9.2.2008   

EN

Official Journal of the European Union

C 37/3


Action brought on 14 November 2007 — Commission of the European Communities v Czech Republic

(Case C-496/07)

(2008/C 37/03)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and M. Šimerdová, acting as Agents)

Defendant: Czech Republic

Form of order sought

Declare that, in so far as Czech domestic legislation reserves the exercise of the post of captain of a ship flying the Czech flag to persons with Czech nationality, the Czech Republic has failed to fulfil its obligations under Article 39 of the EC Treaty;

Order the Czech Republic to pay the costs.

Pleas in law and main arguments

In the above action the Commission relies on the following pleas:

Czech domestic legislation (Law No 61/2000) places the operator of a ship under an obligation to ensure that the master of a ship flying the Czech flag is a citizen of the Czech Republic.

That clear and completely unconditional requirement to have Czech nationality, in the opinion of the Commission of the European Communities, conflicts with the findings reached by the Court of Justice of the European Communities in Case C-405/01 (1) and C-47/02 (2). The Commission draws attention in particular to the findings in paragraph 44 of the judgment in Case C-405/01 and paragraph 63 of the judgment in Case C-47/02. The requirement laid down in Czech law that the master of a ship must be of Czech nationality is absolute. The relevant provisions of Czech law do not take into account the way in which and extent to which the master of a ship in reality exercises the powers conferred by public law, as required by the abovementioned case-law of the Court of Justice of the European Communities. The mere fact that Czech law entrusts masters of ships flying the Czech flag with powers which fall within the ambit of powers conferred by public law is not enough to warrant use of the derogation from the freedom of movement for workers laid down in Article 39(4) of the EC Treaty.

The Commission of the European Communities is of the opinion that the Czech Republic is under an obligation to bring its domestic legislation into conformity with the case-law of the Court of Justice of the European Communities, notwithstanding the fact that (according to the statements of the Czech Republic) there are currently no ships flying the Czech flag.


(1)  Case C-405/01 Colegio de Oficiales de la Marina Mercante Espagñola v Administración del Estado [2003] ECR I-10391, concerning Spanish legislation reserving the post of master and chief mate on ships flying the Spanish flag to persons with Spanish nationality.

(2)  Case C-47/02 Albert Anker, Klaas Ras a Albertus Snoek v Federal Republic of Germany [2003] ECR I-10447, concerning German legislation reserving the post of captain on ships flying the German flag and engaged in small-scale maritime shipping (‘Kleine Seeschiffahrt’) to persons with German nationality.