Report for the Hearing in Case C-93/89
I — The national legislation in issue and the pre-litigation stage
1. Section 2 of the Fisheries (Amendment) Act 1983 (hereinafter referred to as the 1983 Act) inserted Section 222B into the Fisheries (Consolidation) Act 1959 (hereinafter referred to as the 1959 Act). That section prohibits the use of a sea-fishing boat registered in Ireland for sea-fishing, whether within the exclusive fishery limits of Ireland or otherwise, save under and in accordance with a licence granted by the appropriate minister.
2. Section 222B(4)(a) provides:
3. Section 8 of the 1983 Act prohibits any further registrations on the Irish register of sea-fishing boats without a licence granted by the Minister for Fisheries under Section 222B of the 1959 Act.
4. The Commission took the view that Section 222B(4)(a) of the 1959 Act infringed Article 52 of the EEC Treaty inasmuch as it obliged nationals of other Member States to set up an Irish company in order to obtain a licence to fish, whereas an Irish citizen might obtain such a licence without setting up a company; it therefore requested the Irish Government, by letter of 18 October 1985, to submit its observations in accordance with the first paragraph of Article 169 of the EEC Treaty within one month of receipt of that letter.
5. The Commission received no reply to that letter. On 16 December 1986, therefore, it sent a reasoned opinion to the Irish Government, requesting it to put an end to the infringement concerned within one month of notification of that opinion.
6. By letter of 2 April 1987, the Irish Government defended the Irish provision on three grounds: (a) there was a need to prevent nationals of nonmember countries from registering their fishing vessels on the Irish register; (b) there was a need to maintain control over registrations of fishing vessels in order to prevent the whole system of national fishing quotas from being undermined; and (c) there were no restrictions on fishing vessels of other Member States operating from Irish ports under their own flag.
7. The Commission was not satisfied by the answer given by Ireland, and therefore brought the present proceedings under Article 169 of the EEC Treaty.
II — Written procedure and conclusions of the parties
8. The Commission's application was received at the Court Registry on 20 March 1989.
9. By Order of 4 October 1989, the Court granted the United Kingdom leave to intervene in support of Ireland's conclusions.
10. The written procedure followed the normal course. Upon 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.
11. The Commission, the applicant, claims that the Court should:
12. Ireland, the defendant, contends that the Court should:
13. The United Kingdom, the intervener, claims that the Court should:
III — Submissions and arguments of the parties
14. The Commission and Ireland agree that the allegation that Ireland has failed to fulfil its obligations relates only to the conditions for obtaining a fishing licence under the new Section 222B(4)(a) of the 1959 Act and not the conditions — identical to those laid down in Section 222B(4)(a) — to which the registration of sea-fishing vessels is subject under Irish law.
15. The Commission maintains that Section 222B(4)(a) of the 1959 Act is contrary to Article 52 of the EEC Treaty inasmuch as it requires nationals of other Member States who own fishing vessels registered in Ireland to set up an Irish company before obtaining a fishing licence, thereby incurring inconvenience and expense, whereas Irish nationals are subject to no such requirements. The national provision thus infringes the right of nationals of the other Member States, enshrined in Article 52, to take up and pursue activities as selfemployed persons ... under the conditions laid down for its own nationals by the law of the country where such establishment is effected.
16. Contrary to the opinion maintained by Ireland in its letter of 2 April 1987, the measure in issue cannot be justified on the basis of the Community system of fishing quotas. The Commission considers that a quota system established by secondary Community law cannot by itself authorize derogations from the Treaty. That is the conclusion to be drawn from the judgment of 20 April 1978 in Joined Cases 80 and 81/77 (Les Commissionnaires Réunis S.à r.l. and S.à r.l. Les Fils de Henri Ramel v Receveur des Douanes [1978] ECR 927) and the judgment of 13 December 1983 in Case 218/82 (Commission v Council [1983] ECR 4063, on rum quotas).
17. The Irish Government points out, first of all, that the aim of the provision in issue is to lay down certain criteria establishing the Irishness of a fishing vessel. It states that a provision similar to the one in issue in the present case already existed in Irish law and was repealed by the 1983 Act. Section 222B(4)(a) therefore does not introduce any new principle concerning the grant of fishing licences into Irish law.
18. The Irish Government stresses that the national provision in issue is not contrary to Article 52 of the EEC Treaty because it does not discriminate against the nationals of the other Member States. The Irish legislation in question is applicable only to boats which are registered in Ireland or are subject to such registration under the relevant Irish legislation. It has no application to fishing boats registered in other Member States, which are free to fish in Irish waters for either species for which there is no quota or species subject to a quota; in the latter case, their catch must be counted against the quota of the State whose flag they are flying. The contested provision therefore does not prevent owners of fishing boats registered in other Member States from establishing themselves in Ireland and operating their boats from Irish ports.
19. In the Irish Government's submission, there is another reason for considering that the national provision in issue is not contrary to Article 52 of the EEC Treaty. It is a measure taken to protect the Irish quotas from the abuses known as quota hopping and therefore aimed at maintaining the relative stability of fishing activities for each of the stocks considered sought by Article 4 of Council Regulation (EEC) No 170/83. The principle of the relative stability of fishing activities is of special significance for the particular needs of regions such as Ireland where, in the words of the sixth recital in the preamble to Regulation No 170/83, local populations are especially dependent on fisheries and related industries as decided by the Council in its resolution of 3 November 1976, and in particular Annex VII thereto.
20. In view of the fact that, in its judgment of 16 June 1987 in Case 46/86 (Romkes v Officier van Justitie [1987] ECR 2671), the Court held the system of allocating fishing quotas in accordance with the relative stability principle not to be discriminatory and that, under Articles 156 to 166 of the Act of Accession of Spain and Portugal, the fishing quota system has had Treaty status since 1 January 1986, measures relating to the grant of licences which a Member State is led to take, in the absence of appropriate Community measures, in order to resist abuses likely to undermine the system and to reserve the economic benefit of its quotas to its own fishing industry cannot be considered contrary either to Article 52 of the EEC Treaty or to any other provision of Community law.
21. The judgments in Les Commissionnaires Réunis and Commission v Council, to which the Commission refers, are far removed from the legal and factual context of the present case. It is clear, on the other hand, from the Court's judgments of 14 December 1989 in Case 3/87 (The Queen v Ministry of Agriculture, Fisheries and Food ex parte Agegate Ltd [1989] ECR 4459) and Case 216/87 (The Queen v Ministry of Agriculture, Fisheries and Food ex parte Jaderow Ltd and Others [1989] ECR 4509) that the Common Fisheries Policy results in qualifications of, if not derogations from, the provisions of the EEC Treaty at least as they have been understood by the Commission. In Jaderow in particular the Court recognized that a Member State was entitled to require vessels on its register fishing against its national quotas to have a real economic link with its jurisdiction.
22. If the fishing vessels of one Member State could be transferred freely to the fishing fleet of another Member State, as the Commission seems implicitly to accept, then it is not only the system of fishing quotas which would be subverted; the Community's structural policy in the fishing sector would also be compromised, since Member States would be unable to reduce the overall capacity of their fleets in accordance with the multiannual guidance programmes approved by the Commission.
23. Finally, if the Court were to consider that the national provision in issue does infringe Article 52, the Irish Government submits that it is justified under Article 56(1) of the EEC Treaty inasmuch as it is necessary for the enforcement of the Community system of TACs (Total Allowable Catches) and quotas.
24. The Commission replies as follows to the arguments put forward by Ireland.
25. The fact that the provision in issue is not new in Irish law cannot constitute a valid defence.
26. The fact that there are no restrictions on nationals of other Member States established in Ireland and operating their vessels from Irish ports under the flag of a Member State other than Ireland is not enough to prevent the national provision in issue from falling under the prohibition of discrimination laid down in Article 52 of the Treaty, since such nationals are not allowed to register and operate their fishing vessels as Irish fishing vessels on the same basis as Irish nationals.
27. In the Commission's view, the contested provision cannot be justified by the Community fishing quota system. It observes in that regard that the discriminatory licence conditions at issue do not specifically apply to fishing on quotas allocated to Ireland, but to all fishing at sea.
28. The judgments in Les Commissionnaires Réunis and Ramel and Commission v Council are not far removed from the context of the present case. The Commission points out that the regulation in issue in Les Commissionnaires Réunis and Ramel was based on the very same article of the Treaty, namely Anicie 43, as Council Regulation (EEC) No 170/83 (Official Journal 1983 L 24, p. 1) which established the quota system. It is clear, moreover, from the judgment of 25 November 1986 in Joined Cases 201 and 202/85 (Klenscb and Others v Secrétaire d'Etat à l'Agriculture et à la Viticulture [1986] ECR 3447) and the judgment of 26 April 1988 in Case 207/86 {Asociación Profesional de Empresarios de Pesca Comunitarios (Apesco) v Commission [1988] ECR 2151) that when determining, pursuant to Article 5(2) of Regulation No 170/83, the detailed rules for the utilization of their quotas, Member States must respect the general provisions of Community law and in particular the prohibition on discriminating between producers laid down in Article 40(3) of the Treaty as well as the principles of proportionality and the protection of legitimate expectations.
29. The judgment in Romkes, cited above, provides no support whatsoever for Ireland's contrary view.
30. Likewise, there is nothing in the Act of Accession of Spain and Portugal to authorize, explicitly or even by necessary implication, any derogation from the fundamental principles of the EEC Treaty which are at issue in the present case.
31. Moreover, the Commission does not accept Ireland's contention that the quota allocation according to the principle of relative stability would be undermined by practices such as quota hopping if Member States could not take restrictive measures of the kind provided for in Section 222B(4)(a). Member States are free to limit or even reduce the fishing capacity of their fleets and indeed, under the Community's structural policy, are encouraged to do so, provided that the measures taken for that purpose do not discriminate on grounds of nationality.
32. Finally, the Commission considers that Ireland's contention that the contested measure is justified under Article 56(1) of the Treaty merely presents in a different form the argument based on the allegedly exceptional nature of the quota system, already considered above.
33. The United Kingdom observes that in order to operate an Irish sea-fishing vessel it is necessary to obtain both registration and a licence. Since the conditions for obtaining registration and a licence are the same in Ireland, the striking down of the licence conditions would not affect the position of non-Irish citizens. In the present case, the licence condition is not a bar to the freedom of establishment.
1 Language of the case: English.