C-151/96

Ireland, represented by Michael A. Buckley, Chief State Solicitor, acting as Agent, with an address for service in Luxembourg at the Irish Embassy, 28 Route d'Arlon,

defendant,

A P P L I C A T I O N for a declaration that, by maintaining 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 vessel which is owned in whole or in part by the Government, a Minister of State, an Irish citizen or an Irish body corporate, Ireland has failed to comply with Articles 6, 48, 52 and 58 of the EC Treaty, Article 7 of Commission Regulation (EEC) N o 1251/70 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 (OJ 1970 L 142, p . 24) and Article 7 of Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a Member

* Language of the case: English.

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JUDGMENT O F 12. 6. 1997 — CASE C-151/96

gives the following

Judgment

1 By application lodged at the Court Registry on 6 May 1996, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by maintaining 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 vessel which is owned in whole or in part by the Government, a Minister of State, an Irish citizen or an Irish body corporate, Ire- land has failed to comply with Articles 6, 48, 52 and 58 of the EC Treaty, Article 7 of Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed

I - 3334

COMMISSION v IRELAND

in that State (OJ 1970 L 142, p. 24) 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 (OJ 1975 L 14, p. 10).

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JUDGMENT OF 12. 6. 1997 — CASE C-151/96

(b) ships which are wholly owned by persons being citizens of Ireland (hereinafter referred to as Irish citizens) or Irish bodies corporate and are not registered under the law of another country;

(c) other ships registered or deemed to be registered under this Act.'

4 Section 16 provides:

• 'Subject to section 19 of this Act respecting reciprocating States, the following shall alone be qualified to own a registered ship or a share therein:

COMMISSION v IRELAND

6 As to the former, it claims that, by restricting the right to be registered in the Irish register and to fly the Irish flag to vessels which are owned or shared by the Gov- ernment, a Minister of State, an Irish citizen or an Irish body corporate, sections 9 and 16 of the Mercantile Marine Act discriminate on grounds of nationality, con- trary to Article 52 of the Treaty. According to the Commission, the same applies to the requirement under section 2 of the Act in conjunction with section 9 that companies owning vessels registered in Ireland must be established under and sub- ject to Irish law and have their principal place of business in Ireland. It relies in that regard on the judgments in Case C-221/89 The Queen v Secretary of State for Transport ex parte Factortame and Others [1991] ECR 1-3905, in Case C-93/89 Commission v Irefønd [1991] ECR 1-4569, in Case C-246/89 Commission v United Kingdom [1991] ECR 1-4585 and in Case C-334/94 Commission v France [1996] ECR 1-1307.

7 The Commission also considers that the requirement under sections 2 and 9 of the Act impedes the freedom of establishment of companies fulfilling the conditions laid down in Article 58 of the Treaty. Furthermore, the argument that registration is not needed in order to exercise the right of establishment was expressly rejected in Factortame and Others, at paragraph 25.

s As regards vessels not used to pursue an economic activity, the Commission considers that, although registration of a pleasure craft does not concern condi- tions of employment in the strict sense, the opportunity for Community nationals to pursue leisure activities in the host Member State is a corollary of their right to freedom of movement under Articles 48 and 52 of the Treaty, which prohibit all discrimination on grounds of nationality. Under Article 7 of Regulation N o 1251/70 and Article 7 of Directive 75/34, the same holds for persons entitled

io As regards the admissibility of the action which Ireland has not contested, it was only in its reasoned opinions that the Commission first complained that Irish leg- islation was contrary to Article 7 of Regulation N o 1251/70 and Article 7 of Directive 75/34. Nevertheless, as the Advocate General has stated in point 4 of his Opinion, the letters of formal notice identified to a sufficient extent the alleged failure by Ireland to fulfil its obligations, namely that it had retained certain provi- sions of the Mercantile Marine Act which were incompatible with the Treaty pro- visions relating to freedom of movement for persons. Those letters thus informed the Irish Government of the nature of the complaints against it and gave it the opportunity to submit its defence (see, to this effect, Case C-289/94 Commission v Italy [1996] ECR 1-4405, paragraph 17). Accordingly, this action is admissible in so far as it relates to infringement of Article 7 of Regulation N o 1251/70 and Article 7 of Directive 75/34.

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COMMISSION v IRELAND

ii As to the substance, it suffices to note that in Commission v France, cited above, the Court examined whether legislation similar to the Irish legislation at issue was compatible with Community law.

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JUDGMENT OF 12. 6. 1997 — CASE C-151/96

i4 It follows that registration by such a national of a pleasure craft in the host Mem- ber State falls within the scope of the Community provisions relating to freedom of movement for persons (Commission v France, paragraph 22).

is Irish legislation under which only Irish nationals may register in Ireland pleasure craft which they own is therefore contrary to Articles 6, 48 and 52 of the Treaty, Article 7 of Regulation N o 1251/70 and Article 7 of Directive 75/34 (Commission v France, paragraph 23).

i6 Consequently, it must be held that, by maintaining in force laws, regulations and administrative provisions which limit the right to register a vessel other than a fish- ing 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 citizen or an Irish body cor- porate, Ireland has failed to comply with Articles 6, 48, 52 and 58 of the Treaty, Article 7 of Regulation N o 1251/70 and Article 7 of Directive 75/34.

Costs

1. Declares that, by maintaining in force laws, regulations and administrative provisions which limit the right to register a vessel other than a fishing ves- sel 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 citizen or an Irish body corporate, Ireland has failed to comply with Articles 6, 48, 52 and 58 of the EC Treaty, Article 7 of Commission Regulation (EEC) N o 1251/70 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;

2. Orders Ireland to pay the costs.

Moitinho de Almeida Gulmann Puissochet

Jann Wathelet

Delivered in open court in Luxembourg on 12 June 1997.

R. Grass J. C. Moitinho de Almeida