Action brought on 29 February 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-94/08)

(2008/C 107/32)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and L. Lozano Palacios, agents)

Defendant: Kingdom of Spain

Form of order sought

Pleas in law and main arguments

In accordance with the Spanish legislation, the posts of captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which Spain has sovereignty, sovereign rights or jurisdiction, must be occupied by Spanish citizens.

The Commission considers that the requirement, as a general rule, that those posts be occupied by persons of Spanish nationality infringes Article 39 EC and cannot be justified by the derogation of Article 39(4). The Commission's interpretation is supported in particular by Case C-405/01 (1), in which the Court ruled that the scope of that derogation must be limited to what is strictly necessary for safeguarding the general interests of the Member State concerned, and in respect of the posts concerned, those interests cannot be imperilled if the relevant rights under powers conferred by public law are exercised only sporadically, even exceptionally, by nationals of other Member States. The Kingdom of Spain has not amended the legislation in the way recommended by the Commission, although it undertook to make the necessary amendments in its response to the reasoned opinion.

(1)  Colegio de Oficiales de la Marina Mercante Española [2003] ECR I-10391.