articles 59 to 66 of Chapter 3 on services are not to be applied to transport. For this a special Title applies whereby, since this Title includes Article 84 on sea transport, it is moreover clear that this is likewise excluded from the Chapter on services. Indeed it can be said that a special provision such as that of Article 61 would not have been necessary if the general provisions of the Treaty did not apply to transport anyway. In other words the existence of a special provision points to the fact that the general provisions of the Treaty apply also to transport. The Commission further refers to Article 77 of the Title ‘Transport’ in which it is stated: ‘Aids shall be compatible with this Treaty if they meet the needs of coordination of transport or if they represent reimbursement for the discharge of certain obligations inherent in the concept of a public service.’ If this is compared with the provision of Article 42 (according to which the provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council) and if the wording of Article 77 is borne in mind, which obviously implies the application of Articles 92 to 94, then the conclusion drawn by the Commission is compelling, that the object of Article 77 is to exclude the application of the rules of the Treaty on competition only as regards certain aids in the transport sector. This too points clearly to the fact that the Treaty proceeds on the basis that the general provisions, which include the rules on competition, apply to transport. Finally in support of its argument, the Commission could refer to the case law of the Court and in particular to the judgment in Case 22/70 (Commission v Council) of 31 March 1971 (Rec. 1971, p. 263). Indeed the same basic tendency is at the root of this judgment, which was given on the competence of the Community to conclude treaties in the transport sector. This follows mainly from the sentence in which it is stated: ‘In the absence of specific provisions of the Treaty relating to the negotiation and conclusion of international agreements in the sphere of transport policy … one must turn to the general system of Community law in the sphere of relations with third countries.’ Nothing can be derived from this other than the principle that the general provisions of the Treaty are inapplicable to transport only insofar as special provisions expressly provide exceptions. It must however now be pointed out that the arguments so far adduced applied simply to transport. It remains to be examined whether they also cover sea transport, to which, as is known, a special provision is devoted in the Title ‘Transport’. This special provision (Article 84) states as follows: ‘The provisions of this Title’ (viz. the Title on transport) ‘shall apply to transport by rail, road and inland waterway. The Council may, acting unanimously, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport.’ It must first be observed that from the point of view of the system of the Treaty it is an exception within an exception. This immediately indicates a narrow interpretation. Further, Article 84 must be looked at as a whole; its meaning is simply that the rules for transport do not apply to sea transport and that this lacuna must be filled by special decisions of the Council. On the other hand a statement of the exclusion of the general provisions of the Treaty cannot be inferred. Moreover, beyond these general considerations the following observations support the view that sea transport is also subject to the general provisions of the Treaty. Carriers are also engaged outside the sphere of actual transport; they need personnel not only for transport and they also undertake financial operations and import and export material for their businesses. Against this the establishment of the Common Market is achieved by the establishment of free movement of goods, persons, services and capital in general and not separately according to economic sectors. If, taking the view that the Treaty basically does not include sea transport it were necessary to consider whether a more or less narrow realtionship exists with this economic sphere and thereupon decide the application of the general Treaty rules (on freedom of movement for goods, persons, services and capital) this would lead to considerable legal difficulties and uncertainties in the absence of precise criteria for delimitation, which it is not possible to conceive that the draftsmen of the Treaty intended. As regards the sphere or freedom of movement for workers which is of particular interest here, a principle which, as stated, is of basic significance in the context of integration, it is further of importance that Article 48 (4) of the Treaty provides an exception only in the case of employment in the public service and not for other employments. If it had been intended that the said Title should not include workers in sea transport it would have been simple to have provided an appropriate exception in Article 48. The fact that this was not done can only be understood as supporting the line of argument which the Commission has taken. The fact that the list in Annex III to the EEC Treaty, which relates to the provision of Article 106 (payments between Member States), does not exclude sea transport, supports this argument. In the same way Regulation No 141 of the Council exempting transport from the application of Council Regulation No 17 (OJ No 124/62, 28.11.1962, p. 2751) is of importance. Article 1 deals simply with transport and Article 3 provides that Article 1 shall remain in force, as regards transport by rail, road and inland waterway, until 31 December 1965. From this it follows that it also includes sea transport. This too presupposes that the general provisions of the Treaty (including the rules of competition) apply equally to sea transport. If this were not so it would indeed appear incomprehensible that the Council should have found it necessary to lay down an exception simply for transport, based moreover only on Article 87 of the Treaty, i.e. not taking into consideration Article 84 (2). Finally, in the present context — if the arguments (which are not at all unimportant) of the Commission based on the wording of the Common Customs Tariff are disregarded — Regulation No 3 on social security for migrant workers and Regulation No 1408/71 of 14 June 1971 (OJ L 149 of 5. 7. 1971) which replaces it are instructive. They were issued under Article 51 of the Treaty with the object of facilitating freedom of movement for workers by the provision of social security. If, as appears from Article 4 (6) and Article 13 (b) of Regulation No 3 and Article 4 (2) and Article 13 (b) of Regulation No 1408/71, they also cover transport workers, including those in sea transport, then it can only be deduced that the Council in this sphere too proceeded from the basis that the principle of freedom of movement was applicable, and did so moreover without finding it necessary to rely on Article 84 (2). All the above considerations prompt me to agree with the view of the Commission that the general provisions of the Treaty, including those on the freedom of movement of workers, apply to sea transport, and to attach no decisive weight to the contrary arguments of the French Government. This holds true as regards its reference to Article 77 of the Treaty (namely the fact that the aids referred to therein do not come into question for sea transport), the reference to the general programme for the removal of restrictions on freedom of establishment and the reference to the preparatory work on the Treaty with its various textual proposals on Article 74, which in my view do not lead to the conclusion drawn by the French Government. After all I have stated (in particular too on the question of a formal settlement of the national legal position) and having regard to the relevant case law according to which it is unimportant which state organ is responsible for an infringement of the Treaty, it is clear that the action brought by the Commission is well-founded.