The profession of seafarer; the ability of foreigners to enjoy and exercise rights – principle that foreigners’ rights not be restricted
Inclusion on the register of professional seafarers;
Norms regulating the profession of seafarer;
International maritime organisation;
1978 stcw convention;
Principle of ‘national treatment’;
Principle of equivalent rights for foreigners.
RULING No. 96/13
19 of February of 2013
The Constitutional Court declared a norm contained in the regime governing the profession of seafarer unconstitutional with generally binding force. The norm in question reserved inclusion on the register of professional seafarers to individuals holding Portuguese nationality or that of another Member State of the European Union (albeit without prejudice to provisions to the contrary included in conventions or other international instruments that are currently in force in Portuguese law). The nationality-based requirement imposed by this norm represented an exception to the principle that foreigners who find themselves or reside in Portugal enjoy rights equivalent to those of Portuguese citizens, and one that has no place within the scope of any of the exceptions that are directly established by the Constitution (which reserves political rights, the exercise of public functions that are not of a predominantly technical nature, and certain other rights and duties to Portuguese citizens). The status the Constitution grants to foreign citizens does allow the ordinary law to create exceptions to this principle of equivalence. However, such restrictions must fulfil the constitutional requirement of proportionality and must be limited to that which is necessary in order to safeguard other constitutionally protected rights or interests.
The norm before the Court used a criterion of nationality to deprive the citizens it applied to of the possibility of occupying any post aboard marine vessels. Nor were the vessels concerned solely those linked to the exercise of national sovereignty or the performance of functions derived from the exercise of powers of authority. The exercise of any set of tasks, competencies, duties or responsibilities was generically precluded aboard any type of vessel, including those whose commercial or fishing nature means that they have nothing to do with the political component or the authority/sovereignty dimension on which the constitutional restrictions on the principle of equivalence based on the nature of the function are founded.
There was no teleological connection between this restriction and the need to adequately, requirably and proportionately safeguard any constitutionally protected right or interest, and it therefore did not fulfil the requisites in terms of legitimacy that would allow the ordinary law to make an exception to the principle of equivalence.
This case involved an abstract ex post hoc review requested by the Ombudsman. The purpose of the legislative act containing the norm in question was to establish norms regulating the profession of seafarer, including norms regarding inclusion on the register of professional seafarers and the issue of seafarers’ service record books, physical aptitude, classification, professional categories, requisites for admission to the profession, functions, training and certification, recognition of certificates, recruitment, shipboard and land-based regimes, and the minimum crew of vessels. Seafarers engage in this occupation aboard commercial, fishing, research and auxiliary vessels, and tugs, as well as other types of vessel when they belong to the state. The legislative act was also designed to implement the Amendments to the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention), which the International Maritime Organisation adopted in 1995 and have since been seconded and strengthened by the European Union in the form of the issue of relevant Directives.
The challenged norm meant that the exercise of the profession of seafarer on Portuguese-flagged vessels was, in principle, reserved to Portuguese citizens. The requirement for a person to be a Portuguese national in order to engage in this profession is not a new one in Portuguese law, although since Portugal joined the European Economic Community the relevant legislation has made provision for the obligations derived from that membership and from international conventions to which the country is a party.
The Portuguese Constitution guarantees foreigners and stateless persons who find themselves or reside in Portugal the rights and duties pertaining to Portuguese citizens. It enshrines the so-called principle of “national treatment” – i.e. that such persons must be treated as favourably as the country’s own citizens, particularly in relation to certain fundamental rights.
Where the concrete scope of this equivalence is concerned, constitutional jurisprudence and doctrine have gradually been setting out a broad conception of the principle, under which the latter does not just encompass the fundamental rights, but also the rights that Portuguese citizens are recognised to possess under the ordinary law. This understanding is justified by the universalist nature of the protection afforded to fundamental rights in a democratic state based on the rule of law and on the dignity of the human person.
In addition to the exceptions which the Constitution itself admits, it is accepted that the ordinary legislator can subject the enjoyment of certain rights to a nationality-based requisite. However, this possibility is conditioned by a number of parameters. In this sense, a restrictive measure must give way to the principle of the prohibition on excess, or of proportionality in the broad sense, which means that a restriction cannot be unnecessary, arbitrary or disproportionate, failing which the principle of equivalence itself would become empty and inoperable.
Nationals of non-European-Union third countries who find themselves in Portugal or reside here and want to gain access to the profession of seafarer are in any case subject to the usual requirements in terms of training and the need to obtain the applicable certification, as set out in precisely the legislative act that approved the regime governing the occupation of seafarer and included the norm before the Court. As such, the exclusion of such individuals from access to the profession solely on the basis of the criterion of their nationality cannot be justified by a need to pursue public-order interests connected either with the safety of persons who are linked to or come into contact with the sea, or with the preservation of the marine environment – interests whose protection is the object of the various norms (nautical training; the adoption of processes for assessing seafarers’ knowledge before they are issued with certificates demonstrating their qualifications or professional aptitude; the obligatory existence of a register of such certificates; the more than usually demanding nature of those qualifications and the corresponding certificates; and the importance attached to physical aptitude when certificates are issued), whose requirements are addressed in the 1995 amendments to the 1978 STCW Convention.
Nor was that limitation justified by the need to ensure effective on-board communication by requiring the whole crew to master a common language, because this would mean adopting the nationality criterion, but without the exceptions for citizens of other countries, including or excluding the rest of the European Union.
Nor was the norm warranted by a hypothetical desire to fight illegal immigration. Besides the fact that the norm applied indiscriminately to all nationals of non-European-Union third countries who find themselves or reside in Portugal – thus including those whose situation with regard to the regime governing entering and remaining in Portuguese territory is entirely legitimate – an exclusion linked to the interest in preventing illegal immigration would always have to give way to the superior efficacy of other types of measure which, without injuring core projections of the right to choose one’s profession freely, introduce control mechanisms intended to avoid the improper entry and continued presence of citizens from countries that are not part of the European Union.
The Court therefore declared the norm before it to be unconstitutional with generally binding force.
One Justice concurred with the decision, but attached greater importance to the question of organic unconstitutionality. He said that the legislative act containing the norm was issued by the government, but the competence to legislate on restrictions that affect constitutional rights, freedoms and guarantees pertains exclusively to the Assembly of the Republic (unless the latter authorises the government to legislate in its stead), and this meant that the norm before the Court inevitably suffered from organic unconstitutionality.
Rulings nos. 340/95 (22-06-1995); 423/01 (09-10-2001); 72/02 (20-02-2002); and 345/02 (11-07-2002).