C-93/89

COMMISSION v IRELAND

O P I N I O N OF MR A D V O C A T E GENERAL M I S C H O delivered on 13 March 1991*

Mr President, 4. The Commission considers that by Members of the Court, requiring nationals of other Member States to set up an Irish company in order to obtain a licence to engage in sea fishing from an Irish boat, whereas an Irish citizen may obtain such a licence without setting up 1. This Opinion is concerned with the a company, Ireland has failed to fulfil its action which the Commission has brought obligations under Article 52 of the EEC against Ireland in connection with the Treaty. conditions to which the grant of a licence for sea fishing is subject in that Member State.

* Original language: French.

I - 4575

OPINION OF MR MISCHO —CASE C-93/89

proceedings, Ireland seems to be seeking to addition, as the defendant itself pointed out take advantage of the fact that the two in its reply to the reasoned opinion, Section types of conditions are identical in this way 222B is to be read in conjunction with when it states that the sole object of Section Section 8 of the 1983 Act, under which no 222B(4)(a) of the 1959 Act is to ensure that new registration upon the Irish register of a a vessel must be Irish in terms of the laws sea-fishing boat can take place unless a on registration of vessels in Ireland in order licence has previously been issued by the to be licensed and concludes that Minister for Fisheries under Section 222B. Consequently, even if the registration and licence conditions are identical, it is never- theless the latter on which the utilization of a fishing boat for sea fishing depends.

'it cannot be contrary to the Treaty for the Irish statutory licensing regime to be made applicable only to Irish sea-fishing boats' (see paragraphs 2.2. and 2.3. of the rejoinder). 8. If I may now turn to the licence condition at issue, Ireland argues that it does not infringe Article 52 of the Treaty, first because it is applicable only to boats which are registered in Ireland (or subject to such registration) and, secondly, because On the other hand, the United Kingdom, there is nothing to prevent owners of boats which has intervened in support of Ireland's registered in other Member States from conclusions, argues that since the two sets establishing themselves in Ireland and of conditions are identical, the licence operating their boats from Irish ports and in conditions are not, in the present case, a bar Irish waters. to the freedom of establishment.

12. In the rejoinder, Ireland refers, inter 'under the conditions laid down for its own alia, to the judgment of 14 December 1989 nationals by the law of the country where in Case C-216/87 The Queen v Ministry of such establishment is effected'. Agriculture, Fisheries and Food, ex parte Jaderow Ltd [1989] ECR 4509, in which the Court accepted that the objective pursued by the system of national quotas may in fact justify the stipulation of licence conditions designed to ensure that there is a real Unlike Irish nationals, nationals of other economic link between the vessel and the Member States have to set up an Irish flag State. The Court made it clear, company having its principal place of however, that the purpose of those business in Ireland before they can obtain a conditions must be that the local popu- licence authorizing them to operate their lations dependent on fisheries and related fishing boats under the Irish flag. Therefore, industries should benefit from the quotas even though the Irish legislation does not and that the link which the conditions are apply to boats registered in other Member intended to ensure must concern only the States, it does apply to nationals of other relations between the vessel's fishing oper- Member States in so far as it prevents them ations and those populations and industries from pursuing their activities in Ireland (see paragraphs 25, 26 and 27 of the under the same conditions as those applying judgment in Jaderow). A condition requiring to Irish nationals. (It is, moreover, doubtful nationals of other Member States to set up whether pursuit, by a national of a Member an Irish company in order to obtain a State other than Ireland, of the activity of fishing licence is not apt to guarantee that sea fishing from Irish ports and in Irish the Irish quotas accrue to the local popu- waters using a vessel not registered in lations dependent on fisheries and related Ireland can be regarded as being covered by industries and does not concern only the the right of establishment.) relations between the vessels' fishing oper- ations and those populations and industries.

'As an exception to a fundamental principle condition at issue is disproportionate to that of the Treaty, Article 56 of the Treaty must objective. be interpreted in such a way that its effects are limited to that which is necessary in order to protect the interests which it seeks 15. Lastly, Ireland argues that it would to safeguard'. ' adversely affect the Community's structural policy for the fishing industry if fishing boats from one Member State could freely transfer to the fishing fleet of another Member State. In this connection, I agree 14. Even if the proper application of the with the Commission's view that whilst the Community system of fishing quotas, which Member States may indeed limit or even is what Ireland is seeking to secure, were reduce the capacity of their fishing fleets, capable of falling within the concept of they must, in doing so, apply criteria public policy for the purposes of Article involving no discrimination on the grounds 56(1), it must be held that it follows from of the nationality of the owners of the boats what has been stated above that the concerned,

16. For all t h o s e reasons, I p r o p o s e t h a t the C o u r t s h o u l d u p h o l d the C o m m i s s i o n ' s application a n d declare t h a t , b y requiring n a t i o n a l s of o t h e r M e m b e r States t o set u p an Irish c o m p a n y in o r d e r to obtain a licence t o e n g a g e in sea fishing from an Irish boat, Ireland has failed to fulfil its obligations u n d e r Article 52 of the T r e a t y . As a result, I r e l a n d should be o r d e r e d t o p a y the costs, w i t h the exception of those incurred b y t h e U n i t e d K i n g d o m , w h i c h intervened in s u p p o r t of I r e l a n d ' s conclusions and s h o u l d be o r d e r e d to b e a r its o w n costs.