C-47/02

ANKER AND OTHERS

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 12 June 2003 1

I — Introduction to those in Colegio de Oficiales de la Marina Mercante Española, I shall refei- to that Opinion.

1. By the question it has referred for preliminary ruling, the Schleswig-Holstein- isches Oberverwaltungsgericht (Higher Administrative Court, Schleswig-Holstein) asks in substance whether the post of II — Legal framework master (captain) on fishing vessels used in small-scale maritime shipping is 'employ- ment in the public service' within the meaning of Article 39(4) EC and whether a Member State is therefore entitled to reserve that post for its own nationals. A — Community law

3. Article 39 EC, which guarantees free movement of workers within the Commu- nity, does not extend to 'employment in the 2. The present case raises questions of law public service' (Article 39(4) EC). largely similar to those in Case C-405/01 Colegio de Oficiales de la Marina Mercante Española v Administración del Estado, Asociación de Navieros Españoles (ANAVE) intervening, which concerns the posts of master and chief mate on Spanish merchant shipping vessels. My Opinion in that Case is also being delivered today. 2In B — Public international latv so far as the submissions in the present case and their analysis correspond in substance

1 — Original language: German. 4. The United Nations Convention on the 2 — Opinion in Case C-405/01 Colegio de Oficiales de la Law of the Sea of 10 December 1982 Marina Mercante Española v Administración del Estado, Asociación de Navieros Españoles (ANAVE) intervenng (hereinafter 'Convention on the Law of the [2003] LCR I-10391. Sea') contains inter alia the following

1. Every State shall fix the conditions for Duties of the flag State 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 1. Every State shall effectively exercise its link between the State and the ship. jurisdiction and control in administrative, technical and social matters over ships flying its flag.

2. In particular every State shall:

'Article 92

Status of ships

(b) assume jurisdiction under its internal 1. Ships shall sail under the flag of one law over each ship flying its flag and its State only and, save in exceptional cases master, officers and crew in respect of I - 10450

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(b) Schiffsoffizier-Ausbildungsverordnung right to command vessels sailing under the (Ships' Officers Training Regulation) of German flag. Specifically, Paragraph 24(2) 11 February 1985 (BGBL I, p. 323), most of the Regulation provides: recently amended by Regulation of 29 October 2001 (BGBl. I, p. 2785) (here- inafter 'Ships' Officers Training Regu- lation')

'The issue of certificates of competence to persons who are not German nationals within the meaning of the Basic Law but who fulfil the conditions for the grant of 6. The Ships' Officers Training Regulation certificates of competence (Paragraph 7) regulates the training of ships' officers and may be permitted. In that case, a certificate the issue of certificates of competence. of seafaring competence shall not entitle the holder to command vessels sailing under the German flag. The certificate of competence shall bear an endorsement to that effect....'

7. Paragraph 21a provides that, subject to certain conditions, certificates of compet- ence of nationals of another Member State or of a State party to the European Economic Area Agreement are to be recog- 2. Provisions concerning the duties and nised as equivalent to German certificates powers of masters of competence.

(a) Powers under the Seemannsgesetz (Law 8. Paragraph 21c provides that, on appli- on Seafarers) of 26 July 1957 (hereinafter cation, the Wasser- und Schifffahrtsdirek- 'Law on Seafarers') tion Nord (Northern Authority for Water- ways and Shipping) must issue a validation certificate in respect of certificates of com- petence recognised as equivalent under Paragraph 21a of the Regulation. 10. Paragraph 106 of the Law on Seafarers provides inter alia:

(3) In case of direct danger to persons or the vessel, the master may enforce orders given to avert such danger, if need be by any necessary force, and 12. Equally, misuse of the power to give temporary detention may be lawful. such orders is a criminal offence The fundamental rights under sen- (Paragraph 117 in conjunction with tences 1 and 2 of Article 2(2) and Paragraph 115(4) of the Law on Seafarers). Article 13(1) and (2) of the Basic Law may be curtailed. Where various means are available, those which involve the least prejudice to the persons con- cerned shall, as far as possible, be selected. (b) Provisions relating to civil status under the Ausführungsordnung zum Person- enstandsgesetz (Regulation implementing the Law on Civil Status) of 12 August 1957, as amended most recently by Regu- lation of 17 December 2001 (BGBl. I, p. 3752) (hereinafter 'Regulation imple- (4) Physical force and temporary detention menting the Law on Civil Status') shall be lawful only where other means appear, from the outset, to be insuffi- cient or have been shown to be so. Such measures shall be applied only so far as and to the extent that the performance of the m a s t e r ' s d u t i e s u n d e r — Paragraph 45(1) of the implementing subparagraphs 2 and 3 requires them. Regulation provides that the birth or

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death of any person occurring on board by the registrar in whose district the a German sea-going vessel in the course deceased is removed from the vessel. of a voyage must be certified by the Registrar in the Berlin Registry Office I. Paragraph 45(2) of the implementing Regulation provides that the birth or death must be notified to the master at the latest on the following day. If the person obliged to give the notification terminates his passage before the expiry of that period, notification must I I I— Main proceedings and the question none the less be given while he is still referred on board the vessel.

19. The national court states first that it does not doubt that the appellants can rely on the provisions on freedom of movement for workers. They intend to assume the 16. By judgments of 14 November 2000, activities of master, and would perform the Verwaltungsgericht (Administrative those activities under an employment Court), the court of first instance, dismissed contract with deep-sea fishing companies the actions against the decisions on the for remuneration. The national court con- objections. The Verwaltungsgericht held siders that this also applies to the appellant Paragraph 24(2) of the Ships' Officers Mr Ras, notwithstanding the fact that he is Training Regulation, according to which a shareholder in the deep-sea fishing com- foreign certificates of competence in navi- pany SC-25 GmbH, because this does not gation did not entitle a person 'to captain in any way alter the fact that he is — vessels sailing under the German flag', to be also — in an employment relationship compatible with higher law, in particular with the deep-sea fishing company. Article 39(4) EC.

20. According to its order, the national court has considerable doubts as to the 17. The national court now has to rule on compatibility of Paragraph 24(2) of the the appellants' appeal against those judg- Ships' Officers Training Regulation with ments of the Verwaltungsgericht. Article 39 EC, and in particular whether it can be justified by Article 39(4) EC.

18. According to the order for reference, 21. The national court believes that there is the decision of the Oberverwaltungsgericht overwhelming support for the view that, turns in law on whether Paragraph 24(2) of notwithstanding the powers of a master the Ships' Officers Training Regulation is under Paragraph 106 of the Law on compatible with Article 39 EC. Before the Seafarers, the activity of a master in small- national court, the appellants disagreed scale deep-sea fishing in the form in which

23. According to the order for reference, IV — The essential submissions of the having regard to the case-law of the Court, parties the questions of law arising in the main proceedings as regards Article 39(4) EC depend principally on whether, first, a sector which does not even form part of the institutional public service under the law of a Member State can be at all part of 25. In the present case, the appellants in the the public service within the meaning of main proceedings, the German Govern- Article 39(4) EC and, second, whether the ment — having the same representation as special powers of a master under the respondent in the main proceedings — Paragraph 106 of the Law on Seafarers the Danish Government, the French Gov- involving the exercise of official authority ernment and the Commission have made characterise that activity to such an extent submissions. With the exception of the as to constitute its core. It is, the Oberver- appellants in the main proceedings, they waltungsgericht submits, reasonably have also all made submissions in Case obvious that both questions are to be C-405/01 Colegio de Oficiales de la Marina answered in the negative. Mercante Española.

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26. The view of the appellants in the main requires that the post in question should proceedings is that the question must be typically include the exercise of powers answered in the negative. conferred by public law and that its incum- bent is entrusted with responsibility for the general interests of the State.

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vided by ownership of the vessel, as pro- transport are not areas in which any vided for in Germany by Paragraph 1 of the specific public service activities are carried Gesetz über das Flaggenrecht der Seeschiffe out, and that for that reason the onus is on und die Flaggenführung der Binnenschiffe the national authorities to prove that the (Law relating to the right of sea-going conditions governing application of vessels to fly a flag and to the right of Article 39(4) EC are none the less satis- inland vessels to use a flag, 'Law on fied. 7 flagging rights'). 5

34. As regards the essential submissions of the German Government — which has the same representation as the respondent in the main proceedings — the Danish and 32. The appellants also submit that, in its the French Governments and the Commis- judgment in Commission v Greece, 6the sion on the interpretation of Article 39(4) Court has already held that sea and air EC, I refer in the first place to points 27 et seq. and 35 to 42 of my Opinion in Colegio de Oficiales de la Marina Mercante Españ- 5 — Paragraph 1 provides: '(1) The Federal German flag shall be flown by all merchant shipping vessels and other vessels designed for sea voyages ("seagoing vessels") whose owners are German and resident within the territorial scope of application of the Basic Law.' 7 — The Court referred to the Opinion of Advocate General Léger in Case C-473/93 Commission v Luxembourg [1996] 6 — Case C-290/94 [1996] ECR I-3285, paragraphs 34 and 35. ECR I-3207, points 110 to 112.

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ola, which I am also delivering today. In public law character. The central issue is substance, these parties are in agreement that of the legal status of the measures that a Member State is entitled to impose a which a master is authorised to take. The nationality requirement in relation to the core of a master's special powers, when post of master on a vessel used in small- considered as a whole, clearly lie within the scale maritime shipping and flying its flag. public law sphere.

35. The German Government explains further in this regard that there is in the international context an increasing demand 38. Moreover, a vessel used in small-scale that masters ensure observance of the flag sea-fishing is in principle also not subject to State's obligations under public inter- any restrictions on its voyage, and there is national law. It also refers to Community thus no guarantee that such vessels will be law in the areas of safety at sea, prevention confined to operating only in the coastal of damage to the environment, living and waters of the flag State or in the immediate working conditions on board and the vicinity of its coast. fishing industry, for the implementation of which each Member State is responsible in regard to vessels flying its flag.

42. Aside from that, the fact that the Member State in question has not exercised its right to impose a nationality require- ment in the field of aviation is immaterial, since Article 39(4) EC merely confers a power on Member States in that regard.

45. By way of comparison, the French Government refers to the French provisions relating to masters and concludes that they confer true police powers on masters, such 43. The French Government submits in as the power of arrest, and that in exercis- particular that the national court has in ing them masters participate in the main- fact referred two questions concerning the tenance of law and order. It states that interpretation of Article 39(4) EC, namely these powers clearly go beyond those of first, whether that article applies to the post any member of the general public who of master even where not imputable to the apprehends a criminal in flagrante delicto. I - 10460

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46. The French Government takes the view comes within the exception if it 'involves' that the post of master comes within sovereign powers. 10 Article 39(4) EC even where performed in the context of a private undertaking, since specific public service activities are carried out in the name of the State and on its behalf, and not on behalf of the private employer. The judgments in Commission v Spain 8and Commission v Italy 9are, it 49. Under reference to the judgment in submits, inconsistent with the functional Reyners, 11 the French Government also interpretation which the case-law of the observes that the powers conferred by Court has given to the term 'employment in public law which a master may exercise the public service'. are not separable from his other activities.

48. Concerning the second question, as to whether the exercise of powers conferred 51. The Commission also refers to its sub- by public law must constitute the core of missions in Colegio de Oficiales de la the activity in question, the French Govern- Marina Mercante Española, according to ment submits that the facts that a master which, although the activity of a private exercises powers conferred by public law person having no institutional connection only rarely and that such powers play only to the public service in principle docs not a marginal role have no bearing on the come within the exception in Article 39(4) applicability of Article 39(4) EC. Accord- EC, the fact that vessels sail beyond the ing to the case-law of the Court, a post 10 — Case 149/79 Cammission v Belgium [1980] ECR 3881. 11 — Case 2/74 [1974] ECR 6 3 1 . 8 — Case C-114/97 [1998] ECR I-6717. 12 — It refers to Case 75/63 Hoekstra (née Unger) [1964] 9 — Case C-283/99 [2001] ECR I-4363, paragraph 95. ECR 177, point 2.

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53. If it should be held that national law has transferred public law powers to the 56. It is thus necessary to examine whether master — and this is a matter for the a nationality requirement for employment national court — those powers constitute as master on a fishing vessel used in a permanent duty and are independent of small-scale maritime shipping can be lawful the size of the vessel and the frequency with by virtue of one of the exceptions in which they are actually exercised. Article 39(3) and (4) EC. Since I - 10462

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Article 39(3) EC can apply only where the that in institutional terms their employment exception in Article 39(4) EC for employ- is not imputable to a State organ. ment in the public service does not, 13 the latter provision is to be considered first.

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generally as regards the small-scale deep- the State'; the Court, however, has not thus sea fishing industry, which includes fishing far given any more detailed guidance as to activities outside German sovereign areas. the meaning of these criteria.

62. It is therefore necessary to examine whether posts having the characteristics of 65. This is not unproblematic, since the those the subject of the main proceedings need for a uniform interpretation of come within the concept of 'public service' Article 39(4) EC means that these concepts within the meaning of Article 39(4) EC on cannot be interpreted solely from the a functional approach, that is to say by various perspectives of national law. reference to the nature of the duties involved in them.

66. One is entitled to assume at least that 63. It is apparent that the activity of a 'powers conferred by public law' are master in the small-scale deep-sea fishing powers going beyond those of every citizen, industry consists in commercial and tech- including in particular the power to exer- nical management of the vessel and also (as cise coercive force as an expression of the appears from the decision of the national core of State sovereign authority. 14 court) participation in catching and pro- cessing fish. While there is no doubt that the substance of the activity is not in the nature of administrative action, it has been suggested that the post also comprises functions carried out on behalf of the State.

67. The Court also always refers to 'safe- guarding the general interests of the State'. Since the Court — usually — uses the word 'and' to join the criteria of partici- pation in the exercise of powers conferred 64. According to the case-law, whether the by public law and of safeguarding the activity of a master in small-scale maritime shipping comprises public service duties is a matter which depends on the criteria 'the 14 — See to that effect the definition of the concept of State power in the Opinion of Advocate General Mayras in exercise of powers conferred by public law' Keyners (cited above, footnote 11); see also the Opinion of Advocate General Mancini in Case 307/84 Commission v and 'safeguarding the general interests of France [1986] ECR 1725, at p. 1729 et seq.

69. It is also to be observed that the obligations of masters or captains as regards compliance with and implemen- tation of public-law, international-law and Community-law obligations or conditions (as the German Government in particular has referred to in the areas of safety at sea and environmental protection) arc not to be equated with powers conferred by public 68. As regards the powers inherent in the law. post in question in the present case, namely that of master on board a fishing vessel used in small-scale maritime shipping, it must first be pointed out that no inference can be drawn from the relevant provisions of the Convention on the Law of the Sea that masters or captains generally exercise sovereign jurisdiction or require to be invested with powers conferred by public law. Instead, Article 94 of the Convention provides that the flag State must effectively 70. Thus, as regards the functions and exercise its jurisdiction and control over powers conferred on the master or captain ships flying its flag. It is of course open to by Paragraph 106 of the Law on Seafarers the flag State, in allocating its powers, to and German civil status law, I have much ensure this through the master or by investing the master with specific powers 16 — See, for example, the national law in Colegio de Oficiales or functions for that purpose. Accordingly, de la Marina Mercante Española (cited above, footnote 2). even having regard to the Convention on 17 — Moreover — apart from the fact that in any event Member States in principle cannot rely on international the Law of the Sea there is no uniform treaties concluded with non-member countries to escape scope of the public law duties incumbent their obligations under Community law — the 'genuine link' to the flag State required by Article 91 of the on masters and captains, and this has the Convention on the Law of the Sea need not be provided by the nationality of the master. This follows from, for consequence that a functional assessment example. Article 97 of the Convention, according to which no penal or disciplinary proceedings may be instituted against the master 'except before the juducial or adminis- trative authorities either of the flag State or of the Srate of which such person is a national'. As the appellants in the 15 — Sec, for example, the Opinion of Advocate General Léger main proceedings have explained, the Law on flagging in Commission v Greece (cited above, footnote 6), rights provides that as regards German vessels, the 'genu- paragraph 23, and that of Advocate General Lenz in ine l i n k 'between the vessel and the flag State must be Lawrie-Blum (cited above, footnote 3), at p. 2135. provided by ownership in the vessel.

73. Rather, what is decisive is the duties actually involved in the post, and these are to be ascertained by looking at the post as a whole. Though it is difficult to extract any general criteria for the application of 71. In contrast to Case C-405/01, it is, Article 39(4) EC from the extremely brief according to the Oberverwaltungsgericht, reasoning in the Lawrie-Blum judgment, on extremely doubtful, even as a matter of which the appellants in the main proceed- national law, whether Paragraph 106 of the ings in particular rely, it appears to me that Law on Seafarers confers any powers on the decision in that case that the require- masters that go beyond general obligations ments for the application of the exception and rights under civil and criminal law. In are not fulfilled in the case of a trainee addition, the powers relating to civil status teacher 'even if he does in fact take the described by the German Government decisions described by [the defendant]' 18 appear to be auxiliary functions rather indicates that one ought to examine the than functions which the master in the substance of the post taken as whole. employment in question himself performs in place of the registrar. Thus, for example, while the birth or death of a person must be notified to the master and he must make a record of it, formal certification is carried out by the competent registrar on land.

74. As I have stated in point 94 of my Opinion in Colegio de Oficiales de la Marina Mercante Española, the need to look at the post as a whole follows from the 72. Indeed, even if one were to accept that the national regulations provide for powers 18 — Lawrie-Blum (cited above, footnote 3), paragraph 28. See conferred by public law and duties of also the Opinion of Advocate General Lenz in the same case, at p. 2316, who refers in this connection to the safeguarding the general interests of the principle of proportionality.

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VI — Conclusion

79. For the foregoing reasons, I propose that the Court reply as follows to the question submitted to it:

Article 39 EC precludes provisions of national law which, as in the circumstances of the main proceedings, impose a condition of nationality of the flag Member State for the exercise of employment as master (captain) of a fishing vessel used in small-scale maritime shipping and flying the flag of that Member State.

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