Case C-94/08: Action brought on 29 February 2008 — Commission of the European Communities v Kingdom of Spain
Date: 2008-02-29
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, crew, job access, ship's flag

C 107/20

EN

Official Journal of the European Union

26.4.2008

2. As regards the social purpose of the directive, is it sufficient
for the national legislation to use the employee's initial claim
relating to pay merely as a basis of comparison against
which to determine per relationem the benefit to be guaran-
teed through the intervention of the guarantee institution or
is it a requirement that the worker's claim relating to pay
against the insolvent employer be protected, through the
intervention of the guarantee institution, by ensuring that its
scope, guarantees and time-limits and the procedures for its
exercise are the same as those available for any other employ-
ment claim under the same legal order?

3. Do the principles inferable from Community legislation, and
in particular the principles of equivalence and effectiveness,
allow the application to employees' outstanding claims
relating to pay, for the period determined in accordance with
Article 4 of Directive 80/987, of limitation rules that are less
favourable than those applied to claims of a similar nature?

(1) OJ L 283, p. 23.

Annex II project
the
project to assessment in accordance with Articles 5 to 10 of
the Directive?

there is no requirement

to subject

2. If the answer to Question 1 is in the affirmative whether
that requirement was satisfied by the content of the letter
dated 4 December 2006 from the Secretary of State?

3. If the answer to Question 2 is in the negative, what is the
extent of the requirement to give reasons in this context?

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment of
the effects of certain public and private projects on the environment
(OJ L 175, p. 40).

(2) OJ L 73, p. 5.
(3) Directive 2003/35/EC of

the European Parliament and of

the
Council of 26 May 2003 providing for public participation in
respect of the drawing up of certain plans and programmes relating
to the environment and amending with regard to public participation
and access to justice Council Directives 85/337/EEC and 96/61/EC
(OJ L 156, p. 17).

Reference for a preliminary ruling from Court of Appeal
(Civil Division) (United Kingdom) made on 21 February
2008 — The Queen on the application of Christopher
Mellor v Secretary of State for Communities and Local
Government

(Case C-75/08)

(2008/C 107/31)

Language of the case: English

Action brought on 29 February 2008 — Commission of
the European Communities v Kingdom of Spain

(Case C-94/08)

(2008/C 107/32)

Language of the case: Spanish

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicant: Christopher Mellor

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and L. Lozano Palacios, agents)

Defendant: Kingdom of Spain

Form of order sought

Defendant: Secretary of State for Communities and Local
Government

Questions referred

1. Whether under Article 4 of Council Directive 85/337/EEC (1)
as amended by directives 97/11/EC (2) and 2003/35/EC (3)
(‘the Directive’) Member States must make available to the
public reasons for a determination that in respect of an

— Declare that, by maintaining in its legislation the require-
ment of Spanish nationality for persons occupying the posts
of captain and chief mate of all merchant ships flying the
Spanish flag other
ships with a gross
than merchant
tonnage less than 100 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, the Kingdom of Spain has
failed to fulfil its obligations under Community law, and in
particular Article 39 EC.

— order Kingdom of Spain to pay the costs.

26.4.2008

EN

Official Journal of the European Union

C 107/21

Pleas in law and main arguments

Action brought on 7 March 2008 — Commission of the
European Communities v Republic of Austria

In accordance with the Spanish legislation, the posts of captain
and chief mate of all merchant ships flying the Spanish flag
other than merchant ships with a gross tonnage less than
100 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,
must be occupied by Spanish citizens.

Parties

(Case C-107/08)

(2008/C 107/33)

Language of the case: German

The Commission considers that the requirement, as a general
rule, that those posts be occupied by persons of Spanish nation-
ality infringes Article 39 EC and cannot be justified by the dero-
gation of Article 39(4). The Commission's interpretation is
supported in particular by Case C-405/01 (1),
in which the
Court ruled that the scope of that derogation must be limited to
what is strictly necessary for safeguarding the general interests
of the Member State concerned, and in respect of the posts
concerned, those interests cannot be imperilled if the relevant
rights under powers conferred by public law are exercised only
sporadically, even exceptionally, by nationals of other Member
States. The Kingdom of Spain has not amended the legislation
in the way recommended by the Commission, although it
undertook to make the necessary amendments in its response
to the reasoned opinion.

(1) Colegio

de Oficiales

de

la Marina Mercante Española

[2003]

ECR I-10391.

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and A. Alcover San Pedro, acting as
Agents)

Defendant: Republic of Austria

Form of order sought

— The Republic of Austria has infringed its obligations under
Article 2 of Directive 2005/33/EC of
the European
Parliament and of the Council of 6 July 2005 amending
Directive 1999/32/EC as regards the sulphur content of
marine fuels (1) by failing to adopt
the regulations and
administrative provisions necessary to implement the Direc-
tive or by failing to inform the Commission of their adop-
tion.

— Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The time-limit for implementation of the Directive expired on
11 August 2006.

(1) OJ 2005 L 191, p. 59.