Luxembourg, 06/11/2003 (Agence Europe) - Two rulings returned on the same day have announced the end of the condition of nationality imposed in almost all Member States on captains and seconds in mercantile marine and of fishing boats flying the flag of that State. EUROPE, for its part, believes that these two rulings will allow the European Commission to take a decision in December to launch infringement proceedings against Spain and Germany, which were targeted in both rulings, and France, now that the dossier is nearly ready.
In the "Colegio de Oficiales de la Marina Mercante Espagnola" and "Anker" rulings, the Court affirms that Member States may reserve the posts of captain and second for their nationals only if the prerogatives of public authorities (declaration of deaths, births, police function) that they exercise constitute a large part of their duties. This, however, is not the case with mercantile marine or fishing boats, explains the Court. "Indications from (Spanish) jurisdiction and the Spanish government show that the jobs of captain and second in Spanish mercantile marine are ones in which the duty of representing the Flag State is, in practice, rare".
In the "Anker" case, the German judge, who also forwarded the dossier to the Court of Justice, indicated that the posts of captain on a high-seas fishing boat were ones in which duties of State representation held "an insignificant place", noted the Court.
Six Member States of the EU came before the European judges in this trial to defend the clause of nationality (Denmark, Spain, Germany, Greece, France and Italy). Norway was also there: as an EFTA member, it is entitled to take part in trials of this kind. Norway does not apply this clause of nationality. Its argument is that half of the world fleet is registered under the flag of convenience; neither the captain nor the crew of these boats shares the nationality of their ship's flag; this does not cause any particular problems. It is also worth noting that the United Nations Convention on the Law of the Sea does not require the captain of a ship to share its flag's nationality, as opponents of the clause point out.
For proponents of the clause of nationality, captains may record births and deaths on board their ships, and take police measures to ensure public order. However, European law provides for certain public duties to be reserved for officials holding a certain public authority; by extension, private duties under the same circumstances may be reserved for their nationals, they claim.
The Court agreed with them in part, in that private duties carried out by people holding public authority may be reserved for nationals. In that respect, the ruling is important, say experts. But, the Court continues, Member States may not reserve these private functions for nationals if the prerogatives of public authority make up only a small part of these employees' activities.
Spain, however, was one of the countries showing the most openness to other nationalities, as, under a royal decree of 1999, it had already authorised the captains of small ships of a gross tonnage below 100 tonnes and transporting fewer than 100 passengers to be of a nationality other than Spanish. The reason behind this was that the Spanish government believed it unlikely that the captains of small boats of this kind would be called upon to exercise public functions, given the short distances they travelled, and current means of communication.
This provision did not go down well with the College of Spanish Marine Officers. Marine officers attacked this 1999 clause before the Spanish Supreme Court, because it let Greek, Italian, Dutch (etc) captains in. Before it ruled, the Supreme Court sent the dossier to the European Court of Justice, which has just returned its verdict. There, things did not quite go the officers' way, noted observers, because instead of obtaining a ban on EC nationals commanding small vessels, they got precisely the opposite of what they wanted: the abolition of the clause of nationality for all kinds of boats in Spanish mercantile marine.
In the German case, Dutch fishermen contested article 2 of the regulation on vessel crews before the German courts. This article was modified in 2001, and provides "that independently of gross tonnage, the captain should be a German national according to German fundamental law, and the holder of a German aptitude certificate".