61989C0280
OPINION OF ADVOCATE GENERAL
GULMANN
delivered on 12 May 1992 (
*1
)
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’. (
1
) 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 (
2
) 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.
The position under the Sea Fishing Boats Regulations 1986 is thus that British boats which under United Kingdom law can lawfully fish for fish not subject to a quota within and outside British fishery limits and also land their catches at British ports cannot fish within Irish fishery limits or land their catches at Irish ports.
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. (
3
) Article 2(1) provides that:
‘Rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States.
Member States shall ensure in particular equal conditions of access to and use of the fishing grounds situated in the waters referred to in the preceding subparagraph for all fishing vessels flying the flag of a Member State and registered in Community territory’.
The Commission further claims that the ban on landing catches at Irish ports is contrary to the prohibition on restrictions on imports in Article 30 of the EEC Treaty and also to the principle of equal access to the ports of the Member States, laid down in Article 27(2) of Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products. (
4
) Article 27(2) provides that:
‘Without prejudice to other Community provisions, the Member States shall take the necessary steps to ensure that all fishing vessels flying the flag of one of the Member States enjoy equal access to ports and first-stage marketing installations together with all associated equipment and technical installations’.
The Commission finally claims that the ban on trans-shipment within the Irish fishery limits of fish from one fishing boat covered by the Irish rules to another is contrary to the prohibition in Article 30 of the Treaty. (
5
)
The Commission's arguments show that it basically takes the view that it follows from the abovementioned provisions of Community law that a Member State does not in any circumstances have the power to lay down rules for fishing boats from other Member States which affect their right to fish or to land or trans-ship their catches. It is only in the alternative that the Commission is claiming that the decisive factor for the outcome of the case is that, unlike the 1983 rules, the contested 1986 rules prevent British fishing boats from engaging in fishing activities which they can lawfully engage in under the applicable rules in the United Kingdom.
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.
Ireland cites the positive assessment of the lawfulness of the 1983 rules expressed by the Commission in 1984, (
6
) and argues that the contested 1986 rules do not contain any changes from the 1983 rules that might give cause for any other assessment. Ireland claims that the contested rules merely mirror the United Kingdom rules on the crewing requirement which the Court in Agegate held to be compatible with Community law. It further contends that the rules must be regarded as justified since they pursue the same objectives as underlie the Community rules on national quotas, namely the protection of inter alia the local populations dependent on fisheries. Ireland maintains, finally, that under public international law it is not obliged to recognize the vessels covered by the rules as British vessels.
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.
In my view, however, it is neither necessary nor appropriate for the Court to decide the case on the basis of those arguments and thus indirectly to adopt a position regarding the original Irish 1983 rules. I consider that there are material differences between the Irish 1983 rules and the Irish 1986 rules if they are seen in the light of the amendments to the corresponding United Kingdom rules. After all in 1984 the Commission gave a positive assessment of the Irish 1983 rules, laying emphasis on the fact that the Irish rules were confined to prohibiting the British fishing boats in question from doing in Irish fishing grounds what they were prohibited from doing within British fishing limits under the United Kingdom rules.
I consider that it is appropriate and sufficient for the Court to decide the case on the basis of the Commission's arguments in the alternative, namely that the Irish 1986 rules are incompatible with Community law on the grounds that they prevent British fishing vessels from engaging in fishing activities which they can lawfully engage in under the applicable rules in the United Kingdom.
That consequence of the Irish rules represents, to my mind, a clear infringement of the principle of equal access to fishing resources, as embodied in Article 2 of Regulation No 101/76. Under no circumstances may such an infringement be justified on the grounds underlying the Community rules on the conservation of fishery resources or the quota system based thereon. Nor may it in any way be founded on the desire to ensure that there is a real economic link between fishing vessels and the country of registration or the wish to protect Irish fishing interests. On the same grounds it is not possible to regard the bans on landing or transshipping catches as justified.
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. (
7
) 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.
Ireland first raised this argument in its rejoinder and for that reason alone it can be rejected as having been raised too late (see Article 42(2) of the Rules of Procedure).
In my view, moreover, the objection is without foundation. There is no occasion to examine to what extent the construction of the rules of public international law argued for by Ireland is correct. (
8
) Nor is there any reason to examine whether it would be incompatible with Community law if one Member State of the European Community were to refuse to recognize another Member State's registration of vessels, even if such refusal were justified under public international law. In the present case it is quite sufficient to hold that the objection raised by Ireland must be rejected for the simple reason that it has not even attempted to substantiate the contention that the British registration was not founded on a significant link between the United Kingdom and the vessel and that the British authorities did not exercise the necessary jurisdiction in administrative, technical and social matters over the ships.
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 (
9
) and that they were finally abrogated in March 1992.
According to the Court's consistent case-law (
10
) that does not preclude the Court from deciding on the merits of the case on the basis of the submissions in the Commission's application.
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:
—
declare that, by enacting the Sea Fishing Boats Regulations 1986, Ireland has failed to fulfil its obligations under Article 2(1) of Council Regulation No 101/76, Article 27(2) of Council Regulation No 3796/81 and Article 30 of the EEC Treaty;
—
order Ireland to bear the costs;
—
order the Kingdom of Spain to bear its own costs.
(
*1
)	Original language: Danish.
(
1
)	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.
(
2
)	See footnote 1.
(
3
)	OJ 1976 L 20, p. 19.
(
4
)	OJ 1981 L 379, p. 1.
(
5
)	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.
(
6
)	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’.
(
7
)	United Nations Treaties Series 450, No 6465.
(
8
)	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.
(
9
)	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.
(
10
)	See, for example, the judgment of the Court of 18 March 1992 in Case C-29/90 Commission v Greece [1992] ECR I-1971.