Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

The French Code du Travail Maritime of 13 December 1926 provides in Article 3 (2) that such proportion of the crew of a ship as is laid down by order of the Minister for the Merchant Fleet must be French nationals. Article 1 of the Ministerial Order of 21 November 1960 (amended by Order of 12 June 1969) implements this and provides that certain employments (e.g. such as on the bridge) shall — apart from particular exceptions — be reserved to French nationals. Under Article 2 of this Order certain other employments — again apart from certain exceptions — on every ship are reserved to French nationals in the ratio of 3:1. Finally Article 3 of the Order provides that the competent administrative authorities shall decide the said particular exceptions.

In the view of the Commission these provisions are incompatible with Community law and conflict with Article 48 of the EEC Treaty, which in the interests of freedom of movement for workers provides for the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Moreover, the French provisions are incompatible with Articles 1, 4 and 7 of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ L 257 of 19. 10. 1968). This Regulation was issued under the aforesaid Article 48.

For this reason the Commission in a letter dated 8 October 1971 requested the French Government to amend the provisions objected to as soon as possible.

The French Government apparently wanted at first to comply. At any rate in a letter from its Permanent Representative dated 30 November 1971 it informed the Commission of such an intention and announced that an appropriate draft law would be laid before Parliament at the next session. In spite of a letter from the Commission to the French Government dated 18 April 1972, in which the expectation was expressed that the matter in question should be resolved at the latest by 1 July 1972 (this was the end of the said session), nothing came of it. On the contrary the Permanent Representative of France informed the Commission in a telex dated 15 November 1972 that it had not been possible to lay a draft law before Parliament.

The Commission thereupon delivered a reasoned opinion on 15 December 1972 in accordance with Article 169 of the EEC Treaty. In the opinion it was maintained that the above mentioned French provisions infringed the aforesaid provisions of Community law and the request was expressed that the necessary measures to put an end to the infringement of the Treaty should be taken within 30 days.

The Commission thereafter learned from a letter from the Permanent Representative for France dated 6 February 1973 that a draft law to amend the provisions objected to had been adopted on a first reading on 13 December 1972 by the National Assembly and had been passed to the Senate. It had however not been possible to conclude the legislative process in the Senate before the end of the session in question. The examination of the draft would therefore be taken up by the Senate again after 2 April 1973, i.e. after the commencement of the next session.

Since this in fact did not happen, the Commission brought the matter before the Court on 14 September 1973 and thus initiated the present proceedings.

In accordance with the Commission's application the Court must now determine whether the French Republic, by not repealing the discriminatory provisions on access to employment in sea transport, has failed to fulfil its obligations under Community law and in particular under Articles 1, 4, and 7 of Regulation No 1412/68 of the Council of 15 October 1968.

I shall consider how this application should be judged in what follows.

1. The first reaction of the French Government was to explain that it would try to conclude the aforesaid legislative process shortly, i.e. during the then current session. The application should therefore be regarded as otiose. Accordingly its main claim in the answer was for a declaration that the proceedings were otiose.

2. On the other hand the French Government maintains unchanged its second line of argument, according to which the Commission has not shown that it is entitled to the declaration it seeks. In other words, the Commission was not able to show that the application of the provisions of Community law to which it referred had been undermined by the French measures; it had not been able to cite any examples of actual discrimination against workers from other Member States. This was in fact impossible, because there was no discrimination, for the competent French authorities had received a direction to see that workers from other Member States were treated equally and this direction had always been followed. It was thus significant that the provisions, the amendment of which the Commission sought, were not applied at all in France.

3. As regards the consequent examination therefore of the question whether the application is well-founded, one point can first of all be clarified.

4. Accordingly, to summarize, I propose that a judgment should be pronounced in which it is declared that the French Government, in not repealing discriminatory provisions on access to employment in sea transport in its Code du Travail Maritime, has infringed obligations which it has under the provisions of the Treaty on freedom of movement for workers and in particular under Articles 1, 4 and 7 of Regulation No 1612/68.

1 Translated from the German.