1 BY AN ORDER OF 28 MAY 1986 WHICH WAS RECEIVED AT THE COURT ON 18 AUGUST 1986, THE HIGH COURT OF IRELAND REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 7 OF THE EEC TREATY, ARTICLES 100 AND 102 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION TO THE EUROPEAN COMMUNITIES OF THE KINGDOM OF DENMARK, IRELAND AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND ( HEREINAFTER REFERRED TO AS "THE ACT OF ACCESSION "), ARTICLES 1 AND 2 ( 1 ) OF COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY AND ARTICLE 6 OF COUNCIL REGULATION ( EEC ) NO 170/83 OF 25 JANUARY 1983 ESTABLISHING A COMMUNITY SYSTEM FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES .
2 THOSE QUESTIONS WERE RAISED IN CONNECTION WITH A DISPUTE BETWEEN THE MINISTRY OF FISHERIES AND FORESTRY AND THE ATTORNEY GENERAL OF IRELAND AND PESCA VALENTIA LIMITED, AN IRISH FISHING UNDERTAKING ( HEREINAFTER REFERRED TO AS "THE PLAINTIFF IN THE MAIN PROCEEDINGS ").
3 IN 1983 IRELAND ENACTED THE FISHERIES ( AMENDMENT ) ACT WHICH AMENDED INTER ALIA THE FISHERIES ( CONSOLIDATION ) ACT 1959 BY INSERTING IN IT SECTION 222 B WHICH PROVIDED THAT THE USE OF A FISHING VESSEL REGISTERED IN IRELAND, WHETHER WITHIN THE EXCLUSIVE FISHERY LIMITS OF THE STATE OR OTHERWISE, WAS PERMITTED ONLY UNDER A LICENCE ISSUED BY THE MINISTER; THE LATTER WAS AUTHORIZED TO ATTACH A CONDITION TO THE LICENCE REQUIRING THAT AT LEAST 75% OF THE CREW MUST BE EEC NATIONALS . HOWEVER, THE MINISTER WAS EMPOWERED TO EXEMPT PARTICULAR CLASSES OF FISHING BOAT FROM THE LICENSING REQUIREMENT, AND HE EXERCISED THAT POWER BY EXEMPTING BOATS UNDER 65 FEET IN LENGTH .
4 THE PLAINTIFF IN THE MAIN PROCEEDINGS WAS GRANTED A LICENCE FOR THE PERIOD FROM 17 AUGUST 1984 TO 17 AUGUST 1985, TO WHICH THE AFORESAID CONDITION CONCERNING THE NATIONALITY OF ITS BOAT CREWS WAS ATTACHED . IT WAS UNABLE TO COMPLY WITH THAT CONDITION, THERE BEING NO IRISH WORKERS AVAILABLE, AND IT USED CREWS CONSISTING MAINLY OF SPANISH FISHERMEN . CRIMINAL PROCEEDINGS WERE BROUGHT AGAINST IT, IN THE COURSE OF WHICH IT CONTENDED THAT THE IRISH LEGISLATION WAS CONTRARY TO THE AFORESAID PROVISIONS OF THE ACT OF ACCESSION AND THE COMMUNITY REGULATIONS CITED ABOVE .
5 CONSIDERING THAT AN INTERPRETATION OF THOSE PROVISIONS OF COMMUNITY LAW WAS NECESSARY, THE HIGH COURT OF IRELAND STAYED THE PROCEEDINGS AND REQUESTED THE COURT TO GIVE A PRELIMINARY RULING ON THE FOLLOWING QUESTIONS : "1 . 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 . 2 . WHETHER SUCH LEGISLATION CONTRAVENES ARTICLE 7 OF THE TREATY OF ROME AS PROVIDING FOR DISCRIMINATION ON GROUNDS OF NATIONALITY ."
6 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A MORE DETAILED ACCOUNT OF THE BACKGROUND TO THE DISPUTE IN THE MAIN PROCEEDINGS AND THE WRITTEN OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT . FIRST QUESTION
7 AS IS CLEAR FROM THE ORDER FOR REFERENCE, THE FIRST QUESTION REFERS TO THE LEGISLATION OF A MEMBER STATE CONCERNING FISHING VESSELS REGISTERED IN THAT MEMBER STATE .
8 ARTICLE 100 OF THE ACT OF ACCESSION PROVIDES THAT "NOTWITHSTANDING THE PROVISIONS OF ARTICLE 2 OF REGULATION ( EEC ) NO 2141/70 ON THE ESTABLISHMENT OF A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY, THE MEMBER STATES OF THE COMMUNITY ARE AUTHORIZED, UNTIL 31 DECEMBER 1982, TO RESTRICT FISHING IN WATERS UNDER THEIR SOVEREIGNTY OR JURISDICTION, SITUATED WITHIN A LIMIT OF SIX NAUTICAL MILES, CALCULATED FROM THE BASELINES OF THE COASTAL MEMBER STATE, TO VESSELS WHICH FISH TRADITIONALLY IN THOSE WATERS AND WHICH OPERATE FROM PORTS IN THAT GEOGRAPHICAL COASTAL AREA ". ARTICLE 6 OF REGULATION ( EEC ) NO 170/83 INCREASED THE LIMIT OF SIX NAUTICAL MILES TO TWELVE NAUTICAL MILES AND EXTENDED THE TRANSITIONAL PERIOD UNTIL 31 DECEMBER 1992 .
9 IT SHOULD BE NOTED THAT THE SOLE PURPOSE OF THOSE PROVISIONS IS TO PERMIT A MEMBER STATE TO DEROGATE FROM THE PRINCIPLE THAT COMMUNITY FISHERMEN ARE TO HAVE EQUAL ACCESS DURING THE PERIOD AND IN THE AREAS DEFINED THEREIN AND THEY ARE NOT CONCERNED WITH THE CONDITIONS ON THE COMPOSITION OF CREWS OF VESSELS FISHING IN THOSE AREAS . CONSEQUENTLY, THEY DO NOT PROHIBIT THE MEMBER STATES FROM ENACTING MEASURES SUCH AS THE IRISH DOMESTIC LEGISLATION AT ISSUE IN THE PROCEEDINGS BEFORE THE NATIONAL COURT .
10 ARTICLE 102 OF THE ACT OF ACCESSION 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 ". IT IS CLEAR FROM THAT PROVISION THAT AS FROM 1 JANUARY 1979 POWER TO ADOPT MEASURES RELATING TO THE CONSERVATION OF THE RESOURCES OF THE SEA HAS BELONGED "FULLY AND DEFINITIVELY" TO THE COMMUNITY, AS THE COURT HELD IN ITS JUDGMENT OF 5 MAY 1981 IN CASE 804/79 COMMISSION V UNITED KINGDOM (( 1981 )) ECR 1045 AND IN A NUMBER OF LATER JUDGMENTS ( SEE MOST RECENTLY THE JUDGMENT OF 14 FEBRUARY 1984 IN CASE 24/83 GEWIESE AND MEHLICH V SCOTT MACKENZIE (( 1984 )) ECR 817 ). THE COMMUNITY HAS IN FACT EXERCISED THIS POWER BY ADOPTING REGULATION NO 170/83, CITED ABOVE, AND COUNCIL REGULATION 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 ).
11 HOWEVER, IT SHOULD BE NOTED THAT NATIONAL RULES REQUIRING A MINIMUM PROPORTION OF THE CREWS OF FISHING VESSELS OF THE MEMBER STATE CONCERNED TO BE EEC NATIONALS ARE NOT, EITHER BY VIRTUE OF THEIR SUBJECT-MATTER OR BY VIRTUE OF THEIR PURPOSE, MEASURES RELATING TO THE CONSERVATION OF FISHERY RESOURCES, SINCE THE APPLICATION OF SUCH A MEASURE CANNOT IN ITSELF HAVE ANY EFFECT ON THOSE RESOURCES . CONSEQUENTLY, ARTICLE 102 OF THE ACT OF ACCESSION MAY NOT BE READ AS PROHIBITING THE MEMBER STATES FROM ADOPTING A MEASURE SUCH AS THAT CONTAINED IN THE IRISH LEGISLATION AT ISSUE IN THE MAIN PROCEEDINGS .
12 THE NATIONAL COURT ALSO REFERS TO ARTICLES 1 AND 2 ( 1 ) OF COUNCIL REGULATION NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY, WHICH REPLACED REGULATION NO 2141/70 OF THE COUNCIL OF 20 OCTOBER 1970, CITED ABOVE .
13 IN THIS CONNECTION IT SHOULD BE NOTED THAT THAT REGULATION DID INTRODUCE RULES INTENDED TO COORDINATE THE STRUCTURAL POLICIES OF THE MEMBER STATES AND TO REQUIRE THE MEMBER STATES TO RESPECT THE PRINCIPLE THAT THERE SHOULD BE NO DISCRIMINATION AGAINST NATIONALS OF OTHER MEMBER STATES AND THE PRINCIPLE THAT THERE SHOULD BE EQUAL CONDITIONS OF ACCESS TO AND USE OF STOCKS . IT IS ALSO TRUE THAT, IN ORDER TO ATTAIN ITS OBJECTIVES, THE REGULATION REQUIRES THE MEMBER STATES TO SEND INFORMATION TO THE COMMISSION ( ARTICLES 5 AND 10 ), PROVIDES FOR THE POSSIBILITY OF ADOPTING COMMUNITY MEASURES ON FISHING ( ARTICLE 4 ) AND A PROCEDURE ( ARTICLE 6 ) ENABLING COMMUNITY MEASURES ON THE COORDINATION OF STRUCTURAL FISHING POLICIES TO BE ADOPTED ( ARTICLE 7 ). HOWEVER, IT IS CLEAR FROM THE PROVISIONS OF THE REGULATION THAT, PENDING THE ENTRY INTO FORCE OF SUCH COMMUNITY MEASURES, THE MEMBER STATES MAY APPLY THEIR OWN RULES IN RESPECT OF FISHING IN THE MARITIME WATERS COMING UNDER THEIR SOVEREIGNTY OR WITHIN THEIR JURISDICTION ( ARTICLE 2 ) AND DEFINE THEIR STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( ARTICLE 1 ). FURTHERMORE IT SHOULD BE NOTED THAT THE PROVISIONS OF THE REGULATION REFER TO FISHING VESSELS "FLYING THE FLAG" OF A MEMBER STATE OR "REGISTERED" THERE, LEAVING THESE TERMS TO BE DEFINED IN THE LEGISLATION OF THE MEMBER STATES .
14 CONSEQUENTLY, IN THE PRESENT STATE OF COMMUNITY LAW, THE MEMBER STATES HAVE THE POWER, IN THE FRAMEWORK OF THE COMMON RULES LAID DOWN BY THIS REGULATION OR IN APPLICATION OF ITS PROVISIONS, TO ADOPT MEASURES REGULATING SEA-FISHING UNDERTAKEN IN MARITIME WATERS WITHIN THEIR JURISDICTION BY VESSELS FLYING THEIR FLAG . IT FOLLOWS THAT NEITHER ARTICLE 1 NOR ARTICLE 2 ( 1 ) OF THE REGULATION PRECLUDES A MEMBER STATE FROM ENACTING A MEASURE, SUCH AS THAT AT ISSUE, CONCERNING THE COMPOSITION OF THE CREWS OF FISHING VESSELS FLYING ITS FLAG AND FISHING IN THE MARITIME WATERS WITHIN ITS JURISDICTION .
15 IN VIEW OF THE FOREGOING, THE ANSWER TO THE FIRST QUESTION MUST BE THAT ARTICLES 100 AND 102 OF THE ACT OF ACCESSION OF 1972, ARTICLE 1 AND 2 ( 1 ) OF REGULATION 101/76 AND ARTICLE 6 OF REGULATION NO 170/83 DO NOT PRECLUDE A MEMBER STATE FROM ENACTING LEGISLATION REQUIRING A MINIMUM PROPORTION OF THE CREWS OF VESSELS WHICH ARE ENTERED IN ITS REGISTERS AND FISH WITHIN THE EXCLUSIVE FISHERY LIMITS OF THE STATE TO BE COMMUNITY NATIONALS . SECOND QUESTION
16 BY ITS SECOND QUESTION THE NATIONAL COURT ASKS WHETHER THE LEGISLATION OF A MEMBER STATE REQUIRING A MINIMUM PROPORTION OF THE CREWS OF VESSELS WHICH ARE ENTERED IN ITS REGISTERS AND WHICH FISH WITHIN THE EXCLUSIVE FISHERY LIMITS OF THAT STATE TO BE EEC NATIONALS CONTRAVENES ARTICLE 7 OF THE EEC TREATY PROHIBITING ANY DISCRIMINATION ON GROUNDS OF NATIONALITY .
17 ACCORDING TO THE PLAINTIFF IN THE MAIN PROCEEDINGS, SUCH A CONDITION IMPOSED BY NATIONAL LEGISLATION IS CONTRARY TO THE PRINCIPLE OF NON-DISCRIMINATION ON GROUNDS OF NATIONALITY LAID DOWN IN ARTICLE 7 OF THE EEC TREATY IN CONJUNCTION WITH ARTICLE 58 OF THE TREATY AND ARTICLE 2 OF REGULATION NO 101/76 . IT STATES THAT THAT CONDITION PLACES IT AND OTHER IRISH UNDERTAKINGS AT A DISADVANTAGE VIS-A-VIS THEIR COMPETITORS IN OTHER MEMBER STATES IN WHICH NO CONDITIONS ARE IMPOSED AS REGARDS THE NATIONALITY OF THE CREWS OF FISHING VESSELS .
18 IT MUST BE NOTED THAT, AS THE COURT HELD IN ITS JUDGMENT OF 13 FEBRUARY 1969 IN CASE 14/68 WILHELM V BUNDESKARTELLAMT (( 1969 )) ECR 1, ARTICLE 7 OF THE TREATY IS NOT CONCERNED WITH ANY DISPARITIES IN TREATMENT OR THE DISTORTIONS WHICH MAY RESULT, FOR THE PERSONS AND UNDERTAKINGS SUBJECT TO THE JURISDICTION OF THE COMMUNITY, FROM DIVERGENCES EXISTING BETWEEN THE LAWS OF THE VARIOUS MEMBER STATES, SO LONG AS THE LATTER AFFECT ALL PERSONS SUBJECT TO THEM, IN ACCORDANCE WITH OBJECTIVE CRITERIA AND WITHOUT REGARD TO THEIR NATIONALITY . SIMILARLY, IN ITS JUDGMENT OF 3 JULY 1979 IN JOINED CASES 185 TO 204/78 VAN DAM (( 1979 )) ECR 2345, THE COURT HELD, IN EFFECT, THAT THE FACT THAT THE RULES APPLIED BY ONE MEMBER STATE ARE STRICTER THAN THOSE APPLIED IN THE SAME SPHERE BY OTHER MEMBER STATES DOES NOT CONSTITUTE A BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION LAID DOWN IN ARTICLE 7 OF THE TREATY, AS LONG AS THE PROVISIONS IN QUESTION, WHICH ARE MOREOVER COMPATIBLE WITH COMMUNITY LAW, ARE APPLIED EQUALLY TO EVERY PERSON UNDER THE JURISDICTION OF THAT STATE .
19 SECONDLY, THE PLAINTIFF IN THE MAIN PROCEEDINGS STATES THAT THE CONDITION IN QUESTION DISCRIMINATES AGAINST IT AND OTHER IRISH FISHING UNDERTAKINGS IN THE SAME POSITION, AND FAVOURS OTHER FISHING UNDERTAKINGS OPERATING IN IRELAND WHOSE VESSELS ARE FREE TO FISH WITHOUT SIMILAR CONDITIONS ATTACHING TO THE LICENCES ISSUED TO THEM .
20 IN THIS CONNECTION IT MUST BE NOTED THAT THE PROHIBITION OF DISCRIMINATION LAID DOWN IN ARTICLE 7 OF THE TREATY IS CONCERNED ONLY WITH DISCRIMINATION ON GROUNDS OF NATIONALITY AND CONSEQUENTLY CANNOT BE RELIED UPON IN CASES SUCH AS THIS IN WHICH THE PLAINTIFF IN THE MAIN PROCEEDINGS CLAIMS THAT THE NATIONAL LEGISLATION AT ISSUE DISCRIMINATES AGAINST CERTAIN IRISH FISHING UNDERTAKINGS IN FAVOUR OF OTHER FISHING UNDERTAKINGS WHICH ARE ALSO IRISH .
21 CONSEQUENTLY, THE ANSWER TO THE SECOND QUESTION MUST BE THAT THE LEGISLATION OF A MEMBER STATE REQUIRING A MINIMUM PROPORTION OF THE CREWS OF VESSELS WHICH ARE ENTERED IN ITS REGISTERS AND WHICH FISH WITHIN ITS EXCLUSIVE FISHING LIMITS TO BE COMMUNITY NATIONALS DOES NOT CONTRAVENE ARTICLE 7 OF THE TREATY .