C-223/86

OPINION OF MR MISCHO — CASE 223/86

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 22 September 1987 *

Mr President, (a) the boat to which this licence relates Members of the Court, 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 1. In 1983 Ireland adopted the Fisheries crew are Irish citizens or nationals of (Amendment) Act, which amends the another Member State of the European national fisheries legislation (Fisheries Economic Community; (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 (b) the boat shall not be used for limits of the State or otherwise, is permitted sea-fishing in that part of the exclu sive only under a licence. The Minister fishery limits of the State situated within responsible for issuing the licence may a distance of twelve (12) nautical miles attach a condition thereto whereby at least from baselines'. 75% of the crew must be Community nationals.

8. The first question submitted by the 13. It is apparent from those provisions national court is as follows: that, subject to the limitation that there must be no discrimination against fishing vessels of other Member States (a matter 'Whether Articles 100 and 102 of the Act of which I shall examine in connection with Accession 1972, Articles 1 and 2 (1) of the national court's second question), it is Regulation (EEC) No 101/76 and Article 6 the responsibility of each of the Member of Regulation (EEC) No 170/83 preclude a States to adopt the rules to which it wishes Member State from enacting legislation fishing activities in waters under its sover­ requiring a minimum proportion of the eignty or within its jurisdiction to be crews of vessels fishing within the exclusive subject. fishery limits of the State to be EEC nationals'. 14. That is confirmed by Article 2 (2), which states that Member States 'shall 9. A — I propose to consider first the notify other Member States and the provisions of Council Regulation No Commission of the existing laws and admin­ 101/76 of 19 January 1976 laying down a istrative rules and regulations in the field common structural policy for the fishing referred to in the first subparagraph of industry (Official Journal 1976, L 20, p. 19). paragraph (1) together with those arising out of application of the provisions referred 10. According to Article 1 of that regu­ to in the second subparagraph of that lation, 'common rules shall be laid down for paragraph'. fishing in maritime waters and specific measures shall be adopted for appropriate action and the coordination of structural 15. By virtue of Article 3 of the same regu­ policies of Member States for the fishing lation 'Member States shall notify other industry to promote harmonious and Member States and the Commission of any balanced development of this industry alterations they intend to make to fishery within the general economy and to rules laid down pursuant to Article 2'. encourage rational use of the biological resources of the sea and of inland waters'. 16. The regulation is thus based on the idea that the legislation of the Member States 11. Under Article 2 'rules applied by each develops as time passes and therefore it Member State in respect of fishing in the clearly cannot be maintained that the maritime waters coming under its sover­ Member States have lost the general power eignty or within its jurisdiction shall not to legislate with respect to fisheries. lead to differences in treatment of other Member States. 17. This first conclusion is confirmed by the last part of Article 1 and by Articles 5, 6, 9, 12. Member States shall ensure in particular 10, 11 and 12 of the same regulation, which equal conditions of access to and use of the clearly indicate that the primary responsi­ fishing grounds situated in the waters bility for structural policies remains with the referred to in the preceding subparagraph Member States and that Community action for all fishing vessels flying the flag of a is limited to ensuring coordination.

23. On 24 April 1985 the Commission 20. Of course, the standard of living of adopted a decision on the multi-annual fishermen depends not only upon the guidance programme in respect of the available fishery resources but also upon the fishing fleet submitted by Ireland pursuant number of vessels exploiting those resources. to Council Regulation No 2908/83 (Official The industry cannot develop along rational Journal 1985, L 157, p. 23). In that decision lines if the number of fishing vessels the Commission approves the fact that the increases immoderately. The regulation Irish programme provides for renewal of the therefore provides that the Member States fleet without any increase in its overall (Article 8) or the Community (Article 9) tonnage, in a manner compatible with the may grant aid with a view to increasing foreseeable availability of fish stocks in the productivity, in particular by the restruc- medium term. It notes that the Irish auth- turing of fleets. orities 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 21. Council Regulation No 2908/83 of 4 available stocks and optimizing the distri- October 1983 on a common measure for bution of fishing effort (see also point 4 of restructuring, modernizing and developing Annex I to the decision). 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, 24. In Annex II, which is entitled 'Final under multi-annual programmes, a satis- Conclusions', the Commission also takes the factory balance between fishing capacity view that the Irish authorities 'should extend and available resources of the sea (see in their system of vessel licences as soon as particular the third recital in the preamble possible in order to ensure a greater balance thereto and Articles 3, 4 and 11). between stocks and capacity'. It also

27. One may of course wonder why Ireland 31. Β — The national court also refers to did not take measures relating specifically to Article 100 of the Act of Accession and to the registration of the vessels in question. Article 6 (1) of Council Regulation No But a Member State cannot be denied the 170/83 of 25 January 1983 establishing a power to decide that the right to fly its flag Community system for the conservation and or the fact of registration in its territory management of fishery resources (Official does not automatically entail the right to Journal 1983, L 24, p. 1). Those articles engage in fishing and that special authori­ expressly authorize Member States to make zation for fishing is required in the form of exceptions, as regards their coastal zones, a licence, the use of which may itself be which as from that time were defined as made subject to certain conditions. extending 12 nautical miles, to the principle of equality of access for all Community fishermen to the maritime waters of the 28. For the sake of completeness, I should other Member States. also like to refer, as did the United Kingdom and the Commission, to a judgment of the Court to the effect that it 32. In so far as they allow a Member State cannot be inferred merely from a lack of to exclude fishing vessels registered in other provision in a regulation on the common Member States from its coastal fishing organization of the market in a particular zones, those provisions clearly have no sector that the Member States are not bearing on the question whether a Member entitled to adopt any measures with respect to that sector (judgment of 7 February 1984 1 — The common organization of the market in fishery products is governed by Council Regulation No 3796/81 in Case 237/83 Jongeneel Kaas ν Netherlands of 29 December 1981 (Official Journal 1981, L 379, p. 1).

38. Since that time, however, Community 34. By virtue of Article 102 of the Act of rules have been adopted, namely Council Accession 1972, which provides that, 'from Regulation No 170/83 of 25 January 1983 the sixth year after accession at the latest, establishing a Community system for the the Council, acting on a proposal from the conservation and management of fishery Commission, shall determine conditions for resources, to which I referred earlier. Thus, fishing with a view to ensuring protection of it is these rules which are now applicable the fishing grounds and conservation of the and which are relevant to the present case. biological resources of the sea', the power to adopt measures for the conservation of the resources of the sea is vested fully and 39. To enable us to consider whether the definitively in the Community with effect exclusive powers of the Community to from 1 January 1979. adopt the necessary measures for the conservation of the biological resources of the sea preclude the adoption by a Member . 35. That has been confirmed by the Court State of rules of the type at issue here, it is in numerous judgments. 2 necessary first of all to define the term 'conservation measures'.

36. It follows that 'Member States are therefore no longer entitled to exercise any 40. The meaning of that term is to be found power of their own in the matter of conser- in Regulation No 170/83 and the regu- vation measures in the waters under their lations adopted to implement it, namely: 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 (i) Council Regulation (EEC) No 171/83 law'. Likewise, 'the resources to which the of 25 January 1983 laying down certain fishermen of the Member States have an technical measures for the conservation equal right of access must henceforth be of fishery resources (Official Journal subject to the rules of Community law'. 3 1983, L 24, p. 14);

the Community, the allocation of that constitute a response to a concern to share between the Member States and conserve fishery resources. the conditions under which the total allowable catches may be fished 44. It is clear, however, that the measure (Official Journal 1983, L 24, p. 30), and adopted by Ireland does not reflect any such the regulations adopted since that time concern. It is not intended to protect fish fixing the total allowable catches (TAC) species (this aim is achieved by fixing quotas each year and their allocation as and laying down technical conservation between the Member States (quotas). measures) but to ensure that nationals of Member States who gain their livelihood 41. The effect of that legislation is that the from sea fishing enjoy a fair standard of measures in question may include for each living (fifth recital in the preamble to Regu­ species or group of species of fish: lation No 101/76).

45. Thus, Article 102 of the Act of (i) the determination of areas where Accession and the judgments of the Court fishing is prohibited or restricted to which recognize the exclusive powers of the certain periods, to certain types of Community in matters relating to conser­ vessel, to a total number of vessels of vation of fishery resources are not each Member State which may fish applicable to the present case. simultaneously, to certain fishing gear and certain end-uses; 46. (b) Even if the opposite view were taken, it could not be concluded that the (ii) the setting of standards as regards measure in question was incompatible with fishing gear; Community law.

49. Similarly, where a Member State has been allocated a quota for a species or 53. On the basis of all the foregoing group of species of fish, it is empowered to considerations, I consider that it may be make access by its vessels to that quota concluded that none of the provisions of conditional upon the fulfilment of certain Community law mentioned by the national requirements concerning the composition of court in its first question prohibits a crews. Member State from adopting legislation prohibiting vessels registered therein from fishing at sea unless a minimum proportion of their crews consists of Community 50. In the second place, to the extent to nationals. 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. II — The problem of discrimination (second A Member State may remove or restrict the question) 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 54. The second question submitted by the 171/83, which provides as follows: High Court of Ireland concerns the question whether legislation of the type in force in Ireland constitutes discrimination 'This regulation shall apply without on the basis of nationality prohibited by prejudice to national technical measures, Article 7 of the EEC Treaty. going beyond its minimum requirements, which are applicable only to fishermen of the Member State concerned and which 55. It is difficult to see how a clause which either are intended to ensure better makes no distinction between Irish nationals management and better use of the quotas or and nationals of other Member States can which apply to species not subject to quotas give rise to discrimination between or to species for which this regulation lays Community nationals. Does such a clause down no specific measures, provided that not in fact apply the principle of they are compatible with Community law non-discrimination ? and are in conformity with the common fisheries policy.' 56. The first instance of discrimination alleged by the plaintiff is discrimination 51. What applies to technical measures must adversely affecting United Kingdom fishing necessarily apply also to a measure of the undertakings in so far as they are not type adopted by Ireland. As we shall see allowed to fish in Irish waters unless their

crews also comprise 75% Community 61. (a) In its judgment of 3 July 1979 in nationals. Joined Cases 185 to 204/78 Vati Dam and Others [1979] ECR 2345, the Court expressly ruled that 'it cannot be held 57. In that connection, it must be stated in contrary to the principle of non-discrimi­ the first place that the question submitted by nation to apply national legislation, the the High Court of Ireland does not relate to compatability of which with Community law that aspect of the Irish legislation. is moreover not contested, because other Member States allegedly apply less strict rules. Inequalities of this kind . . . cannot be 58. It should be noted, in the second place, the foundation of a charge of discrimination that the treatment accorded in this case to with regard to the provisions made by a vessels registered in the United Kingdom is Member State which applies [them] equally no different, as regards the composition of to any person under its jurisdiction . . . ' crews, from that applicable to Pesca (paragraph 10). 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 62. The Irish legislation is not therefore coming under its sovereignty or within its discriminatory by reason of the fact that it jurisdiction do not lead to any difference of imposes upon vessels registered in Ireland treatment as regards the United Kingdom. conditions which are not imposed by the legislation of other Member States on vessels registered in those States. 59. Three other types of discrimination appear to have been alleged: 63. (b) Article 7 of the EEC Treaty, which prohibits 'any discrimination on grounds of (i) discrimination favouring competing nationality', is not applicable to differences companies of other Member States of treatment affecting nationals of the same where no similar legislation exists; Member State. Such differences of treatment, which arise exclusively from the legislation of a Member State, do not fall (ii) discrimination favouring other Irish within the scope of Community law. undertakings which, by reason of the nature of their fishing activities, are not affected by any similar condition; 64. (c) As regards the practical advantage from which Irish fishermen are said to (iii) discrimination against nationals of benefit when crews are recruited, it should other Member States, in so far as the be recalled that, in its judgment of 18 holder of a licence to which the 7 5 % March 1980 in Case 52/79 Procureur du Roi condition is attached is in practice ν Debauve [1980] ECR 833, the Court obliged to recruit Irish fishermen since stated that 'such differences, which are due the fishing is carried out in Irish waters. to natural phenomena, cannot be described as "discrimination" within the meaning of the Treaty; the latter regards only 60. However, none of those differences of differences in treatment arising from human treatment falls within the scope of the activity, and especially from measures taken prohibition contained in Article 7 of the by public authorities, as discrimination' EEC Treaty. (paragraph 21).

III — Conclusions

68. H a v i n g regard to all the foregoing considerations, I propose t h a t the C o u r t should give the following answers to the questions submitted by the H i g h C o u r t of Ireland :

' 1 . N e i t h e r Articles 100 and 102 of the Act of Accession 1972 n o r Articles 1 and 2 (1) of Regulation (EEC) N o 101/76 n o r Article 6 of Regulation (EEC) N o 170/83 preclude a M e m b e r State from enacting legislation requiring a minimum proportion of the crews of vessels registered in that M e m b e r State which fish in the maritime waters u n d e r its sovereignty or within its jurisdiction t o be C o m m u n i t y nationals.

2. Such legislation c a n n o t be regarded as providing for any discrimination on grounds of nationality prohibited by Article 7 of the Treaty.'