Case C-410/03
Commission of the European Communities
v
Italian Republic
(Failure of a Member State to fulfil obligations – Directive 1999/95/EC – Seafarers’ hours of work on board ships – Failure to transpose within the prescribed period)
Judgment of the Court (Fourth Chamber), 28 April 2005.
Summary of the Judgment
1. Acts of the institutions — Directives — Implementation by the Member States — Need for precise transposition — Directive 1999/95 — Provision concerning only relations between the Member States and the Commission — Provision not necessarily requiring specific transpositional measures — Need to ensure the directive is fully effective — Mere obligations to notify — None
(European Parliament and Council Directive 1999/95, Art. 3, first subpara.)
2. Acts of the institutions — Directives — Implementation by the Member States — Need for precise transposition — Directive 1999/95 — Provision requiring notification under public international law — Notification intended to improve safety at sea in a clearly hazardous situation — Full effect
(European Parliament and Council Directive 1999/95, Art. 6(1))
1. A provision which concerns only relations between a Member State and the Commission or the other Member States need not, in principle, be transposed. However, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues.
That is not so in the case of the first subparagraph of Article 3 of Directive 1999/95 concerning the enforcement of provisions in respect of seafarers’ hours of work on board ships calling at Community ports, the objective of which is primarily to improve the shipboard living and working conditions of seafarers and safety at sea. The report addressed to the government of the country in which the ship is registered is intended to draw attention to a situation which is clearly hazardous to the safety or the health of the crew. It is intended immediately to eliminate that risk and does not concern only mere obligations to notify. To have full effect the rule therefore requires transposition.
(see paras 38-40)
2. The obligation, under Article 6(1) of Directive 1999/95 concerning the enforcement of provisions in respect of seafarers’ hours of work on board ships calling at Community ports, to notify the administration of the flag State or the State in which a ship is registered or the Consul, or in his absence the nearest diplomatic representative of that State, is the corollary of that State’s responsibilities under public international law. It is clear from Article 94(1) of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, which entered into force on 16 November 1994 and was approved by Decision 98/392 concerning the obligations of the flag State, that every State is effectively to exercise its jurisdiction and control in administrative, technical and social fields over ships flying its flag. In particular, pursuant to paragraphs 2(b) and 3(b) of that article, every State is to assume jurisdiction, under its internal law, over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship, and every State is to take such measures for ships flying its flag as are necessary to ensure safety at sea, with regard, inter alia, to the manning of ships, labour conditions and training of crews, taking account of the applicable international instruments. It is also clear from Article 94(6) that, once advised of the fact that the proper control has not been exercised over a ship, the flag State is to undertake an investigation and, if appropriate, take any action necessary to remedy the situation. It follows that the notification required by Article 6(1) of Directive 1999/95 is intended directly to improve safety at sea in the case of a clearly hazardous situation. To have full effect that provision therefore requires express transposition into national law.
(see paras 53-56)
JUDGMENT OF THE COURT (Fourth Chamber)
28 April 2005 (*)
(Failure of a Member State to fulfil obligations – Directive 1999/95/EC – Seafarers’ hours of work on board ships – Failure to transpose within the prescribed period)
In Case C-410/03,
Action under Article 226 EC for failure to fulfil obligations, brought on 1 October 2003,
Commission of the European Communities, represented by K. Banks and K. Simonsson, acting as Agents, with an address for service in Luxembourg,
applicant,
v
Italian Republic, represented by I.M. Braguglia, acting as Agent, assisted by A. Cingolo, avvocato dello Stato, with an address for service in Luxembourg,
defendant,
THE COURT (Fourth Chamber),
composed of K. Lenaerts, President of the Chamber, N. Colneric (Rapporteur) and J.N. Cunha Rodrigues, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: R. Grass,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By its application, the Commission of the European Communities seeks a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of seafarers’ hours of work on board ships calling at Community ports (OJ 2000 L 14, p. 29), or by failing to notify the Commission thereof, the Italian Republic has failed to fulfil its obligations under that directive.
2 The Italian Republic contends that the Commission’s action should be dismissed as unfounded.
Relevant provisions
Community provisions
3 Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST) (OJ 1999 L 167, p. 33) is intended to implement that agreement, set out in the Annex to that directive (‘the Agreement’), which is based on certain provisions of Convention No 180 of the International Labour Organisation (‘the ILO’) concerning seafarers’ hours of work and the manning of ships, adopted on 22 October 1996.
4 Clause 4 of the Agreement provides:
‘Without prejudice to Clause 5, the normal working hours’ standard of seafarers is, in principle, based on an eight-hour day with one day of rest per week and rest on public holidays. Member States may have procedures to authorise or register a collective agreement which determines seafarers’ normal working hours on a basis no less favourable than this standard.’
5 Clause 5 of the Agreement provides:
‘1. The limits of hours of work or rest shall be either:
(a) maximum hours of work which shall not exceed:
(i) fourteen hours in any 24 hour period; and
(ii) 72 hours in any seven-day period;
or
(b) minimum hours of rest which shall not be less than:
(i) ten hours in any 24 hour period; and
(ii) 72 hours in any seven-day period.
2. Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length and the interval between consecutive periods of rest shall not exceed 14 hours.
3. Musters, fire-fighting and lifeboat drills, and [drills] prescribed by national laws and regulations and by international instruments shall be conducted in a manner that minimises the disturbance of rest periods and does not induce fatigue.
4. In respect of situations when a seafarer is on call, such as when a machinery space is unattended, the seafarer shall have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work.
5. With regard to paragraphs 3 and 4, where no collective agreement or arbitration award exists or if the competent authority determines that the provisions in the agreement or award are inadequate, it would be for the competent authority to determine such provisions to ensure that the seafarers concerned have sufficient rest.
6. With due regard for the general principles of the protection of the health and safety of workers, Member States may have national laws, regulations or a procedure for the competent authority to authorise or register collective agreements permitting exceptions to the limits set out in paragraphs 1 and 2. Such exceptions shall, as far as possible, follow the standards set out but may take account of more frequent or longer leave periods, or the granting of compensatory leave for watchkeeping seafarers, or seafarers working on board ship on short voyages.
7. A table shall be posted, in an easily accessible place, with the shipboard working arrangements, which shall contain for every position at least:
(a) the schedule of service at sea and service in port; and
(b) the maximum hours of work or the minimum hours of rest required by the laws, regulations or collective agreements in force in the Member States.
8. The table referred to in paragraph 7 shall be established in a standardised format in the working language or languages of the ship and in English.’
6 Clause 8 of the Agreement is worded as follows:
‘1. Records of seafarers’ daily hours of work or their daily hours of rest shall be maintained to allow monitoring of compliance with the provisions set out in Clause 5. The seafarer shall receive a copy of the records pertaining to him or her which shall be endorsed by the master, or a person authorised by the master, and by the seafarer.
2. Procedures shall be determined for keeping such records on board, including the intervals at which the information shall be recorded. The format of the records of the seafarers’ hours of work or of their hours of rest shall be established taking into account any available international guidelines. The format shall be established in the language provided by Clause 5, paragraph 8.
3. A copy of the relevant provisions of the national legislation pertaining to this Agreement and the relevant collective agreements shall be kept on board and be easily accessible to the crew.’
7 Clause 9 of the Agreement provides:
‘The records referred to in Clause 8 shall be examined and endorsed at appropriate intervals, to monitor compliance with the provisions governing hours of work or hours of rest that give effect to this Agreement.’
8 The fourth recital in the preamble to Directive 1999/95 states that the Agreement applies to seafarers on board every seagoing ship, whether publicly or privately owned, which is registered in the territory of any Member State and is ordinarily engaged in commercial maritime operations.
9 According to the fifth recital in the preamble to Directive 1999/95, its purpose is to apply the provisions of Directive 1999/63 which reflect the provisions of ILO Convention No 180 to any ship calling at a Community port, irrespective of the flag it flies, in order to identify and remedy any situation which is manifestly hazardous for the safety or health of seafarers.
10 Article 1 of Directive 1999/95 provides:
‘1. The purpose of this Directive is to provide a mechanism for the verification and enforcement of compliance by ships calling at ports of Member States with Directive 1999/63/EC in order to improve maritime safety, working conditions and the health and safety of seafarers on board ships.
2. Member States shall take appropriate measures to ensure that ships which are not registered in their territory or not flying their flag comply with clauses 1 to 12 of the Agreement annexed to Directive 1999/63/EC.’
11 Article 3 of Directive 1999/95, entitled ‘Preparation of reports’, provides:
‘Without prejudice to Article 1(2), if a Member State in whose port a ship calls voluntarily in the normal course of its business or for operational reasons receives a complaint which it does not consider manifestly unfounded or obtains evidence that the ship does not conform to the standards referred to in Directive 1999/63/EC, it shall prepare a report addressed to the government of the country in which the ship is registered and, when an inspection carried out pursuant to Article 4 provides relevant evidence, the Member State shall take the measures necessary to ensure that any conditions on board which are clearly hazardous to the safety or the health of the crew are rectified.
The identity of the person lodging the report or the complaint must not be revealed to the master or the owner of the ship concerned.’
12 Article 4 of Directive 1999/95, entitled ‘Inspection and more detailed inspection’, provides:
‘1. When carrying out an inspection, in order to obtain evidence that a ship does not conform to the requirements of Directive 1999/63/EC, the inspector shall determine whether:
– a table with the shipboard working arrangements has been established in the working language or languages of the ship and in English according to the model format reproduced in Annex I, or in an alternative equivalent format, and is posted on board in an easily accessible place;
– seafarers’ records of hours of work or hours of rest have been established in the working language or languages of the ship and in English according to the model format reproduced in Annex II, or in an alternative equivalent format, and are kept on board and there is proof that the records have been endorsed by the competent authority of the State where the ship is registered.
2. If a complaint has been received or the inspector from his own observations on board believes that the seafarers may be unduly fatigued, the inspector shall conduct a more detailed inspection, pursuant to paragraph 1, to determine whether the working hours or rest periods recorded conform to the standards laid down in Directive 1999/63/EC and that they have been duly observed, taking into account other records relating to the operation of the ship.’
13 Article 5 of Directive 1999/95, entitled ‘The rectification of deficiencies’, is worded as follows:
‘1. If the inspection or the more detailed inspection reveals that the ship does not conform to the requirements of Directive 1999/63/EC, the Member State shall take the measures necessary to ensure that any conditions on board which are clearly hazardous to the safety or health of seafarers are rectified. Such measures may include a prohibition on leaving the port until deficiencies have been rectified or the seafarers have been sufficiently rested.
2. If there is clear evidence that watchkeeping personnel for the first watch or subsequent relieving watches are unduly fatigued, the Member State shall ensure that the ship shall not leave port until the deficiencies found have been rectified or the seafarers in question have been sufficiently rested’.
14 Article 6 of Directive 1999/95, entitled ‘Follow-up procedures’, states:
‘1. In the event that a ship is prohibited from leaving the port pursuant to Article 5, the competent authority of the Member State shall inform the master, the owner or operator, the administration of the flag State or the State where the ship is registered or the Consul, or in his absence the nearest diplomatic representative of the State, of the results of the inspections referred to in Article 4, of any decisions taken by the inspector and of corrective actions required, if necessary.
2. When carrying out an inspection under this Directive, all possible efforts should be made to avoid a ship being unduly delayed. If a ship is unduly delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue delay, the burden of proof shall lie with the owner or operator of the ship’.
15 Article 7 of the same directive, entitled ‘Right of appeal’, provides:
‘1. The owner or the operator of the ship or his representative in the Member State shall have a right of appeal against a detention decision taken by the competent authority. An appeal shall not cause the detention to be suspended.
2. Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation.
3. The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal’.
16 Article 8 of that directive, entitled ‘Administrative cooperation’, is worded as follows:
‘1. Member States shall take the necessary steps to provide, in conditions compatible with those laid down in Article 14 of Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control) (OJ 1995 L 157, p. 1), for cooperation between their relevant authorities and the relevant competent authorities of other Member States to ensure the effective application of this Directive and shall notify the Commission of the provision made.
2. Information on the measures taken pursuant to Articles 4 and 5 shall be published in accordance with procedures such as those set out in the first paragraph of Article 15 of Directive 95/21/EC’.
17 Article 9 of Directive 1999/95, entitled ‘“No more favourable” treatment clause’, provides:
‘When inspecting a ship registered in the territory of or flying the flag of a State which has not signed ILO Convention No 180 or the Protocol to ILO Convention No 147, Member States shall, once the Convention and the Protocol are in force, ensure that the treatment given to such ships and their crew is no more favourable than that given to a ship flying the flag of a State which is a party to either ILO Convention No 180 or the Protocol to ILO Convention No 147 or both of them’.
18 Article 10(1) of Directive 1999/95 provides that Member States are to bring into force the laws, regulations and administrative provisions necessary to comply therewith not later than 30 June 2002. Under Article 10(3), Member States are immediately to notify the Commission of all provisions of domestic law which they adopted in the field governed by that Directive. The Commission is to inform the other Member States thereof.
National provisions
19 Legislative Decree No 271 adapting the legislation on the health and safety of maritime workers on board national merchant fishing vessels to the requirements of Law No 485 of 31 December 1998 (Decreto legislativo N° 271, recante adeguamento della normativa sulla sicurezza e salute dei lavoratori marittimi a bordo delle navi mercantili da pesca nazionali, a norma della Legge 31 dicembre 1998, N° 485) of 27 July 1999 (GURI, General Supplement No 151 of 9 August 1999, hereinafter ‘the Legislative Decree’), applies, under Article 2 thereof, to maritime workers on board all new or existing merchant ships or vessels, involved in maritime navigation or fishing, as well as to temporarily laid-up merchant ships or vessels, to high-speed craft and to moving platforms.
20 Article 11(1), and (3) to (10) of the Legislative Decree provide:
‘1. “Hours of work on board a ship” means time during which a maritime worker is required to carry out duties connected with its navigation. The following are included in the hours of work on board, in addition to the normal activities at sea and in port:
(a) musters for emergency drills for fire-fighting and abandoning ship, as well as all drills required by the safety regulations and by the London Convention for the Safety of Life at Sea referred to in Law No 313 of 23 May 1980, and its subsequent revisions, together called “the Solas Conventions”;
(b) activities required by the master connected with navigational safety, in case of danger to the crew or ship;
(c) training in respect of health and safety at work on board, concerning the duties performed;
(d) ordinary maintenance of the ship;
(e) activities required by the master in case of operations to assist other merchant or fishing vessels or for the rescue of persons.
…
3. Without prejudice to other provisions in the national collective agreements in the sector, the hours of work of maritime workers on board merchant ships and fishing vessels is fixed at eight hours per day, with one day of rest per week, in addition to public holidays.
4. The limits of the work or rest schedule on board ships shall be established as follows:
(a) the maximum hours of work shall not exceed:
1. 14 hours in any 24-hour period; and
2. 72 hours in any seven-day period; or
(b) the minimum hours of rest shall not be less than:
1. 10 hours in any 24-hour period; and
2. 77 hours in any seven-day period.
5. Hours of rest may not be divided into more than 2 separate periods, one of which shall be at least six consecutive hours in length and the interval between consecutive periods of rest shall not exceed 14 hours.
6. The activities referred to under subparagraphs 1(a) to (e) above shall be conducted in a manner that minimises the disturbance of rest periods and does not induce fatigue.
7. In respect of situations when a maritime worker is on call, he shall have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work.
8. For ships used for short voyages and for particular categories of vessels used for port services, the collective agreement may derogate from the requirements of paragraphs 4 and 5, taking account of more frequent or longer rest periods or of the grant of compensatory rest to seafarers employed in the security service or seafarers who work on board.
9. On board all national merchant ships and fishing vessels, a table shall be posted, in an easily accessible place and in Italian and English containing the shipboard service arrangements, with for each rank or position:
(a) the schedule of service at sea and the schedule of service in port;
(b) the maximum hours of work and the minimum hours of rest prescribed by this decree or the collective agreements in force.
10. A copy of the Collective Agreement shall be kept on board, and shall be available to any worker on board and to the monitoring bodies’.
21 Article 18(1) of the Legislative Decree provides that, ‘[i]n order to monitor the application of the provisions contained in this decree, the ships referred to in Article 2 shall be subject to the following inspections:
…
(c) occasional inspections:
…
(5) of foreign merchant ships or vessels.’
22 Article 21(1) and (3) of the Legislative Decree provide:
‘1. In order to check that the working environment continues to comply with the rules and each time that it is considered necessary, an occasional inspection shall be made on board the vessel as provided by Article 18(1)(c) by the competent maritime authority, either on its own initiative, or at the request of the competent local health authority (Azienda unità sanitaria locale), of trade union representatives, or of shipowners or seafarers. The inspection may also be requested directly by the workers through the representative responsible for the safety of the working environment referred to in Article 16.
…
3. Occasional inspections on board foreign merchant ships or vessels shall be carried out in accordance with the procedures mentioned in the Memorandum of Agreement on Inspection by the State of the port of docking’.
The pre-litigation procedure
23 Since it received no information on the measures adopted by the Italian Republic to comply with Directive 1999/95, the Commission initiated the procedure provided for by Article 226 EC. After giving that Member State formal notice to submit its observations, the Commission, by letter of 19 December 2002, issued a reasoned opinion stating that the said directive had not been transposed within the prescribed period and inviting the Italian Republic to adopt the measures necessary to comply with that opinion within a period of two months from the date of its notification.
24 In their reply of 14 February 2003, the Italian authorities informed the Commission that a legislative decree was being prepared.
25 By letter of 1 July 2003, those authorities stated that administrative measures had been adopted establishing a table relating to the shipboard working arrangements and a register of the work schedule on board, in accordance with Annexes I and II to Directive 1999/95.
26 Since it received no other information from the Italian authorities, the Commission brought this action.
The action
Arguments of the parties
27 The Commission maintains that the letter sent to it by the Italian authorities on 1 July 2003 makes no reference to any measures capable of enacting the rules required by Articles 3 to 9 of Directive 1999/95. The drawing up of a table and register could, it submits, at the very most have the nature of a measure to prepare for the adoption of rules meeting the obligations laid down by Article 4 of that directive. The Italian Republic has not yet adopted the measures necessary to comply with that directive, or at the very least, it has not notified the Commission of them.
28 The Italian Government contends that Directive 1999/95 was intended to establish a system of verification and enforcement of compliance with the provisions of Directive 1999/63. The essential provisions of that Directive were implemented in Italy by Article 11 of the Legislative Decree. The Italian administration has already adopted administrative measures establishing the table relating to the organisation of hours of work on board and the register of hours of work on board, which comply with the model formats prescribed in Annex I and Annex II to Directive 1999/95 respectively. The Government argued that any additional implementation which might be necessary would be included in Community Law No 306 of 31 October 2003, which would incorporate Directive 1999/63 in Annex B thereto.
29 Referring to Articles 2 and 18 of the Legislative Decree, the Italian Government adds, in its rejoinder, that the system of verification and enforcement of compliance with the provisions of Directive 1999/63, which had already been implemented, concerns not only ships flying the Italian flag, but also all ships calling at Community ports. Thus the essential aspects of Directive 1999/95 have already been transposed into Italian law.
Findings of the Court
Preliminary observations
30 As a preliminary point, it is appropriate to recall that whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State at the end of the period laid down in the reasoned opinion (see, for example, Case C-71/99 Commission v Germany [2001] ECR I‑5811, paragraph 29, and Case C-110/00 Commission v Austria [2001] ECR I‑7545, paragraph 13). Therefore, Community Law No 306 of 31 October 2003 cannot be taken into consideration by the Court.
31 Since, in the grounds of its application, the Commission’s only complaint against the Italian Government is that it had failed to show that measures satisfying the obligations imposed on the Member States by Articles 3 to 9 of Directive 1999/95 have been adopted, the action must be understood as referring only those provisions.
On Article 4 of Directive 1999/95
32 As the Court has consistently held, Member States must, in order to secure the full implementation of directives in law and not only in fact, establish a specific legal framework in the area in question (see Case C‑360/87 Commission v Italy [1991] ECR I-791, paragraph 13, and Case C-429/01 Commission v France [2003] ECR I-0000, paragraph 40).
33 Clearly the Legislative Decree does not satisfy that requirement in so far as Article 4 of Directive 1999/95 is concerned.
34 That provision requires specific inspections in order to obtain evidence that a ship does not conform to the requirements of Directive 1999/63. It states in detail the matters which the checks must cover and requires the carrying out, in the course of inspections described as ‘detailed’, particularly of cross-checks between, on the one hand, the register of hours of work and rest and, on the other hand, other registers relating to the operation of the ship concerned.
35 The Legislative Decree contains no such requirements.
36 Accordingly, the action must be held to be well founded in so far as it relates to Article 4 of Directive 1999/95.
On Article 3 of Directive 1999/95
37 The first paragraph of Article 3 of Directive 1999/95 imposes on the Member States a dual obligation. The first obligation consists, if a Member State receives a complaint or obtains evidence that a ship does not conform to the standards referred to in Directive 1999/63, in preparing a report addressed to the government of the country in which the ship is registered.
38 It is clear from the Court’s case-law that a provision which concerns only relations between a Member State and the Commission or the other Members States need not, in principle, be transposed (see Case C‑296/01 Commission v France [2003] ECR I-0000, paragraph 92, and Case C-429/01 Commission v France, cited above, paragraph 68).
39 It should be recalled that, according to equally settled case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (see, in particular, Case C‑336/97 Commission v Italy [1999] ECR I-3771, paragraph 19; Case C‑97/00 Commission v France [2001] ECR I-2053, paragraph 9; and Case C‑478/99 Commission v Sweden [2002] ECR I-4147, paragraph 15).
40 According to the second and seventh recitals in the preamble, the objective of Directive 1999/95 is primarily to improve the shipboard living and working conditions of seafarers and safety at sea. The report addressed to the government of the country in which the ship is registered is intended to draw attention to a situation which is clearly hazardous to the safety or the health of the crew. It is intended immediately to eliminate that risk and does not concern only mere obligations to notify. To have full effect the rule therefore requires transposition.
41 As a result, the Commission’s action must be upheld in relation to that obligation.
42 As regards the second obligation under the first paragraph of Article 3 of Directive 1999/95, it requires the Member States to take the necessary remedial action when an inspection carried out pursuant to Article 4 provides evidence of non-compliance with the standards referred to in Directive 1999/63. Given that, as held in paragraph 36 of this judgment, Article 4 has not been transposed into Italian law, the Commission’s action must also be held to be well founded in so far as it relates to that obligation.
43 The second paragraph of Article 3 of Directive 1999/95 provides that the identity of the person lodging the complaint must not be revealed to the master or the owner of the ship concerned.
44 None of the provisions of domestic law invoked by the Italian Government reproduces that prohibition.
45 As a result, the action is well founded in that regard.
On Article 5 of Directive 1999/95
46 That provision requires, particularly, that the measures for rectification of the deficiencies established may and, in certain conditions, must include, for the ship concerned, a prohibition on leaving the port until those deficiencies have been corrected.
47 It is not disputed that no such measures are set out in the provisions of domestic law invoked by the Italian Government.
48 Therefore, the action must be upheld in relation to Article 5 of Directive 1999/95.
On Article 6 of Directive 1999/95
49 Article 6(1) of Directive 1999/95 imposes on the competent authority of the Member State concerned a notification obligation if a ship is prohibited from leaving the port under Article 5 thereof.
50 The addressees of such notification are, first, the master, owner or operator of the ship and, secondly, the administration of the flag State or the State where the ship is registered or the Consul, or in his absence the nearest diplomatic representative of that State.
51 The domestic legislation invoked by the Italian Government contains no such notification obligation.
52 Admittedly, as pointed out in paragraph 38 of this judgment, a Member State need not, in principle, transpose provisions which concern only relations between the Member States.
53 It must be emphasised that, in this case, the obligation to notify the administration of the flag State or the State in which the ship is registered or the Consul, or in his absence the nearest diplomatic representative of that State, is the corollary of that State’s responsibilities under public international law.
54 Indeed, it is clear from Article 94(1) of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, which entered into force on 16 November 1994 and was approved by Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p. 1), concerning the obligations of the flag State, that every State is effectively to exercise its jurisdiction and control in administrative, technical and social fields over ships flying its flag. In particular, pursuant to paragraphs 2(b) and 3(b) of that article, every State is to assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship, and every State is to take such measures for ships flying its flag as are necessary to ensure safety at sea, with regard, inter alia, to the manning of ships, labour conditions and training of crews, taking account of the applicable international instruments.
55 It is clear from Article 94(6) that, once advised of the fact that the proper control has not been exercised over a ship, the flag State is to undertake an investigation and, if appropriate, take any action necessary to remedy the situation.
56 It follows that the notification required by Article 6(1) of Directive 1999/95 is intended directly to improve safety at sea in the case of a clearly hazardous situation. To have full effect that provision therefore requires express transposition into national law.
57 As a result, the action must be upheld as regards Article 6(1) of Directive 1999/95.
58 As regards Article 6(2) of Directive 1999/95, it establishes rules relating to the protection of the financial interests of the persons concerned by inspections carried out under that directive. Such rules have no equivalent in the provisions of domestic law on which the Italian Government relies.
59 Consequently, the action must be upheld as regards Article 6(2) of Directive 1999/95.
On Article 7 of Directive 1999/95
60 As regards this complaint, it must be recalled that it is settled law that transposing a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific express legal rule; a general legal context may be sufficient, provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner, in order that, where that directive seeks to create rights for individuals, those entitled to such rights are put in a position to ascertain the full extent of their rights and to invoke them, where appropriate, before the national courts (Case C-131/88 Commission v Germany [1991] ECR I-825, paragraph 6, and Case C-49/00 Commission v Italy [2001] ECR I-8575, paragraphs 21 and 22).
61 None of the domestic law provisions cited by the Italian Government relates to a right of appeal against a decision to detain a vessel taken by the competent national authority or the latter’s obligation to inform the master of the ship concerned of that right.
62 Consequently, the Commission’s action must be upheld in respect of Article 7 of Directive 1999/95.
On Article 8 of Directive 1999/95
63 Article 8(1) of that Directive concerns only relations between the Member States and relations between them and the Commission. As noted in paragraph 38 of this judgment, such provisions need not, in principle, be transposed.
64 Nevertheless, given that the Member States are under an obligation to ensure full compliance with Community law, the Commission may show that compliance with the provision of a directive governing such relations requires the adoption of specific measures transposing that provision into the national legal order (see Case C-296/01 Commission v France, cited above, paragraph 92, and Case C-429/01 Commission v France, cited above, paragraph 68).
65 Here, the Commission has not put forward any arguments to show that the Italian authorities have a practice which runs counter to the Member States’ obligations under Article 8(1) of Directive 1999/95.
66 As a result, the Commission’s action must be rejected in that respect.
67 On the other hand, it must be held to be well founded in so far as it concerns the obligation under Article 8(2) of Directive 1999/95 to publish, since the provisions relied upon by the Italian Government make no reference to such an obligation under national law.
On Article 9 of Directive 1999/95
68 The provisions of national law cited by the Italian Government do not contain any ‘no more favourable’ treatment clause within the meaning of Article 9 of Directive 1999/95.
69 Therefore, the action must be upheld as regards that provision.
70 Having regard to all the foregoing considerations, it is appropriate to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3 to 7, 8(2) and 9 of Directive 1999/95, the Italian Republic has failed to fulfil its obligations under that directive, and to dismiss the remainder of the action.
Costs
71 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Italian Republic has been largely unsuccessful, the latter must be ordered to pay the costs.
On those grounds, the Court (Fourth Chamber) hereby:
1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3 to 7, 8(2) and 9 of Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of seafarers’ hours of work on board ships calling at Community ports, the Italian Republic has failed to fulfil its obligations under that directive;
2. Dismisses the remainder of the action;
3. Orders the Italian Republic to pay the costs.
[Signatures]
* Language of the case: Italian.
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