(Case C‑94/08)

Failure of a Member State to fulfil obligations – Posts of ship’s captain and chief mate – Nationality clause

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 19)

3. Freedom of movement for persons – Workers – National legislation reserving the posts of captain and chief mate on all vessels flying the flag of a Member State, other than merchant ships with a gross tonnage of less than 100 GT which carry cargo or fewer than 100 passengers, to nationals (Art. 39 EC) (see para. 23, operative part)

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 39 EC – Requirement of Spanish nationality for persons occupying the posts of captain and chief mate on certain ships flying the Spanish flag – Incompatibility with Community law.

Operative part

The Court:

1.Declares that in requiring in its legislation Spanish nationality for persons occupying the posts of ship’s captain and chief mate of all vessels flying the Spanish flag other than merchant ships with a gross tonnage of less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which the Kingdom of Spain has sovereignty, sovereign rights or jurisdiction, the Kingdom of Spain has failed to fulfil its obligations under Community law and, in particular, under Article 39 EC;

2.Orders the Kingdom of Spain to pay the costs.