Report for the Hearing delivered in Case 223/86
I — Facts and Procedure
1. Article 100 of the Act concerning the conditions of accession to the European Communities of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (hereinafter referred to as the Act of Accession) provides that:
2. As is clear from the order for reference and the documents before the Court, in 1983 the United Kingdom, which was concerned about the number of Spanish vessels obtaining registration in the United Kingdom and being licensed to fish in traditional British fishing grounds, introduced legislation (the British Fishing Boats Act 1983 and the British Fishing Boats Order 1983) under which fishing within the United Kingdom's fishing limits was prohibited unless at least 75% of the crew on British fishing vessels were nationals of the United Kingdom or another Member State of the Community. In order to prevent fishing vessels affected by the aforesaid restriction imposed by the United Kingdom's legislation, namely vessels registered in the United Kingdom but which belonged mainly to Spanish nationals and whose crews were predominantly Spanish, from moving to traditional Irish fishing grounds, Ireland enacted in the same year the Fisheries (Amendment) Act 1983. That Act enabled the Minister for Fisheries and Forestry to make a regulation (the Sea-Fishing Boats Regulation 1983) which precluded fishing boats registered in the United Kingdom from fishing within the exclusive fishery limits of Ireland unless at least 75% of the crew were Community nationals. In addition, Article 2 of the Fisheries (Amendment) Act amended the Fisheries (Consolidation) Act 1959 by inserting therein section 222 B, which provided that the use of a fishing vessel registered in Ireland, whether within the exclusive fishery limits of the State or otherwise, was permitted only under a licence issued by the Minister for Fisheries and Forestry; the latter was authorized, under section 222 B (5) (b) (ii), to attach conditions to licences granted including a requirement that at least 75% of the crew must be Community nationals. However, section 222 B (4) of the 1983 Act empowered the Minister to exempt a particular class of fishing boats from the licensing requirement; the Minister exercised that power by exempting boats under 65 feet in length.
3. Pesca Valentia Limited, the plaintiff in the main proceedings, is a fishing undertaking representing a joint venture of Irish and (in the main) Spanish interests and its boats are registered in Ireland; it was granted a licence for the period from 17 August 1984 to 17 August 1985, to which the aforesaid condition concerning the nationality of its boat crews was attached. Unable to comply with that condition, it equipped its boats with crews consisting largely of Spaniards, who at the time were nationals of a non-member country. On 11 September 1984 one of Pesca Valentia's boats was arrested and the company was prosecuted in the Circuit Court. Pesca Valentia brought an interlocutory application for an order restraining the Attorney General from proceeding with the criminal charges brought against the plaintiff for infringing the provisions of national legislation relating to the condition concerning the nationality of crews. The Supreme Court of Ireland stayed the criminal proceedings pending the outcome of the proceedings before the High Court. In the High Court, Pesca Valentia contended that theprovisions of national legislation and the condition relating to the nationality of crews were contrary to Community law, in the light of the aforesaid provisions of the Act of Accession, Council Regulations No 101/76 and No 170/83 and Article 7 of the EEC Treaty.
4. Taking the view that an interpretation of the provisions of Community law relied upon by the plaintiff in the main proceedings was necessary in order to enable it to resolve the dispute before it, the High Court decided, by order of 28 May 1986, to stay the proceedings and to request the Court pursuant to Article 177 of the EEC Treaty to give a preliminary ruling on the following questions:
5. The order of the High Court was lodged at the Court Registry on 18 August 1986.
6. On hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
II — Summary of the written observations submitted to the Court
7. Pesca Valentia Limited, the plaintiff in the main proceedings, submits the following observations:
(a) First question
8. Pesca Valentia contends that the provisions of national law at issue in the main proceedings are contrary to Community law because the power of Member States to legislate in order to restrict access to fishery waters is limited to what is expressly permitted; for the rest total competence to legislate in the matter has been vested in the Community since the expiry of the transitional period concerning fisheries. By virtue of Article 100 of the Act of Accession the Member States retain some competence to restrict fishing within the 12 nautical miles referred to in Article 6 of Regulation No 170/83, but they are not authorized to control access to fishery waters between the 12-mile limit and the limit of 200 miles from the North Sea and North Atlantic coasts to which the Community fishing waters were extended. It adds that Article 102 of the Act of Accession, its transitional period having expired, allows Member States to enact conservation measures, but only following consultation with the Commission and with its approval.
9. In support of that argument, Pesca Valentia maintains that the principle that competence to legislate in respect of access to fishery waters of Member States is vested in the Community, subject to the terms of the Act of Accession, flows from Article 100 thereof, which derogates only to a limited extent from the Community's competence, as established by Article 2 of Regulation No 2141/70 on the establishment of a common structural policy for the fishing industry; that proposition is supported by Articles 102 and 103 of the Act of Accession, which specify the procedure for the enactment of future Community law in the area.
10. Moreover, the principle of Community rather than national jurisdiction in the area follows directly from the provisions of Regulation No 2141/70, as amended and extended by Regulation No 101/76. Pesca Valentia emphasizes, firstly, that Regulation No 101/76 recognizes in its preamble the principle that Community fishermen must have equal access to and use of fishing grounds in maritime waters under the sovereignty or within the jurisdiction of Member States and expressly states that the Community is empowered to adopt measures to safeguard fish stocks in those areas; secondly, it emphasizes that Articles 1 and 2 of the regulation make specific provision for access to domestic fishing grounds and require that there be equal conditions of access for all fishing vessels registered in Community territory.
11. Finally, Pesca Valentia points out that Article 6 of Regulation No 170/83 extended until 31 December 1992 the period in which the Member States were authorized to maintain the derogation provided for in Article 100 of the Act of Accession, and authorized them to extend the limit to 12 nautical miles for all waters under their sovereignty or within their jurisdiction. It emphasizes that neither Regulation No 170/83, nor the Hague Resolution of 3 November 1976, which resulted in the extension as from 1 January 1977 of the fisheries jurisdiction of Member States to 200 miles from the North Sea and North Atlantic coasts, contain any provision indicating an intention on the part of the Member States to differentiate between Community jurisdiction over the fishery waters referred to in Article 100 of the Act of Accession and the balance of the 200-mile fishery jurisdiction. Consequently, the Member States accepted that Community jurisdiction is uniform over all Community fishing waters up to the 200-mile limit.
12. According to Pesca Valentia, the proposition that legislative competence in respect of Community fishery waters, access thereto and the management of the resources thereof is vested in the Community subject to the terms of the Act of Accession finds implicit confirmation in the case-law of the Court, which has consistently held that, upon the expiry of the derogation or transitional periods provided for by Articles 100 to 103 of the Act of Accession, the power to legislate was entrusted to the Community authorities. Thus the Court has recognized the Community's external authority to make rules concerning fishing on the high seas and to enter into commitments for the conservation of the resources of the sea (Joint Cases 3, 4 and 6/76 Kramer [1976] ECR 1279). The Court has also confirmed the primacy of the Community's authority in the area of fisheries and conservation (Case 32/79 Commission v United Kingdom [1980] ECR 2403; Case 804/79 Commission v United Kingdom [1981] ECR 1045; and Case 287/81 Anklagemyndigheden v Kerr [1982] ECR 4053) and held this to apply to any extension, after the adoption of Regulation No 101/76, of Community maritime zones (Case 61/77 Commission v Ireland [1978] ECR 417). Pesca Valentia also emphasizes that the Court denied that as a result of the Council's delay in bringing protective measures into force there was a legal vacuum (Joined Cases 185 to 204/78 Criminal Proceedings against van Dam en Zonen [1979] ECR 2345) enabling the Member States to act in place of the Council and to adopt conservation measures extending beyond the transitional periods the exceptional measures derogating from the principle of non-discrimination (Case 63/83 Regina v Kent Kirk [1984] ECR 2689).
13. Pesca Valentia thus suggests that the first question submitted by the High Court should be answered in the affirmative.
(b) Second question
14. Pesca Valentia emphasizes that the principle of non-discrimination on grounds of nationality, set out in Article 7 of the EEC Treaty taken in conjunction with Article 58 of the Treaty, is in this case reinforced by Article 2 of Regulation No 101/76, which provides that rules applied by a Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction should not lead to differences in the treatment of other Member States. The national legislation at issue in the main proceedings is thus discriminatory, first of all because it prohibits certain fishing boats registered in the United Kingdom from fishing in Irish fishery waters or re-registering in Ireland. Secondly, according to Pesca Valentia, the measures in question result in discrimination on grounds of nationality against the plaintiff and other undertakings in the same position, which are now placed at a disadvantage vis-à-vis their competitors in other Member States where similar legislation does not exist and similar conditions concerning the nationality of boat crews are not imposed. Finally, Pesca Valentia contends that undertakings which are in the same position as itself are placed at a disadvantage vis-à-vis other fishing undertakings which operate in Ireland without similar conditions attaching to the sea-fishing licences issued to them.
15. Accordingly, Pesca Valentia suggests that the second question submitted by the High Court should be answered in the affirmative.
16. The Irish Government submits the following observations:
(a) First question
The Irish Government emphasizes in the first place that Article 100 of the Act of Accession and Article 6 of Regulation No 170/83 have no bearing on the competence of Member States to take measures outside their coastal bands (within six and, subsequently, 12 miles of the base lines) because the purpose of those provisions is merely to permit Member States to derogate within their coastal bands from the requirements of equal treatment and equal conditions of access imposed by Article 2 of Regulation No 101/76.
17. Furthermore, the judgments mentioned by Pesca Valentia refer to the power to adopt conservation measures, whereas the measures at issue in the main proceedings are measures for the management of the Community quotas allocated to Member States. In addition, those judgments were given by the Court in a situation characterized by a legal vacuum which arose, following the expiry of the transitional period provided for by Article 102 of the Act of Accession, as a result of the failure to adopt the common conservation measures provided for by that article.
18. According to the Irish Government, since the adoption of those measures by the Council, in particular those contained in Regulations Nos 2057/82, 170/83 and 171/83, and since the introduction of the systematic fixing of total allowable catches (TAC) and quotas under Regulation No 170/83, the common fisheries policy has been in place. Thus the Member States are not only obliged to implement the Council regulations but also have full authority and competence to manage the quotas allocated to them by the Council, failing the adoption of specific measures by the latter. In that regard the Irish Government relies on the eleventh recital in the preamble to Regulation No 170/83, which refers to the need for licensing provisions (which have not yet been adopted at Community level), and on Article 5 (2) of that regulation, which expressly recognizes that the Member States are empowered to adopt the detailed rules for the utilization of the quotas allocated to them; this was confirmed by the Court in its judgment of 3 October 1985 in Case 207/84 (Rederij L. de Boer en Zonen [1985] ECR 3203) concerning the introduction of national licensing provisions in order to govern the access of fishermen from the Member State concerned to a herring quota.
19. According to the Irish Government, the management of the quotas allocated to the Member States by the Council involves maintaining the balance between the fishing activities of fishermen of the various Member States and those of fishermen from non-member countries who have quotas for fishing within Community waters; that balance is liable to be upset by the transfer of fishing boats registered in one Member State to the fishing registry of another Member State, for the purpose of exploiting the quotas assigned to that State. The Irish Government considers that such matters must be regulated in the interests of the orderly and successful operation of the common fisheries policy adopted by the Council. The measures at issue in the main proceedings, which were communicated to the Commission, fall within the scope of Article 5 (2) of Regulation No 170/83 and make it possible to prevent Spanish fishing boats whose fishing activities are aimed at supplying the Spanish market against the Irish quota from circumventing the Community's prohibition on fishing in Community waters by Spanish vessels without an EEC licence. The Irish Government refers to Council Regulation (EEC) No 598/84 of 5 March 1984 laying down for 1984 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain; that regulation was adopted pursuant to the Agreement on fisheries between the Community and Spain (implemented by Council Regulation (EEC) No 3062/80 of 25 November 1980 (Official Journal 1980, L 322, p. 3)), which has now been replaced by Articles 155 to 166 of the Act of Accession of Spain and Portugal to the European Communities, which also impose restrictions on the exercise of fishing activities by Spanish vessels in Community waters.
20. The Irish Government therefore suggests that the first question submitted by the High Court should be answered in the negative.
(b) Second question
21. The Irish Government emphasizes that the national legislation at issue does not treat similar situations differently or different situations identically so as to constitute discrimination according to the principles laid down by the Court in its judgment of 17 July 1963 in Case 13/63 (Commission v Italy [1963] ECR 165). It explains that the condition concerning the nationality of crews, which was imposed in respect of Irish boats and, under other provisions of national legislation, in respect of British boats, is justified by the fact that the Spanish vessels were registered in the United Kingdom, that the United Kingdom found it necessary to impose an identical requirement in respect of British boats and that, given the adoption of the common fisheries policy, those events had potentially serious implications for the balance of fishing activities in Irish waters and for the utilization of Irish quotas. Accordingly, the measures adopted were justified in order to deal with a particular situation and did not go beyond what was necessary; it would have been unjustified to apply those measures to fishing boats which are registered in Member States other than the United Kingdom and Ireland and whose activities have no effect on fish stocks in which Irish fishermen are interested.
22. Furthermore, the Irish Government emphasizes that, in so far as the national legislation in question applies to Irish fishing vessels, it applies only to situations which are purely internal to Ireland, so that the rules of the EEC Treaty laying down the principle of non-discrimination may not be relied upon (judgment of 7 February 1979 in Case 115/78 Knoors [1979] ECR 399), and that, in so far as the Irish licensing system is more onerous than the system applicable to the fishing boats of other Member States (excluding the United Kingdom), that is a reflection of the legitimate differences between the national laws of Member States and does not constitute discrimination.
23. The Irish Government, which observes that those arguments also apply to Article 2 (1) of Regulation No 101/76, therefore suggests that the second question submitted by the High Court should be answered in the negative.
24. The United Kingdom submits the following observations:
(a) First question
25. The United Kingdom observes that the judgments of the Court concerning the power of Member States to take conservation measures (Case 804/79 Commission v United Kingdom [1981] ECR 1045) and to make rules on access to fishing waters (Case 63/83 Regina v Kent Kirk [1984] ECR 2689) were given at a time when, by virtue of Article 102 of the Act of Accession, the power to adopt conservation measures had passed to the Community but the latter had not yet adopted a Community system for the conservation and management of fishery resources. Accordingly, in the absence of any Community system, the Member States were able to act only as trustees of the common interest in taking temporary measures for the conservation of fishery resources in order to avoid irreparable damage contrary to the objectives of the common conservation policy.
26. However, that state of affairs has been altered by the introduction of a Community system of conservation and management, pursuant to Regulation No 170/83, which is based expressly on the flag at the time of registration of fishing vessels; that is now the background against which the rights of Member States must be ascertained. The United Kingdom emphasizes that Regulation No 170/83 as a whole confers on the Member States the power to lay down rules relating to flags and registration, for if the Member States did not have that power Regulation No 170/83, and also Council Regulation No 2057/82 establishing certain control measures for fishing activities by vessels flying the flag of a Member State or registered in a Member State, would be unworkable. The United Kingdom also refers to Article 4 of Regulation No 170/83, which provides that the volume of catches available to the Community is to be distributed between Member States in a manner which assures each Member State relative stability of fishing activities for each of the relevant stocks, and to Article 5 (2), which provides that the Member States are to determine the detailed rules for the utilization of the quotas allocated to them. It contends that those provisions expressly empower those Member States to take all the measures necessary to ensure that the quotas allocated to them are utilized in accordance with the objectives of the common fisheries policy, that is to say to ensure that they are preserved for the benefit of the fishing community of the Member State concerned.
27. The United Kingdom considers that those powers can be used to alter national legislation so as to prevent the artificial re-registration of fishing vessels as a means of overcoming restrictions placed on fishing by non-member countries and of utilizing the quotas for Community waters allocated exclusively among Community fishermen. According to the United Kingdom, in order to achieve those objectives, the imposition of conditions concerning the composition of the crews of fishing vessels constitutes a simple method which does not affect the position of Community fishermen, is in conformity with the principle of proportionality and mitigates the effects of any artificial re-registration of fishing vessels, in so far as it ensures that there is no derogation from the grant of the quota allocated to the Member State concerned pursuant to Article 4 of Regulation No 170/83.
(b) Second question
28. The United Kingdom emphasizes that, as the Court has stated on a number of occasions and in particular in Joined Cases 117/76 and 16/77 (Ruckdeschel v Hauptzollamt Hamburg-St Annen [1977] ECR 1753), the principle of non-discrimination which forms part of Community law requires that similar situations shall not be treated differently unless differentiation is objectively justified. The United Kingdom therefore considers that to reserve, if circumstances so dictate, a Member State's quota to the fishermen based in that State, whatever their nationality, is objectively justified by the need to ensure the fair allocation of quotas between Member States, which constitutes the basis of the common fisheries policy. It emphasizes that fishing resources are allocated among Member States by linking a Member State's quota to vessels flying the flag of, or registered in, that State. Hence it is essential for Member States to be able to have recourse to a criterion for deciding whether a fishing boat flying the flag of a Member State is genuinely part of the fishing industry of that State; the reason for this is that, if boats which are in all but name part of the fishing industry of a non-member country or of another Member State can take advantage of a Member State's quota, the whole structure of rules relating to agreements concluded with non-member countries and the allocation of quotas among Member States would be upset.
29. With regard to the plaintiff's argument to the effect that the national legislation at issue in the main proceedings constitutes discrimination against the plaintiff because other Member States do not have similar provisions, the United Kingdom points out that the existence of discrimination does not depend on whether other Member States have similar measures but on whether the national measure in question discriminates between nationals of Member States (Case 14/68 Walt Wilhelm [1969] ECR 1), which is not the case here.
30. Nor, according to the United Kingdom, does the Irish legislation at issue discriminate against fishing boats registered in the United Kingdom because the Irish measures take effect only against fishing vessels that take the form of United Kingdom vessels but are in reality vessels from non-member countries. The legislation at issue is therefore in conformity with Article 7 of the EEC Treaty, which, in accordance with the principle of Community preference, does not require nationals from non-member countries to be treated in the same way as Community nationals (Case 5/67 Bern v Hauptzollamt München [1968] ECR 83).
31. Finally, according to the United Kingdom, there cannot be any discrimination against nationals of other Member States on the ground that the practical effect of the Irish legislation is to require all vessels to be crewed by Irish nationals because the national measures at issue expressly state that Community nationals must form 75% of the crew of fishing vessels registered in Ireland.
32. The Commission submits the following observations :
(a) First question
33. The Commission maintains that none of the provisions relied upon by Pesca Valentia either expressly or impliedly precludes the Member States from requiring a minimum proportion of the crews of their vessels fishing within their exclusive fishery limits or elsewhere to be Community nationals. In that regard, it emphasizes that Article 102 of the Act of Accession simply requires the Council, from the sixth year after accession at the latest, to determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea. The same holds true for Articles 1 and 2 (1) of Regulation No 101/76 since the prohibition against differences in treatment which is laid down by those provisions cannot apply to Irish measures relating exclusively to Irish vessels. Finally, neither Article 6 of Regulation No 170/83, which authorizes the Member States to extend the special arrangements derogating from the principle of equal access provided for by Article 100 of the Act of Accession both in time (by 10 years) and in space (from six to 12 nautical miles), nor Article 100 of the Act of Accession itself has any bearing on the question whether nationals of non-member countries may be employed on boats fishing in the waters concerned.
(b) Second question
34. The Commission emphasizes that, according to the Court's judgment in Case 14/68 (Walt Wilhelm [1969] ECR 1), Article 7 is not concerned with any disparities in treatment or the distortions which may result from divergences existing between the laws of the Member States, so long as the latter affect all persons subject to them, in accordance with objective criteria and without regard to their nationality. Hence the Commission considers that it is impossible to impugn the national measures at issue in the main proceedings on the ground that other Member States have failed to adopt similar measures, or to argue that those measures discriminate against undertakings in the same position as the plaintiff and favour other Irish undertakings or undertakings operating in other Member States, since the different treatment of two different categories of Irish undertaking cannot be contrary to Article 7 of the EEC Treaty.
35. Nor, finally, does the Commission consider that the requirement imposed by Irish legislation concerning the nationality of crews constitutes covert discrimination in favour of Irish nationals, contrary to Article 7 of the EEC Treaty. It observes that, in so far as the condition concerning the nationality of crews of Irish vessels, whilst formally imposed for the benefit of all Community nationals, has the effect of favouring Irish nationals for practical reasons, that effect is attributable only to competitive advantages resulting from geographical factors, that is to say to natural causes which are not affected by the provisions of the Treaty forbidding discrimination, as Mr Advocate General Warner stated in his Opinion in Case 52/79 {Procureur du Roi v Debative [1980] ECR 833).
36. However, the Commission considers that the Irish measures at issue in the main proceedings may be considered contrary to Community law in so far as they do not provide for any exception in favour of persons falling under Article 11 of Regulation (EEC) No 1612/68 of the Council on the freedom of movement for workers within the Community (Official Journal, English Special Edition, 1968 (II), p. 475) and under Article 7 of Regulation (EEC) No 1251/70 of the Commission on the right of workers to remain in the territory of a Member State after having been employed in that State (Official Journal, English Special Edition 1970 (II), p. 402), that is to say persons who are not nationals of a Member State but are the spouse or children under the age of 21 or dependent children of a worker who is a national of a Member State and is carrying on an activity in the territory of another Member State.
1 Language of the Case: English.