C-97/98

JÄGERSKIÖLD V GUSTAFSSON

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 17 June 1999 *

I — Introduction 3. Prior to 1996, the right to engage in fishing and to license others to do so belonged to the owner of the waters. 1 Law No 1045 of 12 December 1996 (here- inafter 'the 1996 Law') changed the posi- tion by permitting (subject to exceptions not material to the present case) any person to engage in most forms of angling by rod, 1. This rather unusual case, referred for a reel and bait and the like 2 even in privately preliminary ruling by a Finnish court, the owned waters, subject only to payment by Pargas Tingsrätten (District Court, Pargas, anglers aged between 18 and 65 years of a hereinafter 'the national court'), raises the licence fee, either annual or weekly, to the question whether national rules governing State for every department in which they angling rights on private land can consti- fish. No licence fee is payable in respect of tute restrictions on the free movement of angling in public waters. 3 The defendant goods or on the freedom to provide services was licensed to fish in the applicant's which are contrary to the EC Treaty. waters. These changes were designed to serve the interests of recreational anglers, as demand was not being satisfied under the previous regime due to the fragmented ownership of waters. They were also inten- ded to promote fishing tourism and greater exploitation of fishing resources. The national court likens fishing licences to industrial property rights, which are also II— Legal and factual context

4. Article 89a of the 1982 Law, as amen­ '1. Are fishing rights or spinning licences ded by the 1996 Law, provides for the "goods" in accordance with the judg­ distribution among the owners of fishing ment in Case 7/68 Commission ν waters, proportionately to the burden Italian Republic [1968] ECR 423? borne, of the proceeds of licence sales, after deduction of the State's collection costs. No distribution had yet taken place at the time the order for reference was made, but the national court observed that the State licence fees were clearly lower 2. Does the amendment in Finland of the than the market prices prevailing before the Law on Fishing 1045/1996 constitute 1996 amendments and that, although an obstacle to the free movement of water owners were still able to sell fishing goods according to the criteria laid permits in respect of their waters, sales had down in Case 8/74 Dassonville [1974] fallen sharply. The result was an effective ECR 837? State monopoly. The applicant complains that there is no reliable mechanism to determine the actual level of fishing on each owner's property and that the system tends to reward disproportionately the 3. Does a leisure angler's recreational owners of the less attractive fishing waters. interest constitute a permissible ground under Article 36 of the European Com­ munity's basic treaty?

4. Does the present case involve agricul­ 5. The applicant sought a declaration from tural products within the meaning of the national court that the defendant was Article 37(4) of the Treaty of Rome? not entitled to fish in his waters without his permission. He claimed that the 1996 Law infringed the rules on the freedom of movement of goods contained in the Treaty establishing the European Community and, in the alternative, those on the freedom to 5. Does the aforementioned legal rule provide services. The defendant did not have direct legal effect in accordance address the question whether there was any with the judgment in Case 6/64 Costa ν conflict between the national law and ENEL?

IIΙ — Observations 8. The doubts raised by the Commission have been amplified by the oral observa­ tions of the defendant which were all, in effect, critical of the licence regime. 6. Written and oral observations were Although he formally contested the appli­ submitted by the applicant, the Republic cation, stating that the licence regime was of Finland and the Commission. The lawful, and stated that he had an interest in defendant submitted oral observations knowing whether he had a right to engage only. in angling under the 1996 Law, he revealed that he too was a landowner with an interest in the private exploitation of fish­ ing rights and in the provision to angling tourists of ancillary services such as holiday accommodation. He observed that it could have an effect on the economic activity of IV — Analysis renting holiday cottages to tourists, includ­ ing those coming from abroad. It was important to know if he could offer fishing opportunities on his property to tourists in the future, as well as to know if he himself Admissibility could engage in angling in such waters. This, he said, was the reason for his

7. The Commission submits that the 4 — Joined Cases C-422/93 to C-424/93 Zabala Erasun and request for a preliminary ruling is inadmis­ Others [1995] ECR I-1567. 5 — Case C-167/94 Grau Gomis and Others [1995] sible, inter alia because no real legal dispute ECR 1-1023; Case C-196/96 Lahlou [1996] ECR 1-3945. exists : the order for reference states that the 6 — Case C-260/89 ERT [1991] ECR I-2925, paragraph 42; Case C-299/95 Kremzow v Austrian State [1997] defendant did not address the Community- ECR 1-2629, paragraph 15.

9. The Court addressed the consequences of a collusive national action resulting in a 10. In Foglia ν Novello 2, the Court elabo­ request for a preliminary ruling in the rated on the reasons for this conclusion. Foglia ν Novello cases. 7 Thenational Whilst the Court must, in the light of its proceedings before the Italian courts con­ relationship of cooperation with the cerned a French charge on the importation national court, be able to place as much of wines, which was raised in the context of reliance as possible on the assessment by the enforcement of a clause, common to the latter of the need for a response to the two interconnected contracts for the export questions submitted, it must, none the less, and the transport of wine from Italy to be able to check whether it has jurisdiction; France, providing that a specified party to it could not, therefore, remain indifferent each contract would not be liable for any to such assessments in the exceptional cases charges should they be imposed contrary to where these might affect the proper work­ Community law. In Foglia ν Novello 1, the ing of the preliminary ruling procedure. In Court observed that the attitude of one particular, it had no jurisdiction to give party in the national proceedings had been advisory opinions on general or hypothe­ neutral, that he had stated in the oral tical questions; its role was to assist in the proceedings before the Court that he was administration of justice in the Member participating in view of the interest of a States. 10 certain category of traders in the outcome of the case and that the parties had both argued before the Court that the French legislation at issue, of which they gave essentially identical descriptions, was con­ trary to Community law. 8 The Court concluded that the national proceedings, between parties who were in agreement as 11. The connection between lack of juris­ to the result to be attained, were an diction in cases of collusive or orchestrated artificial expedient. Giving a ruling in such actions and the wider rule against the delivery of advisory opinions on general

'only in cases where either it appears that the procedure of Article 177 of the Treaty has been misused and been resorted to, in fact, in order to elicit a ruling from the Court by means of a spurious dispute or if it is obvious that the provisions of Com- 13. The primary role of the national court munity law submitted for the interpretation in determining the need for a preliminary of the Court cannot apply.' 12 ruling in any given case and the corre- sponding obligation in principle of the Court to give a ruling leads me to conclude that the stated requirement that the general or hypothetical nature of questions be

utmost caution. It is possible to entertain doubts about the genuineness of the dispute 11 — Circumstances where a request for a preliminary ruling in the present case, but there is, in my view, only becomes hypothetical in the course of the proceed- ings, because one party to the national proceedings insufficient evidence to support a conclu- concedes to the other on the subject-matter of the dispute, sion that the proceedings are obviously as occurred in Zabala Erasun, loc. cit., seem to me to be a distinct case of the application of this general rule. artificial or collusive. Although the obser-

The requirement action should be rejected. Advocate General Tesauro that the lack of such a relationship be obvious was first set expressed the view, at paragraph 5 of his Opinion, that out in Case 126/80 Salonia v Poidomani and Giglio [1981] the proceedings had been visibly orchestrated by the ECR 1563, paragraph 6, and was repeated in a number of applicant, leading to doubts as to the very existence of a cases in the intervening period. It can be presumed that the

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OPINION OF MR FENNELLY — CASE C-97/98

directly on the Community-law issues fishing rights or licences are 'goods' for the raised in this case, he has formally con­ purposes of Article 30 of the EC Treaty tested the case and he has affirmed that he (now, after amendment, Article 28 EC). has an interest in the outcome qua angler as well as qua landowner, an assertion which is not contradicted by the evidence. 17 The fact that the parties agreed on the need for a reference is not inconsistent with the existence of a dispute as to the proper interpretation of the Community-law rules at issue. As a result, I do not recommend that the request for a preliminary ruling be held to be inadmissible on this ground.

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JÄGERSKIÖLD V GUSTAFSSON

who are, for the most part, farmers. If the which are compatible with that policy.21 case is seen as concerning the sale of fishing Finally, no possible effect on intra-Com- permits rather than the right of property in munity trade has been established by the fishing rights as such, the applicant argues, applicant 22 and the protection of property in the alternative, that the rules constitute a rights as part of the fundamental rights new restriction on the provision of services, guaranteed under the general principles of contrary to Article 62 of the EC Treaty Community law does not extend to situa- (repealed by the Treaty of Amsterdam). The tions which themselves fall outside the case is not governed by Article 222 of the scope of Community law. 23 EC Treaty (now Article 295 EC), because the Finnish constitutional committee held that the 1996 amendments did not infringe private ownership rights.

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ment which can be traded. The Community 20. Goods, in the common connotation of has not exercised its competence to extend the term, possess tangible physical charac­ the common fisheries policy to recreational teristics. The Treaty contains separate pro­ freshwater fishing, which, thus, remains visions in respect of the free movement of within the competence of national legisla­ goods and services. In those cases where the tures. The Commission states that a person, Court has had to resolve the issue, it has such as a tourist, who purchases the right to followed a functional approach and has fish in waters in another Member State can avoided an exhaustive definition. A televi­ be considered to be the recipient of a cross- sion signal 'must, by reason of its nature, be border service. 2 5However, no such cross- regarded as provision of services'. 2 7Lot­ border element can be identified in the tery activities also essentially involve the present case. provision of services; the sending of tickets, advertising material and application forms not being 'ends in themselves'. 2 8On the other hand, waste, whether recyclable or not, constitutes goods, as 'objects which are shipped across a frontier for the purposes of commercial transactions are subject to Article 30, whatever the nature of the transaction'. 2 9It might, therefore, appear

19. It seems to me to be beyond doubt that the angling-licence regime established by the 1996 Law does not fall within the scope of the Treaty provisions on goods. The definition of goods in Case 7/68 Commis­ sion ν Italy as 'products which can be valued in money and which are capable, as such, of forming the subject of commercial 2 transactions' 6cannot be understood as placing in that category anything of value which is capable of being traded. That definition, it should be recalled, was for­ mulated in response to an argument that articles of an artistic, historical, archaeolo­ gical or ethnographic nature were not subject to Treaty provisions, which were alleged only to apply to 'ordinary merchan­ dise'. The Court was also careful to employ the term 'products'.

21. I do not think that the analogy with intellectual property rights assists the appli- cant's case. It is true, of course, that a variety of intellectual property rights may affect trade in goods: patent, copyright and trademark law all play such a role. How- ever, Community law does not classify intellectual property rights themselves as a form of goods. On the contrary, in Phil Collins and Others it treated them as 22. The activity of granting to others the having a character sui generis, which none right temporarily to use land or waters for the less fell within the scope of the Treaty leisure purposes seems to me clearly to because of their.economic effects: constitute the provision of a service which, if supplied to persons established in another Member State, would come within the Treaty provisions on services. It can be readily compared to the hiring out of sporting facilities, of hotel accommodation, or of other rights in respect of the tempor- ary enjoyment of immovable property. 32 'It follows that copyright and related rights, The fact that goods — fish — may result which by reason in particular of their from the transaction is immaterial, as many effects on intra-Community trade in goods services can be provided as inputs in the and services, fall within the scope of process of producing goods. application of the Treaty, are necessarily subject to the general principle of non- 31 —Joined Cases C-92/92 and C-326/92 [1993] ECR I-5145, paragraph 27. 32 — See, for example, Case C-70/95 Sodemare and Others v 30 — Almelo, loc. cit.; Case C-158/94 Commission v Italy Regione Lombardia [1997] ECR I-3395, paragraphs 36 to [1997] ECR I-5789, paragraphs 14 to 20. 40.

24. It is not in dispute that both the applicant and the defendant are established in Finland. The Court has consistently held that the provisions of the Treaty on free­ dom to provide services cannot apply to 25. Furthermore, there seems to be no activities whose relevant elements are con­ reason, in this context, to reconsider the fined within a single Member State. 3 3 Court's consistent approach to standing to Although the arguments of the parties in invoke the services provisions of the Treaty the present case have addressed the possi­ in the light of its ruling in Pistre and bility that the 1996 Law affects the ability Others, which revised the traditional of landowners to provide to non-Finnish approach to standing on the part of certain tourists the service of permitting angling on domestic producers to invoke the Treaty their waters as well as ancillary accommo­ rules on free movement of goods in respect dation and other services, the present case of national rules which created a difference does not concern a transaction with such a in treatment as between domestic and cross-border character. Thus, the proceed­ imported goods, to the detriment of the ings display no link with any of the latter. 3 5Without it being necessary to situations envisaged by the Community- determine whether the indistinctly applic­ law rules on the free provision of services. able provisions of the 1996 Law at issue in That finding cannot be invalidated by the the present case are capable of constituting theoretical possibility of a dispute similar restrictions on the freedom to provide to the present arising in circumstances services, it is clear that no such difference where a non-Finnish angler fished in the in treatment arises in the present case.

(2) The provisions of the EC Treaty governing the freedom to provide services do not apply to a situation which is confined in all respects within a single Member State.

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