Colegio de Oficiales de la Marina Mercante Española v Administración del Estado.
Date: 2003-09-30
27. It should be borne in mind, as a preliminary point, that Articles 1 and 4 of Regulation No 1612/68 merely clarify and give effect to the rights already conferred by Article 39 EC. Accordingly, the latter article contains the only rules relevant in this case (see, to that effect, Case C-419/92  Scholz  [1994] ECR I-505, paragraph 6).
The first question
38. 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,  Sotgiu , cited above, paragraph 5, and Case 149/79  Commission  v  Belgium  [1980] ECR 3881, paragraphs 12 and 18).
39. 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 , cited above, paragraph 10, and Case C-290/94  Commission  v  Greece  [1996] ECR I-3285, paragraph 2).
40. 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 , paragraph 33, and  Commission  v  Italy , paragraph 25).
41. 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  [1987] ECR 2625, paragraph 7).
42. In this case, Spanish law confers on masters and chief mates of merchant ships flying the Spanish flag, first, 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, and, secondly, authority in respect of notarial matters and the registration of births, marriages and deaths, which cannot be explained solely by the requirements entailed in commanding the vessel. Such duties 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.
44. 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 still 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 41 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 cannot be imperilled if rights under powers conferred by public law are exercised only sporadically, even exceptionally, by nationals of other Member States.
48. In that regard, it is sufficient to recall that the right of Member States to restrict freedom of movement for persons on grounds of public policy, public security or public health is not intended to exclude economic sectors such as that of merchant shipping, or occupations, such as that of master or chief mate of merchantmen 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).
50. In view of the foregoing, the answer to the first question must be that Article 39(4) EC is to be construed as allowing a Member State to reserve for its nationals the posts of master and chief mate of merchant ships flying its flag only if the rights under powers conferred by public law on masters and chief mates of such ships are actually exercised on a regular basis and do not represent a very minor part of their activities.
The second question
61. Furthermore, it is evident from settled case-law that implementation of the obligations imposed on Member States by the Treaty or secondary legislation cannot be made subject to a condition of reciprocity (see, among others, Case C-163/99  Portugal  v  Commission  [2001] ECR I-2613, paragraph 22, and Case C-142/01  Commission  v  Italy  [2002] ECR I-4541, paragraph 7).