Report for the Hearing in Case C-280/89
I — The relevant provisions and the pre-litigation procedure
The national legislation at issue
1. By virtue of Regulation 2(1) of the Sea Fishing Boats Regulations 1986 (Statutory Instrument No 289 of 1986, hereinafter the 1986 Regulations) a sea-fishing boat registered in the United Kingdom, Channel Islands or Isle of Man
The relevant provisions of Community law
2. Article 2(1) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19) provides as follows:
3. Article 27(2) of Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products (OJ 1981 L 379, p. 1) provides as follows:
The pre-litigation procedure
4. The Commission considered that the fishing ban under Regulation 2(1 )(a) of the 1986 Regulations was contrary to Article 2(1) of Council Regulation (EEC) No 101/76 and that the ban on landing and trans-shipping fish under Regulation 2(1)(b) and (c) of the 1986 Regulations was contrary to Article 30 of the EEC Treaty and to Article 27(2) of Council Regulation (EEC) No 3796/81. Accordingly, by letter of 18 April 1988, it invited the Irish Government pursuant to the first paragraph of Article 169 of the EEC Treaty to submit its observations on the matter within one month of receipt of that letter.
5. Since it received no reply to that letter, on 24 May 1989 the Commission sent a reasoned opinion to the Irish Government calling on it to take the necessary measures to comply with that opinion within one month of notification thereof.
6. Having received no answer to that reasoned opinion, the Commission has now brought the present Treaty infringement proceedings.
II — Written procedure and form of order sought
7. The Commission's application was received at the Court Registry on 11 November 1989.
8. By order of 17 January 1990 the Court gave the Kingdom of Spain leave to intervene in support of the Commission.
9. 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.
10. The Commission, the applicant, claims that the Court should:
11. The Kingdom of Spain, the intervener, claims that the Court should:
12. Ireland, the defendant, contends that the Court should:
III — Pleas in law and arguments of the parties
13. The Commission claims that the fishing ban set out in Regulation 2(1)(a) of the 1986 Regulations is contrary to Article 2(1) of Council Regulation No 101/76 because it is not open to Ireland to exclude from the application of that provision certain fishing vessels flying the British flag.
14. The ban on landing fish in Ireland contained in Regulation 2(1)(b) of the 1986 Regulations is contrary to Article 30 of the EEC Treaty.
15. The Commission states in this regard that a vessel flying the British flag is in a sense assimilated to British territory. That principle is reflected in Article 4(2)(f) of Regulation (EEC) No 802/68 of the Council of 27 June 1968 on the common definition of the concept of the origin of goods (OJ, English Special Edition 1968 (I), p. 165), according to which products of sea fishing and other products originate in a country if they have been taken from the sea by vessels registered or recorded in that country and flying its flag (see also judgment in Case 100/84 Commission v United Kingdom [1985] ECR 1169). It follows that when fish on board a British ship is landed in Ireland, it is imported into that country. Thus the ban on landing fish from certain British vessels constitutes a quantitative restriction or measure having equivalent effect within the meaning of Article 30 of the Treaty.
16. For the same reason the ban on transshipping fish within Ireland's exclusive fishery limits contained in Regulation 2(1)(c) of the 1986 Regulations is contrary to Article 30 of the Treaty.
17. The Commission considers that the ban on landing and trans-shipping fish cannot be justified under Article 36 of the Treaty.
18. Moreover, the ban on landing fish and, in so far as it applies to operations in ports, the ban on trans-shipment also contravene Article 27(2) of Regulation No 3796/81.
19. That provision applies to all fishing vessels flying the flag of a Member State, including those subject to unlawful restrictions imposed by the flag State. The Commission points out that in Case C-3/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Ågegate [1989] ECR 4459, it had contended that the 75% nationality and residence requirements laid down by the United Kingdom authorities for crews of British fishing vessels were unlawful.
20. Ireland first describes the history of the measures adopted by it in order to deal with the problem of the registration in Ireland or the United Kingdom of Spanish fishing vessels and the problem of the fishing operations of those vessels.
21. It points out in particular that when in 1983 the United Kingdom, which was concerned by the fishing activities of vessels which had previously been Spanish but were now flying the British flag, adopted legislation (British Fishing Boats Act 1983 and British Fishing Boats Order 1983) banning British fishing vessels from fishing, landing and trans-shipping fish within the British fishery limits unless 75% of the crew were British citizens or nationals of another Member State, Ireland, by the Sea Fishing Boats Regulations 1983 (hereinafter the 1983 Regulations) also banned British fishing vessels whose crew did not comprise at least 75% nationals of Community Member States from fishing, landing or trans-shipping fish within the Irish fishing limits. Ireland adopted that measure in order to prevent the concentration within its fishery limits of the activities of British registered vessels which did not enjoy any fishing rights under the law of the United Kingdom which did not altogether exclude those vessels from the United Kingdom fishing fleet.
22. Ireland points out that the Commission had recognized that Ireland's 1983 Regulations were compatible with Community law. It refers in that regard to a letter sent to it by the Commission on 6 February 1986 containing the following passage: 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 in its own waters and has no objection against the regulation.
23. However, in 1986 on the accession of Spain to the Community the United Kingdom and Irish measures adopted in 1983 had ceased to have any restrictive effect on Spanish nationals. The United Kingdom reacted by making the grant of licences to British vessels fishing against United Kingdom quotas, whether inside or outside British fishing limits, subject to the twofold condition that at least 75% of the members of the crews of those vessels be British citizens or nationals of another Member State, with the exception, in particular, of Spanish nationals until 1 January 1983 (subject to a derogation in respect of spouses and children aged less than 21 years of Spanish workers already installed in the United Kingdom) and that those 75% were habitually resident on land in the United Kingdom, the Isle of Man or the Channel Islands. Ireland states that those two conditions (regarding nationality and residence) were also included in Regulation 2(1) of its 1986 Regulations in order to maintain, after Spanish accession, the status quo that had hitherto existed within Irish fishery limits regarding the activities of fishing vessels that were not genuinely British.
24. It follows from the judgment in Case C-3/87 Agegate (paragraphs 21, 26 and 41) that unlike the residence condition, the nationality condition imposed by the United Kingdom authorities since 1986 is in principle permissible under Community law.
25. As regards the residence condition in its 1986 Regulations, Ireland expresses its readiness to abrogate it as soon as possible and does not seek to defend it in these proceedings.
26. The nationality condition contained in the 1986 Regulations is justified in so far as it relates to the fishing activities of British vessels in the same way as the nationality condition at issue in Agegate because it relates to precisely the same category of vessels.
27. Even if that nationality condition imposed by the United Kingdom authorities was not compatible with Community law, Ireland was still justified in adopting the nationality condition in its 1986 Regulations in order to protect the legitimate interests of Irish fishermen, the populations dependent on fisheries and related industries (see judgment in Case C-216/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Jaderow [1989] ECR4509, paragraph 26) against the disruption of normal conditions of fishing in Irish waters which would otherwise have resulted.
28. In the Jaderow judgment (paragraph 24) the Court also held that the quota system constituted a derogation from the general rule of equal conditions of access to fishery resources laid down in Article 2(1) of Regulation No 101/76.
29. Article 5(2) of Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1) attributes to the flag State the competence in the definition of vessels which may utilize its fishing quotas. Accordingly, provisions adopted by another Member State which apply similar measures to the use within its fishing limits of vessels of the first-mentioned State are lawful under the EEC Treaty.
30. Furthermore, Ireland's 1986 Regulations are identical in all material respects to its 1983 Regulations of which the Commission expressly approved.
31. Ireland considers that the restrictions on landing and on trans-shipping fish in the 1986 Regulations are supplementary to the restriction on fishing activities of British vessels in Irish waters. Since the nationality condition is justified as regards fishing activities, it is equally justified in so far as concerns landing and trans-shipping fish.
32. In any event the restrictions on landing and trans-shipping fish are justified under Article 36 of the Treaty on public policy grounds having regard to the position existing in Irish waters until 31 December 1985, to the United Kingdom legislation in force in 1986 and to the judgments in Agegate and Jaderow.
33. In its reply the Commission points out that in the letter it sent to Ireland regarding the 1983 Regulations it had set out the principle that such measures ‘may not be used to render fishing in Irish waters by a vessel of another Member State illegal if it would be allowed to exercise such fishing activity under the law of the flag State'. It adds that there is clearly some discrepancy between that principle and the conclusion formulated in the following sentence which is cited by Ireland. In any event that conclusion in a letter of 1984 cannot prevent the Commission from adopting a different position with respect to the 1986 Regulations.
34. The Commission stresses that the Age-gate and Jaderow cases and Case C-279/89 Commission v United Kingdom, which is still pending, are not relevant since they relate to the right of a Member State to impose certain restrictive conditions on vessels flying its own flag which it allows to fish against its quotas, whereas the present case raises the issue of the right of a Member State to impose restrictions on the activities of vessels flying the flag of another Member State.
35. In the Commission's view only the flag State has the right to impose requirements concerning the composition of the crew and similar operating conditions on vessels flying its flag. That view is confirmed by the judgment in Case 223/86 Pesca Valentia v Minister for Fisheries and Forestry [1988] ECR 83 and, in so far as specifically concerns fishing against quotas, which is the most important part of all fishing activities, by Article 5(2) of Regulation No 170/83 and by the judgment in Jaderow (paragraphs 18 and 19).
36. The Commission reaffirms its position that Ireland has no right to impose any one of the three bans at issue on British fishing vessels irrespective of whether the nationality and residence conditions which define the category of British vessels to which the three bans apply is compatible with Community law.
37. The Irish authorities ought to apply Article 2(1) of Regulation No 101/76, Article 30 of the EEC Treaty and Article 27(2) of Regulation 3796/81 to all fishing vessels flying the British flag and may not unilaterally exclude a certain category of British vessels from the benefit of those provisions.
38. Consequently, Ireland's submission that, except for the residence requirement, its 1986 Regulations were justified by the same token as the British conditions applying to fishing licences which were at issue in the Agegate and Jaderow cases is irrelevant.
39. That submission is also incorrect for a number of reasons.
40. First of all, Ireland's 1986 Regulations did not have the same effect as the British measures regarding fishing licences. Those British measures relate solely to species subject to quotas and thus do not restrict the activities of fishing, landing and transshipping within or outside British fishing limits as regards species which are not subject to quotas. The Irish measures, on the other hand, prohibit all those activities within Irish fishing limits, including the landing and the trans-shipment of catches made outside those limits. That shows not only that the Irish measures are more restrictive than the British measures and that the Irish bans on landing and trans-shipping fish are not merely accessory and supplementary to the ban on fishing but also that they have additional restrictive effects of their own.
41. Moreover, the British vessels which, by the effect of the British measures, are excluded from fishing for species subject to British quotas remain free to fish for species which are not subject to quotas, not only within Irish fishing limits but also within those of the United Kingdom and of other Member States. That shows that it is in no way possible to justify the measures at issue on the basis of the Agegate and Jaderow judgments and it also makes it plain that the fear that such fishing activities would be artificially concentrated in Irish waters is unfounded.
42. In any event the bans on landing and trans-shipping fish are incompatible with Article 30 of the Treaty as is borne out by the judgment in Jaderow (paragraphs 35 and 36).
43. The Commission adds that the freedom of fishing vessels to land their catches directly in other Member States has its legal basis in Article 19(3) of Regulation No 3796/81 and, in the last resort, in Article 34 of the Treaty itself.
44. In its rejoinder, Ireland contends that the Commission is refusing to accept the logical consequences of the opinion it gave on the 1983 Regulations.
45. It also contends that the measures at issue are justified under public international law.
46. According to Article 5(1) of the Geneva Convention on the High Seas of 28 April 1958 (United Nations Treaty Series 450, No 6465) there must exist a genuine link between the State and vessels flying its flag. In the absence of such a link, other States are not bound to recognize the asserted nationality of the ship (separate opinion of Judge Jessup in Barcelona Traction, Light and Power Co Ltd, ICJ Reports 1970, p. 3, in particular at p. 189; the same principle is apparent from the judgment in Nottebohm, ICJ Reports 1955, p. 4, in particular at p. 23, regarding the nationality of a natural person).
47. Ireland considers that the British vessels which do not satisfy the requirement as to the nationality of the crew laid down by the United Kingdom must be regarded as having no genuine link with the United Kingdom; other States may therefore refrain from recognizing the nationality of those vessels. Ireland's 1986 Regulations were adopted precisely in order to close a loophole relating to waters outside the jurisdiction of the United Kingdom but subject to the jurisdiction of Ireland.
48. Ireland maintains that the measures at issue advance the achievement of the objectives of the common fisheries policy in an equitable manner. It points out that while the Commission is dealing with the situation in an almost academic manner by suggesting, simply, that the case concerns the right of a Member State to impose restrictions on vessels of another Member State, the reality is wholly different; the issue again turns on legitimate national measures adopted against Spanish quota hoppers. That is borne out by the fact that the United Kingdom has never raised any objection to the measures at issue and that Spain has intervened in these proceedings in support of the Commission.
49. It is clear from the judgment in Case 46/86 Romkes v Officier van Justitie [1987] ECR 2671, paragraph 23, that there is a duty on the fishermen of each State to restrict their catches in accordance with the provisions of the common fisheries policy. To permit fishermen from one Member State, under the cloak of a flag of convenience, to hide behind Article 30 of the Treaty, Article 27(2) of Regulation No 3796/81 and Article 2(1) of Regulation No 101/76 so as to avoid that obligation and indeed the provisions of the common fisheries policy itself and thereby secure advantages over other Community fishermen would be to endorse the creation of an inequitable and unjust situation and to condone the abuses associated with flags of convenience and quota hopping.
50. Ireland reiterates its view that the nationality condition regarding the crews of British vessels is compatible with Community law as is borne out by the Agegate judgment. The situation would be otherwise only if the Commission were to show, in accordance with paragraph 41 of Agegate, that the provisions in question made the position of Spanish workers more unfavourable. But that condition was in fact adopted by Ireland for the first time in 1983, long before the entry into force of the 1985 Act of Accession.
51. The Spanish Government claims that the fishing ban set out in Ireland's 1986 Regulations is contrary to Article 2(1) of Regulation No 101/76.
52. That provision is merely the embodiment in the fisheries sector of the following basic principles set out in the Treaty: no discrimination on grounds of nationality (Article 7), freedom of movement of workers (Article 48), freedom of establishment (Article 52), and freedom to provide services (Article 59).
53. But in the present case, apart from the direct discrimination against British vessels affected by the fishing ban, there is also an indirect discrimination against the workers on those boats, the majority of whom are nationals of Member States of the Community. The Spanish Government claims that if the fishermen working on those vessels are regarded as employed persons (first hypothesis), there exists discrimination prohibited by Article 48 of the Treaty and if they are regarded as self-employed persons (second hypothesis) the discrimination against them is contrary to Articles 52 and 59 of the Treaty.
54. In the first hypothesis the discrimination against Spanish fishermen cannot be justified on the basis of Article 55 and 59 of the 1985 Act of Accession (on a transitional period with regard to freedom of movement of employed persons) since those provisions allow for the maintenance of restrictions in existence prior to accession but prohibit altogether the introduction of new restrictions such as those laid down by the measures at issue.
55. Those measures are also contrary to the Joint Declaration annexed to the 1985 Act of Accession (OJ 1985 L 302, p. 480) under which the situation of Spanish nationals lawfully working in the territory of the old Member States should not be made less favourable as a result of provisions adopted after the signing of the Act of Accession.
56. Finally it is clear in particular from the judgment in Agegate (paragraph 41) that any restriction imposed on Spanish workers after the 1985 Act of Accession is contrary to Community law if it renders less favourable the situation of those workers or affects Spanish nationals already employed on British territory at the time of accession. That applies to the measures at issue.
57. In support of its view regarding the second hypothesis, the Spanish Government cites the judgment in Case 63/86 Commission v Italy [1988] ECR 29, paragraphs 12 to 14.
58. The residence requirement laid down by the measures at issue is also contrary to Community law. The Spanish Government relies in this regard on the judgments in Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR1299, paragraph 17, in Case 39/75 Coenen v Sociaal Economische Raad [1975] ECR 1547, and in the Agegate case (paragraph 26).
59. As regards the bans on landing and trans-shipping fish, the Spanish Government considers, in reliance on the same arguments as the Commission (see paragraphs 14 to 18 above) that they are contrary to Article 30 of the Treaty and cannot be justified on the basis of any of the derogations in Article 36; they are also contrary to Article 27(2) of Regulation No 3796/81.
60. Ireland emphasizes the absence from Spain's observations of any reference to the problem of quota hopping and states that its arguments regarding the Commission's submissions hold good for Spain's intervention.
1 Language of the case: English.