Opinion of Mr Advocate General Mischo delivered on 22 September 1987. - Pesca Valentia Limited v Ministry for Fisheries and Forestry, Ireland and the Attorney General. - Reference for a preliminary ruling: High Court - Ireland. - Fishing - Crews of fishing vessels. - Case 223/86.



European Court reports 1988 Page 00083



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . In 1983 Ireland adopted the Fisheries ( Amendment ) Act, which amends the national fisheries legislation ( Fisheries ( Consolidation ) Act 1959 ) by inserting therein section 222 B, which provides that the use of a fishing vessel registered in Ireland, whether within the exclusive fishery limits of the State or otherwise, is permitted only under a licence . The Minister responsible for issuing the licence may attach a condition thereto whereby at least 75% of the crew must be Community nationals .

2 . Pesca Valentia Limited, the plaintiff in the main proceedings, is an Irish fishing company established as a joint venture, in which 26% of the equity is held by Irish interests and 74% by Spanish interests . Since it was incorporated in 1980 it has engaged in fishing activities in Irish waters, using fishing vessels registered in Ireland; its catches are mainly of hake, most of which is exported to the Spanish market .

3 . The Monte Marín, a vessel belonging to that company, held from 17 August 1984 to 16 August 1985 a licence issued by the Irish Minister for Fisheries, the defendant in the main proceedings, under the 1983 Irish law .

4 . The licence contained in particular the following two conditions :

( a ) the boat to which this licence relates shall not be used for sea-fishing, whether within the exclusive fishery limits of the State or otherwise, unless 75% or more of the members of the crew are Irish citizens or nationals of another Member State of the European Economic Community;

( b ) t h e boat shall not be used for sea-fishing in that part of the exclu sive fishery limits of the State situated within a distance of twelve ( 12 ) nautical miles from baselines ".

5 . When the vessel was apprehended on 11 September 1984 within Irish fishery limits but outside the coastal waters of Ireland the crew on board did not satisfy the prescribed condition . Criminal proceedings were therefore instituted against the master .

6 . In the course of those criminal proceedings, Pesca Valentia made an application to the High Court of Ireland, maintaining that the Irish legislation in question encroached upon the exclusive powers of the Community and, in any event, contravened the principle of non-discrimination laid down in Article 7 of the EEC Treaty .

7 . In order to determine to what extent those two arguments are valid, the national court submitted the two questions which I shall now consider .

I - The powers of the Member States ( first question )

8 . The first question submitted by the national court is as follows :

"Whether Articles 100 and 102 of the Act of Accession 1972, Articles 1 and 2 ( 1 ) of Regulation ( EEC ) No 101/76 and Article 6 of Regulation ( EEC ) No 170/83 preclude a Member State from enacting legislation requiring a minimum proportion of the crews of vessels fishing within the exclusive fishery limits of the State to be EEC nationals ".

9 . A - I propose to consider first the provisions of Council Regulation No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry ( Official Journal 1976, L 20, p . 19 ).

10 . According to Article 1 of that regulation, "common rules shall be laid down for fishing in maritime waters and specific measures shall be adopted for appropriate action and the coordination of structural policies of Member States for the fishing industry to promote harmonious and balanced development of this industry within the general economy and to encourage rational use of the biological resources of the sea and of inland waters ".

11 . Under Article 2 "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 .

12 . 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 ".

13 . It is apparent from those provisions that, subject to the limitation that there must be no discrimination against fishing vessels of other Member States ( a matter which I shall examine in connection with the national court' s second question ), it is the responsibility of each of the Member States to adopt the rules to which it wishes fishing activities in waters under its sovereignty or within its jurisdiction to be subject .

14 . That is confirmed by Article 2 ( 2 ), which states that Member States "shall notify other Member States and the Commission of the existing laws and administrative rules and regulations in the field referred to in the first subparagraph of paragraph ( 1 ) together with those arising out of application of the provisions referred to in the second subparagraph of that paragraph ".

15 . By virtue of Article 3 of the same regulation "Member States shall notify other Member States and the Commission of any alterations they intend to make to fishery rules laid down pursuant to Article 2 ".

16 . The regulation is thus based on the idea that the legislation of the Member States develops as time passes and therefore it clearly cannot be maintained that the Member States have lost the general power to legislate with respect to fisheries .

17 . This first conclusion is confirmed by the last part of Article 1 and by Articles 5, 6, 9, 10, 11 and 12 of the same regulation, which clearly indicate that the primary responsibility for structural policies remains with the Member States and that Community action is limited to ensuring coordination .

18 . Clear evidence of the fact that measures governing sea-fishing fall within the area of structural policy is furnished inter alia by Article 12, which provides that the Standing Committee for the Fishing Industry is entrusted in particular with ensuring "that Member States and the Commission are kept mutually informed of structural policies and in particular of measures governing sea-fishing ".

19 . According to the fifth recital in the preamble to Regulation No 101/76 "it is important that the fishing industry should develop along rational lines and that those who live by that industry should be assured of a fair standard of living ".

20 . Of course, the standard of living of fishermen depends not only upon the available fishery resources but also upon the number of vessels exploiting those resources . The industry cannot develop along rational lines if the number of fishing vessels increases immoderately . The regulation therefore provides that the Member States ( Article 8 ) or the Community ( Article 9 ) may grant aid with a view to increasing productivity, in particular by the restructuring of fleets .

21 . Council Regulation No 2908/83 of 4 October 1983 on a common measure for restructuring, modernizing and developing the fishing industry and for developing aquaculture ( Official Journal 1983, L 290, p . 1 ), based on Article 9 ( 2 ) of Regulation No 101/76, is also designed to establish, under multi-annual programmes, a satisfactory balance between fishing capacity and available resources of the sea ( see in particular the third recital in the preamble thereto and Articles 3, 4 and 11 ).

22 . Finally, the Council Directive of 4 October 1983 concerning certain measures to adjust capacity in the fisheries sector ( Official Journal 1983, L 290, p . 15 ) is designed to encourage Member States to adopt specific measures to adjust the structure of their fishing fleets, by means of national laws, regulations and administrative provisions ( see in particular the fifth, sixth and seventh recitals ). That directive enables the Member States to grant flat-rate laying-up premiums for vessels whose profitability cannot be guaranteed by reason of restrictions on catches, or cessation premiums in order to bring about a definitive reduction in the fishing capacity of fleets whose technical characteristics make it difficult to adapt them to the types of fishing anticipated in the medium term .

23 . On 24 April 1985 the Commission adopted a decision on the multi-annual guidance programme in respect of the fishing fleet submitted by Ireland pursuant to Council Regulation No 2908/83 ( Official Journal 1985, L 157, p . 23 ). In that decision the Commission approves the fact that the Irish programme provides for renewal of the fleet without any increase in its overall tonnage, in a manner compatible with the foreseeable availability of fish stocks in the medium term . It notes that the Irish authorities have already set up a permanent system for monitoring entries into service of vessels of more than 20 metres ( 65 feet ) with a view to ensuring better use of available stocks and optimizing the distribution of fishing effort ( see also point 4 of Annex I to the decision ).

24 . In Annex II, which is entitled "Final Conclusions", the Commission also takes the view that the Irish authorities "should extend their system of vessel licences as soon as possible in order to ensure a greater balance between stocks and capacity ". It also approves the intention of the Irish authorities "to scrutinize very closely any application for the modernization or replacement of vessels ".

25 . All those provisions furnish more than sufficient proof that the Member States have retained the power to adopt, in conformity with the criteria laid down by the Community, all measures necessary for the rational restructuring of their fishing fleets .

26 . That power must necessarily include authority to ensure that the results of all the restructuring efforts undertaken, with the help of substantial national and Community financial resources, cannot be undermined or circumvented by an uncontrolled increase in the fishing fleet resulting from the registration of vessels previously registered in non-member countries, the vast majority of whose crews consist of nationals of those countries .

27 . One may of course wonder why Ireland did not take measures relating specifically to the registration of the vessels in question . But a Member State cannot be denied the power to decide that the right to fly its flag or the fact of registration in its territory does not automatically entail the right to engage in fishing and that special authorization for fishing is required in the form of a licence, the use of which may itself be made subject to certain conditions .

28 . For the sake of completeness, I should also like to refer, as did the United Kingdom and the Commission, to a judgment of the Court to the effect that it cannot be inferred merely from a lack of provision in a regulation on the common organization of the market in a particular sector that the Member States are not entitled to adopt any measures with respect to that sector ( judgment of 7 February 1984 in Case 237/83 Jongeneel Kaas v Netherlands (( 1984 )) ECR 483 ). On the contrary, if no initiative has been taken by the Community legislature the Member States are competent to take such measures as they consider appropriate to improve structures in the sector concerned, so long as they observe the mechanisms and principles governing the common organization of the market ( judgment of 25 November 1986 in Case 148/85 Direction générale des impôts v Marie-Louise Forest (( 1986 )) ECR 3449 ).

29 . In the present case, the questions submitted to the Court do not relate to a common organization of the market ( 1 ) but to a regulation establishing a common structural policy by means of coordination of the structural policies of the Member States .

30 . The principles laid down by the Court in those judgments apply a fortiori in such circumstances .

31 . B - The national court also refers to Article 100 of the Act of Accession and to Article 6 ( 1 ) of Council Regulation No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources ( Official Journal 1983, L 24, p . 1 ). Those articles expressly authorize Member States to make exceptions, as regards their coastal zones, which as from that time were defined as extending 12 nautical miles, to the principle of equality of access for all Community fishermen to the maritime waters of the other Member States .

32 . In so far as they allow a Member State to exclude fishing vessels registered in other Member States from its coastal fishing zones, those provisions clearly have no bearing on the question whether a Member State may impose conditions on or prohibit the carrying on of fishing by its own vessels in that same reserved zone .

33 . C - Finally, the question remains to be considered whether Article 102 of the Act of Accession 1972 deprives the Member States of the power to adopt legislation of the kind at issue here .

34 . By virtue of Article 102 of the Act of Accession 1972, which provides that, "from the sixth year after accession at the latest, the Council, acting on a proposal from the Commission, shall determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea", the power to adopt measures for the conservation of the resources of the sea is vested fully and definitively in the Community with effect from 1 January 1979 .

35 . That has been confirmed by the Court in numerous judgments . ( 2 )

36 . It follows that "Member States are therefore no longer entitled to exercise any power of their own in the matter of conservation measures in the waters under their jurisdiction" and that "the adoption of such measures, with the restrictions which they imply as regards fishing activities, is a matter, as from that date, of Community law ". Likewise, "the resources to which the fishermen of the Member States have an equal right of access must henceforth be subject to the rules of Community law ". ( 3 )

37 . Because of the absence of any Community rules, despite the fact that the transitional period provided for in Article 102 of the Act of Accession had expired, the Court at that time held that the Member States still had authority to adopt national conservation measures on an interim basis, but in so doing were under an obligation to act as "trustees of the common interest ".

38 . Since that time, however, Community rules have been adopted, namely Council Regulation No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources, to which I referred earlier . Thus, it is these rules which are now applicable and which are relevant to the present case .

39 . To enable us to consider whether the exclusive powers of the Community to adopt the necessary measures for the conservation of the biological resources of the sea preclude the adoption by a Member State of rules of the type at issue here, it is necessary first of all to define the term "conservation measures ".

40 . The meaning of that term is to be found in Regulation No 170/83 and the regulations adopted to implement it, namely :

( i ) Council Regulation ( EEC ) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources ( Official Journal 1983, L 24, p . 14 );

( ii ) Council Regulation ( EEC ) No 172/83 of 25 January 1983 fixing for certain stocks and groups of fish stocks occurring in the Community' s fishing zone total allowable catches for 1982, the share of these catches available to the Community, the allocation of that share between the Member States and the conditions under which the total allowable catches may be fished ( Official Journal 1983, L 24, p . 30 ), and the regulations adopted since that time fixing the total allowable catches ( TAC ) each year and their allocation as between the Member States ( quotas ).

41 . The effect of that legislation is that the measures in question may include for each species or group of species of fish :

( i ) the determination of areas where fishing is prohibited or restricted to certain periods, to certain types of vessel, to a total number of vessels of each Member State which may fish simultaneously, to certain fishing gear and certain end-uses;

( ii ) the setting of standards as regards fishing gear;

( iii ) the setting of a minimum fish size or weight per species;

( iv ) rules on by-catches;

( v ) the restriction of fishing effort, in particular by limits on the catches permitted for the fishing fleet of each Member State .

42 . Only the first and last of those types of measure would appear to be relevant to the present case .

43 . ( a ) It is apparent from the foregoing and from the Court' s case-law ( judgment of 10 July 1984 in Case 63/83 Regina v Kirk (( 1984 )) ECR 2689, paragraph 19 ) that a measure governing fishing or access to fishing grounds may, in certain cases, constitute a response to a concern to conserve fishery resources .

44 . It is clear, however, that the measure adopted by Ireland does not reflect any such concern . It is not intended to protect fish species ( this aim is achieved by fixing quotas and laying down technical conservation measures ) but to ensure that nationals of Member States who gain their livelihood from sea fishing enjoy a fair standard of living ( fifth recital in the preamble to Regulation No 101/76 ).

45 . Thus, Article 102 of the Act of Accession and the judgments of the Court which recognize the exclusive powers of the Community in matters relating to conservation of fishery resources are not applicable to the present case .

46 . ( b ) Even if the opposite view were taken, it could not be concluded that the measure in question was incompatible with Community law .

47 . With respect to fishing by Pesca Valentia for species which are subject to a quota, the disputed measure is covered by Article 5 ( 2 ) of Regulation No 170/83, under which it is the responsibility of the Member States to determine, in accordance with the applicable Community provisions, the detailed rules for the utilization of the quotas allocated to them .

48 . This was confirmed by the judgment of the Court of 3 October 1985 in Case 207/84 Rederij L . de Boer v Produktschap voor Vis en Visprodukten (( 1985 )) ECR 3203 . In that case the Court held that

"If national rules restrict the number of vessels which may fish for herring by making it a condition for access to the quota that the fishermen applying for the quota share must have the capacity to process the herring caught into maatjesharing ( i.e . the capacity to gut and lightly salt them ), such rules constitute detailed rules for the utilization of the quota within the meaning of Article 5 ( 2 ) of Regulation No 170/83 which are within the powers of the Member States and compatible with the provisions and aim of that regulation ..." ( paragraph 28 ).

49 . Similarly, where a Member State has been allocated a quota for a species or group of species of fish, it is empowered to make access by its vessels to that quota conditional upon the fulfilment of certain requirements concerning the composition of crews .

50 . In the second place, to the extent to which Pesca Valentia' s vessels might wish to fish for species for which quotas have not been fixed by the Community, the disputed condition is similarly not open to criticism . A Member State may remove or restrict the entitlement of vessels flying its own flag to capture such species of fish . This possibility is expressly confirmed, as regards technical measures, by Article 20 of Regulation No 171/83, which provides as follows :

"This regulation shall apply without prejudice to national technical measures, going beyond its minimum requirements, which are applicable only to fishermen of the Member State concerned and which either are intended to ensure better management and better use of the quotas or which apply to species not subject to quotas or to species for which this regulation lays down no specific measures, provided that they are compatible with Community law and are in conformity with the common fisheries policy ."

51 . What applies to technical measures must necessarily apply also to a measure of the type adopted by Ireland . As we shall see with respect to the second question, that measure is indeed compatible with Community law .

52 . I should, however, like to stress once again that in my opinion the Irish rules do not constitute a conservation measure .

53 . On the basis of all the foregoing considerations, I consider that it may be concluded that none of the provisions of Community law mentioned by the national court in its first question prohibits a Member State from adopting legislation prohibiting vessels registered therein from fishing at sea unless a minimum proportion of their crews consists of Community nationals .

II - The problem of discrimination ( second question )

54 . The second question submitted by the High Court of Ireland concerns the question whether legislation of the type in force in Ireland constitutes discrimination on the basis of nationality prohibited by Article 7 of the EEC Treaty .

55 . It is difficult to see how a clause which makes no distinction between Irish nationals and nationals of other Member States can give rise to discrimination between Community nationals . Does such a clause not in fact apply the principle of non-discrimination?

56 . The first instance of discrimination alleged by the plaintiff is discrimination adversely affecting United Kingdom fishing undertakings in so far as they are not allowed to fish in Irish waters unless their crews also comprise 75% Community nationals .

57 . In that connection, it must be stated in the first place that the question submitted by the High Court of Ireland does not relate to that aspect of the Irish legislation .

58 . It should be noted, in the second place, that the treatment accorded in this case to vessels registered in the United Kingdom is no different, as regards the composition of crews, from that applicable to Pesca Valentia' s vessels or, to use the words of Article 2 ( 1 ) of Regulation ( EEC ) No 101/76, that the rules applied by Ireland in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction do not lead to any difference of treatment as regards the United Kingdom .

59 . Three other types of discrimination appear to have been alleged :

( i ) discrimination favouring competing companies of other Member States where no similar legislation exists;

( ii ) discrimination favouring other Irish undertakings which, by reason of the nature of their fishing activities, are not affected by any similar condition;

( iii ) discrimination against nationals of other Member States, in so far as the holder of a licence to which the 75% condition is attached is in practice obliged to recruit Irish fishermen since the fishing is carried out in Irish waters .

60 . However, none of those differences of treatment falls within the scope of the prohibition contained in Article 7 of the EEC Treaty .

61 . ( a ) In its judgment of 3 July 1979 in Joined Cases 185 to 204/78 Van Dam and Others (( 1979 )) ECR 2345, the Court expressly ruled that "it cannot be held contrary to the principle of non-discrimination to apply national legislation, the compatability of which with Community law is moreover not contested, because other Member States allegedly apply less strict rules . Inequalities of this kind ... cannot be the foundation of a charge of discrimination with regard to the provisions made by a Member State which applies (( them )) equally to any person under its jurisdiction ..." ( paragraph 10 ).

62 . The Irish legislation is not therefore discriminatory by reason of the fact that it imposes upon vessels registered in Ireland conditions which are not imposed by the legislation of other Member States on vessels registered in those States .

63 . ( b ) Article 7 of the EEC Treaty, which prohibits "any discrimination on grounds of nationality", is not applicable to differences of treatment affecting nationals of the same Member State . Such differences of treatment, which arise exclusively from the legislation of a Member State, do not fall within the scope of Community law .

64 . ( c ) As regards the practical advantage from which Irish fishermen are said to benefit when crews are recruited, it should be recalled that, in its judgment of 18 March 1980 in Case 52/79 Procureur du Roi v Debauve (( 1980 )) ECR 833, the Court stated that "such differences, which are due to natural phenomena, cannot be described as 'discrimination' within the meaning of the Treaty; the latter regards only differences in treatment arising from human activity, and especially from measures taken by public authorities, as discrimination" ( paragraph 21 ).

65 . Therefore, the fact that, for practical reasons, Irish nationals are in a more favourable position than nationals of other Member States as regards the recruitment by Irish fishing undertakings of fishermen who are to form part of the crews of vessels fishing in Irish waters cannot be regarded as constituting discrimination .

66 . None of the alleged differences of treatment or inequalities thus falls within the scope of Article 7 of the EEC Treaty .

67 . Finally, I consider that it is unnecessary for the Court to express any view regarding the problem raised by the Commission, namely the possible incompatibility of the Irish legislation with Article 11 of Council Regulation No 1612/68 on freedom of movement for workers within the Community and Article 7 of Commission Regulation No 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State . The present case is not concerned with the failure of a Member State to fulfil its obligations . Moreover, since that problem was not mentioned by the national court it is reasonable to conclude that it did not arise in the main proceedings . In any case, it is a wholly marginal problem . It could only arise in the event of the permitted percentage of 25% of nationals of non-member countries being exceeded merely by reason of the recruitment of one or more fishermen who are married to Irish women . There is no reason at this stage to conclude that the Irish authorities would not be ready to consider such crew members as Irish fishermen .

III - Conclusions

68 . Having regard to all the foregoing considerations, I propose that the Court should give the following answers to the questions submitted by the High Court of Ireland :

"1 . Neither Articles 100 and 102 of the Act of Accession 1972 nor Articles 1 and 2 ( 1 ) of Regulation ( EEC ) No 101/76 nor Article 6 of Regulation ( EEC ) No 170/83 preclude a Member State from enacting legislation requiring a minimum proportion of the crews of vessels registered in that Member State which fish in the maritime waters under its sovereignty or within its jurisdiction to be Community nationals .

2 . Such legislation cannot be regarded as providing for any discrimination on grounds of nationality prohibited by Article 7 of the Treaty ."

(*) Translated from the French .

( 1 ) The common organization of the market in fishery products is governed by Council Regulation No 3796/81 of 29 December 1981 ( Official Journal 1981, L 379, p . 1 ).

( 2 ) Case 804/79 Commission v United Kingdom (( 1981 )) ECR 1045;

Case 124/80 Officier van Justitie v Van Dam (( 1981 )) ECR 1447;

Case 269/80 Regina v Tymen (( 1981 )) ECR 3079;

Case 21/81 Openbaar Ministerie v Bout (( 1982 )) ECR 381;

Case 87/82 Rogers v Darthenay (( 1983 )) ECR 1579;

Case 24/83 Gewiese and Mehlick v Scott Mackenzie (( 1984 )) ECR 817 .

( 3 ) See judgment of 5 May 1981 in Case 804/79 Commission v United Kingdom (( 1981 )) ECR 1045, at p . 1073, paragraph 18 .