Avis juridique important

Judgment of the Court of 4 October 1991. - Commission of the European Communities v Ireland. - Fisheries - Licences - Right of establishment. - Case C-93/89. European Court reports 1991 Page I-04569

Summary Parties Grounds Decision on costs Operative part

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Free movement of persons - Freedom of establishment - Fisheries - Grant by a Member State of fishing licences for vessels entered on its register - Grant of licence subject, only for nationals of other Member States, to the requirement of incorporating a company under national law - Not permissible

(EEC Treaty, Art. 52)

The imposition by a Member State of the requirement that nationals of other Member States who own a fishing vessel entered on its register set up a company governed by its national law, without a similar requirement being imposed on its own nationals, constitutes, in relation to freedom of establishment, discrimination on grounds of nationality, which is prohibited by Article 52 of the Treaty and cannot be justified by the existence of a Community system of national fishing quotas since the licences are not intended to define detailed rules for the utilization of those quotas.

In Case C-93/89,

Commission of the European Communities, represented by Robert Fischer and Peter Oliver, members of its Legal Service, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Ireland, represented by Louis J. Dockery, Chief State Solicitor, assisted by James O' Reilly, Senior Counsel of the Bar of Ireland, acting as Agents, with an address for service in Luxembourg at the Irish Embassy, 28 Route d' Arlon,

defendant,

supported by

United Kingdom of Great Britain and Northern Ireland, initially represented by Jaqueline Gensmantel, of the Treasury Solicitor' s Department, subsequently replaced by Rosemary Caudwell, of the Treasury Solicitor' s Department, acting as Agent, assisted by Christopher Vajda, Barrister, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

intervener,

APPLICATION for a declaration that, by requiring nationals of other Member States to set up an Irish company before obtaining a licence to fish at sea, Ireland has failed to fulfil its obligations under Article 52 of the EEC Treaty,

THE COURT,

composed of: G.F. Mancini, President of Chamber, acting as President, T.F. O' Higgins, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias, M. Díez de Velasco (Presidents of Chamber), Sir Gordon Slynn, C.N. Kakouris, R. Joliet, F. Grévisse, M. Zuleeg and P.J.G. Kapteyn, Judges,

Advocate General: J. Mischo,

Registrar: J.-G. Giraud,

having regard to the Report for the Hearing,

after hearing oral argument presented by the parties at the hearing on 17 January 1991, at which the United Kingdom of Great Britain and Northern Ireland was represented by Christopher Bellamy, QC,

after hearing the Opinion of the Advocate General at the sitting on 13 March 1991,

gives the following

Judgment

1 By application lodged at the Court Registry on 20 March 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by requiring nationals of other Member States to set up an Irish company before obtaining a licence to fish at sea, Ireland had failed to fulfil its obligations under Article 52 of the EEC Treaty.

2 Section 2 of the Fisheries (Amendment) Act 1983 (hereinafter referred to as "the 1983 Act") inserted Section 222B into the Fisheries (Consolidation) Act 1959) hereinafter referred to as "the 1959 Act"). Section 2(2) prohibits the use of a sea-fishing boat registered in Ireland for sea fishing, whether within the exclusive fishery limit of Ireland or otherwise, save under and in accordance with a licence granted by the appropriate Minister.

3 Section 222B(4)(a) provides:

"The Minister shall not grant a licence for the purposes of this section unless the sea-fishing boat in relation to which the licence is granted is wholly owned by an Irish citizen or a body corporate established under and subject to the law of the State and having its principal place of business in the State."

4 Considering Article 222B(4)(a) of the 1959 Act to be contrary to Article 52 of the Treaty, the Commission commenced proceedings against Ireland under Article 169 of the Treaty.

5 By order of 4 October 1989, the Court gave leave to the United Kingdom to intervene in support of the form of order sought by Ireland.

6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

7 It must first be observed that the Commission and Ireland agree that the alleged failure to fulfil obligations relates only to the conditions for the issue of a fishing licence laid down in Section 222B(4)(a) of the 1959 Act, and not to the conditions - identical to those laid down by Section 222B(4)(a) - to which the registration of sea-fishing vessels is subject under Irish law.

8 According to the Commission, Article 222B(4)(a) of the 1959 Act infringes Article 52 of the Treaty because it discriminates on grounds of nationality against nationals of other Member States who own fishing vessels registered in Ireland. Such persons, by contrast with Irish nationals, are required to set up a company governed by Irish law in order to obtain a fishing licence, thereby being put to inconvenience and incurring expense.

9 The Irish Government contends that the national provision at issue is in no way discriminatory. In the first place, it is not directed at nationals of the other Member States but applies to all fishing vessels registered or required to be registered in Ireland. In the second place, it does not prevent the owners of fishing vessels registered in other Member States from establishing themselves in Ireland and operating their vessels from Irish ports.

10 In the light of those arguments, it must be observed that in the present case the Commission' s criticism is not concerned with discrimination as between vessels registered in different Member States but with a difference of treatment deriving from the provision at issue as between Irish nationals who own a fishing vessel registered in Ireland, on the one hand, and, on the other, the nationals of other Member States who also own a fishing vessel registered in Ireland.

11 That difference of treatment constitutes, in relation to freedom of establishment, discrimination on grounds of nationality, prohibited by Article 52 of the Treaty.

12 The Irish Government also contends that the national provision at issue is justified having regard to the Community fish quota system, in so far as it is designed to protect the quotas allocated to Ireland from the abuse known as "quota hopping". It adds that the proper application of that system by the Member State is a matter of public policy within the meaning of Article 56(1) of the EEC Treaty.

13 It must be observed in the first place that, in its judgments in Case C-3/87 Agegate [1989] ECR 4459 and Case C-216/87 Jaderow [1989] ECR 4509, the Court stated that, when exercising the power granted to them to define the detailed rules for the utilization of their quotas, the Member States may determine which vessels in their fishing fleet will be allowed to fish against their national quotas, provided that the criteria employed are compatible with Community law. In the latter judgment, the Court held in particular that a Member State is entitled to lay down conditions designed to ensure that the vessel has a real economic link with that State if that link concerns only the relations between that vessel' s fishing operations and the populations dependent on fisheries and related industries.

14 It must be pointed out in that regard that the licences covered by the contested national provision, which do not refer specifically to species subject to quotas, are not intended to determine detailed rules for the utilization of Irish quotas but to grant authority for fishing in general by any fishing vessel registered in Ireland. Consequently, whatever the objectives pursued by the national legislature, such a provision cannot be justified by the existence of the Community system of national quotas.

15 In view of the foregoing considerations, it must be stated that by requiring nationals of other Member States to set up an Irish company before obtaining a licence to fish at sea, Ireland has failed to fulfil its obligations under Article 52 of the EEC Treaty.

Costs

16 Pursuant to Article 69(2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they are asked for in the other party' s pleadings. Since Ireland has failed in its submissions, it must be ordered to pay the costs. The United Kingdom, which intervened in support of the form of order sought by Ireland, must bear its own costs.

On those grounds,

THE COURT

hereby:

1. Declares that by requiring nationals of other Member States to set up an Irish company before obtaining a licence to fish at sea, Ireland has failed to fulfil its obligations under Article 52 of the EEC Treaty;

2. Orders Ireland to pay the costs;

3. Orders the United Kingdom to bear its own costs.