Opinion of Advocate General
Mr President,
Members of the Court,
Background to the case and the subject-matter
1. The Commission has brought these proceedings against the United Kingdom under Article 169 of the EEC Treaty seeking a declaration that the United Kingdom has failed to comply with its obligations under Community law by introducing in 1986 new conditions in fishery licences that must be issued before British-registered vessels can engage in fishing activities. The Kingdom of Spain has intervened in support of the Commission.
2. The Court is familiar with both conditions since that relating to the operation of vessels was the subject of the Court's judgment of 14 December 1989 in the preliminary-ruling proceedings in Jaderow and that relating to the vessel's crew, embracing a nationality requirement and a residence requirement, was the subject of the Court's judgment of the same date in the proceedings for a preliminary ruling in Agegate.
3. Accordingly, the Commission's action embraces only the following complaints:
The operating condition
4. The full text of the condition is as follows:
5. In its application the Commission claimed that the operating condition was in itself incompatible with Article 34 of the EEC Treaty, in particular because compliance with the landing requirement imposes an economic burden on the vessel's owner. For understandable reasons, in its reply and at the hearing the Commission had to adapt its submissions and arguments in the light of the Court's interpretation of the relevant Community rules in Jaderow.
The procedural objection
6. The United Kingdom contends that the Commission is endeavouring to widen the scope of the case by claiming — for the first time in the reply — that the operating condition hinders normal fishing operations. The Commission has thus infringed Article 169 of the Treaty and Article 42 of the Rules of Procedure. Article 169 of the Treaty has been infringed because the administrative procedure solely concerned the question of the extent to which the operating condition in itself was in breach of Article 34 of the Treaty and the common organization of the market in fishery products. The submissions made by the Commission in its reply concern something different since they raise new legal questions which can only be understood and addressed in the context of the judgment in Jaderow. The United Kingdom has had no opportunity to comment on those questions in the light of the legal situation as it now exists on the basis of the principles laid down in the Jaderow judgment. The United Kingdom further claims that Article 42(2) of the Rules of Procedure has been infringed since a new plea in law has been raised which alters the subject-matter of the case. Finally, the United Kingdom claims that Article 42(1) of the Rules of Procedure has been infringed since the Commission has referred in its reply to new evidence without giving any reason for the delay in offering it.
7. At first sight it may seem appropriate to uphold that procedural objection raised by the United Kingdom. The real issue in the case has been altered as a result of the Commission's new plea and it seems to me doubtful whether the judgment in Jaderow can be regarded as a new matter of law which, pursuant to Article 42(2) of the Rules of Procedure, could justify the introduction of a new plea in law.
The lawfulness of the operating condition
8. The Commission, supported by Spain, claims that normal fishing operations are hindered if for each six-month period in each calendar year vessels must be present in a United Kingdom port on at least four occasions at intervals of at least 15 days.
9. It seems to me clear that those views put forward by the Commission cannot be accepted.
10. I can see no call in the present case to consider further the question of the scope of the Court's proviso. I consider that it is clear that the Commission has produced no evidence whatsoever that the rule on presence in port hinders normal fishing operations, even if the concept of normal fishing operations is construed widely.
The crewing condition
11. This condition is worded as follows:
12. As mentioned above, following the judgment in Agegate, the United Kingdom has acknowledged that the residence requirement is incompatible with Community law.
13. In Agegate the Court interpreted Article 55 and Article 56 of the Act of Accession. After reviewing the judgments in Peskeloglou and in Lopes da Veiga, it held that Articles 55 and 56 do not preclude
14. As far as the first question is concerned, it is of course correct that the amendment made by the United Kingdom authorities in connection with the accession of Spain and Portugal to the European Communities was primarily a necessary consequence of the accession of those countries. The previous crewing condition was based on a distinction between nationals of European Community Member States and those of non-member countries. If Spanish and Portuguese workers could still not be taken into account for the purposes of the 75% requirement after the accession of Spain and Portugal, the condition had to be reformulated. There would have been a basis for such an amendment, taken in isolation, in the transitional rules in the Act of Accession.
15. The question is, therefore, whether that alteration was made at a time when the prohibition in the Act of Accession on making existing rules more restrictive did not apply.
16. The decisive question is therefore whether the transitional rules in the Act of Accession permit the existing rules to be made more restrictive with effect from the date of the accession of the new Member States.
17. The Commission has also claimed that the crewing requirement is incompatible with Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community and Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State. The Commission has pointed out that the crewing requirement does not take sufficient account of the rights to equal treatment under those regulations which are enjoyed by the members of the families of workers, irrespective of their nationality. The United Kingdom does not appear to have disputed the Commission's claims in this regard.
18. The Commission has claimed that the crewing requirement is also incompatible with Article 52 of the Treaty on the right of establishment of self-employed persons and with Article 59 on freedom to provide services. That submission was originally in any event logical in so far as Article 52 was concerned because one question in Agegate was whether the so-called share fishermen were workers within the meaning of Article 48 or self-employed persons within the meaning of Article 52. The Court held, as we know, that share fishermen are to be regarded as workers. Accordingly, I find it difficult to see what significance Article 52 and Article 59 might have as regards the lawfulness of the crewing condition at issue and the Commission has indeed not expounded that point. On that basis I consider that it would not be appropriate for the Court to hold that the crewing requirement also constitutes a breach of Article 52 and Article 59 of the EEC Treaty.
19. On the basis of the foregoing observations I suggest that the Court:
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.