Commission of the European Communities v Hellenic Republic.
Date: 1997-11-27
17 In this connection the first point to note is that national legislation similar to the Greek legislation in issue is the subject of well-established case-law of the Court (see, primarily, Factortame and Others, cited above, and Case C-93/89 Commission v Ireland [1991] ECR I-4569, Case C-246/89 Commission v United Kingdom [1991] ECR I-4585, Case C-334/94 Commission v France [1996] ECR I-1307 and Case C-151/96 Commission v Ireland [1997] ECR I-3327).
18 It is clear from those decisions that as regards vessels used for the pursuit of an economic activity, each Member State must, in exercising its powers for the purpose of defining the conditions for the grant of its `nationality' to a vessel, comply with the prohibition of discrimination against nationals of Member States on grounds of nationality, and that a condition which stipulates that where a vessel is owned or chartered by natural persons they must be of a particular nationality and, in the case of a company, the shareholders and directors must be of that nationality is contrary to Article 52 of the Treaty. A condition relating to registration or management of a vessel in the case of a secondary establishment such as an agency, branch or subsidiary is contrary to Articles 52 and 58 of the Treaty (see, in particular, Commission v Ireland, cited above, paragraph 12).
19 As regards vessels not used for the pursuit of an economic activity, the Court held in Commission v Ireland, cited above, paragraph 13, that, under Community law, every national of a Member State is assured of freedom both to enter another Member State in order to pursue an activity as as employed or self-employed person and to reside there after having pursued such an activity. Access to leisure activities available in that State is a corollary to freedom of movement.
20 In paragraph 14 of that judgment, the Court concluded that registration by such a national of a pleasure craft in the host Member State falls within the scope of the Community provisions relating to freedom of movement for persons.
22 In that connection, the first point to note is that the argument of the Hellenic Government based on the international law of the sea is not supported by the judgment in Factortame and Others, cited above, paragraph 17. In that judgment the Court expressly stated that, in exercising their power to determine the conditions which must be fulfilled in order for a vessel to be entered in their registers and granted the right to fly their flag, Member States must comply with the rules of Community law. Although this finding related only to Article 5 of the 1958 Geneva Convention, it cannot be invalidated by the two United Nations Conventions of 1982 and 1986, both signed after the accession of the Hellenic Republic to the Communities.
23 Secondly, the argument of the Hellenic Government that its legislation is not an obstacle to the activities of nationals of other Member States is not relevant under the second paragraph of Article 52 of the Treaty. As the Court found in its judgment in Factortame and Others, cited above, at paragraph 25, freedom of establishment includes, in the case of nationals of a Member State, `the right to take up and pursue activities as self-employed persons ... under the conditions laid down for its own nationals by the law of the country where such establishment is effected ...'.