Albert Anker, Klaas Ras and Albertus Snoek v Bundesrepublik Deutschland.
Date: 2003-09-30
57. According to the Court ' s case-law, the concept of public service within the meaning of Article 39(4) EC must be given uniform interpretation and application throughout the Community and cannot therefore be left entirely to the discretion of the Member States (see, in particular, Case 152/73  Sotgiu  [1974] ECR 153, paragraph 5, and  Commission  v  Belgium , paragraphs 12 and 18).
58. It covers posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities and thus presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality ( Commission  v  Belgium , paragraph 10, and  Commission  v  Greece , cited above, paragraph 2).
59. On the other hand, the Article 39(4) EC exception does not cover posts which, whilst coming under the State or other bodies governed by public law, still do not involve any association with tasks belonging to the public service properly so called ( Commission  v  Belgium , paragraph 11, and  Commission  v  Greece , paragraph 2), nor,  a fortiori , to employment by a private natural or legal person, whatever the duties of the employee ( Commission  v  Spain , cited above, paragraph 33, and Case C-283/99  Commission  v  Italy , cited above, paragraph 25).
60. It is also clear from the Court ' s case-law that, as a derogation from the fundamental principle that workers in the Community should enjoy freedom of movement and not suffer discrimination, Article 39(4) EC must be construed in such a way as to limit its scope to what is strictly necessary for safeguarding the interests which that provision allows the Member States to protect (see, in particular, Case 225/85  Commission  v  Italy , cited above, paragraph 7).
61. In this case, German law confers on masters of fishing vessels flying the German flag rights connected to the maintenance of safety and to the exercise of police powers, particularly in the case of danger on board, together with, in appropriate cases, powers of investigation, coercion and punishment, which go beyond the requirement merely to contribute to maintaining public safety by which any individual is bound.  Furthermore, certain auxiliary duties in respect of the registration of births, marriages and deaths, which cannot be explained solely by the requirements entailed in commanding the vessel, are conferred on the master, in particular that of receiving notification of a person ' s birth or death during a voyage, even if it is the responsibility of a registrar of births, marriages and deaths, on land, to issue the official certificates.  While certain doubts may persist, in respect of those duties relating to the registration of births, marriages and deaths, as to whether they involve direct or indirect participation in the exercise of powers conferred by public law, doubts which it is the responsibility of the referring court to resolve, it is clear, on the other hand, that the duties connected to the maintenance of safety and to the exercise of police powers constitute participation in the exercise of rights under powers conferred by public law for the purposes of safeguarding the general interests of the flag State.
63. However, recourse to the derogation from the freedom of movement for workers provided for by Article 39(4) EC cannot be justified solely on the ground that rights under powers conferred by public law are granted by national law to holders of the posts in question.  It is also necessary that such rights are in fact exercised on a regular basis by those holders and do not represent a very minor part of their activities.  Indeed, as has been pointed out in paragraph 60 of this judgment, the scope of that derogation must be limited to what is strictly necessary for safeguarding the general interests of the Member State concerned, which would not be imperilled if rights under powers conferred by public law were exercised only sporadically, indeed exceptionally, by nationals of other Member States.
67. In this regard, it is sufficient to recall that the right of Member States to restrict the free movement of persons on grounds of public policy, public security or public health is not intended to exclude economic sectors such as fishing or occupations, such as master of fishing vessels, from the application of that principle as regards access to employment, but to allow Member States to refuse access to their territory or residence there to persons whose access or residence would in itself constitute a danger for public policy, public security or public health (see, as far as public health is concerned, Case 131/85  Gül  [1986] ECR 1573, paragraph 17, and, as far as private security is concerned,  Commission  v  Spain , paragraph 42).