REFERENCE to the Court under Article 234 EC by the Schleswig-Holsteinisches Oberverwaltungsgericht (Germany) for a preliminary ruling in the proceedings pending before that court between
Bundesrepublik Deutschland, represented by the Wasser- und Schiffahrtsdirektion Nord, on the interpretation of Article 39(4) EC,
composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet (Rapporteur), R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges,
Advocate General: C. Stix-Hackl,
Registrar: M.-F. Contet, Principal Administrator,
after considering the written observations submitted on behalf of:
- the appellants in the main proceedings, by P. Slabschi, Rechtsanwalt,
- the respondent in the main proceedings and the German Government, by W.-D. Plessing and M. Lumma, acting as Agents,
- the Danish Government, by J. Molde and J. Bering Liisberg, acting as Agents,
- the French Government, by G. de Bergues and C. Bergeot-Nunes, acting as Agents,
- the Commission of the European Communities, by D. Martin and H. Kreppel, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of the appellants in the main proceedings, represented by P. Slabschi; of the respondent in the main proceedings, represented by B. Karsten, Regierungsrätin; of the German Government, represented by M. Lumma; of the French Government, represented by G. de Bergues and C. Bergeot-Nunes; and of the Commission, represented by I. Martínez del Peral, acting as Agent, and H. Kreppel, at the hearing on 21 January 2003,
after hearing the Opinion of the Advocate General at the sitting on 12 June 2003,
gives the following
By order of 31 January 2002, received at the Court on 19 February 2002, the Schleswig-Holsteinisches Oberverwaltungsgericht (Higher Administrative Court, Schleswig-Holstein) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Article 39(4) EC. 2.
That question has been raised in the course of proceedings between Messrs Anker, Ras and Snoek, who are Dutch nationals, and the Wasser- und Schiffahrtsdirektion Nord (Northern Authority for Waterways and Shipping) regarding access to employment as master of a fishing vessel flying the German flag.
Under Article 39 EC:
1. Freedom of movement for workers shall be secured within the Community. 2. Such freedom of movement shall entail 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. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service.
The United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, contains, in Part VII entitled High Seas, Section I entitled General Provisions, which contains Articles 86 to 115 of the general provisions relating...