C-167/73
ECLI:EU:C:1974:35
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JUDGMENT OF 4. 4. 1974 — CASE 167/73
complex of economic activities seek nevertheless the maintenance in these
to ensure. Far from involving a circumstances of the wording of the
departure from these fundamental Code du Travail Maritime gives rise
rules, the object of the rules relating to an ambiguous state of affairs by to the common transport policy is to maintaining, as regards those subject
implement and complement them by to the law who are concerned, a state means of common action. Conse of as to the possibilities uncertainty
quently the said general rules must be available to them of relying on
applied insofar as they can achieve Community law. these objectives.
7. The absolute nature of the 4. Under Article 84 (2), sea and air discrimination prohibition on under
transport, so long as the Council has Article 48 (2) of the EEC Treaty has not decided otherwise, is excluded the effect of not only allowing in each only from the rules of Title IV of Part State to to equal access employment Two of the Treaty relating to the the nationals of other Member States, common transport policy. It remains, but also of guaranteeing to the State's on the same basis as the other modes own nationals that they shall not of transport, subject to the general suffer the unfavourable consequences rules of the Treaty. from which could result the offer or
5. Since the provisions of Article 48 and acceptance by nationals of other
Member States of conditions of of Regulation No 1612/68 are directly employment or remuneration less applicable in the legal order of every advantageous than those obtaining Member State, and Community law under the national law. It thus has priority over national law, these follows from the general character of provisions give rise, on the part of the prohibition on discrimination in those concerned, to rights which the Article 48 and the objective pursued national authorities must respect and
safeguard and as a result of which all by the abolition of discrimination that discrimination is prohibited even if it contrary provisions of internal law constitutes only an obstacle of are rendered inapplicable to them. secondary importance as regards the
6. Although Article 48 and Regulation equality of access to employment and
No 1612/68 are directly applicable in other conditions of work and
the territory of the French Republic, employment.
In Case 167/73
Commission of the European Communities , represented by its Legal Adviser,
Marc Sohier, acting as agent, with an address for service in Luxembourg at the office of its Legal Adviser Pierre Lamoureux, 4, boulevard Royal,
applicant, V
French REPUBLIC , represented by Robert Luc, Ambassador, acting as agent, with an address for service in Luxembourg at the Embassy of the French Republic, defendant,
COMMISSION v FRENCH REPUBLIC
Application for a declaration that by not amending the provision of Article 3 (2) of the Code du Travail Maritime dated 13 December 1936 in relation to the nationals of other Member States, the French Republic has not complied with its obligations under the provisions of the EEC Treaty as regards freedom of movement for workers and, in particular, Articles 1, 4 and 7 of Regulation No 1612/68/EEC of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ L 257, 19. 10. 1968, p. 2),
THE COURT
Presi composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, dents of Chambers, R. Monaco, J. Mertens de Wilmars (Rapporteur), P. Pescatore, H. Kutscher, C. Ó Dalaigh, Lord Mackenzie Stuart, Judges,
Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts and procedure may be exemptions, employments on the bridge, summarized as follows: in the engine room and in the wireless
room on French vessels to persons of
French nationality, and general
employment on board is limited in the I — Facts and procedure French to ratio of three one non-French.
In the view of the Commission this Article 3 (2) of the French Code du Article contravenes the provisions of Travail Maritime of 13 December 1926 Articles 1, 4 and 7 of Regulation No provides that 'such proportion of the 1612/68/EEC of the Council of 15 crew of a ship as is laid down by order October 1968 (OJ L 257, 19. 10. 1968, of the Minister for the Merchant Fleet p. 2) and at the end of an exchange of must be French nationals'. correspondence it invited the French The Ministerial Order of 21 November Government on 8 October 1971, in 1960 (JORF of 1. 12. 1960, p. 10770), as accordance with Article 169 of the
amended by the Ministerial Order of 12 Treaty, to amend its legislation on the
June 1969 (JORF of 13. 6. 1969, p. subject to comply with the Community 5923) issued in implementation of this provisions. By letter dated 30 November provision, reserves, subject to special 1971 the French Government undertook
JUDGMENT OF 4. 4. 1374 — CASE 167/73
to lay the necessary draft law to this obligations under the provisions of
effect 'before the next parliamentary the EEC Treaty relating to freedom session'. of movement for workers and in particular Articles 1, 4 and 7 of Since there was no reply to a second
letter dated 18 April 1972 in which a Regulation (EEC) No 1612/68 of the Council of 15 October 1968 free on request to remedy the infringement dom of movement for workers before 1 July 1972 was repeated, the
Commission on 15 December 1972 within the Community in that it has delivered a reasoned opinion under the not removed the discriminatory provisions of its Code du Travail first paragraph of Article 169 of the Maritime relating to the opportunity Treaty, which opinion was received by for employment in sea transport; the French Government on 29 December 1972, requesting it to take the required (b) Order the French Republic to pay measures within a period of 30 days. the costs.
On 15 January 1973 the French The French Government contends that Government acknowledged receipt of the Court should: the reasoned Opinion and by letter dated 6 February 1973 it draft (a) Declare that the Commission has not stated that a established its legal interest; law, put befor Parliament on 7 December 1972, has been adopted on a (b) Alternatively, reject the Commis
first reading by the National Assembly sion's claims;
and passed to the Senate, but that it had (c) Order the Commission to pay the not been possible to conclude the costs. process of enactment before the end of
the parliamentary session. The French Government undertook 'to do all in its power to ensure that the examination of
the draft would be taken up again by the III — Pleas and arguments
Senate on the opening of the new of the parties
session'. Since in the Commission's view this undertaking was not honoured, the According to the Commission, the
Commission on 11 September 1973 French Government seems to have referred the matter to the Court of decided not to pursue the procedure
Justice. necessary to remove the alleged
The filed discrimination. application was at the Court on 14 September 1973. Moreover, during the parliamentary debates it justified the draft on the Upon hearing the report of the grounds of expediency, but demurred at Judge-Rapporteur and the opinion of the recognizing the soundness of the Advocate-General, the Court decided to argument that the general rules of the open the oral procedure without any Treaty on freedom of movement for preparatory inquiry. workers apply equally to transport, including sea transport. There is accordingly an interest of principle in settling the dispute. II — Submissions of the
parties A — Article 3 (2) of the French law of
13 December 1926 contravenes Articles The Commission claims that the Court 1, 4 and 7 of Regulation No 1612/68 of should: the Council of 15 October 1968 (OJ L (a) Adjudge and find that the French 257, 19. 10. 1968, p. 2) to the extent that Republic has failed to fulfil its it provides, to the detriment of the
COMMISSION v FRENCH REPUBLIC
nationals of other Member States, for provision, read as a whole, means that
discrimination, the extent of which is left the special rules for transport do not
to the discretion of the national apply to sea and air transport, but it administration and which means, at the does not follow that the other provisions very least, a potential restriction on of the Treaty are inapplicable to them.
access to the employments in question. The contrary argument would impair the principle of legal certainty. It would be B —
According to the Commission it is necessary, each time an activity had a not possible to conclude from the fact more or less direct connexion with sea that transport is the subject of a special or air transport, to define some criterion title (Title IV, Articles 74 to 84) that the to decide whether the activity in general rules of the Treaty do not apply question came within the scope of the here. The very structure of the Treaty Treaty or whether it had to be excluded. implies that its scope extends in all
respects to all branches of the economy, D — Two regulations of the Council to all goods and to all services, in such a concerning social security have moreover way that, whenever provisions or groups confirmed the application of the
of general provisions do not have to be principle of freedom of movement for applied to a particular sector, these workers to persons employed by exceptions are the subject of express transport undertakings. They are
provisions. Such is the case with Article Regulations No 3 of 25 September 1958 61 (1), which exempts the field of concerning social security for migrant
transport from the general rules on workers (Article 13 (b)) (OJ of 16. 12. freedom to provide services, and with 1958, p. 561/58) and No 1408/71 on the Article 77, which partially limits the application of social security schemes to
application of the rules of competition to employed persons and their families transport. moving within Community (Article the
These two exceptions confirm that as 13 (b) and 4 (2)) (Of L 149, 5. 7. 1971, regards the rest the general rules P. 2). apply, for if the contrary were the case they There is thus no doubt that the
would have been superfluous. As regards discriminatory clause of Article 3 (2) of
freedom of movement for workers and the French law of 13 December 1926 has subject to limitations justified on been incompatible with Regulation No grounds of public policy, the only 1612/68 of the Council since the
exception permitted in the application of Regulation came into force on 8 the provisions relating thereto refers to November 1968. employment in the public service. E — The Commission notes that a The application of the general rules of possible objection to the proceedings the Treaty to transport has moreover be made on the basis of, first, the could been implicitly accepted by the Court of direct effect of Regulation No 1612/68, Justice in its judgment of 31 March 1971 which confers on individuals the (Case 22/70, Commission v Council, their possibility of vindicating rights Rec. 1971, p. 263). before the national courts and, secondly, C Nor Article 84 the existence of national administrative —
can of the Treaty be relied on. Article 84 (1) provides that directions intended to ensure that the
the provisions of Title IV shall apply to law in question is not applied during the period until it is amended by the transport by rail, road and inland Article 84 (2) enables the legislature. waterway, and
Council to decide 'whether, to what On the first point the Commission
extent and by what procedure points out that in its opinion disregard appropriate provisions may be laid down of Regulation No 1612/68 can give rise
for sea and air transport'. This to an action under Article 169, whatever
JUDGMENT OF 4. 4.1974 — CASE 167/73
be the scope of this Regulation in the should be regarded as having no legal internal legal system and the extent of interest, since it has not shown that the the rights which it confers on nationals fulfilment of possible Community of Member States before national courts. obligations had been frustrated. The Court has stressed that the two There had been discrimination no remedies have different aims and effects State against a national of a Member (judgment February of 17 1970, and moreover there was not risk of Commission v Italian Republic, Case doubt in the mind of the subjects or 31/69, Rec. 1970, p. 25). public services.
On the second point the Commission In its reply the Commission states that considers that the maintenance in force there are in any case grounds of in the laws of a Member State of in pursuing principle the proceedings by provisions which are incompatible with reason of the legal dispute which exists the provisions of the Community rules, as to the applicability of the general constitutes in itself a failure to fulfil in rules of the Treaty to transport and
Community obligations. Such main
particular to sea and air transport. tenance, contrary to the obligation As regards its legal interest where there expressed in Article 5 of the Treaty, is a failure to fulfil the obligations would create in any event a doubt in the which fall upon Member States, the mind of citizens and would compel them Commission observes that this interest to initiate judicial proceedings in the
national courts, or at least, as appears exists independently of whether those
concerned have actually been affected by from a consideration of the Ministerial the failure. Order of 21 November 1960, amended
by that of 12 June 1969, issued in Moreover, an analysis of the effects of
implementation of law in question, the the Ministerial Order of 21 November
to request exemption from the 1960, as amended by that of 12 June
prohibition, which in itself would 1969, shows that a discriminatory The 'adminis already constitute discrimination. situation actually exists. directions' trative to which the French The main contention in the French Government refers could not indeed Government's statement of defence is have any other object than to require the that the proceedings are otiose and competent authorities systematically to alternatively that the Commission has make exceptions in favour of applicants not sufficiently established its legal for employment who are nationals of interest. Member States. Such applicants must The proceedings are alleged to be otiose however request an exemption and because the French Government, far comply with more or less long from having given up its legislative formalities to which French workers are plans, is on the contrary intent on not subject, and this in itself constitutes fulfilling them, whatever the foreseeable discrimination. social difficulties. The fact that the
alleged default will disappear the date of A risk of doubt exists because of the fact
the promulgation of the future law that the French Government persists in
means that the action by the denying that Regulation No 1612/68 of Commission should be found to have the Council applies to sea transport. become otiose. In its rejoinder the French Government In the event of the Court finding that, refers first of all to the arguments which notwithstanding the disappearance of the it has already developed in its defence. object of the proceedings at the date of The Commission had no legal interest the promulgation of the law, such object because in spite of the terms of the law existed at the date the proceedings were in dispute there was in fact no
initiated, nevertheless the Commission discrimination against nationals of other
COMMISSION v FRENCH REPUBLIC
Member States, since the directions given services and capital, agriculture and,
verbally to the merchant navy authorities inter alia, transport (Articles 74 to 84). required them to treat nationals of the These latter provisions, justified both by Community in the same way as French. the distinctive features of transport
Such nationals did not have to comply (Article 75) and by the fact that in these with any formalities or suffer any delays matters the objectives of the Treaty are to obtain by way of exemption the right to be pursued within the framework of a to employment. It was sufficient for common policy (Article 74), are 'on an footing' them, as for any French national, to be equal with the other provisions
in possession of a trade book in respect of the Treaty, and they make special
of which the conditions of issue were the provision for sea transport. If this latter same for them as for French nationals, is also to be subject to a common policy, or to have an offer of employment on a all the Treaty does is to mention this
ship. policy without even sketching its As regards the interpretation of the outlines, so that as regards sea transport
Treaty and the obligations on Member 'everything is projected in the common
States which derive therefrom, the policy which the Council has the task of
French Government does not, however, establishing under Article 84 (2)'. In agree with the argument of the these circumstances the postponement of
Commission that the general rules of the the establishment of a common policy Treaty apply to transport except to the for sea transport cannot indicate an
extent that particular provisions intention of making such transport
derogate therefrom. subject to the general rules of the Treaty, In the first place it rejects the argument even provisionally.
that the fact that Articles 61 and 77 of The argument of the Commission would
the Treaty provide expressly that certain moreover lead, according to the
rules of the Treaty, in particular those defendant, to paradoxical results, for it to the provision of services would lead to denying sea transport, relating (Article because it is at present excluded from 61) and certain of those relating (Article the common policy for transport, the to state aids 177), are not applicable to the benefit of the exemptions in the Treaty, transport, enables
to be drawn that the other for example as regards aids, which are corollary intended to adapt the rules the Treaty rules of the Treaty do in fact apply to it. of
These do to the special requirements of transport provisions not enable such a
to be drawn, at rate as and from which transport by land and corollary any sea is expressly inland waterways benefits. regards transport, which
declared not to be subject to the Although it is conscious of the need to
Community relating to transport, rules secure freedom of movement for so long as the Council has not decided the French Government workers, otherwise. considers that this objective should not
In the second place the French be pursued at the expense of the rules of Government contends that the general the Treaty. The Council could decide system of the Treaty does not allow its that this freedom of movement forms rules, and in particular those relating to one of the items of the common policy freedom of movement for workers, to be for sea transport as for other transport. applied automatically to sea transport. Since this Community route has not
The Treaty comprises, besides provisions been followed, Government, the French of a quite general character, such as the which considers such freedom desirable,
preliminary Articles and those relating to has taken the initiative of submitting a
the institutions, provisions relating to draft law to its parliament making this particular objects such as free movement amendment, but it has at present been of goods, free movement of persons, rejected. This initiative does not prevent
JUDGMENT OF 4. 4. 1974 — CASE 167/73
it from still being of the opinion that appropriate to the special needs in this
the provisions which should govern sea sphere have not been made. In the same transport ought to be the subject of a way the general programme for the
decision of the Council to conform with abolition of restrictions on freedom of
Article 84 (2) and that the decisions of establishment, adopted by the Council the Council must be included in a on 18 December 1961, does not include common transport policy, which is a timetable for sea and air transport. It required by Article 3 of the Treaty. leaves the task of stating the general
programme in the spheres of sea and The French Government concludes by air transport to the Council, acting stating that its position is not, as alleged unanimously. by the Commission, that no provision of Since the Council has not taken a the Treaty is applicable to sea and air
transport, without a previous decision decision extending the scope of
Regulation No 1612/68 to sea transport, having been taken by the Council. It is apparent that a large number of the the French Government submits that the arguments of the Commission should be general provisions of the Treaty, rejected. including the provisions relating to the
institutions, can be applied to sea During the course of the oral procedure transport. On the other hand, any on 12 February 1974 the parties
application of the rules of substance developed the arguments set out in the
must take account of the requirements of written procedure.
Articles 3 and 84 (2). The its applicant was represented by is agent, Marc Sohier; the defendant was This position confirmed by the
practice of the Council. Regulation No represented by Monsieur Delacharrière, 26 November 1962 Minister plenipotentiary, and Georges 141 of (OJ of
28.11. 1962, p. 2751/62) has stated that Sidere, Adviser. the rules of competition cannot apply to The Advocate-General delivered his sea transport so long as provisions opinion on 1 March 1974.
Law
1 By an application filed on 14 September 1973, the Commission, under Article 169 of the Treaty establishing the European Economic Community, brought an action before the Court for a declaration that by not repealing, insofar as it affects the nationals of other Member States, the provision of Article 3 (2) of the French Code du Travail Maritime of 13 December 1926 as amended by Order No 58-1358 of 27 December 19.58, the French Republic has not
complied with its obligations under the provisions of the Treaty relating to freedom of movement for workers and in particular Articles 1, 4 and 7 of Regulation No 1612/68 of the Council of 15 October 1968 (OJ L 257, 19. 10. 1968, p. 2) on freedom of movement for workers within the Com
munity.
2 Under Article 3 (2) of the aforementioned law such proportion of the crew of a ship as is laid down by an order of the Minister of the Merchant Fleet must be of French nationality.
COMMISSION v FRENCH REPUBLIC
3 By Ministerial Order of 21 November 1960 (OJ of the French Republic of 1 December 1960, p. 10 770) as amended by that of 12 June 1969 (OJ of the French Republic of 13 June 1969, p. 5923) it was decided that, apart from special exemptions granted by the competent local administrative authorities, employment on the bridge and in the engine and wireless rooms on board merchant ships or fishing vessels or pleasure cruisers was reserved to persons of French nationality, and employment generally was so limited in the ratio
of three to one.
4 In so far as it applies to nationals of other Member States, Article 3 (2), according to the Commission, is incompatible with Article 48 of the Treaty, under which freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and
employment.
5 The continuance of the provision in question is likewise said to be incompatible with Regulation No 1612/68 and, in particular, with Article 4 thereof under which provisions laid down by law, regulation or
administrative action of Member States which restrict by number or
percentage the employment of foreign nationals in any undertaking, branch of
activity or region, or at a national level, shall not apply to nationals of the other Member States.
6 The Government of the French Republic contends that the Commission has not established a legal interest because, in spite of the continuance of the
provision in question, there is no discrimination in its application between French nationals and those of other Member States, taking into account that
the directions given verbally to the naval authorities requires that the
'nationals of the Community shall be treated as French nationals', so that
these nationals are not 'obliged to comply with any formalities nor to suffer
any delay in obtaining the right to employment by way of exemption'.
7 The Government of the French Republic, however, considers that although it exempts the nationals of Member States from the disparity in treatment
provided for by the said law, it is not bound to do so by the provisions of the Treaty.
JUDGMENT OF 4. 4. 1974 — CASE 167/73
8 It maintains that the rules of the Treaty regarding freedom of movement for workers do not apply to transport and, in any event, not to sea transport so
long as the Council has not so decided under Article 84 (2) of the Treaty.
9 It follows (it is said) from Articles 3 (e) and 74 of the Treaty that the rules of
the Treaty relating to the complex of economic activities covered by it, and in particular Articles 48 to 51, apply to transport only within the framework of a common policy.
10 It is for the Council alone to decide the implementation of this policy in accordance with the procedure provided for this purpose by Article 75.
11 This is even more so as regards sea transport since it is excluded by reason of Article 84 (2) from the application of Articles 74 to 84 to the Treaty, since Article 84 (2) provides only that the Council may, acting unanimously, decide
whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport.
12 Finally the special aspects of transport, which Article 75 requires to be taken into account, make it impossible to apply a large number of the provisions of
the Treaty relating to economic activities as a whole to transport, and, a
fortiori, to sea and air transport.
A —
Admissibility of the Action
13 The Government of the French Republic challenges the existence of a legal interest on the part of the Commission.
14 This plea may be understood either as aimed at the admissibility of the action or as denying the existence of the alleged default.
15 The Commission, in the exercise of the powers which it has under Articles 155 and 169 of the Treaty, does not have to show the existence of a legal
COMMISSION v FRENCH REPUBLIC
interest, since, in the general interest of the Community, its function is to ensure that the provisions of the Treaty are applied by the Member States and to note the existence of any failure to fulfil the obligations deriving therefrom, with a view to bringing it to an end.
16 The action is admissible.
B — The interpretation of Article 84 (2) of the
Treaty
17 To determine whether, in the sphere of transport, Member States are bound
by the obligations provided in Articles 48 to 51 of the Treaty, it is proper to
consider the place of Title IV of Part Two of the Treaty, relating to transport, in the general system of the Treaty, and the place of Article 84 (2) within
Title IV.
18 Under Article 2 of the Treaty, which is placed at the head of the general
principles which it, govern Communitythe has as its task to promote
throughout the Community a harmonious development of economic activities by establishing a common market and progressively approximating the
economic policies of Member States.
19 The establishment of the common market thus refers to the whole of the
economic activities in the Community.
20 The basic object of Part Two of the Treaty, devoted to foundations of the Community, is to establish the basis of the common market, i.e. free movement of goods (Title I) and free movement of persons, services and capital (Title
III).
21 Conceived as being applicable to the whole complex of economic activities, these basic rules can be rendered inapplicable only as a result of express
provision in the Treaty.
JUDGMENT OF 4. 4. 1974 — CASE 167/73
22 Such exemption is provided, in particular, by Article 38 (2) under which the rules laid down for the establishment of the common market shall apply to
agricultural products save as provided in Title II of this part of the Treaty.
23 As regards transport, which is the subject of Title IV of this part, it is proper to enquire, viewing Article 84 (2) in the framework of this Title, whether the provisions of the Title contain a similar exemption.
24 When Article 74 refers to the objectives of the Treaty, it means the provisions
of Articles 2 and 3, for the attainment of which the fundamental provisions applicable to the whole complex of economic activity are of prime
importance.
25 Far from involving a departure from these fundamental rules, therefore, the object of the rules relating to the common transport policy is to implement and complement them by means of common action.
26 Consequently the said general rules must be applied insofar as they can
achieve these objectives.
27 Since transport is basically a service, it has been found necessary to provide a special system for it, taking into account the special aspects of this branch of
activity.
28 With this object, a special exemption has been provided by Article 61 (1), under which freedom to provide services in the field of transport 'shall be governed by the provisions of the Title relating to transport', thus confirming that the general rules of the Treaty must be applied insofar as they are not
excluded.
29 Article 84 (1) provides that the provisions of the Title relating to transport shall by to transport by rail, road and indland waterway.
COMMISSION v FRENCH REPUBLIC
30 Article 84 (2) provides that as regards sea transport, the Council may decide
whether, to what extent and by what procedure appropriate provisions may be laid down.
31 Far from excluding the application of the Treaty to these matters, it provides
only that the special provisions of the Title relating to transport shall not
automatically apply to them.
32 Whilst under Article 84 (2), therefore, sea and air transport, so long as the Council has not decided otherwise, is excluded from the rules of Title IV of Part Two of the Treaty relating to the common transport policy, it remains, on the same basis as the other modes of transport, subject to the general
rules of the Treaty.
33 It thus follows that the application of Articles 48 to 51 to the sphere of sea
transport is not optional but obligatory for Member States.
C — Existence of a default
34 In challenging the legal interest of the Commission the Government of the
French Republic has also sought to deny that a default exists in the case in question solely as a result of the maintenance in the national legal system of the law in dispute without taking into consideration the application which is made of it in practice.
35 A correct assessment of the legal position should have led the French
authorities to find that since the provisions of Article 48 and of Regulation No 1612/68 are directly applicable in the legal system of every Member State
and Community law has priority over national law, these provisions give rise, on the part of those concerned, to rights which the national authorities must
respect and safeguard and as a result of which all contrary provisions of
internal law are rendered inapplicable to them.
JUDGMENT OF 4. 4. 1974 — CASE 167/73
36 In reply to a formal notice under the first paragraph of Article 169 dated 8 October 1971 by the Commission to the French Government, the latter stated in a letter of 30 November 1971 that it had already on several occasions
indicated its intention of amending Article 3 (2) of the Code du Travail Maritime.
37 In the same letter the Government declared itself ready to put the necessary draft law before the 1972-1973 parliamentary session.
38 Following the reasoned opinion from the Commission dated 15 December 1972 the French Government stated that it had submitted the draft law in question to Parliament and that it would do all in its power to have it adopted.
39 It appears from the grounds of the draft law submitted to the National
Assembly on 7 December 1972 that the Government 'wishes ... to amend the
Code du Travail Maritime in order to abolish the discrimination which exists against nationals of Member States of the Community'.
40 It appears both from the argument before the Court and from the position
adopted during the parliamentary proceedings that the present state of affairs
is that freedom of movement for workers in the sector in question continues to be considered by the French authorities not as a matter of right but as
dependent on their unilateral will.
41 It follows that although the objective legal position is clear, namely, that
Article 48 and Regulation No 1612/68 are directly applicable in the territory of the French Republic, nevertheless the maintenance in these circumstances of the wording of the Code du Travail Maritime gives rise to an ambiguous
state of affairs by maintaining, as regards those subject to the law who are concerned, a state of uncertainty as to the possibilities available to them of
relying on Community law.
This uncertainty only be by the internal and verbal character 42 can reinforced
of the purely administrative directions to waive the application of the national law.
COMMISSION v FRENCH REPUBLIC
43 The free movement of persons, and in particular workers, constitutes, as
appears both from Article 3 (c) of the Treaty and from the place of Articles 48 to 51 in Part Two of the Treaty, one of the foundations of the Community.
44 According to Article 48 (2) it entails the abolition of any discrimination based on nationality, whatever be its nature or extent, between workers of the
Member States as regards employment, remuneration and other conditions of work and employment.
45 The absolute nature of this prohibition, moreover, has the effect of not only
allowing in each State equal access to employment to the nationals of other
Member States, but also, in accordance with the aim of Article 177 of the
Treaty, of guaranteeing to the State's own nationals that they shall not suffer the unfavourable consequences which could result from the offer or
acceptance by nationals of other Member States of conditions of employment
or remuneration less advantageous than those obtaining under national law, since such acceptance is prohibited.
46 It thus follows from the general character of the prohibition on discrimination in Article 48 and the objective pursued by the abolition of discrimination that discrimination is prohibited even if it constitutes only an obstacle of
secondary importance as regards the equality of access to employment and
other conditions of work and employment.
47 The uncertainty created by the maintenance unamended of the wording of Article 3 of the Code du Travail Maritime constitutes such an obstacle.
48 It follows that in maintaining unamended, in these circumstances, the
provisions of Article 3 (2) of the Code du Travail Maritime as regards the
nationals of other Member States, the French Republic has failed to fulfil its obligations under Article 48 of the Treaty and Article 4 of Regulation No 1612/68 of the Council of 15 October 1968.
JUDGMENT OF 4. 4.1974 — CASE 167/73
Costs
49 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs, if a submission has been made to that effect.
50 The French Republic has failed in its pleas;
51 The French Republic must therefore be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
1. Declares that in maintaining unamended the provisions of Article 3
(2) of the Code du Travail Maritime as regards the nationals of other Member States, the French Republic has failed to fulfil its obligations
under Article 48 of the Treaty and Article 4 of Regulation No 1612/68 of the Council of 15 October 1968.
2. Orders the French Republic to pay the costs.
Lecourt Donner Sørensen Monaco Mertens de Wilmars
Pescatore Kutscher Ó Dalaigh Mackenzie Stuart
Delivered in open court in Luxembourg on 4 April 1974.
A. Van Houtte R. Lecourt
Registrar President