61993J0037

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Member States ° Obligations ° Failure to fulfil obligations not contested

(EEC Treaty, Art. 169)

In Case C-37/93,

Commission of the European Communities, represented by Dimitrios Gouloussis, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Belgium, represented by P. Duray, Deputy Adviser at the Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the Belgian Embassy, 4 Rue des Girondins,

defendant,

APPLICATION for a declaration that, by retaining in Belgian legislation provisions under which certain seamen' s jobs, other than those of master and first mate, are reserved to Belgian nationals, the Kingdom of Belgium has failed to fulfil its obligations under Article 48 of the EEC Treaty and Articles 1 and 4 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475),

THE COURT,

composed of: O. Due, President, M. Diez de Velasco and D.A.O. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler, G.C. Rodríguez Iglesias, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: C.O. Lenz,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 9 November 1993,

gives the following

Judgment

1 By application lodged at the Court Registry on 5 February 1993, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by retaining in its legislation provisions under which certain seamen' s jobs, other than those of master and first mate, are reserved to Belgian nationals, the Kingdom of Belgium has failed to fulfil its obligations under Article 48 of the Treaty and Articles 1 and 4 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).

2 Article 3 of the Belgian Law of 25 February 1964 organizing a pool of merchant seamen, as amended by the Law of 8 July 1975, provides that only persons registered in the pool maintained by the Ministry of Employment and Labour may be recruited to serve on ships of the Belgian merchant navy and that only persons residing in Belgium are eligible to be registered in the pool. In addition, the second paragraph of Article 12 of the Royal Decree of 9 April 1965 on the Merchant Seamen Pool provides that non-Belgian nationals are to be registered in the pool only if there are insufficient eligible candidates with Belgian nationality.

3 The Belgian Government does not contest that the national legislation in issue is incompatible with Community law. It merely informs the Court that first drafts of a Law and a royal decree amending the legislation have been sent to the Commission and that it is awaiting the Commission' s comments before submitting them to Parliament and the King for approval.

4 The Commission points out that the Belgian Government therefore admits that the legislation does not yet comply with Community law and maintains its claims.

5 It is evident that at the end of the period allowed in the reasoned opinion the Belgian Government had not brought its legislation into conformity with Community rules.

6 It must therefore be held that the Kingdom of Belgium has failed to fulfil its obligations, in the terms set out in the Commission' s application.

Costs

7 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Kingdom of Belgium has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by retaining in its legislation provisions under which certain seamen' s jobs, other than those of master and first mate, are reserved to Belgian nationals, the Kingdom of Belgium has failed to fulfil its obligations under Article 48 of the EEC Treaty and Articles 1 and 4 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community;

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