C-151/96
ECLI:EU:C:1997:194
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COMMISSION v IRELAND
OPINION OF ADVOCATE GENERAL LENZ delivered on 15 April 1997 *
1. In these Treaty infringement proceedings, ships are in principle 3 treated as 'Irish ships' the Commission claims that Ireland has and therefore have the right to fly the Irish failed to fulfil its obligations under Articles flag: State-owned ships, ships wholly or 6, 48, 52 and 58 of the EC Treaty, Article 7 partly owned by an Irish citizen or an Irish of Regulation (EEC) No 1251/70 of the body corporate 4 and not registered under Commission of 29 June 1970 on the right of the laws of another country, and ships regis- workers to remain in the territory of a Mem- tered or deemed to be registered under the ber State after having been employed in that Act. Section 16 provides that, subject to sec- State J and Article 7 of Council Directive tion 19, 5 only the Irish Government, Irish 75/34/EEC of 17 December 1974 concerning Ministers of State, Irish citizens and Irish the right of nationals of a Member State to bodies corporate are qualified to own a reg- remain in the territory of another Member istered ship or a share therein. State after having pursued therein an activity in a self-employed capacity. 2 It bases that claim on the submission that Ireland has maintained in force laws, regulations and administrative provisions which limit the right to register a vessel other than a fishing vessel in the Irish shipping register to a ves- sel which is owned in whole or in part by the Government, a Minister of State, an Irish citizen or an Irish body corporate.
3. Those provisions applied originally to merchant vessels, to fishing vessels and to vessels not used to pursue an economic 2. The relevant provisions of Irish law are activity but as pleasure craft. During the contained in the Mercantile Marine Act 1955. course of the pre-litigation procedure under Under section 9 of that Act, the following Article 169 of the EC Treaty, Ireland enacted
* Original language: German. 3 — Section 9 applies 'subject to subsection (3) of section 18' of 1 — OJ 1970 L 142, p. 24. Article 7 of the regulation states: 'The the Act. The latter provision is not relevant to this case. right to equality of treatment, established by Council Regu- 4 — An 'Irish body corporate' is to be understood, in accordance lation (EEC) N o 1612/68, shall applv also to persons coming with the definition in section 2(1) of the Act, as a b o d y cor- under the provisions of this Regulation.' porate established under Irish law and having its principal 2 — OJ 1975 L 14, p. 10. Article 7 of the directive provides as fol- place of business in Ireland. lows: 'Member States shall apply to persons having the right 5 — Section 19 confers upon the Irish Government the power to to remain in their territory the right of equality of treatment allow exceptions, on the basis of reciprocity, in favour of recognized by the Council Directives on the abolition of nationals and bodies corporate of another Sute. As the restrictions on freedom of establishment pursuant to Title III Commission has correctly pointed out, and Ireland has not of the General Programme which provides for such aboli- disputed, that provision is not relevant to the outcome of tion.' this case.
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O P I N I O N OF MR LENZ — CASE C-151/96
the Fisheries (Amendment) Act 1994. The Factortame case, 6 in Commission v IreUnd, 7 Commission concluded that the new provi- in Commission v United Kingdom 8 and in sions regarding fishing vessels met the objec- Commission v France 9 that the claims made tions which it had raised. Accordingly, the by the Commission are well founded. For Commission's application now covers the the sake of simplicity, I will simply quote provisions of Irish law cited above in rela- here the relevant passages from the last of tion to merchant vessels and pleasure craft those judgments. That case was concerned only. with French legislation under which the right to register vessels in the national regis- ter was limited to vessels which were owned as to more than half either by French nation- als or by legal persons which had their seat in France or — in simplified terms — were controlled to a specified extent by French nationals. , 0
4. The file shows that the Commission first alleged that the Irish legislation infringed Article 7 of Regulation N o 1251/70 and Article 7 of Directive 75/34 in the two rea- soned opinions delivered by it. In my view, that cannot call the admissibility of the 6. The Court ruled as follows in relation to action into question. It was clear from the vessels used in the course of an economic Commission's previous letters, which gave activity: Ireland the opportunity to make observa- tions, that the Commission took the view that the Irish legislation in question was incompatible with the provisions of the EC Treaty on freedom of movement for persons. Both Regulation N o 1251/70 and Directive 75/34 are acts of secondary Community law '[13] The Court has held that the general intended to help to bring about such free- prohibition of discrimination on grounds of dom of movement. Therefore, the belated nationality laid down in Article 7 of the reference to those two measures did not EEC Treaty has been implemented by prejudice Ireland's rights. Besides, Ireland Article 52 of that Treaty in the specific has not raised any objection as to the admis- domain which it governs and that, conse- sibility of the action. quently, any rules incompatible with the latter provision are also incompatible with Article 7 of the Treaty (Commission v United Kingdom, paragraph 18). Article 7 of the
6 — Case C-221/89 The Queen v Secretary of Stau for Trans- port ex parte Factortame and Others [1991] ECR 1-3905. 7 — Case C-93/89 Commission v Ireland [1991] ECR 1-4569. 5. I can, I believe, be brief as to the 8 — Case C-246/89 Commission v United Kingdom [1991] substance of the case. It is immediately ECR 1-4585. 9 — Case C-334/94 Commission v France [1996] ECR 1-1307. apparent from the judgments of the Court, 10 — For the requirements in detail, sec the judgment in Com- to which the Commission refers, in the mission v France, cited above (footnote 9), paragraph 3.
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COMMISSION v IRELAND
EEC Treaty has become Article 6 of the [19] Finally, in so far as the French legisla- EC Treaty. tion requires legal persons owning vessels to have their seats in French territory and thus precludes the registration or management of a ship in the case of a secondary establish- ment such as an agency, branch or subsid- [14] In Factortame and Others the Court iary, it is contrary to Articles 52 and 58 of noted that, in exercising its powers for the the Treaty.' purpose of defining the conditions for the grant of its "nationality" to a ship, each Member State must comply with the prohi- bition of discrimination against nationals of Member States on grounds of their national- ity (paragraph 29) and that a condition which stipulates that where a vessel is owned 7. In relation to vessels not used in the or chartered by natural persons they must be course of an economic activity, the Court of a particular nationality and where it is held: owned by a company the shareholders and directors must be of that nationality is con- trary to Article 52 of the Treaty (paragraph 30).
'[21] Under Community law, every national of a Member State is assured of freedom both to enter another Member State in order to pursue an employed or self-employed activity and to reside there after having pur- sued such an activity. Access to leisure activi- ties available in that Member State is a corol- lary to that freedom of movement. [17] It follows that the French legislation restricting the right to register a vessel in the French register and to fly the French flag to vessels more than half the shares in which are owned by natural persons of French nationality is contrary to Articles 6 and 52 of the EC Treaty. The same applies to the [22] The registration by such a national of a requirement that a certain proportion of the leisure craft in the host Member State falls capital of certain legal persons owning ves- within the scope of the Community provi- sels must be controlled by French nationals sions relating to freedom of movement. and to the requirement that the actual con- trol or management must be in the hands of French nationals.
[23] French legislation under which only French nationals may register in France
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OPINION OF MR LENZ — CASE C-151/96
leisure craft of which they own more than Article 52 of the EC Treaty by referring to half the shares is therefore contrary to the wording of that provision, according to Articles 6, 48 and 52 of the Treaty, Article 7 which freedom of establishment for nationals of Regulation N o 1251/70 and Article 7 of of other Member States includes 'the right to Directive 75/34.' take up and pursue activities as self- employed persons...under the conditions laid down for its own nationals by the law of the country where such establishment is effected ...'. n The same is true for the other 8. In its defence, the Irish Government provisions on which the Commission founds accepted, as the Commission correctly this action. pointed out in its reply, that the claims made by the Commission are well founded. Admittedly, Ireland submitted at the same time that natural persons or companies from other Member States had the same right of 9. The hope expressed by the Irish Govern- access to Irish ports as Irish nationals. The ment in its defence that the legislation only difference was that they could not reg- needed to bring national law into line with ister their vessels in the Irish shipping regis- Community law would be enacted in the ter. As the Commission rightly stated in its foreseeable future shows that Ireland wishes reply, that argument must be rejected. In now to comply with its duties under Com- Factortame and Others, the Court rejected munity law, but that cannot affect the out- an equivalent submission in the context of come of this case.
10. I accordingly propose that the Court should declare that, by maintaining in force laws, regulations and administrative provisions which limit the right to regis- ter a vessel other than a fishing vessel in the Irish shipping register to a vessel which is owned in whole or in part by the Government, a Minister of State, an Irish citi- zen or an Irish body corporate, Ireland has failed to fulfil its obligations under Articles 6, 48, 52 and 58 of the EC Treaty, Article 7 of Regulation (EEC) N o 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State and Article 7 of Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued therein an activity in a self-employed capacity. I also pro- pose that Ireland should be ordered to pay the costs.
11 — Cited above (footnote 6), paragraph 25.
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