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Judgment of the Court of 2 December 1992.

Commission of the European Communities v Ireland.

C-280/89 • ECLI:EU:C:1992:481 • 61989CJ0280

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Commission of the European Communities v Ireland.

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Keywords

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1. Actions for failure to fulfil obligations ° Subject-matter ° Determined by the reasoned opinion ° Time-limit prescribed for the Member State ° Default subsequently remedied ° Interest in pursuing the action ° Possible liability of the Member State

(EEC Treaty, Art. 169)

2. Fisheries ° Common structural policy ° Waters coming under the sovereignty or within the jurisdiction of the Member States ° Equal access for Community fishermen ° Certain vessels flying the flag of one Member State banned by another Member State from fishing within its exclusive fishery limits ° Not permissible

(Council Regulation No 101/76, Art. 2(1))

3. Free movement of goods ° Quantitative restrictions ° Certain vessels flying the flag of one Member State banned by another Member State from trans-shipping fish within its exclusive fishery limits and landing fish in its territory ° Not permissible

(EEC Treaty, Art. 30)

Summary

1. The subject-matter of an action brought under Article 169 of the Treaty is determined by the Commission' s reasoned opinion, and even when the default has been remedied after the expiry of the time-limit prescribed by the second paragraph of that article, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur as a result of its default towards other Member States, the Community or private parties.

2. A Member State is in breach of its obligations under Article 2(1) of Regulation No 101/76 laying down the principle of equal conditions of access to and use of the fishing grounds situated in the waters coming under its sovereignty or within its jurisdiction for all fishing vessels flying the flag of a Member State and registered in Community territory if it enacts a fishing ban on certain vessels flying the flag of another Member State within its exclusive fishery limits. That breach cannot be justified by the fact that the exclusion by the other Member State of those same vessels from fishing against its national quotas is not contrary to Community law.

3. A ban by a Member State on the trans-shipment of fish within its exclusive fishery limits and landing of fish in its territory imposed on certain vessels flying the flag of another Member State constitutes a barrier to the free movement of goods which is prohibited by Article 30 of the Treaty.

Parties

In Case C-280/89,

Commission of the European Communities, represented by Robert Fischer, Legal Adviser, and Peter Oliver, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

supported by

Kingdom of Spain, represented initially by Javier Conde de Saro, then by Alberto José Navarro Gonzalez, Director General for Community Legal and Institutional Coordination, and by Rosario Silva de Lapuerta, Abogado del Estado, Head of the Legal Department for Matters before the Court of Justice, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

intervener,

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,

APPLICATION for a declaration that by enacting the Sea Fishing Boats Regulations 1986 Ireland has failed to fulfil its obligations under Article 30 of the EEC Treaty, Article 2 of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19) and Article 27 of Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products (OJ 1981 L 379, p. 1),

THE COURT,

composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: C. Gulmann,

Registrar: D. Triantafyllou, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 17 March 1992,

after hearing the Opinion of the Advocate General at the sitting on 12 May 1992,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 11 September 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by enacting the Sea Fishing Boats Regulations 1986 Ireland has failed to fulfil its obligations under Article 30 of the EEC Treaty, Article 2 of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19) and Article 27 of Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products (OJ 1981 L 379, p. 1).

2 It is apparent from documents before the Court that under Regulation 2(1) of the Sea Fishing Boats Regulations 1986 (Statutory Instrument No 289 of 1986) a sea-fishing boat registered in the United Kingdom, Channel Islands or Isle of Man

"... shall not be used to °

(a) fish for sea-fish within the exclusive fishery limits of the State

(b) land fish in the State

(c) trans-ship fish to or from such sea-fishing boat, whether in port or otherwise, within such limits,

unless at the time of such use not less than 75 per cent of the members of the crew of such boat are Irish citizens or nationals of another Member State of the European Communities (excluding ... until 1st January, 1993, any Spanish or Portuguese nationals who are not the spouse or children under 21 of ... Spanish or Portuguese workers already installed in the United Kingdom in accordance with the transitional arrangements on the free movement of workers following the accession of ... Spain and Portugal to the Communities as provided for in the relevant accession Treaties) ordinarily resident in the United Kingdom, Isle of Man or Channel Islands: residence means residence on shore and for this purpose service on board a British ship does not count as residence in the United Kingdom, Isle of Man or Channel Islands".

3 The documents also show that the regulations in issue were adopted following the measures adopted after 1 January 1986 by the United Kingdom with respect to fishing licences. Under the United Kingdom measures the grant of licences to vessels flying the British flag was made subject inter alia to a condition regarding nationality and a condition regarding residence identical to those under the contested Irish regulations. The object of the United Kingdom measures was to prevent vessels flying the British flag but owned by Spanish interests with a crew largely made up of Spanish nationals from fishing against United Kingdom quotas. Ireland adopted its contested regulations in order to deny such vessels access to its fishery limits.

4 The Commission considered that the fishing ban laid down by the contested regulations was contrary to Article 2(1) of Regulation No 101/76 and that the bans on landing and trans-shipping fish under Regulation 2(1)(b) and (c) of the contested Irish regulations were contrary to Article 30 of the EEC Treaty and to Article 27(2) of Regulation No 3796/81. It therefore initiated the procedure under Article 169 of the EEC Treaty against Ireland.

5 By order of 17 January 1990 the Court granted the Kingdom of Spain leave to intervene in support of the order sought by the Commission.

6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, 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 At the hearing Ireland pointed out that the contested regulations had been revoked on 11 March 1992. However, the Court has consistently held (see judgment of 18 March 1992 in Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12) that the subject-matter of an action brought under Article 169 is determined by the Commission' s reasoned opinion, and even when the default has been remedied after the expiry of the time-limit prescribed by the second paragraph of that article, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur as a result of its default towards other Member States, the Community or private parties.

8 It is appropriate to examine first the complaints made by the Commission and then the justifications put forward by Ireland.

The ban on fishing

9 Article 2(1) of Regulation No 101/76 provides:

"Rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States.

Member States shall ensure in particular equal conditions of access to and use of the fishing grounds situated in the waters referred to in the preceding subparagraph for all fishing vessels flying the flag of a Member State and registered in Community territory".

10 It follows that it is not open to a Member State to bar certain vessels flying the flag of another Member State from access to and use of the fishing grounds within its fishery limits.

11 The fishing ban imposed on certain vessels flying the British flag therefore constitutes a barrier to equality of access to and use of fishing grounds in the maritime waters coming under the sovereignty or within the jurisdiction of Member States within the meaning of Article 2(1) of Council Regulation No 101/76.

The bans on landing and trans-shipping fish

12 The Commission states that in some respects vessels flying the British flag are assimilated to British territory. That principle is reflected in Article 4(2)(f) of Regulation (EEC) No 802/68 of the Council of 27 June 1968 on the common definition of the concept of the origin of goods (OJ, English Special Edition 1968 (I), p. 165), according to which "products of sea fishing and other products" originate in a country if they have been "taken from the sea by vessels registered or recorded in that country and flying its flag".

13 It follows, the Commission says, that the landing of fish in Ireland from a British vessel must be regarded as an importation into Ireland. The ban on such operations or on trans-shipment applying to certain British vessels thus constitutes a quantitative restriction or a measure having equivalent effect within the meaning of Article 30 of the Treaty and is contrary to Article 27(2) of Regulation No 3796/81 which provides that fishing vessels flying the flag of one of the Member States are to enjoy equal access to ports and first-stage marketing installations together with all associated equipment and technical installations.

14 It should be noted that under Article 4(2)(f) of Regulation No 802/68 fish caught by British vessels are of British origin wherever they were caught. Consequently the ban on landing fish in Ireland and the ban on trans-shipment imposed on certain vessels flying the British flag constitutes a barrier to the free movement of goods which is prohibited by Article 30 of the Treaty.

15 In view of that finding it is unnecessary to examine those barriers in the light of Article 27(2) of Regulation No 3796/81.

The pleas put forward in justification of the contested regulations

16 Ireland puts forward four pleas in justification of the contested regulations regarding: (a) the Commission' s approval of the pre-existing Irish rules which were the same as the contested 1986 regulations, (b) the compatibility with Community law of a nationality requirement which is the same as the Irish requirement and was imposed by the United Kingdom on British fishing vessels, (c) the aim of the contested regulations, and (d) the fact that those regulations are in conformity with public international law.

17 Ireland states first that the Commission approved the pre-existing Irish rules, namely the Sea Fishing Boats Regulations 1983, and it claims that the contested regulations are identical in all substantive respects to the 1983 rules.

18 Suffice it to observe that the Commission' s attitude to the earlier Irish rules cannot alter the fact as found above that the bans on fishing and on trans-shipping and landing fish laid down by the regulations now in force are incompatible with Community law. That plea must therefore be rejected.

19 Ireland maintains that the nationality requirement in the contested Irish regulations reflects that applied by the United Kingdom since 1 January 1986 to its own fishing vessels and that therefore the Irish requirement, in so far as it relates to the fishing activities of British vessels, must be justified by the same token as the United Kingdom condition was held to be lawful by the judgment in Case C-3/87 (The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Agegate [1989] ECR 4459). The nationality requirement applying to the landing of fish is justified in so far as it supplements that relating to fishing activities.

20 That plea must be rejected. The fact that certain measures adopted by one Member State with regard to vessels flying its flag which fish against its quotas may be compatible with Community law cannot render measures adopted by another Member State against the same vessels compatible with Community law.

21 Ireland further contends that the contested regulations are justified on the grounds that they advance the achievement of the same objectives as the Community system of fishing quotas, namely safeguarding the populations of coastal areas and industries dependent on fishing against interference with normal conditions of fishing in Irish waters. It also points out that the Court held in its judgment in Case C-216/87 (The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Jaderow [1989] ECR 4509, paragraph 24) that the quota system constitutes a derogation from the general rule of equal conditions of access to fishery resources laid down in Article 2(1) of Regulation No 101/76.

22 It should be noted that the only measures that can be justified by virtue of the objectives of the Community system of fishing quotas are measures which a Member State adopts with respect to vessels flying its own flag in order to protect its national quotas. The Irish regulations contested in these proceedings apply to fishing vessels flying the British flag whose catches which are subject to quotas cannot in any event be set against the quotas allocated to Ireland. This plea must, therefore, also be rejected.

23 Finally Ireland maintains that the contested regulations are justified in so far as public international law authorizes it to decline to recognize the nationality of vessels which do not have a genuine link with the State whose flag they are flying. That is the case of the vessels covered by the contested regulations.

24 Suffice it to observe that under international law a vessel has the nationality of the State in which it is registered and that it is for that State to determine in the exercise of its sovereign powers the conditions for the grant of such nationality (see judgment of 24 November 1992 in Case C-286/90 Poulsen [1992] ECR I-6019, paragraphs 13, 14 and 15). The contested Irish regulations cannot, therefore, be justified on the basis of public international law.

25 It follows from all the foregoing considerations that by prohibiting certain vessels flying the British flag from fishing or trans-shipping fish within its exclusive fishery limits or from landing fish in its territory Ireland has failed to comply with its obligations under Article 30 of the EEC Treaty and Article 2(1) of Council Regulation No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry.

Decision on costs

Costs

26 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since Ireland has failed in its pleas, it should be ordered to pay the costs. The Kingdom of Spain, the intervener, must bear its own costs in accordance with Article 69(4) of the Rules of Procedure.

Operative part

On those grounds,

THE COURT

hereby:

1. Declares that by prohibiting certain vessels flying the British flag from fishing or trans-shipping fish within its exclusive fishery limits or from landing fish in its territory Ireland has failed to comply with its obligations under Article 30 of the EEC Treaty and Article 2(1) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry;

2. Orders Ireland to pay the costs;

3. Orders the Kingdom of Spain to bear its own costs.

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