C-216/87

'Where a Member State grants a fishing (b) other evidence is provided of the vessel's licence to a company registered in that presence in a United Kingdom, Isle of Member State in respect of a fishing vessel Man or Channel Islands port on at least owned by that company and flying the flag four occasions at intervals of at least 15 of and duly registered in that Member days",

* Original language French

OPINION OF MR MISCHO — CASE C-216/87

inconsistent with Community law either 4. It is therefore necessary to examine by reason of its terms and/or its whether that general condition is compatible relationship with the two other with Community law. Since the test conditions of the licence (which are the requiring the vessel to be periodically subject of Case C-3/87), and in present in a United Kingdom port is very particular is such a condition closely linked to the general condition, I shall examine it at the same time.

(a) inconsistent with the common structural policy of the fishing industry as set out A — The general condition and the test in, inter alia, Council Regulation (EEC) requiring the periodic presence of each vessel No 101/76; in a port of the country of registration

(b) inconsistent with the common organ­ ization of the market in fishery products 5. In point (a) of the second part of its as set out in, inter alia, Council Regu­ question the High Court of Justice inquires lation (EEC) No 3796/81; whether the provisions in question are compatible with Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing (c) prohibited by Articles 7, 34, 40, 48 to industry (Official Journal L 20, 28.1.1976, 51, 52 to 58 or 59 to 66 of the EEC p. 19) and, in point (e), whether they are Treaty or any of those provisions; still within the powers of the Member States.

Consequently, in the present state of 1962 and eight Member States, including Community law, the Member States have the United Kingdom and Spain, have the power, in the framework of the ratified it or acceded to it. Article 5 of that common rules laid down by this regulation convention has the following wording: or in application of its provisions, to adopt measures regulating sea-fishing undertaken in maritime waters within their jurisdiction by vessels flying their flag.' (Paragraphs 13 '1 . Each State shall fix the conditions for and 14 of the judgment.) the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must 7. Community law does not therefore exist a genuine link between the State restrict the power which each Member State and the ship; in particular, the State has under public international law to must effectively exercise its jurisdiction determine the conditions on which it allows and control in administrative, technical a vessel to fly its flag. Furthermore, Regu­ and social matters over ships flying its lation No 101/76 allows the Member States flag. to take measures regulating fishing in the maritime waters falling within their juris­ diction by vessels flying their flag. In my view, a rule which applies to the waters 2. Each State shall issue to ships to which it falling within the jurisdiction of a Member has granted the right to fly its flag State must logically also apply to the fishing documents to that effect.' (My activities pursued by the same vessels in the emphasis.) waters of other Member States, in the waters of non-member countries and in international waters in so far as it concerns catches of fish which are to be counted 10. Article 10 of the Convention goes on to against the quotas allocated in the waters in provide as follows: question to that State by a Community regulation.

(c) the construction, equipment and in waters some distance away from those seaworthiness of ships. ports, such as those to the west of Ireland, and to sell its catches in ports relatively far away, such as those of Spain. If that was the case, it might be a question of a measure having an effect equivalent to a quantitative restriction on exports. That is a question of 2. In taking such measures each State is fact, which only the national court can required to conform to generally decide. In deciding that question, the accepted international standards and to United Kingdom court is fully entitled to take any steps which may be necessary proceed from the principle that it is normal to ensure their observance.' for a British vessel to begin and end its fishing trips in a United Kingdom port. I do not share the Commission's opinion that requiring a British vessel to visit a United Kingdom port is the same as requiring it to make a detour via Denmark. 11. It appears from those provisions that a Member State may not be criticized for considering that it would be unable to carry out the prescribed verifications if each vessel was not periodically present in one of its ports. 14. In the same context, it must be borne in mind that the aim of the system established by Regulation No 101/76 laying down a common structural policy for the fishing industry is to assure a fair standard of living for those persons who live by that industry 12. Even so, it might be objected that (fifth recital). That category of persons may conditions for registration have nothing to be considered to include the persons who, do with conditions for granting licences. on shore, in the ports, provide the services However, it is difficult to see why a which the vessels and the fishermen need, Member State could not lay down, at the such as the sale of food and fuel, the main­ time of granting licences, a condition to tenance and repair of vessels and the which it could already make a vessel's regis­ processing and transporting of fish. tration subject.

does not prohibit a Member State from requiring its own vessels to be regularly present in its own ports. 16. Next, it may be noted that Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organ­ ization of the market in fishery products 19 Nor can the general condition and the (Official Journal L 379, 31.12.1981, p. 1) test regarding the periodic presence of does not contain any rule which could be vessels in a United Kingdom port be said to be contravened by the British regarded as contrary to the articles of the measures. Treaty prohibiting all discrimination against natural or legal persons of other Member States (Articles 7, 48 to 51, 52 to 58 or 59 to 66), since those rules concern only vessels registered in the United Kingdom and 17. It is true that, even though the regu­ belonging to United Kingdom companies. lation does not expressly mention them, the rules of the Treaty relating to the free movement of goods are automatically incor­ porated therein, from the expiry of the tran­ 20 As regards Article 40(3) of the Treaty, it sitional period at the latest, ' as is in fact cannot be applicable since the measure stated in the 30th recital of the preamble to concerned is a national measure applying to the regulation. However, it has just been all vessels and to all companies engaged in seen that it is only if the national court sea fishing in the State in question. reached the conclusion that the presence test actually prevents British vessels from selling their catches in the ports of other Member States that the test might be 21 As regards the general principles of regarded as being contrary to Article 34 of Community law referred to in point (d) of the Treaty. the second part of the national court's question, I would make the following points.

'the field of application of the principle of legitimate expectation cannot be extended to the point of generally preventing new rules from applying to the future effects of 24 The applicants cannot therefore properly situations which arose under the earlier rely on the principle of legitimate expec­ rules especially in a field such as the tation. common organization of the markets, the purpose of which necessarily involves constant adjustment to the variations of the economic situations in the various agri­ cultural sectors'. 25 It is clear, moreover, from the foregoing that, far from the being arbitrary, the general condition and the presence test were That rule was referred to most recently in adopted with a legitimate aim in view, paragraph 19 of the judgment of 20 namely to ensure that vessels can be September 1988 in Case 203/86 Spain v subjected to the essential technical, adminis­ Council, with regard to national rules ante­ trative and social controls and that the dating Spain's accession promoting the fishing industry of the State whose flag they expansion of milk production in that fly benefits from the economic results of country when the milk quotas decided on their fishing activities. In so far as the by the Council were in future to block that presence test does not prevent catches from expansion. I consider that those principles being sold in non-British ports, even distant also apply with regard to a measure adopted ports, it cannot be regarded as being dispro­ in the context of rules which are related to a portionate to the objective pursued either. common organization of the markets and which are themselves also based on Article 43 of the Treaty.

27 Now, in my Opinion in Case C-3/87 we such a condition unlawful if seen in relation have just seen that under that article the with the two other conditions at issue in Member States are in fact responsible for Case C-3/87 (Agegate), which I considered determining the detailed rules for the utili­ lawful. zation of the quotas allocated to them. For the reasons which I set out in that Opinion, I consider that rules under which the catch of species subject to quotas is made subject B — The test relating to landings and the sale to the condition that such operations must of catches be carried on from a port of the country of registration come within the administration of the quotas as do rules relating to the composition of the vessels' crews, in so far 30 A vessel is also deemed to have been as they enable the number of vessels which operating from the United Kingdom, the could fish for the species of fish subject to Isle of Man or the Channel Islands if, for the quotas to be controlled. each of the six-month periods in each calendar year, at least 50% by weight of the fish to which a licence relates have been landed and sold in one of those territories or transhipped by way of sale within British fishery limits. 28 If the practical details of such rules do not constitute a measure having an effect equivalent to a quantitative restriction on exports, which is a matter for the national 31 I would say immediately that I consider court to determine, those rules must be this test incompatible with Article 34 of the considered compatible with Community law Treaty relating to quantitative restrictions and Article 5(2) of Regulation No 170/83 on exports and measures having an equi­ may therefore be a proper legal basis for valent effect. them, even if the Member State in question could in any event have adopted them on the basis of its power to lay down the conditions on which it allows a vessel to fly 32 According to the established case-law of its flag. the Court,

33 According to Article 4(1) of Regulation quantity of fish from the United Kingdom (EEC) No 802/68 of the Council of 27 to other Member States. Even if the view is June 1968 on the common definition of the taken that it does not constitute a true concept of the origin of goods (Official quantitative restriction on exports because in Journal, English Special Edition, 1968 (I), the final analysis it does not prevent exports, p. 165), 'goods wholly obtained or it constitutes at least a measure having an produced in one country shall be considered equivalent effect since it makes exportation as originating in that country'. As regards more difficult, more time-consuming and products of sea fishing, Article 4(2)(f) of more costly. that regulation provides that they are to be regarded as being wholly obtained or produced in one country if they are 'taken from the sea by vessels registered or recorded in that country and flying its flag'. 36 I do not share the United Kingdom's view that the operating condition has neither the purpose nor the specific effect of restricting patterns of exports and does not establish a difference in treatment between national trade and export trade. Even if the objective pursued by the United Kingdom is to make sure that the quotas allocated to it 34 The origin of fish is thus determined on are not circumvented, the measure in the basis of the flag or registration of the question has a real and specific effect on 3 vessel which catches them. Consequently, exports which it affects directly and in a the catches of vessels flying the United discriminatory way. Kingdom flag constitute goods of British origin and their landing and direct sale in another Member State without passing through British territory constitutes an export. 37 This fact distinguishes the present case 5 in particular from the Groenveld/ Oebel and Jongeneel Kaas 6 cases in which the Court did not find any breach of Article 34, although it was alleged that the national rules in question had the effect of impeding exports. First of all, in each of those cases, rules concerning the conditions of 35 It follows that any obstacle to such an production of certain goods and not directly export is prohibited by Article 34 of the concerning their exportation were at issue. Treaty. I consider that the landings test, as Secondly, in each instance the Court was laid down in this case by the United able to find that those rules applied objec­ Kingdom rules, constitutes such an obstacle. tively to the production of the goods in The requirement that at least 50% of a question, without any distinction as to British vessel's catches must be landed and whether they were intended for the national sold in the United Kingdom, the Isle of market or for export. Man or the Channel Islands in a given period is in practice tantamount to prohi­ 4 — Judgment of 8 November 1979 in Case 15/79 Groenveld v biting any direct exportation of that Produktschap voor Vee en Weej[1979]ECR 3409. 5 — Judgment of 14 July 1981 in Case 155/80 Oebel [1981] ECR 1993. 3 — Judgment of 28 March 1985 in Case 100/84 Commission v 6 — Judgment of 7 February 1984 in Case 237/83 Jongeneel Uniled Kingdom [1985] ECR 1169, paragraph 18. Kaas v Netherlands [1984] ECR 483.

41 First, the condition that 75 % of the 43 Article 7 of Regulation No 2241/87 also fishermen fishing against the quotas of a requires the skipper of a fishing vessel flying Member State must ordinarily reside in that the flag of a Member State to inform the Member State and the rule requiring a authorities of that Member State of trans­ vessel's periodic presence in a port of that hipment or landing operations, whatever the country seem to me sufficient to ensure that place of landing and even if it is situated the benefit of that Member State's quota outside the territory of the Community. In actually goes to those truly forming part of the case of a transhipment taking place in a that Member State's fishing Community. To port or in the maritime waters subject to the require in addition that a specific proportion sovereignty or jurisdiction of a Member of the catches of those fishermen must be State, the skipper of the receiving vessel landed and sold in that Member State goes must also inform the competent authorities beyond what is necessary for achieving the of the Member State in question about the objective pursued. The fact that in the last transhipment.

OPINION OF MR MISCHO — CASE C-216/87

44 It follows from those provisions that the 'Community law does not prohibit a quota system itself expressly provides for the Member State from making the grant of right of a fishing vessel, first, to land its fishing licences for vessels which are entered catches in Member States other than that in its registers and whose catches are whose flag it flies, as well as directly in a counted against the quotas allocated to it non-member country, and, secondly, to subject to the condition that those vessels tranship them in a port or in the maritime must operate from the State in question and waters falling within the jurisdiction of such that they must be periodically present in a another Member State. port of that State.

47 On the basis of all the foregoing considerations I propose that the first question should be answered as follows: 49 That question was raised because the company Jaderow Ltd, the applicant in the 7 — See also in this regard the judgment of 16 June 1987 in Case 46/86 Romkes[1987] ECR 2671, paragraph 24. main proceedings, considers that the

THE QUEEN v MINISTRY OF AGRICULTURE. FISHERIES AND FOOD. EX PARTE JADEROW

existence of a genuine link or a real question cannot be criticized for taking the economic link between the vessel and the view that those factors alone do not enable Member State of registration is sufficiently it effectively to exercise its jurisdiction and proved by the owning company's domicil­ supervision in technical, administrative and iation of the vessel or vessels in the United social matters over vessels flying its flag. Kingdom and by the fact that taxes on profits and VAT are paid in that country. 51 It must not be forgotten in this regard 50 There is no doubt that all those factors that the countries which offer so-called flags are evidence of the existence of economic of convenience also require companies links between the United Kingdom and the owning vessels registered with them to have vessels in question but it appears simply their registered office in their own country from reading Article 5 of the Convention on and to pay there the taxes laid down by the the High Seas that the Member State in law.

I therefore propose that the second question should be answered as follows:

'The fact that the authorities of a Member State apply the operating condition so as to exclude consideration of other factors which may be evidence of economic , financial and fiscal links between the vessel, its owners and the Member State in question does not affect the compatibility of the condition in question with Community law.'