Opinion of Advocate General
Mr President,
Members of the Court,
1. The Commission is seeking in these proceedings a declaration that Ireland has infringed its obligations under the Treaty by-adopting rules in 1986 prohibiting certain British-registered fishing boats inter alia from fishing within Ireland's fishery limits and from landing fish at Irish ports. The Kingdom of Spain has intervened in support of the Commission.
2. This case is another in a series of cases in which the Court of Justice has been called upon to assess the lawfulness of rules whereby since 1983 Ireland and the United Kingdom have endeavoured to restrict so-called quota-hopping. Quota-hopping is, in the eyes of those two Governments, the phenomenon whereby vessels having no previous links to those two countries re-register under the British or Irish flag so that they can then fish against the quotas allocated each year within the framework of the common fishery policy. In practice it has been chiefly Spanish vessels that have availed themselves of the possibility of registering as British or Irish vessels.
3. It is not possible to understand the background to the rules at issue in this case or their significance without an account of their relationship to the corresponding United Kingdom rules.
4. The United Kingdom's first attempt to restrict quota-hopping dates back to 1983. Under the original 1983 rules a requirement was attached to fishing licences that a British-registered fishing boat could not fish or trans-ship catches within British fishing limits or land catches at British ports unless at least 75% of the crew were British nationals or nationals of another Member State (the crewing requirement). Since Spain was not a member of the Community at that time, that requirement restricted the fishing possibilities of vessels in which Spanish interests predominated. Vessels in respect of which the crewing requirement was not met could still fish under a British fishing licence but only if they did so outside British fishing limits and the catches were landed at non-British ports.
5. In 1983 Ireland introduced rules corresponding to those United Kingdom rules applying to fishing by Irish-registered vessels within Irish fishing limits. At the same time rules were introduced prohibiting British fishing boats from fishing or trans-shipping catches within Irish fishing limits and from landing fish at Irish ports unless they satisfied a crewing requirement corresponding to the United Kingdom requirement described above. It can thus be said that there was parallelism between the Irish and the United Kingdom rules; what British-registered boats were not permitted to do within British fishing limits, they could not do within the Irish limits either.
6. As the Court is aware inter alia from the Agegate case and from Case C-279/89 Commission v United Kingdom, in which I have just delivered my opinion, the United Kingdom introduced new conditions for the issue of fishery licences in conjunction with the accession of Spain and Portugal to the European Community. The effect of those new conditions was that, first, Spanish, Portuguese and Greek fishermen would, for the duration of the respective transitional period, for the purposes of the 75% crewing requirement still not be treated as European Community nationals; secondly, 75% of the crew had to be resident in the United Kingdom; thirdly, the crewing requirement applied only to fishing for fish covered by a quota, whether within or outside British fishery limits. The position under United Kingdom law was thus that boats which did not meet the crewing requirement could fish both outside and inside British fishery limits and land their catches at British ports so long as the boats caught fish which were not subject to a quota.
7. In 1986, as a result of the new United Kingdom conditions, Ireland introduced two amendments to the abovementioned 1983 rules in the Sea Fishing Boats Regulations 1986. The effect of the amendments was that British-registered boats could not fish within Irish fishing limits or land catches at Irish ports unless at least 75% of the crew were European Community nationals, in which respect, however, Greek, Portuguese and Spanish nationals were not, for the duration of the transitional period for the respective country, treated as European Community nationals. Furthermore, those 75% of the crew were to be resident on shore in the United Kingdom.
8. The Commission claims that the ban on fishing within Irish fishery limits is contrary to the principle of equal access for the fishing boats of the Member States to the Member States' fishing grounds laid down in Article 2(1) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry. Article 2(1) provides that:
9. Ireland has acknowledged that according to the Agegate judgment the requirement of residence in the United Kingdom contained in the 1986 rules is incompatible with Community law. However, it has contended that the differential treatment of fishing boats from another Member State which ensues as a matter of principle from the Irish rules is justified in the particular circumstances.
10. As pointed out above, the Commission primarily considers that the Community rules in question entail a categorical prohibition on a Member State laying down rules which preclude fishing boats from other Member States from engaging in fishing or from landing or trans-shipping catches. It is apparent from the Commission's arguments that it is currently of the view that rules such as those that applied to British fishing boats in the period from 1983 to 1986 would also be incompatible with Community law.
11. Ireland has claimed, as mentioned above, that the rules at issue are in accordance with international law. It founds that view on Article 5(1) of the Geneva Convention on the High Seas of 29 April 1958 under which there must exist a genuine link between the flag State and the ship and it must be possible in particular for the flag State to effectively exercise its jurisdiction and control in administrative, technical and social matters. Ireland argues that pursuant to public international law other States are not bound to recognize the registration of the flag State if the requirement under public international law of a genuine link between the flag State and the ship is not met.
12. Lastly I would point out that Ireland has stated in the course of the oral procedure that the rules at issue have not been applied since June 1987 and that they were finally abrogated in March 1992.
Conclusion
13. It will be apparent from the foregoing that the Commission's claims should, in my view, be upheld. I therefore suggest that the Court:
1 Original language: Danish.
2 As regards the British rules, see the judgments in Case C-3/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Agegate [1989] ECR 4459, Case C-216/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Jaderow [1989] ECR 4509, Case C-221/89 The Queen v Secretary of State for Transport, ex parte Factortame Ltd [1991] ECR I-3905, and Case C-246/89 Commission v United Kingdom [1991] ECR I-4585. As regards the Irish rules, see the judgments in Case 223/86 Pesca Valentia [1988] ECR 83, and Case C-93/89 Commission v Ireland [1991] ECR I-4569.
3 See footnote 1.
4 OJ 1976 L 20, p. 19.
5 OJ 1981 L 379, p. 1.
6 The Commission states that a British-registered vessel must be assimilated to British territory. In support of that view it relies on Article 4 of Regulation (EEC) No 802/68 of the Council of 27 June 1968 on the common definition of the concept of origin of goods (OJ, English Special Edition 1968 (I), p. 165), according to which products of sea fishing and other products which are taken from the sea by vessels of a country are regarded as originating in that country, and also on the judgment of the Court in Case 100/84 Commission v United Kingdom [1985] ECR 1169.
7 That assessment is contained in a letter oí 6 February 1984 from the Commission to the Irish Government in vhich the Commission set out the outcome of its examination of the draft Fisheries (Amendment) Act. The relevant passage in the letter is as follows:... The Commission understands that the Sea Fishing Boats Regulations 1983 prohibit only the use of certain British vessels for which the United Kingdom itself has restricted fishing jn its own waters and has no objection against the Regulation.
8 United Nations Treaties Series 450, No 6465.
9 I would here refer to the Opinion of Advocate General Tesauro in Case C-286/90 Poulsen, delivered on 31 March 1992, from which it is apparent that the objection raised by Ireland could also be rejected on the grounds that it is not supported by the applicable rules of public international law.
10 According to the information given, this was because an Irish court suspended the application of the rules on the grounds of the doubts as to their compatibility with Community law.
11 See, for example, the judgment of the Court of 18 March 1992 in Case C-29/90 Commission v Greece [1992] ECR I-1971.