C-405/01

5. Article 1 of R e g u l a t i o n (EEC) 3. However, the Spanish Tribunal Supremo No 1612/68 2 contains the following provi- goes on to ask whether, in certain cases at sions regarding eligibility for employment: least, access to the abovementioned posts in 2 — Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the 1 — Original language: German. Community (OJ, English Special Edition 1968 (II), p. 475).

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'(1) Any national of a Member State, shall, out, inter alia, the following general provi- irrespective of his place of residence, have sions regarding navigation on the high seas: the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the 'Article 91 employment of nationals of that State.

Nationality of ships (2) He shall, in particular, have the right to take up available employment in the terri- tory of another Member State with the same priority as nationals of that State.' (1) Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine 6. In accordance with Article 4 of Regu- link between the State and the ship. lation No 1612/68, provisions laid down by law, regulation or administrative action of the 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.

expressly provided for in international (3) Every State shall take such measures for treaties or in this Convention, shall be ships flying its flag as are necessary to subject to its exclusive jurisdiction on the ensure safety at sea high seas. ...'

'Article 94 ...'

Duties of the flag State

Under Article 94(5), in taking the measures concerned, each State is required to con- (1) Every State shall effectively exercise its form to generally accepted international jurisdiction and control in administrative, regulations, procedures and practices and technical and social matters over ships to take any steps which may be necessary to flying its flag. secure their observance.

(2) In particular every State shall:

Article 97 stipulates, inter alia, that, in the event of a collision or any other incident of navigation concerning a ship on the high seas, 'no penal or disciplinary proceedings may be instituted against [the master or any other person in the service of the ship] except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.' In disciplinary matters, the State which has (b) assume jurisdiction under its internal issued a master's certificate or a certificate law over each ship flying its flag and its of competence or licence shall alone be master, officers and crew in respect of competent to pronounce the withdrawal of administrative, technical and social such certificates, even if the holder is not a matters concerning the ship. national of the State which issued them.

Nationality: The Captain and First Officer of the ships must, in any event, possess ' 1 . The number of crew-members and their Spanish nationality. professional qualifications must be adequate to ensure at all times the safety of navigation and of the ship, having regard to its technical and operational character- istics, in accordance with the terms estab- lished by law. At least 50% of the remainder of the crew must be either Spanish or nationals of another Member State of the European Community.

2. The conditions as to the nationality of ships' crews shall also be determined by regulation, although, from the entry into force of this Law, citizens of Member States of the European Economic Community shall be eligible for employment as ships'

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(b) Royal Decree No 2062/1999 of less than 100 GT, which carry cargo or 30 December 1999 governing the minimum fewer than 100 passengers and operate level of training in maritime professions exclusively between ports or points situated ('Royal Decree No 2062/1999') in areas in which Spain has sovereignty, sovereign rights or jurisdiction, if the person concerned is able to prove that a reciprocal right in respect of Spanish citizens exists in the State of which he is a national.' 1 0 . A r t i c l e 8 of R o y a l Decree No 2062/1999 provides:

2. Rules conferring certain duties and '(1) The Dirección General de la Marina powers on ships' captains in the merchant Mercante (Directorate-General of the mer- navy chant navy) may expressly recognise the professional diplomas or specialisation cer- tificates of citizens of the European Union issued by one of those States, in accordance with the applicable national provisions. (a) Rules relating to safety and policing duties

According to Article 610 of the Commer- be recorded by the authorities and officials cial Code (Código de Comercio), the office stipulated in the regulations. Declarations of captain includes the power to impose made in such birth certificates have the penalties on those who fail to carry out same force as those recorded in the register. orders or maintain discipline. The captain must conduct the appropriate preliminary criminal proceedings in relation to any offences committed on board while at sea and must hand over the file to the compet- ent authorities at the first port where the ship puts in. Under Article 71 of the Civil Registration Regulations (Reglamento del Registro Civil), where a birth, marriage or death occurs during a sea voyage, the certificate pursuant to which such an event is regis- Pursuant to Article 700 of the Commercial tered shall be legalised by the commander, Code, passengers shall, without any dis- captain or master. Article 72 of the Civil tinction, comply with the instructions given Registration Regulations provides that the by the captain in all matters concerning the aforementioned persons have the same maintenance of law and order on board. duties and powers as a registrar in relation to recording births, deaths and miscar- riages, to determining family relationships, and to authorising burials. (b) Rules relating to the authority to attest documents and the registration of facts establishing personal civil status and gov- erning steps to be taken in the event of a death on board In accordance with Article 705 of the Commercial Code, where a passenger dies during a voyage, the captain must issue a' Under Articles 52, 722 and 729 of the Civil death certificate and, after twenty-four Code, the captain or commander of a ship hours have passed, he is entitled to take may, in certain circumstances, solemnise such measures concerning the corpse as are marriages and legalise wills. The captain or necessary in the circumstances. commander must keep any wills in safe- keeping and hand them to the local maritime authority.

16. In addition, Article 8(3) of Royal 13. In the main proceedings, the Colegio de Decree No 2062/1999 provides, in some Oficiales de la Marina Mercante Española measure by way of derogation from the (Spanish merchant navy Officers Associ- general nationality restriction, that, in the ation; 'Colegio de Oficiales') brought an case of certain merchant navy ships, action for annulment against certain provi- nationals of other Member States may be sions of Royal Decree No 2062/1999, in eligible to take up such posts under certain particular Article 8(3) thereof. conditions.

14. The Colegio de Oficiales is of the opinion that the provision concerned, 17. In that regard, the referring court under which citizens of other Member points out that such a system appears to States are entitled to command certain be based on a 'relativised concept' of the types of merchant ships, prejudices the exercise of public duties by the captains of interests of the Colegio and the collective merchant ships. The limitation of the interests of Spanish merchant navy officers, reservation is justified because it may be and also infringes higher legislation, in assumed that a captain's powers are dim- particular Article 77 of Law No 27/1992. inished in such circumstances and that the

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public duties which are generally assigned Decree No 2062/1999 and Article 77(2) of to captains are exercised on rare or almost Law No 27/1992 (and the 15th Additional hypothetical occasions. The referring court Provision thereof), which provide for the also points out that when the measure was reservation of posts to Spanish nationals, being drawn up, it initially contained a must be regarded as compatible with Com- provision under which the command of munity law, which would mean that the merchant ships 'shall not be regarded as the limited nationality restriction contained in exercise of public duties'. However, the Article 8(3) of Royal Decree No 2062/1999 Colegio de Oficiales objected and that would comply fully with Community law. wording was not included in the final draft.

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the proceedings and, by order dated IV — The first question 4 October 2001, referred the following questions to the Court of Justice for a preliminary ruling under Article 234 EC:

23. It is apparent from the order for reference that, by its first question, the referring court essentially seeks to ascertain whether the system for relaxing the (1) Do Article 39 EC (formerly Article 48 nationality restriction, set out in of the EC Treaty) and Articles 1 and 4 A r t i c l e 8 ( 3 ) of R o y a l D e c r e e of Regulation (EEC) No 1612/68 of the No 2062/1999, meets a requirement of Council of 15 October 1968 on free- Community law. dom of movement for workers within the Community permit a Member State to reserve the posts of captain and first officer of its merchant ships to its own nationals? If the reply is in the affirm- ative, may that reservation be formu- lated in absolute terms (for all types of merchant ships) or is it valid only in 24. In the context of Article 234 EC, the cases in which it is foreseeable and Court has no jurisdiction to decide either as reasonable that it may be necessary for to the interpretation of the provisions of captains and first officers on board national laws or regulations or their con- actually to carry out certain public formity with Community law. It may duties? however supply the national court with a ruling on the interpretation of Community law to enable that court to resolve the legal problem before it. 3In addition, the Court may, where appropriate, reformulate the questions referred to it. 4

appropriate to summarise and reformulate accordance with settled case-law — and the first question as follows: with the Commission Notice — 5, that derogation should be regarded as extending to posts which involve direct or indirect participation in the exercise of powers conferred by public law, whose purpose is to safeguard the general interests of the Must Article39 EC and Articles 1 and 4 of State or of other public authorities, and Regulation No 1612/68 be construed as which, for that reason, involve a special authorising Member States to reserve to relationship of allegiance to the State on the their own nationals the posts of captain and part of persons occupying them, and the first officer, as envisaged in Article 8(3) of reciprocity of rights and duties which form Royal Decree No 2062/1999? the foundation of the bond of nationality. The governments concerned and the Com- mission submit that, on those grounds, as employees in the public service, captains in the merchant navy (and first officers who deputise for them) are covered by the derogation in Article 39(4) EC by reason of the powers and duties conferred by A — Main arguments of the parties public law which arc connected to their posts.

26. Written observations in these proceed- ings were submitted by the Spanish, Ger- man, French, Greek, Danish, Italian and Norwegian Governments and by the Com- mission.

29. Referring specifically to those powers and duties, the Spanish Government 27. With the exception of the Norwegian observes that a feature of the post of Government, all the parties essentially take captain in the merchant navy is its dual the view that reservation by a Member legal status. On the one hand, as a member State to its own nationals of the posts of of senior management, the captain has a captain and first officer in the merchant special employment relationship with the navy is compatible with Article 39 EC. shipping company. As such, he has exten- sive managerial and representational powers on board the ship, which is regarded as an independent workplace. On the other hand, the Spanish Govern-

30. The other parties put forward similar arguments and observe that, in most Member States, captains have been granted powers under public law, particularly in regard to policing, and that, unlike the rest 32. Conversely, the Spanish and German of a ship's crew, they exercise special public Governments argue that modern methods duties. The parties concerned base that of communication are no substitute for the view on the particular demands of the physical presence of a representative of the voyage, resulting from the heightened level State who is empowered to take decisions. of risk on the high seas and, above all, from the fact that the ship may not be within the reach of the national authorities. Accord- ingly, as the Greek Government notes, since a ship is a 'floating city', it needs a representative of the State and the public interest, or, as the Commission puts it, an 'on-board public authority' in the person of the captain.

33. For its part, in support of the lawful- ness of a nationality restriction applying to the posts of captain and first officer, the Commission relies on the official authority with which those posts are imbued under the Convention on the Law of the Sea. In 31. By contrast, the Norwegian Govern- accordance with the Convention, every ment claims that the official authority State must effectively exercise its jurisdic- traditionally vested in ships' captains is tion — which is exclusive on the high very restricted and of little objective seas — over each ship flying its flag, and importance in relation to the application its master, officers and crew. Since ships of the derogation in Article 39(4) EC. The possess the nationality of the flag State, a Norwegian Government points out that genuine link must be established between present-day technical capabilities mean the State and the ship. For those reasons,

36. In that regard, the Commission con- siders that, although the Court was seeking to give a general interpretation, that case- law is not necessarily transposable to the particular situation of captains. In fact, the 39. The Greek Government adds that a captain's contract of employment with the 6 — Commission v Italy [2001] ECR I-4363, paragraph 25. merchant navy includes elements of both 7 — Commission v Spam [1998] ECR I-6717. private and public law. Although the

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contract is clearly concluded between the ships with a limited operational range captain and the snipping company, there is which sail within Spanish territorial waters, also involvement on the part of the public which means that it is possible to delay authorities because they verify a captain's slightly the adoption of acts involving the qualifications and enter the contract in the exercise of powers conferred by public law. public register. If it were solely a private The ships concerned are involved in the relationship and captains were not invested leisure and tourism sector and, for with official authority, the State would be example, operate excursions around the obliged to send a civil servant on board Canary Islands or the Balearic Islands. each ship to safeguard general public inter- ests.

COLEGIO DE OFICIALES DE LA MARINA MERCANTE ESPAÑOLA

44. In support of that view, the Spanish 47. In particular, under Article 39(2) EC, and French Governments cite the reply of freedom of movement for workers also the Commission to Written Question entails a prohibition of discrimination as No 2710/96 from Mr Klaus Rehder in regards access to employment. Given that a regard to the Spanish Shipping Register. 8 nationality restriction relating to the posts of captain or first officer on a merchant ship is clearly a discriminatory limitation on access to employment, it can only be compatible with the principles that workers should enjoy freedom of movement and not 45. However, the Commission contends be discriminated against on the basis of the that those grounds cannot be relied on in derogations in Article 39(3) and (4) EC. this case. It is clear from the case-law of the Court 9and from Directive 64/221/EEC 10 that those grounds apply only to national measures relating to the private conduct of individuals, and, accordingly, the deroga- tion may not be relied upon to exclude a whole field or profession from the appli- cation of the principle of freedom of movement by claiming that a captain must maintain public order and safety on board. 48. The same may be said of Articles 1 and 4 of Regulation No 1612/68, which are cited in the question referred for a pre- liminary ruling, since these measures only clarify and give effect to certain aspects of the right to take up employment conferred by Article 39 EC. 11

B — Assessment

50. Article 39(4) EC excludes 'employment in the public service' from the application 53. In Commission v Greece, the Court of the rules governing freedom of move- held that a general nationality condition ment for workers, thereby allowing applicable (inter alia) to all posts in ship- Member States to exclude nationals of ping was not covered by the derogation in other Member States from access to posts Article 39(4) EC. in that sphere. 13

51. The referring court also points out that the Court has already ruled on the admissi- 54. In support of its ruling, the Court bility of a nationality condition attaching stated that the majority of posts in the area to posts in shipping, specifically in the of (inter alia) sea transport 'are remote merchant navy, in regard to the application from the specific activities of the public of the principle of freedom of movement service'. 15 for workers.

52. In Commission v Belgium, the Court 55. However, in Commission v Greece, the ruled that there had been a failure to Court did not rule out the possibility that certain posts in that field might be covered 12 — See the judgment in Case 149/79 Commission v Belgium by the derogation in Article 39(4) EC. [1980] ECR 3881, paragraph 10. 13 — See, inter alia, the judgments in Case C-187/96 Commis- sion v Greece [1998] ECR I-1095, paragraph 17; Case C-248/96 Grahame and Hollanders [1997] ECR I-6407, 14 — Judgment in Case C-37/93 Commission v Belgium [1993] paragraph 32; Commission v Belgium (cited in footnote ECR I-6295, paragraph 1 and operative part. 12), paragraph 10; and Case 152/73 Sotgiu [1974] ECR 15 — Judgment in Case C-290/94 Commission v Greece [1996] 153, paragraph 3. ECR I-3285, paragraph 34.

60. As the Court has held, the demarcation 57. Recent case-law and the fact that, as of that concept cannot be left 'entirely' to the referring court and the Spanish Govern- the discretion of the Member States. 18 ment point out, captains and first officers on Spanish merchant navy ships are employees of private shipping companies have led the parties to revive the old debate concerning whether the interpretation of the notion of 'employment in the public service' referred to in Article 39(4) EC should be 'functional' or 'institutional'. 61. Therefore, the nature of the legal relationship between an employee and the administration which employs him must not be regarded as conclusive, because the legal designations concerned 'can be varied at the whim of national legislatures and cannot therefore provide a criterion for 58. It should be noted at the outset that, interpretation appropriate to the require- since Article 39(4) EC is a derogation from ments of Community law'. 19 the general principle that workers should enjoy freedom of movement and not be discriminated against, the concept of public 17 — See, in particular, the judgment in Commission v Belgium service must be interpreted restrictively. 16 (cited in footnote 12), paragraphs 12 and 19. 18 — Judgments in Case C-473/93 Commission v Luxembourg [1996] ECR I-3207, paragraph 26, and Commission v Belgium (cited in footnote 12), paragraph 18. 16 — See, inter alia, the judgments in Case 225/85 Commission v 19 — See the judgments in Sotgiu (cited in footnote 13), Italy [1987] ECR 2625, paragraph 7, and Case 66/85 paragraph 5, and Case 307/84 Commission v France Lawrie-Blum [1986] ECR 2121, paragraph 28. [1986] ECR 1725, paragraph 11.

63. Only those posts which are 'typical of the specific activities of the public service' may fall within the cope of Article 39(4) EC. 21 66. That follows from the most recent-case law on Article 39(4) EC, to which the Commission has referred in particular. In Case C-114/97, the Court in fact held that Article 39(4) EC did not apply — unlike the derogation contained in Article 45 EC —, and did not analyse the powers and duties concerned but simply stated that 64. It is settled case-law of the Court that 'private security firms do not form part of such posts must include those 'which the public service'. 24 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'. 22 The Court has held that such activities include those which 'presume on the part of those occupying them the existence of a special relationship of allegiance to the State and the reciprocity of rights and duties which form the foun- 67. Finally, in the judgment in Case dation of the bond of nationality'. 23 C-283/99, the Court specifically distin- guished the derogation in Article 39(4) EC from the provisions of the Treaty relating 20 — See the judgments in Commission v Luxembourg (cited in to freedom of establishment and freedom to footnote 18), paragraph 28, and Commission v France provide services, which contain derogations (cited in footnote 19), paragraph 12. 21 — See the judgments in Commission v Luxembourg (cited in in respect of activities connected with the footnote 18), paragraph 27, and, prior to that, Commis- exercise of official authority, declaring that sion v Belgium (cited in footnote 19), paragraph 12. 22 — See, inter alia, the judgments in Commission v Greece 'the concept of employment in the public (cited in footnote 15), paragraph 34, Lawrie-Blum (cited service does not encompass employment by in footnote 16), paragraph 27, and Commission v Belgium (cited in footnote 12), paragraph 10. 23 — See, inter alia, the judgments in Commission v Greece (cited in footnote 15), paragraph 2, Lawrie-Blum (cited in footnote 16), paragraph 28, and Commission v Belgium 24 — Judgment in Commission v Spain (cited in footnote 7), (cited in footnote 12), paragraph 10. paragraphs 33 and 35 et seq.

69. Furthermore, that criterion for inter- 72. The functional and institutional criteria pretation which, in principle, relates to the for determining whether posts belong to the organisational or institutional nature of the public service are not mutually exclusive. post, does not necessarily conflict with the Instead, they complement one another to earlier case-law of the Court. form the sort of restrictive criterion for interpretation which should be applied in cases where, as in Article 39(4) EC, there is a derogation from the principle that workers should enjoy freedom of move- ment and not be discriminated against. 70. It can be deduced from that earlier Accordingly, the question whether or not case-law that the aim of the functional that derogation is applicable must be criterion is to ensure that the derogation examined both from an institutional and a laid down in Article 39(4) EC does not functional perspective. apply to posts 'which, whilst coming under the State or other organisations governed by public law, still do not involve any association with tasks belonging to the public service properly so called'. 26 More- over, that is the case despite the fact that (b) The specific points of law raised in this 'authorities acting under powers conferred dispute by public law have assumed responsibilities of an economic and social nature or are

25—Judgment in Commission v Italy (cited in footnote 6), 73. Consequently, although, according to paragraph 25. Emphasis added. See also the observations case-law, the presumption should be that, of Advocate General Jacobs at paragraph 26 of his Opinion in that case, to winch the Court refers in the passage concerned. 26 — Sec the judgments in Commission v Luxembourg (cited m footnote 18), paragraph 2, and Commission v Belgium 27 — Judgment i nCommission v Belgium (cited m footnote 12), (cited in footnote 12), paragraphs 10 and I I . paragraph 11.

80. However, as regards the posts at issue 76. Accordingly, it would be appropriate to in these proceedings, the referring court regard a ship as a floating part of the and the Spanish Government state that the territory of the flag State. merchant navy ships referred to in A r t i c l e 8 ( 3 ) of R o y a l D e c r e e No 2062/1999, the provision which is the subject of the dispute in the main proceed- ings, operate exclusively within the terri- torial waters of the flag State or between 77. Realistically, official authority in ports or territories over which the flag State relation to such a part may only be exercises its jurisdiction. I - 10412

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81. Thus, the premiss on which the above 'exercise of powers conferred by public considerations relating to the applicability law' and the need to 'safeguard the general of Article 39(4) EC are based — that the interests of the State', the specific definition ship may leave the jurisdictional territory of which the Court has yet to rule on. of the State and not be subject to the control of the competent national auth- orities — does not appear to arise in relation to the disputed posts.

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general interests of the State, and since the 90. Moreover, under the applicable Span- concept of the public service must be ish provisions, merchant navy captains and interpreted restrictively, it has also been the officers who deputise for them are noted on several occasions that the two authorised to perform duties relating to requirements must be fulfilled cumu- civil status and the notarial authority to latively. 29 attest documents, which are based on the general public interest rather than solely on the needs inherent in commanding a ship.

88. With regard to the powers vested in the posts of captain and first officer in the Spanish merchant navy, I should first of all 91. On the whole, therefore, I would not like to point out that the duties of captains dispute that the duties and powers laid relating to the application and fulfilment of down in Spanish law constitute official public law obligations, at national, inter- powers and authority aimed at protecting national or Community level, — or the general interests of the State, within the instructions, as the German Government meaning of the case-law of the Court. calls them — relating to safety during a voyage and the protection of the environ- ment are not akin to the exercise of official authority.

to organise its administration as it deems officer in the Spanish merchant navy, necessary and to imbue certain posts with referred to in the disputed provisions in official authority, there would be a risk that the main proceedings, are posts in which the existence of such official authority, the exercise of official authority is of little which, in practice, has no relevance or (no or no practical importance. longer has) any practical importance, might be used to justify derogations from the scope of the principle of freedom of move- ment for workers. In that way, each Member State would theoretically be able to prohibit workers from taking up certain types of activity, and that does not appear to be compatible with the requirement that the derogation relating to posts in the 97. Having examined all the powers and public service must be applied restrictively duties actually connected to the posts of and uniformly. captain and first officer in the Spanish merchant navy, in accordance with A r t i c l e 8 ( 3 ) of R o y a l D e c r e e No 2062/1999, I therefore conclude that such posts do not meet the 'very strict' conditions required for application of the derogation from the principle of freedom of movement for workers under Article 39(4) 95. Bearing in mind, therefore, that EC. Article 39(4) EC is a derogation from the principle of free movement and that its scope must be restricted to what is strictly necessary, 31 I do not consider that exclud- ing a post from the principle of freedom of movement for workers on the ground that it constitutes 'employment in the public service', because of the powers conferred by public law and the duties normally 2. Whether the nationality restriction can vested in it, amounts to a correct appli- be justified under Article 39(3) EC cation of the derogation.

99. The right of Member States to restrict 102. The parties generally agree that, while freedom of movement for persons on those Member States definitely have the right to grounds is not intended to exclude certain reserve the disputed posts to their own economic sectors or professions from the nationals under Article 39(4) EC, they are application of that principle. 33 also entitled to waive that right in whole or in part. The parties disagree, however, over whether, if that right is waived and if there is a total or partial lifting of the restriction on access to those posts, it is necessary to comply with certain rules of Community law which might preclude, for example, the imposition of a condition of reciprocity. 100. Accordingly, it does not follow from Article 39(3) EC that it is lawful to lay down a total or partial nationality restric- tion applicable to posts such as those of captain and first officer in the Spanish 103. The Spanish Government contends merchant navy. that the nationality restriction constitutes a right which the Member States are entitled to exercise or restrict under their own conditions. The Greek and Danish Governments are of the view that, if the unlimited nationality restriction is ruled to be lawful, then the same reply must auto- matically be given to the second question. 101. In the light of all the above, the answer to the first question must be that Article 39 EC and Articles 1 and 4 of Regulation No 1612/68 must be construed as meaning that a Member State is not entitled to reserve, in a provision such as 104. Citing Case 149/79, 34 the French Article 8(3) of Royal Decree No 2062/1999, Government argues that it is for the the posts of captain and first officer on Member States alone to lay down rules merchant ships to its own nationals. governing the posts which fall within the scope of Article 39(4) EC, from which it follows that they are free to permit 32 — See, inter alia, the judgments in Commission v Spain (cited in footnote 7), paragraphs 40 to 42, and Case 131/85 Gül [1986] ECR 1573, paragraph 17. 34 — Judgment in Commission v Belgium (cited in footnote 12), 33 — Ibid. paragraph 10.

105. By contrast, the Commission con- siders that if there is a partial lifting of the nationality restriction, there must be compliance with the provisions of Com- munity law. Relying on the case-law of the Court, 35 the Commission submits that the condition of reciprocity in the context of access to the disputed posts is incompatible 108. As I have already pointed out in with the principle of equal treatment. relation to the first question, posts such as those referred to in Article 8(3) of Royal Decree No 2062/1999 are not covered by the derogation concerning 'employment in the public service' contained in Article 39(4) EC, from which it follows that, under 106. The Norwegian Government cites Article 39 EC, a Member State is obliged Case 152/73 36 in support of its contention to guarantee nationals of other Member that the very fact that nationals of other States access to such posts which is free Member States are admitted to the posts in from any discrimination. question shows that those interests which justify the exceptions to the principle of equal treatment are not at issue. The French Government counters that, unlike that case, these proceedings are not con- cerned with working conditions but with access to employment.

(1) Article 39 EC and Articles 1 and 4 of Regulation (EEC) N o 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community must be construed as meaning that a Member State is not entitled to reserve, in a provision such as Article 8(3) of Royal Decree N o 2062/1999, the posts of captain and first officer on merchant ships to its own nationals.

(2) Access to such posts by nationals of other Member States may not be made subject to a condition of reciprocity.

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