C-334/94

2. The Commission asks the Court, in accordance with Article 169 of the Treaty establishing the European Community (ii) to find that the French Republic is in (hereinafter ‘the Treaty’): breach of Article 171 of the Treaty by its failure to take the necessary measures to comply with the judgment of the Court 2 in Commission ν France (by which the French Republic has already been found to be in breach of its obligations under the Treaty in respect of the crewing (i) to find that, by the maintenance in force requirement); and of laws or other measures restricting reg­ istration and the right to fly the French flag to ships in which a majority stake is owned by persons with French national­ 1 — The Commission relies in particular on Commission Regu­ lation (EEC) No 1251/70 of 29 June 1970 on the right of ity, or owned by legal persons with cer­ workers to remain in the territory of a Member State after tain specified links with France, and having been employed in that State; OJ, English Special Edi­ tion 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. * Original language: English. 2 — Case 167/73 [1974] ECR 359.

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(¡ii) to order the French Republic to bear (ii) belong wholly to a company with its the costs of the proceedings. headquarters in France, or a company which, having its headquarters in another State where, pursuant to a con- vention concluded with France, French companies are permitted to exercise their activities, elects French domicile for all administrative and judicial purposes rela- The French Government docs not contest tive to the vessel (in either case, and irre- the Commission's position, save to point out spective of the location of the company that steps are being taken to rectify the mat- headquarters, certain management and ter by legislation. There was no oral hearing. supervisory officers, or a majority thereof, or a majority of the sharehold- ers, depending on the type of company, must be French nationals); or

Registration may also be accorded with the vessels must be of French nationality. 6 The agreement of the Ministers for the Marine Court has already found this national rule to and for the Budget: be in breach of Article 48 of the Treaty and of Article 4 of Council Regulation (EEC) N o 1612/68 7 in Commission ν France. 8 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. 9 (a) where natural and legal persons in catego­ ries (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 Procedure

(b)the vessel has been taken under a bare­ boat charter by a French undertaking which controls, fits and manages it, where 5. The Commission commenced the pre- such a change in flags is permitted in such contentious phase under Article 169 of the circumstances by the State whose flag it Treaty by addressing to the French Govern­ originally flew. 4 ment four formal letters of notice, respec­ tively, on 21 August 1989 (on the registration of pleasure boats); on 16 May 1990 (on reg­ istration by legal persons); on 21 May 1990 (on the registration of fishing vessels, and on the crewing requirements condemned

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¡η Commission ν France); '° and on 24 April breaches of Community law alleged by it in 1992 (on the registration of merchant ves­ the instant case. (The projected law would sels). There was no reply to the first two let­ reserve the posts of captain and second cap­ ters. The French Government replied to the tain to French nationals, but the Commis­ letter of 21 May 1990 on 30 July of that year, sion concedes that this exception is justified seeking an extension of the time-limit for under Article 48 of the Treaty because the reply; in a letter of 17 January 1991, it stated functions of these officers include the effec­ its belief in the principle requiring a real tive exercise of public authority.) However, economic link between a ship and the State the Commission received no further com­ whose flag it flies, but added that it was munication in respect of the proposed legis­ planned to replace the existing ownership lative changes, and commenced the present rules with conditions based on nationality of proceedings pursuant to Article 169 of the a Community Member State. The French Treaty, on 22 December 1994. The French Government replied to the letter of notice of Government lodged its defence on 15 March 24 April 1992 on 7 July 1992, referring to a 1995. The parties having indicated their con­ draft law which would bring French law into sent, the Court decided pursuant to conformity with Community law in this Article 44a of the Rules of Procedure to dis­ field, and also in that of the employment of pense with an oral hearing. nationals of other Member States on ships flying the French flag.

8. Article 169 of the Treaty empowers the Commission to ask the Court to declare that 2. If the Commission considers that the a Member State is in breach of any provision Member State concerned has not taken such of Community law (including the Treaty). measures it shall, after giving that State the The obligation of Member States to comply opportunity to submit its observations, issue with judgments of the Court was, and still is, a reasoned opinion specifying the points on stated in Article 171 of the Treaty. Prior to which the Member State concerned has not the coming into force of the Treaty on Euro­ complied with the judgment of the Court of pean Union on 1 November 1993, it stood Justice. on the same footing as all other Treaty pro­ visions, imposing obligations on Member States. N o 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. 1 1 Article 171 now con­ If the Member State concerned fails to take tains a distinct procedure in paragraph 2 for the necessary measures to comply with the actions for failure to comply with a previous Court's judgment within the time-limit laid judgment of the Court. 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 con­ siders appropriate in the circumstances.

9. As amended by the Maastricht Treaty, Article 171 of the Treaty now states:

10. The second paragraph, inserted into compliance laid down in the reasoned opin­ Article 171 of the Treaty, replicates in many ion expired on 11 December 1993, and the respects the Article 169 procedure: it envis­ Court was seised of the contentious proceed­ ages a notification seeking observations, and ings on 22 December 1994, that is after that a reasoned opinion setting a time-limit for Treaty had come into force. Member State compliance, before the com­ mencement, 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. 12 Its intent is clearly to encourage compliance with judg­ ments of the Court. A recalcitrant Member State will already have had several opportu­ nities, first through the Article 169 pro­ cedure, pre-judgment, and then, through Article 171(2), post-judgment, to observe the requirements of Community law.

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13. I must therefore ask whether the pro cedure 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 Com mission can continue, at its discretion or in transitional cases, to act in such cases through proceedings instituted under Arti 15 — See, for example, Case T-84/91 Meskens ν European Parlia cle 169. I believe that use of the new pro ment [1992] ECR II-2335, in which the Court of First Instance felt bound of its own motion to reject as inadmis cedure under Article 171(2) of the Treaty is sible a request that it impose a penalty payment on a Com munity institution to ensure observance of an earlier mandatory in cases to which it applies, decision of the Court. See also Case 31/69 Commission ν because a specific procedure has now been Italy [1970] ECR 25, paragraph 8 of the judgment, in which the Court remarked that a particular submission (that Arti provided, which on the ordinary principles cle 169 proceedings could not be taken in respect of simple omissions to implement directly applicable legislation) was of construction derogates from any provi out of time, but as it related to the Court's jurisdiction, it sion of more general application in so far as 'must be examined by the Court of its own motion'.

affected: Advocate General Lenz in C-249/91 Commission ν France [1994] ECR 1-787, paragraph 22; Advocate General if it exercises its discretion to bring the mat Gulmann in Case C-61/90 Commission ν Greece [1992] ECR I-2407, paragraph 16. ter before the Court, the Commission must specify its view of the appropriate amount, 16 — See, for example, Joined Cases 114/79 to 117/79 Foamier ν Commission [1980] ECR 1529, in which the family of a in the circumstances, of a lump sum or pen Community official sought to bring proceedings under Articles 175 and 178 of the Treaty in respect of matters

ative to the use of both Article 173 and Article 175 of the Européenne: Commentaire Article par Article (Paris, 1995), Treaty are satisfied that the Court will take the view that p. 577. On the principle of the lex specialis, see for example both provisions 'merely prescribe one and the same method the remarks of Advocate General Verloren van Themaat in of recourse', as in Case 15/70 Chevalley ν Commission Case 239/84 Gerlach v Minister for Economic Affairs [1985] [1970] ECR 975, paragraph 6. ECR 3507, p. 3510.

affected, as we shall see, by the possibility of 15. It is, in my opinion, a corollary of the the imposition of such sanctions. 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 Commu­ nity 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. 2 0 It is the further dis­ 14. This view is not inconsistent with the tinct breach by a Member State of its Treaty obligations, in failing to take the necessary similar mandatory language of Article 169. measures to comply with the judgment of Article 171(2) of the Treaty is specific to the the Court, which justifies a further action failure of a Member State to take measures to based on Article 171(1) of the Treaty. comply with a Court judgment and requires the Commission to follow its procedure in pursuit of such failure. This new Arti­ cle 171(2) procedure is stated (in the fourth indent) to be 'without prejudice to Article 170', a provision of general applica­ tion, while no such reference is made to Article 169. Thus, while Article 171(2) expressly envisages the continued possibility 16. However, the Commission and the of Member State enforcement action pursu­ Court are primarily concerned to ensure the ant to a general enforcement provision, with­ observance of Treaty obligations, rather than out the imposition of pecuniary sanctions, it with the content of the offending national is implicit that no such option remains open provision, practice or omission per se. There­ to the Commission under Article 169. It fol­ fore, I believe that, even after a Member lows that the procedure set out in Arti­ State has been the addressee of a judgment of cle 171(2) must now be employed in any case the Court, finding it to be in breach of a par­ where the Commission seeks to enforce ticular obligation under the Treaty, the Com­ Article 171(1) of the Treaty. 19However, this mission remains competent to invoke further general proposition is subject, in my view, to distinct Treaty obligations in proceedings an exception in respect of transitional cases taken under Article 169 in respect of the such as the present, for the reasons outlined same national provision, practice or omis­ below. sion. Consequently, the Commission is

17. I must now ask if the Article 171(2) pro- cedure applies to the alleged non-execution 18. The obligation expressed in Arti- of Court judgments pre-dating the entry into cle 171(1) remains unchanged, so that there is force of the Treaty on European Union. If no question of Member States being placed not, its mandatory application (to the under a new primary obligation. However, enforcement only of those judgments issued they are subject to a potential new obligation after 1 November 1993) would be irrelevant to pay a lump sum or penalty payment in the in the circumstances of the present case. At event of failure to fulfil this primary obliga- least one commentator has espoused the tion. In my view, it is quite clear that the view, with which I agree, that the possibility Court cannot impose a penalty in respect of of financial sanctions under the new pro- a period of disobedience to a judgment prior cedure is inapplicable in such cases, on the to 1 November 1993. Any sanction imposed basis of the principles of legal certainty and on a Member State under Article 171(2) of against retrospective operation of laws. 22 the Treaty for a continuing breach of Arti- These are general principles of Community cle 171(1) should relate only to the period law, which apply with particular force to the after 1 November 1993. I would expect the retroactive imposition of penal sanctions, 23 Commission to take account of these princi- but also prohibit (subject to justified excep- ples when specifying to the Court the tions) retroactive legal measures of a civil amount of the lump sum or penalty payment nature. 24 Subject to this important point, I to be paid by the Member State concerned believe, none the less, that the procedure is which it considers appropriate in the circum- applicable to infringement proceedings in stances. However, it remains my clear view respect of what might be called pre- that the Commission's power to pursue Maastricht judgments, provided that the Member States for any post-Maastricht period of non-compliance with Court judg- ments of any date derives, since 1 November 1993, from Article 171(2) of the Treaty and 21 — See paragraph 7 above. not from Article 169, regardless of whether 22 — See J. Diez-Hochleitner, 'Le Traité de Maastricht et l'Inexécution des Arrêts de la Cour de Justice par les Etats the Court can impose a penalty for earlier Membres' (1994) Revue du Marché Unique Européen 111, p. 130. periods of non-compliance. 23 — See Case 63/83 Regina v Kirk [1984] ECR 2689, para- graphs 21 to 23 of the judgment. 24 — See, for example, Case C-337/88 Società Agricola Fattoria Alimentare [1990] ECR I-I, paragraph 13 of the judgment; Case 331/88 Regina ν Minister for Agriculture, ex 25 — The terms 'pre-' and 'post-Maastricht' relate to periods parte Fedesa [1990] ECR I-4023, paragraph 45. before and after the coming into force of that Treaty.

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 rea­ soned opinion to specify the points on which the Member State concerned has not com­ plied with the judgment of the Court. How­ ever, while Article 169 is silent on the degree to which the Commission must specify the 22. The delivery by the Commission of its failure of a Member State to fulfil an obliga­ reasoned opinion under Article 169 repre­ tion under this Treaty, it has been interpreted sents a watershed in that procedure. The in practice to require the Commission to events that precede it may include com­ give a coherent exposition of the reasons plaints against a Member State by a private which led it to this conviction. 26 The party or another Member State, or an inde­ requirements of both articles are therefore pendent investigation by the Commission. In identical in this respect, and were, in my any of these events, the Commission will view, complied with in the instant case. have taken the first step of inviting observa­ tions 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 action, even after belated compliance, in compliance. We will assume non-compliance. order to establish the basis of liability which The next step is for the Commission to take a Member State may incur as a result of its a stand in the form of its reasoned opinion. default towards other Member States, the 29 It states its complaint, calls for a remedy, and Community or private parties. sets a time-limit. The response of the Mem ber State often takes one or other form of inaction. It may positively contest the Com mission's complaint, or may indulge in one of the varied forms of temporizing which can so readily be found in the case-law.

cle 169. It may elect to comply with the Reischl remarked, in similar terms, in Com terms of the reasoned opinion within the mission ν Italy that 'the scope of the com period laid down by the Commission. The plaint cannot be enlarged after closure of the power of the Commission to 'bring the mat preliminary procedure'. 3 1 This may be con ter before the Court of Justice' arises only trasted with the view of the Court in that where the Member State fails to comply case that a draft law could not be considered within the specified period, which acts as a within the scope of the proceedings because sort of period of grace for the Member State, it was submitted to the Commission 'after which thus has the opportunity to deprive the delivery of the reasoned opinion'. 32 the Commission of its power and the Court Unless the end, or closure, of the prelimi of its jurisdiction. Thus, the reasoned opin nary procedure is marked by the issue, rather ion, on the date of delivery, by specifying the than by the expiry, of the reasoned opinion breach of Community law which must be (which is implausible, and is contradicted by rectified and within what period, defines the the French text of the remark quoted above subject-matter of any subsequent Arti from the judgment in Commission ν Germa cle 169 proceeding. If the Member State in ny), there is some inconsistency between question takes action to comply with its these dicta. However, the cases from which I obligations after the expiry of the period, it have quoted concerned circumstances in remains subject to the jurisdiction of the Court upon the application of the Commis sion, in respect of breaches of its obligations 29 — See, for example, Case C-361/88 Commission v Germany before the date of issue of the reasoned opin [1991] ECR I-2567, paragraph 31 of the judgment.

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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'. 3 6 This possible 25. There is a series of cases in which the extension of the temporal scope of proceed Court has given definitive temporal effect to ings ought to be strictly construed, but the letter of notice rather than to the rea seems to me to be applicable in principle to soned opinion. These concern either repeated cases of continued failure to take the neces annual breaches, for example of payment sary measures to comply with a judgment of obligations under the common organization the Court in breach of Article 171(1) of the of agricultural markets, 3 4 or breaches of a Treaty. So long as there is no change in the general obligation, allegations of which are material facts, the rights of the defence are extended in scope over time as the scope of not prejudiced by the inclusion of com plaints based on continuous identical acts or omissions after the delivery of the reasoned

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which does not take advantage of the period inadmissible to that extent. However, as it is of grace afforded by the reasoned opinion to couched in general terms, I prefer to read it set its house in order may find itself the sub- as relating only to the period up to the deliv- ject of a judgment of the Court in respect of ery of the reasoned opinion on 11 October the entire period up to the date of com- 1993, and as not seeking to rely on the mencement of the contentious phase (or up exceptional extension of the temporal scope to the date of eventual compliance, if earlier). 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 sanc- tions arises.

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of its introduction were, even in a small Court judgments before 1 November 1993. number of transitional cases, the undermin­ Article 169 of the Treaty therefore provides ing of the Commission's efforts to ensure the appropriate procedure for the enforce­ compliance with judgments of the Court. ment 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 29. If the Court takes the view that Arti­ breach of different provisions of Community cle 171(2) of the Treaty was the only appro­ law by the national provision, practice or priate basis on which to commence the con­ omission which was the subject of the earlier tentious phase in this case, because the Court judgment. The Commission's application in was seised after 1 November 1993, I would the instant case is therefore admissible in so recommend in the alternative that the action far as it seeks to enforce Article 171(1) of the be treated as having been taken on that basis. Treaty and the judgment of the Court in Except for the matter of sanctions, Arti­ Commission ν France, 4 0 and seeks an order cles 169 and 171(2) constitute in terms of of the Court that the French provisions on their procedural requirements 3 8 a n d their the nationality of ships' crews are contrary potential outcomes (more obviously even to provisions of Community law other than than in Chevalley) 'one and the same those invoked in that judgment (viz. the pro­ method of recourse'. 3 9As the imposition of visions on freedom of establishment). No sanctions docs not arise in a case which con­ question of inadmissibility arises in respect cerns in its entirety breaches of Arti­ of the other aspects of the case. cle 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. Substantive contentions of the parties

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 ν Secretary of State for Trans­ port, ex parte Factortame and Others (Fac- tortame II). 4 1 The Court there decided that, where the use of a vessel for economic pur­ poses required the operator to have a fixed 33. In respect of fishing vessels, the Com­ establishment in the Member State con­ mission recalls the case-law of the Court on cerned, its registration entailed observance of the competence of the Member States to the rules on freedom of establishment; regis­ specify the conditions on which their fishing tration rules which discriminated between quotas may be exploited, indicating that the persons on grounds of their nationality were exercise of this competence must be compat­ therefore prohibited: specifically, registration ible with Community law. While it may be rules which required that the owners or specified that vessels licensed to exploit their charterers of vessels have a particular nation­ fishing quotas must have a 'real economic ality, or, if a company, have a certain propor­ link' with the Member State in question, the tion of shareholders or directors of that objectives of the Community quota system nationality, were therefore contrary to Arti­ permit that required link to concern only cle 52 of the Treaty. Such rules in respect of relations between the vessel's fishing activi­ companies were also contrary to Arti­ ties and the local populations dependent on cle 221 of the Treaty on equal treatment of fisheries and related industries. 4 3 It is clear Member State nationals as regards participa­ from the case-law that national rules impos­ tion in the capital of companies or firms ing nationality or residence requirements in within the meaning of Article 58. Rules mak­ respect of the ownership or management (or ing registration contingent on the domicile in the Member State in question of natural per­ sons were equally contrary to Article 52, as 42 — Factortame 11, cited in footnote 41 above, paragraphs 22, 29 were rules on the location of the centre of to 31, 33 to 35 of the judgment. See also Case C-246/89 Commission ν United Kingdom [1991] ECR I- direction and control of the vessel in the 4585, and Case C-93/89 Commission ν Ireland [1991] Member State concerned in so far as they ECR I-4569. It is clear from the judgment of the Court in Case 305/87 Commission ν Greece [1989] ECR 1461, para­ precluded a secondary establishment from graph 12, that any rules incompatible with Article 52 of the Treaty are also incompatible with Article 6. operating under instruction from a primary 43 — See Case C-3/87 The Queen ν Ministry of Agriculture, Fish­ eries and Food, ex parte Agegate [1989] ECR 4459, para­ graphs 17 and 27 of the judgment; Case C-216/87 The Queen ν Ministry of Agriculture, Fisheries and Food, ex parte Jaderow [1989] ECR 4509, paragraphs 18 and 43; Case C-246/89 Commission ν United Kingdom, cited in 41 — Case C-221/S9 [1991] ECR I-3905. footnote 42 above, paragraphs 12 and 35.

crewing) of fishing vessels are unrelated to that even national legislation in fields which these objectives. 4 Thus, where a citizen of are in principle the responsibility of Member the Union seeks to avail of the right of estab­ States (including criminal law and procedure) lishment in a Member State in order to may not discriminate against persons to exploit its fishing quotas, such rules may not whom Community law gives the right to be applied. 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 (ii) Vessels not used for the exercise of an in question, and thus to compensation for economic activity harm suffered under a national scheme on the same basis as nationals and residents, even though the provision of such compen­ sation was within national competence. ''' Discrimination in respect of admission con­ 34. The Commission considers that the ditions to museums in Spain was condemned French registration regime is contrary to by the Court in Commission v Spain as being Articles 6, 48 and 52 of the Treaty, and to the in breach of Articles 59 and 6 (as it now is) guarantees of equal treatment in Article 7 of of the Treaty. Regulation N o 1251/70 45 and Article 7 of Directive 75/34/EEC 4 6 in so far as it con­ cerns 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 ν Tresor Public,47 as 35. The Commission also argues for the confirmed by the judgment in Commission v enforcement pursuant to Article 171(1) of Spain. 4 8 The Court made clear in Cowan the Treaty of the judgment of the Court in Commission v France 5 0 in respect of the French legal regime on the crewing of mari­ time vessels. It argues that a ministerial cir­ 44 — On registration, headquarters, control and ownership of cular is not sufficient to amend a legislative companies, and on nationality of natural persons, Jaderow, citēti in footnote 43 above, paragraph 42 of the judgment; text which is contrary to the Treaty, relying Case C-246/89 Commission v United Kingdom, cited in on the consistent case-law of the Court on footnote 42 above, paragraphs 31 anu 39; Case C-93/89 Commission v Ireland, cited in footnote 42 above, the inadequacy of such instruments to paragraphs 10, 11 and 15 (in respect of company registra­ tion only); on the residence of crews, see Agegate, cited in footnote 43 above, paragraphs 24 to 26. 45 — Cited in footnote 1 above. 46 — Cited in footnote 1 above. 49 — Cited in footnote 47 above, paragraphs 17 to 19 of the judg­ 47 — Case 186/87 [1989J ECR 195. ment; see also Case 203/80 Casati [1981] ECR. 2595. 48 — Case C-45/93 [1994] ECK I-9I1. 50 — Case 167/73, cited in footnote 2 above.

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- 38. The Commission's application also application to Community nationals of the requires me to consider the registration of French nationality requirement in respect of maritime vessels for use other than in the crewing was reinforced after the decision in exercise of economic activities. I believe that Commission ν France 5 3 by a circular of the the French Republic is also in breach of its Transport Minister. The French Government obligations under the Treaty, although the also outlines in its defence the contents of a Court has not had the benefit of detailed draft law relative to transport in general arguments from the parties. The Cowan which, according to the Commission, principle, 54 enunciated by the Court in the addresses adequately its various grievances in context of free movement to avail of services, respect of registration and crewing. How­ clearly applies equally to other areas gov­ ever, the exigencies of the parliamentary cal­ erned by the Treaty: freedom of establish­ endar and the decision to incorporate provi­ ment and the free movement of workers, and sions relative to air and road transport the right to remain in Member States after prevented its enactment in time.

54 — It is unclear from the text of the judgment in Case C-45/93 Commission ν Spain, cited in footnote 48 above, 51 — See Case 168/85 Commission ν Italy [1986] ECR 2945, whether the Court considered the discrimination in paragraph 15 of the judgment; Case C-361/88 Commission museum admission prices to relate to ancillary advantages ν Germany, cited in footnote 29 above, paragraph 24; Cases which affect the conditions under which services are pro­ C-13/90, C-14/90 and C-64/90 Commission ν France [1991] vided to or received by tourists (as was clearly the case in ECR 1-4327, 1-4331 and I-4335 respectively. Cowan), or to the conditions of provision to or receipt by tourists of a service; see paragraphs 5 and 7, respectively, of 52 — Cited in footnote 7 above. the judgment, in which the submissions of the Commission 53 — Case 167/73, cited in footnote 2 above. are summarized.

55 — The Commission docs not invoke, and I do not here address, the rights of other citizens of the Union who arc 56 — Cowan, cited in footnote 47 above, paragraph 16 of the entitled to reside in a Member State by virtue of other judgment. rights conferred by Community law and now reinforced by Article 8a of the Treaty; see Council Directive 90/365/EEC 57 — Article 7(2), Regulation No 1612/68, cited in foot­ of 28 June 1990 on the right of residence of employees and note 7 above. self-employed persons who have ceased their occupational 58 — Case 207/78 Mimiure Public v Even [1979J ECR 2019, activity; OJ 1990 L 180, p. 28; Council Directive paragraph 22 of the judgment. 90/364/EEC of 28 June 1990 on the right of residence of 59 — Case 32/75 Criston v SNCF [1975] ECR 1085. persons who do not enjoy this right under any other pro­ vision of Community law; OJ 1990 L 180, p. 26; and Coun­ 60 — Case 137/84 Ministère Public v Munch (1985] ECR 2681. cil Directive 93/96/EEC of 29 October 1993 on the right of 61 — Case 59/85 Netherlands v Reed (1986] ECR 1283. residence of students enrolled in vocational training 62 — Case C-3/90 Bernini v Minuter van Onilcrwi/s [1992] ECR courses; OJ 1993 L 317, p. 59. I - 1071.

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42. The bounds of such corollary rights to equal treatment must be defined by reference 44. The registration of maritime pleasure to the essential human as well as economic boats does not seem to me to be a social needs of those who avail of the primary advantage within the meaning of Regulation Treaty right. The denial of many social N o 1612/68. None the less, while it will advantages (as that term is used in Regu­ almost inevitably be a pursuit only of a small lation N o 1612/68) to self-employed persons minority, it is clearly part of the broad cate­ and providers of services may be seen to gory of leisure activities that can be enjoyed affect their competitiveness, and thus to in a Member State. Access to such leisure present an unlawful obstacle to the pursuit opportunities is a corollary of freedom of of such occupations, as in the decision in movement to take up economic activities, Commission ν Italy on access to social hous­ and is thus within the scope of application of ing. 6 3 Although that decision is couched in the Treaty. As a result, discrimination in this economic terms, the case can been linked to regard on grounds of nationality is, in the Cowan, as they are both concerned with the case of those availing of the free movement social environment in which economic free­ of workers or of freedom of establishment, doms have to be exercised. 6 4 or of ancillary rights of residence after exer­ cising such rights, contrary to Article 6 of the Treaty.

63 — Case 63/86 [1988] ECR 29, paragraphs 16 and 17 of the judgment. 64 — The two decisions were taken 'dans une même perspective de protection de l'environnement sociologique des libertés 65 — See, for example, Joined Cases 389/87 and 390/87 Ecbter- garanties', in the words of J. Mortens de Wilmars, 'L'Arrêt nach and Moritz ν Minister for Education and Saience Cowan' (1990) Cahiers de Droit Européen 388, p. 401. [1989] ECR 723, paragraph 20 of the judgment.

(1) by maintaining in force laws restricting registration and the right to fly the French flag to ships o w n e d (in the majority) by persons with French nation- ality, or o w n e d b y legal persons with certain specified links with France, and

66 — Case 167/73, cited i n f o o t n o t e 2 above. 69 — See Agegate, cited in f o o t n o t e 43 above. 67 — See paragraphs 41 and 42 of the judgment. 6S — See the cases cited i n f o o t n o t e 51 above.

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OPINION OF MR FENNELLY — CASE C-334/94

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 Com­ mission Regulation (EEC) N o 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 ν France, the French Republic is in breach of Arti­ cle 171(1) of the Treaty; 7 0