CELEX: 61994CC0334
Language: en
Date: 1995-11-16 00:00:00
Title: Opinion of Mr Advocate General Fennelly delivered on 16 November 1995. # Commission of the European Communities v French Republic. # Failure of a State to fulfil obligations - Registration of vessels - Right to fly the French flag - Nationality requirements for owner and crew - Failure to comply with the judgment in Case 167/73. # Case C-334/94.

OPINION OF ADVOCATE GENERALFENNELLY delivered on 16 November 1995  (1)
         Case C-334/94 CommissionvFrance
            ()
            
      
         
        Introduction
      
      1.  This case concerns French laws on the registration and crewing of fishing and pleasure boats and of merchant ships.  It raises
      interesting questions about,  
       inter alia , the jurisdiction of the Court in respect of infringement actions after the coming into force of the Treaty on European Union,
      and the application of the prohibition on discrimination on grounds of nationality within the scope of application of Community
      law.
      
      2.  The Commission asks the Court, in accordance with Article 169 of the Treaty establishing the European Community (hereinafter
       
      the Treaty):
      (i) to find that, by the maintenance in force of laws or other measures restricting registration and the right to fly the French
      flag to ships in which a majority stake is owned by persons with French nationality, or owned by legal persons with certain
      specified links with France, and restricting crewing, in a specified proportion, to French citizens, the French Republic is
      in breach of Articles 6 (on non-discrimination), 48 (on free movement of workers), 52, 58 and 221 (on freedom of establishment
      and participation in companies) of the Treaty, and of legislative provisions setting out more detailed prescriptions on free
      movement; 
      
         			(2)
         		
      
      
      (ii) to find that the French Republic is in breach of Article 171 of the Treaty by its failure to take the necessary measures to
      comply with the judgment of the Court in  Commission v  France
      
         			(3)
         		 (by which the French Republic has already been found to be in breach of its obligations under the Treaty in respect of the
      crewing requirement);  and 
      
      (iii) to order the French Republic to bear the costs of the proceedings. The French Government does not contest the Commission's position, save to point out that steps are being taken to rectify
      the matter by legislation.  There was no oral hearing.
       Factual and legislative background
      
      3.  French law makes the flying of the French flag by maritime vessels contingent on registration (
       francisation ). 
      
         			(4)
         		  To be registered, a vessel must:
      (i) belong (in respect of at least a majority stake) to French nationals, who, if resident in France for less than six months
      a year, must elect French domicile for all administrative and judicial purposes relative to the vessel;  or 
      
      (ii) belong wholly to a company with its headquarters in France, or a company which, having its headquarters in another State where,
      pursuant to a convention concluded with France, French companies are permitted to exercise their activities, elects French
      domicile for all administrative and judicial purposes relative to the vessel (in either case, and irrespective of the location
      of the company headquarters, certain management and supervisory officers, or a majority thereof, or a majority of the shareholders,
      depending on the type of company, must be French nationals);  or 
      
      (iii) belong wholly to a combination of natural and legal persons fulfilling the conditions in categories (i) and (ii);  or 
      
      (iv) be destined to belong to persons in categories (i) to (iii) above after the exercise of an option to acquire the vessel under
      a leasing agreement;  or 
      
      (v) in the case of a vessel flying a foreign flag, become French property in total after shipwreck on the French coast and after
      repairs amounting to at least four times the purchase price. 
      
      Registration may also be accorded with the agreement of the Ministers for the Marine and for the Budget:
      (a) where natural and legal persons in categories (ii) to (iv) above own only a majority interest in the vessel in circumstances
      where a total interest is required, so long as the management of the vessel is entrusted to them, or to other persons fulfilling
      the conditions set out;  or 
      
      (b) the vessel has been taken under a bareboat charter by a French undertaking which controls, fits and manages it, where such
      a change in flags is permitted in such circumstances by the State whose flag it originally flew. 
      
         			(5)
         		
      
      
      4.  Certain French legislative provisions require that the crews of maritime vessels be of French nationality, in proportions
      defined by ministerial order. 
      
         			(6)
         		  Article 4 of a decree of 7 August 1967 provides that (subject to certain derogations permitted by Article 3 of the Law of
      1926) crew members of French vessels must be of French nationality. 
      
         			(7)
         		  The Court has already found this national rule to be in breach of Article 48 of the Treaty and of Article 4 of Council Regulation
      (EEC) No 1612/68 
      
         			(8)
         		 in  
       Commission  v  
       France . 
      
         			(9)
         		  A ministerial circular adopted subsequent to that decision provides that the terms of this decree are not applicable to
      nationals of other Member States of the Community. 
      
         			(10)
         		 Procedure
      
      5.  The Commission commenced the pre-contentious phase under Article 169 of the Treaty by addressing to the French Government
      four formal letters of notice, respectively, on 21 August 1989 (on the registration of pleasure boats);  on 16 May 1990 (on
      registration by legal persons);  on 21 May 1990 (on the registration of fishing vessels, and on the crewing requirements condemned
      in  
       Commission  v  
       France ); 
      
         			(11)
         		  and on 24 April 1992 (on the registration of merchant vessels).  There was no reply to the first two letters.  The French
      Government replied to the letter of 21 May 1990 on 30 July of that year, seeking an extension of the time-limit for reply;
       in a letter of 17 January 1991, it stated its belief in the principle requiring a real economic link between a ship and the
      State whose flag it flies, but added that it was planned to replace the existing ownership rules with conditions based on
      nationality of a Community Member State.  The French Government replied to the letter of notice of 24 April 1992 on 7 July
      1992, referring to a draft law which would bring French law into conformity with Community law in this field, and also in
      that of the employment of nationals of other Member States on ships flying the French flag.
      
      6.  Having received no further communication from the French Government, in particular concerning changes in the French legal
      regime, the Commission issued a single reasoned opinion, relating to the four letters of notice, on 11 October 1993, and laid
      down a period of two months for compliance.  The French Government replied by a brief note of 24 December 1993, stating that
      it had not been possible to debate the projected legislative reforms in the French Parliament.  On 22 July 1994, the French
      Government sent to the Commission a copy of the draft law which the Commission considers would, if enacted, remedy all of
      the breaches of Community law alleged by it in the instant case.  (The projected law would reserve the posts of captain and
      second captain to French nationals, but the Commission concedes that this exception is justified under Article 48 of the Treaty
      because the functions of these officers include the effective exercise of public authority.)  However, the Commission received
      no further communication in respect of the proposed legislative changes, and commenced the present proceedings pursuant to
      Article 169 of the Treaty, on 22 December 1994.  The French Government lodged its defence on 15 March 1995.  The parties having
      indicated their consent, the Court decided pursuant to Article 44a of the Rules of Procedure to dispense with an oral hearing.
      
      7.  Part (ii) of the Commission application, summarized in paragraph 2 above, invokes Article 171 of the Treaty and is expressly
      based on non-compliance by the French Republic with a judgment of the Court condemning the French law on crewing nationality
      requirements as outlined in paragraph 4 above.  Part (i) of the application in part concerns the same French law, but alleges
      the breach of a different provision of Community law (Article 52 of the Treaty).  The coming into force of the Treaty on European
      Union (sometimes referred to hereinafter by its colloquial title,  
      the Maastricht Treaty) requires me to consider the effect, if any, on these aspects of the present action of the resulting amendment of Article 171
      of the Treaty.
       Relevance of Article 171(2) of the Treaty
      
      8.  Article 169 of the Treaty empowers the Commission to ask the Court to declare that a Member State is in breach of any provision
      of Community law (including the Treaty).  The obligation of Member States to comply with judgments of the Court was, and still
      is, stated in Article 171 of the Treaty.  Prior to the coming into force of the Treaty on European Union on 1 November 1993,
      it stood on the same footing as all other Treaty provisions, imposing obligations on Member States.  No special procedure
      was provided for the enforcement of this obligation, and action was taken by the Commission, as for all alleged breaches of
      Community law, under Article 169. 
      
         			(12)
         		  Article 171 now contains a distinct procedure in paragraph 2 for actions for failure to comply with a previous judgment
      of the Court.
      
      9.  As amended by the Maastricht Treaty, Article 171 of the Treaty now states: 
      1.  If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be
      required to take the necessary measures to comply with the judgment of the Court of Justice. 
      
      2.  If the Commission considers that the Member State concerned has not taken such measures it shall, after giving that State
      the opportunity to submit its observations, issue a reasoned opinion specifying the points on which the Member State concerned
      has not complied with the judgment of the Court of Justice. If the Member State concerned fails to take the necessary measures to comply with the Court's judgment within the time-limit
      laid down by the Commission, the latter may bring the case before the Court of Justice.  In so doing it shall specify the
      amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.
      If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum
      or penalty payment on it. This procedure shall be without prejudice to Article 170.
      
      
      10.  The second paragraph, inserted into Article 171 of the Treaty, replicates in many respects the Article 169 procedure:  it
      envisages a notification seeking observations, and a reasoned opinion setting a time-limit for Member State compliance, before
      the commencement, at the Commission's discretion, of the contentious phase before the Court.  The outstanding distinguishing
      feature of this new provision is the respective roles it envisages for the Commission in proposing, and for the Court in imposing,
      a financial sanction on a Member State. 
      
         			(13)
         		  Its intent is clearly to encourage compliance with judgments of the Court.  A recalcitrant Member State will already have
      had several opportunities, first through the Article 169 procedure, pre-judgment, and then, through Article 171(2), post-judgment,
      to observe the requirements of Community law.
      
      11.  The question which, in my view, must be addressed is whether the Commission should have employed this new procedure, specific
      to Article 171 of the Treaty, rather than, as it has done, the traditional procedure under Article 169.  On the one hand,
      the Court decision whose enforcement is at issue, in which judgment was given on 4 April 1974, predates the coming into force
      of the Treaty on European Union, as do the Commission's formal letter of notice and reasoned opinion (21 May 1990 and 11 October
      1993, respectively).  On the other hand, the period for compliance laid down in the reasoned opinion expired on 11 December
      1993, and the Court was seised of the contentious proceedings on 22 December 1994, that is after that Treaty had come into
      force.
      
      12.  Since the issue of the continued competence of the Commission to employ Article 169 of the Treaty, in a case to which Article 171(2)
      may arguably apply, has not been raised, I have to consider whether I should do so in advising the Court. 
      
         			(14)
         		  If the Commission's competence has been affected by the amendment to Article 171, the Court's jurisdiction is equally affected.
       The Court cannot be given jurisdiction merely by consent of the parties. 
      
         			(15)
         		  The Court may raise of its own motion any absolute bar to proceeding with a case, as is made clear by Article 92(2) of the
      Rules of Procedure;  it emerges, further, from the consistent case-law of the Court, that matters going to the jurisdiction
      of the Court are matters of public policy, and  
       must  be so raised. 
      
         			(16)
         		  The Court also feels bound of its own motion to reject as inadmissible applications in which an inappropriate procedure
      is used (often in order to escape the application of rigorous time-limits or other conditions to a case brought in the proper
      fashion). 
      
         			(17)
         		  It is therefore the duty of the Court to raise the matter of admissibility where a procedure is used other than that which
      is mandatory under the Treaties for a case of that type, and  
       a fortiori  where appreciably different consequences for the parties may ensue from the use of the one procedure rather than the other. 
      
         			(18)
         		
      13.  I must therefore ask whether the procedure set out in Article 171(2) of the Treaty is mandatory in cases in which it is sought
      to enforce Article 171(1), or whether the Commission can continue, at its discretion or in transitional cases, to act in such
      cases through proceedings instituted under Article 169.  I believe that use of the new procedure under Article 171(2) of the
      Treaty is mandatory  
       in cases to which it applies , because a specific procedure has now been provided, which on the ordinary principles of construction derogates from any
      provision of more general application in so far as they are inconsistent. 
      
         			(19)
         		  Such inconsistency is disclosed by the mandatory character of the language employed in the first indent of Article 171(2).
       That language (which also appears in the second indent) requires, in my opinion, that certain steps be taken before the Commission
      can act under Article 171(2):  it must give the Member State the opportunity to submit observations;  it must issue a reasoned
      opinion;  and at a later point, if it exercises its discretion to bring the matter before the Court, the Commission must specify
      its view of the appropriate amount, in the circumstances, of a lump sum or penalty payment.  The first two steps may be affected,
      as we shall see, by the possibility of the imposition of such sanctions.
      
      14.  This view is not inconsistent with the similar mandatory language of Article 169.  Article 171(2) of the Treaty is specific
      to the failure of a Member State to take measures to comply with a Court judgment and requires the Commission to follow its
      procedure in pursuit of such failure.  This new Article 171(2) procedure is stated (in the fourth indent) to be  
      without prejudice to Article 170, a provision of general application, while no such reference is made to Article 169.  Thus, while Article 171(2) expressly
      envisages the continued possibility of Member State enforcement action pursuant to a general enforcement provision, without
      the imposition of pecuniary sanctions, it is implicit that no such option remains open to the Commission under Article 169.
       It follows that the procedure set out in Article 171(2) must now be employed in any case where the Commission seeks to enforce
      Article 171(1) of the Treaty. 
      
         			(20)
         		  However, this general proposition is subject, in my view, to an exception in respect of transitional cases such as the present,
      for the reasons outlined below.
      
      15.  It is, in my opinion, a corollary of the mandatory character of the new procedure under Article 171(2) of the Treaty that
      the Commission cannot bring a new action under Article 169 against the Member State concerned based on the substantive Community
      law provisions which have already been the subject-matter of an earlier judgment.  In the absence of a change in material
      facts, the existing judgment of the Court establishes that breach, and it would be otiose to request the Court to restate
      it.  The Court refuses to make a declaration to precisely the same effect as an earlier judgment which has the force of  
       res judicata . 
      
         			(21)
         		 It is the further distinct breach by a Member State of its Treaty obligations, in failing to take the necessary measures
      to comply with the judgment of the Court, which justifies a further action based on Article 171(1) of the Treaty.
      
      16.  However, the Commission and the Court are primarily concerned to ensure the observance of Treaty obligations, rather than
      with the content of the offending national provision, practice or omission  
       per se .  Therefore, I believe that, even after a Member State has been the addressee of a judgment of the Court, finding it to be
      in breach of a particular obligation under the Treaty, the Commission remains competent to invoke further distinct Treaty
      obligations in proceedings taken under Article 169 in respect of the same national provision, practice or omission.  Consequently,
      the Commission is within its rights in bringing before the Court that part of part (i) of its application which concerns the
      French crewing requirements condemned in the 1974 judgment, but on the basis of their alleged incompatibility with different
      Treaty provisions. 
      
         			(22)
         		
      17.  I must now ask if the Article 171(2) procedure applies to the alleged non-execution of Court judgments pre-dating the entry
      into force of the Treaty on European Union.  If not, its mandatory application (to the enforcement only of those judgments
      issued after 1 November 1993) would be irrelevant in the circumstances of the present case.  At least one commentator has
      espoused the view, with which I agree, that the possibility of financial sanctions under the new procedure is inapplicable
      in such cases, on the basis of the principles of legal certainty and against retrospective operation of laws. 
      
         			(23)
         		  These are general principles of Community law, which apply with particular force to the retroactive imposition of penal
      sanctions, 
      
         			(24)
         		  but also prohibit (subject to justified exceptions) retroactive legal measures of a civil nature. 
      
         			(25)
         		  Subject to this important point, I believe, none the less, that the procedure is applicable to infringement proceedings
      in respect of what might be called pre-Maastricht judgments, provided that the appropriate pre-contentious procedure is observed
      in respect of any post-Maastricht period of non-compliance. 
      
         			(26)
         		
      18.  The obligation expressed in Article 171(1) remains unchanged, so that there is no question of Member States being placed under
      a new primary obligation.  However, they are subject to a potential new obligation to pay a lump sum or penalty payment in
      the event of failure to fulfil this primary obligation.  In my view, it is quite clear that the Court cannot impose a penalty
      in respect of a period of disobedience to a judgment prior to 1 November 1993.  Any sanction imposed on a Member State under
      Article 171(2) of the Treaty for a continuing breach of Article 171(1) should relate only to the period after 1 November 1993.
       I would expect the Commission to take account of these principles when specifying to the Court the amount of the lump sum
      or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.  However,
      it remains my clear view that the Commission's power to pursue Member States for any post-Maastricht period of non-compliance
      with Court judgments of any date derives, since 1 November 1993, from Article 171(2) of the Treaty and not from Article 169,
      regardless of whether the Court can impose a penalty for earlier periods of non-compliance.
      
      19.  In view of what I have just said, I must now consider whether the otherwise mandatory application of Article 171(2) of the
      Treaty in cases such as the present is excluded by the particular facts summarized at paragraph 11.
      
      20.  I will first make a preliminary point about the fact that the text of Article 171(2) of the Treaty is, in one respect, expressly
      more demanding than that of Article 169, in that it requires the Commission in its reasoned opinion to specify the points
      on which the Member State concerned has not complied with the judgment of the Court.  However, while Article 169 is silent
      on the degree to which the Commission must specify the failure of a Member State to fulfil an obligation under this Treaty,
      it has been interpreted in practice to require the Commission to give a coherent exposition of the reasons which led it to
      this conviction. 
      
         			(27)
         		  The requirements of both articles are therefore identical in this respect, and were, in my view, complied with in the instant
      case.
      
      21.  The Court has made clear in its consistent case-law that the parameters of an Article 169 action are set by the pre-contentious
      procedure. 
      
         			(28)
         		  As the Court stated recently in  
       Commission  v  
       Spain ,  
      [t]he proper conduct of the pre-litigation procedure constitutes an essential guarantee required by the Treaty not only in
      order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have
      a clearly defined dispute as its subject-matter. 
      
         			(29)
         		  The principle that the subject-matter of the litigation should crystallize during the pre-contentious phase applies to the
      temporal as well as the substantive scope of the case, although in different ways.
      
      22.  The delivery by the Commission of its reasoned opinion under Article 169 represents a watershed in that procedure.  The events
      that precede it may include complaints against a Member State by a private party or another Member State, or an independent
      investigation by the Commission.  In any of these events, the Commission will have taken the first step of inviting observations
      from the Member State concerned.  We need not here consider those cases where the Member State immediately offers either a
      convincing and decisive answer or immediate compliance.  We will assume non-compliance.  The next step is for the Commission
      to take a stand in the form of its reasoned opinion.  It states its complaint, calls for a remedy, and sets a time-limit.
       The response of the Member State often takes one or other form of inaction.  It may positively contest the Commission's complaint,
      or may indulge in one of the varied forms of temporizing which can so readily be found in the case-law.
      
      23.  In either of these cases, the Commission may ─ though it is not bound to ─ pursue the matter by invoking the Court's jurisdiction
      under Article 169.  In the alternative, the Member State may take a step which I regard as conclusive in the interpretation
      of Article 169.  It may elect to comply with the terms of the reasoned opinion within the period laid down by the Commission.
       The power of the Commission to  
      bring the matter before the Court of Justice arises only where the Member State fails to comply within the specified period, which acts as a sort of period of grace for
      the Member State, which thus has the opportunity to deprive the Commission of its power and the Court of its jurisdiction.
       Thus, the reasoned opinion, on the date of delivery, by specifying the breach of Community law which must be rectified and
      within what period, defines the subject-matter of any subsequent Article 169 proceeding.  If the Member State in question
      takes action to comply with its obligations after the expiry of the period, it remains subject to the jurisdiction of the
      Court upon the application of the Commission, in respect of breaches of its obligations before the date of issue of the reasoned
      opinion.  This confines to the period laid down in the reasoned opinion the possibility of expiation, and represents a balance
      between the opportunity provided to the defence by that period, and the interest in pursuing an action, even after belated
      compliance, in order to establish the basis of liability which a Member State may incur as a result of its default towards
      other Member States, the Community or private parties. 
      
         			(30)
         		
      24.  I acknowledge that the terms employed in judgments and Opinions can occasionally be ambiguous with regard to the precise moment
      of crystallization of the subject-matter of Article 169 litigation.  For example, in  
       Commission  v  
       Germany , the Court observed that  
      the subject-matter of the proceedings in an action for failure to fulfil obligations is limited in time to the end of the
      pre-litigation phase. 
      
         			(31)
         		  Advocate General Reischl remarked, in similar terms, in  
       Commission  v  
       Italy  that  
      the scope of the complaint cannot be enlarged after closure of the preliminary procedure. 
      
         			(32)
         		  This may be contrasted with the view of the Court in that case that a draft law could not be considered within the scope
      of the proceedings because it was submitted to the Commission  
      after the  
       delivery  of the reasoned opinion. 
      
         			(33)
         		  Unless the end, or closure, of the preliminary procedure is marked by the issue, rather than by the expiry, of the reasoned
      opinion (which is implausible, and is contradicted by the French text of the remark quoted above from the judgment in  
       Commission  v  
       Germany ), there is some inconsistency between these dicta.  However, the cases from which I have quoted concerned circumstances in
      which the question whether the case's temporal bounds are set by the delivery or by the expiry of the reasoned opinion was
      not relevant.  They involved attempts (rejected by the Court) to alter the
       substantive scope  of proceedings after the expiry of the period laid down in the reasoned opinion ─ in the first case, by the Member State
      attempting to rely on later fulfilment of obligations, in the second by the Commission seeking to extend the scope of the
      case to the draft law mentioned above. 
      
         			(34)
         		  In the instant case, the fixing of the temporal scope of the contentious proceedings at the end rather than the beginning
      of the period specified in the reasoned opinion could have significant consequences.  In the event, I agree with the Court's
      statement in  
       Commission  v  
       Italy  that the moment of delivery of the reasoned opinion represents the most logical point at which to define the temporal scope
      of any ensuing Commission application.
      
      25.  There is a series of cases in which the Court has given definitive temporal effect to the letter of notice rather than to
      the reasoned opinion.  These concern either repeated annual breaches, for example of payment obligations under the common
      organization of agricultural markets, 
      
         			(35)
         		  or breaches of a general obligation, allegations of which are extended in scope over time as the scope of the obligation
      widens. 
      
         			(36)
         		  In such cases, the Court has ruled that generalized allegations in the Commission's application of the breach of the obligation
      in question cannot be extended to similar breaches alleged to have occurred after the issue of the formal letter of notice
      to the Member State concerned, as this would prejudice the rights of the defence.  However, even if the present case fell
      into either class (which it does not), these cases would simply confirm that the subject-matter of the litigation had crystallized
      before the entry into force of the Treaty on European Union.
      
      26.  On the other hand, the Court has acknowledged in a more exceptional set of circumstances the possibility of extending proceedings
      to events which took place after the reasoned opinion was delivered, or expired, provided they are  
      of the same kind as those to which the opinion referred and ... constitute the same conduct. 
      
         			(37)
         		  This possible extension of the temporal scope of proceedings ought to be strictly construed, but seems to me to be applicable
      in principle to cases of continued failure to take the necessary measures to comply with a judgment of the Court in breach
      of Article 171(1) of the Treaty.  So long as there is no change in the material facts, the rights of the defence are not prejudiced
      by the inclusion of complaints based on continuous identical acts or omissions after the delivery of the reasoned opinion.
       In such cases, a Member State which does not take advantage of the period of grace afforded by the reasoned opinion to set
      its house in order may find itself the subject of a judgment of the Court in respect of the entire period up to the date of
      commencement of the contentious phase (or up to the date of eventual compliance, if earlier).
      
      27.  This exceptional possibility is as applicable now to actions to enforce Article 171(1) of the Treaty under Article 171(2)
      as it was before the coming into force of the Maastricht Treaty to actions with the same object under Article 169.  However,
      the possibility of sanctions in respect of continuous breach after 1 November 1993 distinguishes the new procedure.  I believe
      that the Article 169 reasoned opinion in the instant case is inadequate to ground an action which concerns, if only in part,
      what I have called a post-Maastricht period of non-compliance, and which might consequently result in the imposition of sanctions:
       as part of its rights of defence and to legal certainty, the Member State concerned is entitled to notice (if only by the
      citation of Article 171(2) of the Treaty) of the possibility of such sanctions. 
      
         			(38)
         		  If the Commission had sought in terms in its application to include in the subject-matter of this case allegations of continuous
      post-Maastricht breach of Article 171(1) of the Treaty, I would have been forced to recommend that the application be held
      to be inadmissible to that extent.  However, as it is couched in general terms, I prefer to read it as relating only to the
      period up to the delivery of the reasoned opinion on 11 October 1993, and as not seeking to rely on the exceptional extension
      of the temporal scope of infringement actions to periods beyond that date.  On that reading, the case concerns only alleged
      breaches of Article 171(1) before 1 November 1993, and no question of sanctions arises.
      
      28.  Consequently, as the subject-matter of the present action crystallized before the coming into force of the Treaty on European
      Union, I believe that Article 169 of the Treaty was the correct basis on which to seise the Court even after 1 November 1993.
       Article 169 prescribed at the material time the Commission's competence and the appropriate procedure for bringing such matters
      before the Court.  While I concluded above that the scope  
       ratione materiae  of Article 169 has been implicitly reduced by the addition to the Treaty of Article 171(2), I am of the view that this change
      should take effect prospectively only:  prospectively from the issue of reasoned opinions in relevant cases after 1 November
      1993 (or possibly from the issue of the notification seeking observations in cases like those described at paragraph 24 above).
       To decide otherwise could have the effect of rendering ineffective any infringement actions in respect of Article 171(1)
      of the Treaty for which the reasoned opinion was delivered before 1 November 1993, but of which the Court was seised only
      after that date.  It would be contrary to the objectives underlying the new Article 171(2) of the Treaty if the effect of
      its introduction were, even in a small number of transitional cases, the undermining of the Commission's efforts to ensure
      compliance with judgments of the Court.
      
      29.  If the Court takes the view that Article 171(2) of the Treaty was the only appropriate basis on which to commence the contentious
      phase in this case, because the Court was seised after 1 November 1993, I would recommend in the alternative that the action
      be treated as having been taken on that basis.  Except for the matter of sanctions, Articles 169 and 171(2) constitute in
      terms of their procedural requirements 
      
         			(39)
         		 and their potential outcomes (more obviously even than in  
       Chevalley )  
      one and the same method of recourse. 
      
         			(40)
         		  As the imposition of sanctions does not arise in a case which concerns in its entirety breaches of Article 171(1) before
      1 November 1993, and there is no infringement of the rights of the defence, and a finding of inadmissibility would be contrary
      to the general interest in the enforcement of Community law, the action should be found to be admissible.
      
      30.  I conclude that Article 171(2) provides a mandatory procedure for the enforcement of Article 171(1) of the Treaty in cases
      where the Commission issues its reasoned opinion after 1 November 1993.  However, the Court may not impose sanctions on Member
      States in respect of periods of non-compliance with Court judgments before 1 November 1993.  Article 169 of the Treaty therefore
      provides the appropriate procedure for the enforcement of Article 171(1) where a reasoned opinion was issued and the subject-matter
      of the action was, consequently, fixed before 1 November 1993.  Furthermore, even where Article 171(2) of the Treaty applies
      to the enforcement of a judgment of the Court, Article 169 may be employed to establish breach of different provisions of
      Community law by the national provision, practice or omission which was the subject of the earlier judgment.  The Commission's
      application in the instant case is therefore admissible in so far as it seeks to enforce Article 171(1) of the Treaty and
      the judgment of the Court in  
       Commission  v  
       France , 
      
         			(41)
         		 and seeks an order of the Court that the French provisions on the nationality of ships' crews are contrary to provisions
      of Community law other than those invoked in that judgment (viz. the provisions on freedom of establishment).  No question
      of inadmissibility arises in respect of the other aspects of the case.
       Substantive contentions of the parties
      
      31.  Although French law does not make such a distinction, the Commission has distinguished between vessels used for the exercise
      of an economic activity, and those not so used, in making its case under Community law against the French legal regime for
      the registration of such vessels.
      
      (i) Vessels used for the exercise of an economic activity
      
      32.  The Commission considers that the French registration regime is contrary to Articles 6, 52, 58 and 221 of the Treaty in so
      far as it concerns vessels used for the exercise of an economic activity.  The Commission relies chiefly on the judgment of
      the Court in  
       The Queen  v  
       Secretary of State for Transport , ex parte  
       Factortame and Others  (
       Factortame II ). 
      
         			(42)
         		  The Court there decided that, where the use of a vessel for economic purposes required the operator to have a fixed establishment
      in the Member State concerned, its registration entailed observance of the rules on freedom of establishment;  registration
      rules which discriminated between persons on grounds of their nationality were therefore prohibited:  specifically, registration
      rules which required that the owners or charterers of vessels have a particular nationality, or, if a company, have a certain
      proportion of shareholders or directors of that nationality, were therefore contrary to Article 52 of the Treaty.  Such rules
      in respect of companies were also contrary to Article 221 of the Treaty on equal treatment of Member State nationals as regards
      participation in the capital of companies or firms within the meaning of Article 58.  Rules making registration contingent
      on the domicile in the Member State in question of natural persons were equally contrary to Article 52, as were rules on the
      location of the centre of direction and control of the vessel in the Member State concerned in so far as they precluded a
      secondary establishment from operating under instruction from a primary establishment in another Member State. 
      
         			(43)
         		  The Commission adds that the requirement that companies have their headquarters in France constitutes an obstacle to the
      establishment there of agencies, branches or subsidiaries with the object of running a commercial vessel, contrary to Article 58
      of the Treaty.
      
      33.  In respect of fishing vessels, the Commission recalls the case-law of the Court on the competence of the Member States to
      specify the conditions on which their fishing quotas may be exploited, indicating that the exercise of this competence must
      be compatible with Community law.  While it may be specified that vessels licensed to exploit their fishing quotas must have
      a  
      real economic link with the Member State in question, the objectives of the Community quota system permit that required link to concern only
      relations between the vessel's fishing activities and the local populations dependent on fisheries and related industries. 
      
         			(44)
         		  It is clear from the case-law that national rules imposing nationality or residence requirements in respect of the ownership
      or management (or crewing) of fishing vessels are unrelated to these objectives. 
      
         			(45)
         		  Thus, where a citizen of the Union seeks to avail of the right of establishment in a Member State in order to exploit its
      fishing quotas, such rules may not be applied.
      
      (ii) Vessels not used for the exercise of an economic activity
      
      34.  The Commission considers that the French registration regime is contrary to Articles 6, 48 and 52 of the Treaty, and to the
      guarantees of equal treatment in Article 7 of Regulation No 1251/70 
      
         			(46)
         		 and Article 7 of Directive 75/34/EEC 
      
         			(47)
         		 in so far as it concerns vessels not used for the exercise of an economic activity.  While registration of a vessel for leisure
      purposes does not concern employment conditions in the strict sense, the possibility of pursuing leisure activities in a Member
      State is the corollary of the freedom of workers to go there to exercise employment.  A person should not be the subject of
      discrimination on grounds of nationality in fields which are connected with the exercise of a Community law right.  The Commission
      relies upon the judgment of the Court in  
       Cowan  v  
       Trésor Public , 
      
         			(48)
         		 as confirmed by the judgment in  
       Commission  v  
       Spain . 
      
         			(49)
         		  The Court made clear in  
       Cowan  that even national legislation in fields which are in principle the responsibility of Member States (including criminal law
      and procedure) may not discriminate against persons to whom Community law gives the right to equal treatment.  It found that
      those who travelled to another Member State to receive services there were entitled,  
       inter alia , to protection from harm on the same basis as nationals and residents of the Member State in question, and thus to compensation
      for harm suffered under a national scheme on the same basis as nationals and residents, even though the provision of such
      compensation was within national competence. 
      
         			(50)
         		  Discrimination in respect of admission conditions to museums in Spain was condemned by the Court in  
       Commission  v  
       Spain  as being in breach of Articles 59 and 6 (as it now is) of the Treaty.
      
      35.  The Commission also argues for the enforcement pursuant to Article 171(1) of the Treaty of the judgment of the Court in  
       Commission  v  
       France  
      
         			(51)
         		 in respect of the French legal regime on the crewing of maritime vessels.  It argues that a ministerial circular is not sufficient
      to amend a legislative text which is contrary to the Treaty, relying on the consistent case-law of the Court on the inadequacy
      of such instruments to implement directives in a legally effective fashion. 
      
         			(52)
         		  It adds that the French law is contrary to Article 52 of the Treaty as well as Article 48 (which was the ground for the
      decision in the Court's judgment of 1974 in conjunction with Regulation No 1612/68), 
      
         			(53)
         		 as it presents obstacles to entrepreneurs from other Member States who wish to establish themselves in France (and in particular
      an obstacle to access to the fishing sector).
      
      36.  The French Government accepts the substantive arguments of the Commission as expressed in its application.  It points out
      that the administrative practice of non-application to Community nationals of the French nationality requirement in respect
      of crewing was reinforced after the decision in  
       Commission  v  
       France 
         			(54)
         		 by a circular of the Transport Minister.  The French Government also outlines in its defence the contents of a draft law
      relative to transport in general which, according to the Commission, addresses adequately its various grievances in respect
      of registration and crewing.  However, the exigencies of the parliamentary calendar and the decision to incorporate provisions
      relative to air and road transport prevented its enactment in time.
       Substantive conclusions
      
      37.  As regards maritime vessels used in the exercise of economic activities, I accept the arguments of the Commission, which I
      have summarized and developed herein, and conclude that the French legal regime governing the registration of such vessels
      is in breach of the Treaty.
      
      38.  The Commission's application also requires me to consider the registration of maritime vessels for use other than in the exercise
      of economic activities.  I believe that the French Republic is also in breach of its obligations under the Treaty, although
      the Court has not had the benefit of detailed arguments from the parties.  The  
       Cowan  principle, 
      
         			(55)
         		 enunciated by the Court in the context of free movement to avail of services, clearly applies equally to other areas governed
      by the Treaty:  freedom of establishment and the free movement of workers, and the right to remain in Member States after
      the exercise of those rights. 
      
         			(56)
         		  As was established in  
       Cowan  in respect of services, primary economic rights can generate certain consequential entitlements to equal treatment even in
      areas which, substantively, are within Member State competence, of which equal protection from harm is among the most significant.
       Areas of Member State competence come within the scope of application of the Treaty to the extent to which equality in those
      areas is an essential corollary of the primary economic right to move to or reside in a Member State for economic purposes.
       Equality is then guaranteed, in the absence of more detailed provisions, by the prohibition in Article 6 of the Treaty of
      discrimination on grounds of nationality within the scope of application of the Treaty.
      
      39.  If anything, the argument is stronger in respect of those who have established residence in another Member State to pursue
      economic activities there, than in the case of those whose presence in a Member State is transient, as in the case of tourists.
       They exhibit that  
      closer bond with the host State upon which the French Government relied unsuccessfully in  
       Cowan  to defend the restriction of criminal injuries compensation to French nationals and to foreign nationals resident in French
      territory. 
      
         			(57)
         		
      40.  Migrant workers already benefit from extensive rights by virtue of the legislative guarantee of equality in respect of  
      social and tax advantages. 
      
         			(58)
         		  Social advantages include all advantages  
      which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their
      objective status as workers or by virtue of the mere fact of their residence on national territory and the extension of which
      to workers who are nationals of other member countries therefore seems suitable to facilitate their mobility within the Community. 
      
         			(59)
         		  They include (where such rights are accorded to nationals of the Member State in question) reduced public transport fares
      for large families, 
      
         			(60)
         		 use of a minority language in proceedings before a Member State court, 
      
         			(61)
         		 the right to be joined in a Member State by a non-marital companion, 
      
         			(62)
         		 and the right to study finance for dependent children in another Member State.  
      
         			(63)
         		
      41.  However, the adoption of secondary Community legislation in order to secure such rights to workers does not exclude the existence
      of a residual category of rights to equal treatment which are corollaries under the Treaty of the free movement of workers,
      as well as of freedom of establishment.  Such corollary rights to equality would operate, in the case of workers relying on
      Article 48, in respect of matters which do not constitute social advantages under Regulation No 1612/68;  they would be of
      greater significance in the field of freedom of establishment under Article 52, where there has been no equivalent legislative
      intervention by the Community.
      
      42.  The bounds of such corollary rights to equal treatment must be defined by reference to the essential human as well as economic
      needs of those who avail of the primary Treaty right.  The denial of many social advantages (as that term is used in Regulation
      No 1612/68) to self-employed persons and providers of services may be seen to affect their competitiveness, and thus to present
      an unlawful obstacle to the pursuit of such occupations, as in the decision in  
       Commission  v  
       Italy  on access to social housing. 
      
         			(64)
         		  Although that decision is couched in economic terms, the case can been linked to  
       Cowan , as they are both concerned with the social environment in which economic freedoms have to be exercised. 
      
         			(65)
         		
      43.  Union citizens who move to take up an economic activity in another Member State should be able to settle and integrate in
      the society of the Member State concerned, and they should not be deterred from the exercise of their economic rights by discrimination
      in other areas that are essential to their well-being.  
      
         			(66)
         		   I regard this as the logical result of the decision in  
       Cowan .  Thus, they should be able to avail not only of opportunities for employment and self-employment, or of simple residence
      upon retirement from such economic activities, but also of opportunities for social and leisure activities.
      
      44.  The registration of maritime pleasure boats does not seem to me to be a social advantage within the meaning of Regulation
      No 1612/68.  None the less, while it will almost inevitably be a pursuit only of a small minority, it is clearly part of the
      broad category of leisure activities that can be enjoyed in a Member State.  Access to such leisure opportunities is a corollary
      of freedom of movement to take up economic activities, and is thus within the scope of application of the Treaty.  As a result,
      discrimination in this regard on grounds of nationality is, in the case of those availing of the free movement of workers
      or of freedom of establishment, or of ancillary rights of residence after exercising such rights, contrary to Article 6 of
      the Treaty.
      
      45.  As regards the French rules governing the nationality of crews, I accept the arguments of the Commission in respect of the
      inadequacy of a ministerial circular as a legally effective remedy for the breach of Community law identified by the Court
      in its judgment in  
       Commission   v  
       France .  
      
         			(67)
         		  This emerges from the judgment of the Court in that case, 
      
         			(68)
         		 and is confirmed by the consistent case-law cited by the Commission. 
      
         			(69)
         		
      46.  As regards the Commission's argument that the French crewing rules are contrary to Article 52 of the Treaty, the existence
      of rules (even if not enforced in practice) restricting the category of persons who may be employed on a vessel registered
      in France is an obstacle to the establishment of natural or legal persons with a view to using such a vessel in the exercise
      of economic activities.  It is also a restriction on the vessels which can exploit French fishing quotas which is not related
      to the objectives of the quota regime. 
      
         			(70)
         		 Costs
      
      47.  Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.  Since I have concluded
      that the Commission is correct in respect of all of its allegations that the defendant is in breach of its obligations under
      Community law, I recommend that the French Republic be ordered to pay the costs.
        Conclusion
      In accordance with the reasoning set out above, I conclude that:
      (1) by maintaining in force laws restricting registration and the right to fly the French flag to ships owned (in the majority)
      by persons with French nationality, or owned by legal persons with certain specified links with France, and restricting crewing,
      in a specified proportion, to French nationals, the French Republic is in breach of Articles 6, 48, 52, 58 and 221 of the
      Treaty, of Commission Regulation (EEC) No 1251/70 and of Council Directive 75/34/EEC; 
      
      (2) by its failure to take the necessary measures to comply with the judgment of the Court in  
       Commission  v  
       France , the French Republic is in breach of Article 171(1) of the Treaty;  
      
         			(71)
         		
      (3) the French Republic should be ordered to pay the costs of the proceedings. 
      
       1 –
         
            Original language: English.
      
      2 –
         
         The Commission relies in particular on Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain
            in the territory of a Member State after having been employed in that State;  OJ, English Special Edition 1970 (II), p. 402;
             Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a Member State to remain in the territory
            of another Member State after having pursued therein an activity in a self-employed capacity;  OJ 1975 L 14, p. 10.
         
      
      3 –
         
         Case 167/73 [1974] ECR 359.
      
      4 –
         
         Article 217,  
             Code Français des Douanes  (French Customs Code).
         
      
      5 –
         
         Article 219, French Customs Code.
      
      6 –
         
         Article 3 of the Law of 13 December 1926, on the  
             Code de Travail Maritime  (Maritime Labour Code);  Article 221 of the French Customs Code.
         
      
      7 –
         
         Decree 67-690 of 7 August 1967.  This decree (upon which the Commission relies in the instant case) is a different measure
            from that at issue in Case 167/73  
             Commission  v  
             France , cited in footnote 2 above, which concerned (as stated at paragraph 3 of the judgment) a Ministerial Order of 21 November
            1961, as amended by that of 12 June 1969, which, apart from certain local exemptions, reserved employments on the bridge and
            in the engine and wireless rooms of French maritime vessels to persons of French nationality, and reserved employment generally
            to French nationals in the ratio of three to one;  however, these orders were made under Article 3 of the Law of 1926, and
            in so far as they permit crewing by non-French nationals in the proportion of one to three, it is possible that they can be
            deemed in French law to constitute derogations from that article in the sense referred to in the decree of 1967.
         
      
      8 –
         
         Regulation on freedom of movement for workers within the Community;  OJ, English Special Edition 1968 (II), p. 475.
      
      9 –
         
         Case 167/73, cited in footnote 2 above.
      
      10 –
         
         Circular of 29 April 1975,  
             Journal Officiel de la République Française , 2 May 1975.
         
      
      11 –
         
         Case 167/73, cited in footnote 2 above.
      
      12 –
         
         The first such case was Case 48/71  
             Commission  v  
             Italy  [1972] ECR 527 (
            Art Treasures).  The volume of such cases increased greatly after 1985.
         
      
      13 –
         
         For a discussion of the other chief textual difference in the procedural prescriptions of Articles 169 and 171(2), see paragraph 20
            below.
         
      
      14 –
         
         It was not to be expected either that the Commission would plead the inadmissibility of its own action, or that the French
            Government would plead that a form of action with more serious potential consequences should be employed against it.
         
      
      15 –
         
         See, for example, Case 104/79  
             Foglia  v  
             Novello  [1980] ECR 745, and Case 244/80  
             Foglia  v  
             Novello  [1981] ECR 3045.
         
      
      16 –
         
         See, for example, Case T-84/91  
             Meskens  v  
             European Parliament  [1992] ECR II-2335, in which the Court of First Instance felt bound of its own motion to reject as inadmissible a request
            that it impose a penalty payment on a Community institution to ensure observance of an earlier decision of the Court.  See
            also Case 31/69  
             Commission  v  
             Italy  [1970] ECR 25, paragraph 8 of the judgment, in which the Court remarked that a particular submission (that Article 169 proceedings
            could not be taken in respect of simple omissions to implement directly applicable legislation) was out of time, but as it
            related to the Court's jurisdiction, it  
             must  be examined by the Court of its own motion.  For further examples of cases in which the Court interpreted Article 92(2) of the Rules of Procedure as obliging it to
            raise matters of admissibility of its own motion, see Case 55/64  
             Lens  v  
             Court of Justice  [1965] ECR 837, pp. 840 and 841 (on staff case time-limits);  Case 200/87  
             Giordani  v  
             Commission  [1989] ECR 1877, paragraph 10 (in a case where it was unclear whether the Commission was pleading inadmissibility);  Case
            T-19/90  
             Von Hoessle  v  
             Court of Auditors  [1991] ECR II-615, paragraph 23 (time-limits are intended to ensure legal certainty:   
            [t]hey are therefore a matter of public policy and cannot be left to the discretion of the parties or the Court);  cf. cases where alleged non-observance of due pre-litigation procedure in Article 169 proceedings, which was designed
            only to protect Member State rights, need not be raised by the Court in the absence of objection on the part of the Member
            State affected:  Advocate General Lenz in C-249/91  
             Commission  v  
             France  [1994] ECR I-787, paragraph 22;  Advocate General Gulmann in Case C-61/90  
             Commission  v  
             Greece  [1992] ECR I-2407, paragraph 16.
         
      
      17 –
         
         See, for example, Joined Cases 114/79 to 117/79  
             Fournier  v  
             Commission  [1980] ECR 1529, in which the family of a Community official sought to bring proceedings under Articles 175 and 178 of the
            Treaty in respect of matters properly governed by the provisions on staff cases;  Joined Cases 21/61 to 26/61  
             Meroni  v  
             High Authority  [1962] ECR 73, pp. 76 and 78, in which the Court considered of its own motion that an action for failure to act was a  
            procedural artifice and did not lie against the High Authority in respect of refusal to rescind a decision against which an action for annulment
            was time-barred;  Joined Cases 10/68 and 18/68  
             Eridania  v  
             Commission  [1969] ECR 459, p. 483, to similar effect.  It is only where the conditions relative to the use of both Article 173 and Article 175
            of the Treaty are satisfied that the Court will take the view that both provisions  
            merely prescribe one and the same method of recourse, as in Case 15/70  
             Chevalley  v  
             Commission  [1970] ECR 975, paragraph 6.
         
      
      18 –
         
         This was not the case in  
             Chevalley , cited in footnote 16 above.
         
      
      19 –
         
         This view is shared by D. Ritleng,  
            Article 171 in V. Constantinesco, R. Kovar and D. Simon eds.,  
             Traité sur l'Union Européenne:  Commentaire Article par Article  (Paris, 1995), p. 577.  On the principle of the  
             lex specialis , see for example the remarks of Advocate General Verloren van Themaat in Case 239/84  
             Gerlach  v  
             Minister for Economic Affairs  [1985] ECR 3507, p. 3510.
         
      
      20 –
         
         I believe that the replication in many respects in the first indent of Article 171(2) of the wording of Article 169, first
            indent, implies that the decision whether to take an action for the enforcement of Article 171(1) of the Treaty before the
            Court rests similarly within the Commission's discretion.
         
      
      21 –
         
         See Joined Cases 24/80 and 97/80 R  
             Commission  v  
             France  [1980] ECR 1319, paragraphs 16, 17 and 19 of the order, where the Court declined to order interim measures so as to ensure
            compliance with the judgment it had already given in Case 232/78  
             Commission  v  
             France  [1979] ECR 2729.
         
      
      22 –
         
         See paragraph 7 above.
      
      23 –
         
         See J. Diez-Hochleitner,  
            Le Traité de Maastricht et l'Inexécution des Arrêts de la Cour de Justice par les Etats Membres (1994)  
             Revue du Marché Unique Européen  111, p. 130.
         
      
      24 –
         
         See Case 63/83  
             Regina  v  
             Kirk  [1984] ECR 2689, paragraphs 21 to 23 of the judgment.
         
      
      25 –
         
         See, for example, Case C-337/88  
             Società Agricola Fattoria Alimentare  [1990] ECR I-1, paragraph 13 of the judgment;  Case 331/88  
             Regina  v  
             Minister for Agriculture , ex parte 
             Fedesa  [1990] ECR I-4023, paragraph 45.
         
      
      26 –
         
         The terms  
            pre- and  
            post-Maastricht relate to periods before and after the coming into force of that Treaty.
         
      
      27 –
         
         Case 7/61  
             Commission  v  
             Italy  [1961] ECR 317, p. 327.
         
      
      28 –
         
         See, for example, Case 31/69  
             Commission  v  
             Italy , cited in footnote 15 above, paragraph 12 of the judgment;  Case 232/78  
             Commission  v  
             France , cited in footnote 20 above, paragraph 3;  Case 193/80  
             Commission  v  
             Italy  [1981] ECR 3019, paragraph 12;  Case 211/81  
             Commission  v  
             Denmark  [1982] ECR 4547, paragraph 14;  Case 124/81  
             Commission  v  
             United Kingdom  [1983] ECR 203, paragraphs 6 and 7;  Case 325/82  
             Commission  v  
             Germany  [1984] ECR 777, paragraphs 8 and 9;  Case 166/82  
             Commission  v  
             Italy  [1984] ECR 459, paragraphs 16 and 17;  Case 186/85  
             Commission  v  
             Belgium  [1987] ECR 2029, paragraph 13;  Case C-347/88  
             Commission  v  
             Greece  [1990] ECR I-4747, paragraphs 16 and 17;  Case C-52/90  
             Commission  v  
             Denmark  [1992] ECR I-2187, paragraph 17.
         
      
      29 –
         
         Order in Case C-266/94 [1995] ECR I-1975, paragraph 17.
      
      30 –
         
         See, for example, Case C-361/88  
             Commission  v  
             Germany  [1991] ECR I-2567, paragraph 31 of the judgment.  See also Case 39/72  
             Commission  v  
             Italy  [1973] ECR 101;  Case 309/84  
             Commission  v  
             Italy  [1986] ECR 599.
         
      
      31 –
         
         Case C-317/92 [1994] ECR I-2039, paragraph 3 of the judgment.  I note that the French text of this statement is more specific
            than the English, referring to the date of expiry of the period specified in the reasoned opinion.
         
      
      32 –
         
         Case 166/82, cited in footnote 27 above, p. 477.
      
      33 –
         
         Paragraph 17 of the judgment, emphasis added. 
      
      34 –
         
         See also the similar dictum in quite a different case, Case 309/84  
             Commission  v  
             Italy , cited in footnote 29 above, paragraph 14 of the judgment;  however, as will be seen immediately below, this was a case in
            which the issue of the formal letter of notice defined the temporal scope of the contentious proceedings.
         
      
      35 –
         
         See, for example, Case 309/84  
             Commission  v  
             Italy , cited in footnote 29 above, on annual payment of premiums for the abandonment of wine-growing, and Case C-217/88  
             Commission  v  
             Germany  [1990] ECR I-2879 on compulsory distillation of wine stocks in certain wine-growing years.
         
      
      36 –
         
         See, for example, Case 31/69  
             Commission  v  
             Italy , cited in footnote 15 above, in which an export refund system was extended from some products to others a few days before
            the issue of the letter of notice. 
         
      
      37 –
         
         See Case 42/82  
             Commission  v  
             France  [1983] ECR 1013;  Case 113/86  
             Commission  v  
             Italy  [1988] ECR 607.
         
      
      38 –
         
         See the Commission's Twelfth Annual Report on Monitoring the Application of Community Law;  OJ 1995 C 254, p. 1, at p. 7 on
            its practice of alerting Member States in both the letter of notice and the reasoned opinion to the possibility of sanctions
            under the new procedure.
         
      
      39 –
         
         See paragraph 20 above.
      
      40 –
         
         See  
             Chevalley , cited in footnote 16 above.
         
      
      41 –
         
         Case 167/73, cited in footnote 2 above.
      
      42 –
         
         Case C-221/89 [1991] ECR I-3905.
      
      43 –
         
         . Factortame II , cited in footnote 41 above, paragraphs 22, 29 to 31, 33 to 35 of the judgment.  See also Case C-246/89  
             Commission  v  
             United Kingdom  [1991] ECR I-4585, and Case C-93/89  
             Commission  v  
             Ireland  [1991] ECR I-4569.  It is clear from the judgment of the Court in Case 305/87  
             Commission  v  
             Greece  [1989] ECR 1461, paragraph 12, that any rules incompatible with Article 52 of the Treaty are also incompatible with Article 6.
         
      
      44 –
         
         See Case C-3/87  
             The Queen  v  
             Ministry of Agriculture, Fisheries and Food , ex parte 
             Agegate  [1989] ECR 4459, paragraphs 17 and 27 of the judgment;  Case C-216/87  
             The Queen  v  
             Ministry of Agriculture, Fisheries and Food , ex parte  
             Jaderow  [1989] ECR 4509, paragraphs 18 and 43;  Case C-246/89  
             Commission  v  
             United Kingdom , cited in footnote 42 above, paragraphs 12 and 35. 
         
      
      45 –
         
         On registration, headquarters, control and ownership of companies, and on nationality of natural persons,  
             Jaderow , cited in footnote 43 above, paragraph 42 of the judgment;  Case C-246/89  
             Commission  v  
             United Kingdom , cited in footnote 42 above, paragraphs 31 and 39;  Case C-93/89  
             Commission v Ireland , cited in footnote 42 above, paragraphs 10, 11 and 15 (in respect of company registration only);  on the residence of crews,
            see  
             Agegate , cited in footnote 43 above, paragraphs 24 to 26.
         
      
      46 –
         
         Cited in footnote 1 above.
      
      47 –
         
         Cited in footnote 1 above.
      
      48 –
         
         Case 186/87 [1989] ECR 195.
      
      49 –
         
         Case C-45/93 [1994] ECR I-911.
      
      50 –
         
         Cited in footnote 47 above, paragraphs 17 to 19 of the judgment;  see also Case 203/80  
             Casati  [1981] ECR 2595.
         
      
      51 –
         
         Case 167/73, cited in footnote 2 above.
      
      52 –
         
         See Case 168/85  
             Commission  v  
             Italy  [1986] ECR 2945, paragraph 15 of the judgment;  Case C-361/88  
             Commission  v  
             Germany , cited in footnote 29 above, paragraph 24;  Cases C-13/90, C-14/90 and C-64/90  
             Commission  v  
             France  [1991] ECR I-4327, I-4331 and I-4335 respectively.
         
      
      53 –
         
         Cited in footnote 7 above.
      
      54 –
         
         Case 167/73, cited in footnote 2 above.
      
      55 –
         
         It is unclear from the text of the judgment in Case C-45/93  
             Commission  v  
             Spain , cited in footnote 48 above, whether the Court considered the discrimination in museum admission prices to relate to ancillary
            advantages which affect the conditions under which services are provided to or received by tourists (as was clearly the case
            in  
             Cowan ), or to the conditions of provision to or receipt by tourists of a service;  see paragraphs 5 and 7, respectively, of the
            judgment, in which the submissions of the Commission are summarized.
         
      
      56 –
         
         The Commission does not invoke, and I do not here address, the rights of other citizens of the Union who are entitled to reside
            in a Member State by virtue of other rights conferred by Community law and now reinforced by Article 8a of the Treaty;  see
            Council Directive 90/365/EEC of 28 June 1990 on the right of residence of employees and self-employed persons who have ceased
            their occupational activity;  OJ 1990 L 180, p. 28;  Council Directive 90/364/EEC of 28 June 1990 on the right of residence
            of persons who do not enjoy this right under any other provision of Community law;  OJ 1990 L 180, p. 26;  and Council Directive
            93/96/EEC of 29 October 1993 on the right of residence of students enrolled in vocational training courses;  OJ 1993 L 317,
            p. 59.
         
      
      57 –
         
         . Cowan , cited in footnote 47 above, paragraph 16 of the judgment.
         
      
      58 –
         
         Article 7(2), Regulation No 1612/68, cited in footnote 7 above.
      
      59 –
         
         Case 207/78  
             Ministère Public  v  
             Even  [1979] ECR 2019, paragraph 22 of the judgment.
         
      
      60 –
         
         Case 32/75  
             Cristini  v  
             SNCF  [1975] ECR 1085.
         
      
      61 –
         
         Case 137/84  
             Ministère Public  v  
             Mutsch  [1985] ECR 2681.
         
      
      62 –
         
         Case 59/85  
             Netherlands  v  
             Reed  [1986] ECR 1283.
         
      
      63 –
         
         Case C-3/90  
             Bernini  v  
             Minister van Onderwijs  [1992] ECR I-1071.
         
      
      64 –
         
         Case 63/86 [1988] ECR 29, paragraphs 16 and 17 of the judgment.
      
      65 –
         
         The two decisions were taken
            dans une même perspective de protection de l'environnement sociologique des libertés garanties, in the words of J. Mertens de Wilmars,  
            L'Arrêt  
             Cowan  (1990)  
             Cahiers de Droit Européen  388, p. 401.
         
      
      66 –
         
         See, for example, Joined Cases 389/87 and 390/87  
             Echternach and Moritz  v  
             Minister for Education and Science  [1989] ECR 723, paragraph 20 of the judgment.
         
      
      67 –
         
         Case 167/73, cited in footnote 2 above.
      
      68 –
         
         See paragraphs 41 and 42 of the judgment.
      
      69 –
         
         See the cases cited in footnote 51 above.
      
      70 –
         
         See  
             Agegate , cited in footnote 43 above.
         
      
      71 –
         
         Case 167/73, cited in footnote 2 above.