Opinion of Advocate General Gulmann delivered on 12 May 1992

1 Original language: English.

2 The first United Kingdom rules were enacted in 1983 and were not the subject of any proceedings before the Court of Justice. They contained inter alia provisions on the composition of the crew. The second set of rules are those at issue in these proceedings. They were the subject of the judgments in the preliminary ruling proceedings in Jaderow and Age-gate which are considered below. The third set of rules was enacted in 1988 and contains certain requirements relating in particular to ownership. It was the subject of the judgment of the Court of 25 July 1991 in the preliminary-ruling proceedings in Case C-221/89 The Queen v Secretary of State for Transport, ex parte Factortame Limited [1991] ECR I-3905, not yet published, and the judgment of 4 October 1991 in Case Ć-246/89 Commission v United Kingdom [1991] ECR I-4585. In the eyes of the United Kingdom quota hopping is the phenomenon whereby vessels having no previous link to the United Kingdom re-register under the British flag so that they can then fish against the quotas which arc allocated each year by the Community to the United Kingdom within the framework of the common fishery policy. In practice it is chiefly Spanish vessels which have re-rcgistcrcd under the British flag. The number of vessels involved in such quota hopping is said to be relatively small, namely at tne beginning of 1989 some 150 vessels out of a total British fishing fleet of 10000 vessels (see R. Churchill in Common Market Law Review 1990, p. 212).

3 Case C-216/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Jaderow Limiten [1989] ECR 4509.

4 Case C-3/87 The Queen v Mimstiy of Agriculture, Fisheries and Food, ex parte Agegate Limited [1989] ECR 4459.

5 The United Kingdom has stated that the general method of giving notice of the introduction of new conditions for the issue of fishing licences is the issue of a press release from the Ministry in question. From the date of the entry into force of those conditions, the new conditions are inserted in the fishing licences actually issued.

6 Those articles of the Act of Accession are substantively identical. Article 55 is as follows:Article 48 of the EEC Treaty shall only apply, in relation to the freedom of movement of workers between Spain and the other Member States, subject to the transitional provisions laid down in Articles 56 to 59 of this Act. Article 56 provides:1. Articles 1 to 6 of Regulation (EEC) No 1612/68 on the freedom of movement of workers within the Community shall apply in Spain with regard to nationals of the other Member States and in the other Member States with regard to Spanish nationals, only as from 1 January 1993. The Kingdom of Spain and the other Member States may maintain in force until 31 December 1992, with regard to nationals of the other Member States and to Spanish nationals respectively, national provisions, or those resulting from bilateral arrangements, making prior authorization a requirement for immigration with a view to pursuing an activity as an employed person and/or taking up paid employment. ....

7 Case 77/82 Peskeloglou v Bundesanstalt fur Arbeit [1983] ECR 1085 and Case 9/88 Lopes da Veiga v Staatssecretaris van Justitie [1989] ECR 2989.

8 The information wc have been given reveals that, for understandable reasons, the changes to the fishing licences were in fact first introduced in the period after 1 January 1986. The United Kingdom has emphasized, however, that it was in any event clear that the alterations were to have effect as from 1 January 1986.

9 According to paragraph 39, a transitional provision ... being a derogation from the principle of the free movement of workers laid down in Article 48 of the EEC Treaty, must be interpreted restrictively and ... consequently, whilst the old Member States and those which acceded to the Community are authorized to maintain existing restrictions, they may not in any circumstances during the transitional period make more stringent the conditions governing the taking-up of employment by new restrictive measures.

10 The Commission has suggested that the prohibition on altering existing restrictions to make them more stringent may perhaps have taken effect as from the signature of the Act of Accession and in this respect it has referred to a Joint Declaration made when the Act of Accession was signed, see OJ 1985 L 302, p. 480. The Joint Declaration states in particular: The present Member States and the new Member States undertake not to apply to nationals of the other Member States who reside or work, in accordance with regulations, on their territory, any new restrictive measure that they may adopt after the date of signature of this Act in the field of the residence and employment of aliens. As will be apparent from the foregoing, there is no need in the present proceedings to take a position on that submission. I would however point out that in any event the Joint Declaration concerns only persons who already reside or work in accordance with regulations in the territory of the host State (see also in this respect the Opinion of Advocate General Mischo in Agegate, paragraph 33).

11 OJ, English Special Edition 1968 (II), p. 475.

12 OJ, English Special Edition 1970 (II), p. 402.