Judgment of the Court (Sixth Chamber) of 11 September 2008 – Commission v Italy

(Case C‑447/07)

Failure of a Member State to fulfil obligations – Article 39 EC – Employment in the public administration – Masters and chief officers of vessels – Allocation of State authority on board – Requirement to hold the nationality of the flag Member State

1.                     Freedom of movement for persons – Exceptions – Employment in the public administration (Art. 39(4) EC) (see paras 16, 18, 21, operative part)

2.                     Freedom of movement for persons – Exceptions – Protection of public policy, public security and public health (Art. 39(3) EC) (see para. 17, operative part)

3.                     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. 23)

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 39 EC – National legislation reserving the posts of master and chief officer on all vessels flying the flag of that Member State to its nationals.

Operative part

The Court:

1.

Declares that, by maintaining in its legislation the requirement that masters and chief officers on all vessels flying the Italian flag hold Italian nationality, the Italian Republic has failed to fulfil its obligations under Article 39 EC;

2.

Orders the Italian Republic to pay the costs.