WRITTEN QUESTION E-1740/02

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

(19 June 2002)

Subject: Follow-up question to Written Question E-1022/02 on the free movement of ships' captains and first officers

The Commission's answer to Written Question E-1022/02(1) is incomprehensible. The Commission based its answer on Article 39(3) and (4). In Cases C-114/97 and C-283/99, the Court of Justice clearly indicated the limits of those provisions, which are, of course, also applicable to the matter at issue here. The Court also explicitly uses the words: whatever the duties of the employee. Accordingly, the Commission incorrectly refers to the special functions [to be performed] due to the special characteristics of maritime navigation. Of course, no two sets of duties are absolutely identical, and there is, therefore, no such requirement in any legal order for reference to be made to case-law. It is quite understandable that the Commission wants to review its opinion in the light of the ruling in the Anave case, but it is incorrect in law. Proceedings before the Court can take years, and the ruling is relevant only at the time when it is handed down, not before. A kind of vacuum period may not exist. Finally, the Commission failed to answer questions 3 and 5 at all, and it answered questions 1, 2 and 4 in general and not in detail.

1. Can the Commission give as detailed an answer as possible to each and every individual question tabled in Written Question E-1022/02?

2. Can it indicate the timetable for and the background to the Anave case?

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

Answer given by Mrs Diamantopoulou on behalf of the Commission

(23 July 2002)

The Commission would refrain from making more detailed remarks on the possible implication of the case law referred to by the Honourable Members as two cases on the specific question of captains and first officers, the Anave case and the very recently introduced Anker case(1) are still sub iudice.

The Commission has not received information about the European Court of Justice's timetable for dealing with the Anave case.

The background to the case is the following:

- the Spanish Merchant Navy Officers Association brought before the Supreme Court of Spain contentious administrative Action against Royal decree No 2062/1999 concerning the regulation of the basic level of training in maritime professions. The Spanish Court brought the matter before the European Court of Justice for a preliminary ruling because of the doubts it had as to whether the interpretation of the Community rules, as given until now by the Court of Justice, allows the retention of provisions under which the jobs of captains and first officers who are employees of the shipowning companies, are unconditionally reserved to nationals of a Member State.

- Under Spanish law citizens of Member States shall be eligible for employment as ships' crew, provided that such employment does not involve the exercise, even on an occasional basis, of public duties, which is reserved to Spanish citizens (Article 77(2) of Law 27/1992 of National Ports and the Merchant Navy). Article 8 of the Royal decree No 2062/1999 contains specific rules for the recognition of professional qualifications of citizens of the Community with diplomas issued by one of the Member States. In Article 8(2) reference is made to posts which involve or may involve the exercise of public duties allocated by law to Spaniards, such as those of captain, skipper or first officer. These posts shall remain reserved to Spanish citizens.

- As an exception from the main rule of reserving posts of captains and first officers to Spaniards, Article 8(3) of the Royal decree opens up the posts of captain and first officer, under conditions of reciprocity, to the nationals of other Member States as regards employment on merchant ships with a gross tonnage of less than 100 gross tonnage (GT), which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which Spain has sovereignty, sovereign rights or jurisdiction.

(1) Reference for a preliminary ruling by the Schleswig-Holsteinisches Oberverwaltungsgericht in the administrative-law case of 1. Albert Anker, 2. Klaas Ras, and 3. Albertus Snoek against Federal Republic of Germany, Case C-47/02, OJ C 109, 4.5.2002.