Peter Jägerskiöld v Torolf Gustafsson.

• Jurisdiction: European Union
• Celex Number: 61998CC0097
• ECLI: ECLI:EU:C:1999:315
• Docket Number: C-97/98
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 17 June 1999

Important legal notice

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61998C0097

Opinion of Mr Advocate General Fennelly delivered on 17 June 1999. - Peter Jägerskiöld v Torolf Gustafsson. - Reference for a preliminary ruling: Pargas tingsrätt - Finland. - Free movement of goods - Definition of "goods" - Angling rights - Freedom to provide services. - Case C-97/98.

European Court reports 1999 Page I-07319

Opinion of the Advocate-General

I - Introduction

1 This rather unusual case, referred for a preliminary ruling by a Finnish court, the Pargas Tingsrätten (District Court, Pargas, hereinafter `the national court'), raises the question whether national rules governing angling rights on private land can constitute restrictions on the free movement of goods or on the freedom to provide services which are contrary to the EC Treaty.

II - Legal and factual context

2 The present case arises from a dispute between Mr Jägerskiöld, the owner of waters in the commune of Kimito (hereinafter `the applicant'), and Mr Gustafsson (hereinafter `the defendant'), who in May 1997 fished with a spinning rod in the applicant's waters.

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 (hereinafter `the 1996 Law') changed the position by permitting (subject to exceptions not material to the present case) any person to engage in most forms of angling by rod, reel and bait and the like (2) even in privately owned waters, subject only to payment by anglers aged between 18 and 65 years of a licence fee, either annual or weekly, to the State for every department in which they fish. No licence fee is payable in respect of angling in public waters. (3) The defendant was licensed to fish in the applicant's 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 intended to promote fishing tourism and greater exploitation of fishing resources. The national court likens fishing licences to industrial property rights, which are also normally limited in their effects to a single national territory.

4 Article 89a of the 1982 Law, as amended by the 1996 Law, provides for the distribution among the owners of fishing waters, proportionately to the burden 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 than the market prices prevailing before the 1996 amendments and that, although water owners were still able to sell fishing permits in respect of their waters, sales had fallen sharply. The result was an effective 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 owners of the less attractive fishing waters.

5 The applicant sought a declaration from the national court that the defendant was 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 provide services. The defendant did not address the question whether there was any conflict between the national law and Community law. The national court referred the following questions to the Court for a preliminary ruling pursuant to Article 177 of the EC Treaty (now Article 234 EC):

`1. Are fishing rights or spinning licences "goods" in accordance with the judgment in Case 7/68 Commission v Italian Republic [1968] ECR 423?

2. Does the amendment in Finland of the Law on Fishing 1045/1996 constitute an obstacle to the free movement of goods according to the criteria laid down in Case 8/74 Dassonville [1974] ECR 837?

3. Does a leisure angler's recreational interest constitute a permissible ground under Article 36 of the European Community's basic treaty?

4. Does the present case involve agricultural products within the meaning of Article 37(4) of the Treaty of Rome?

5. Does the aforementioned legal rule have direct legal effect in accordance with the judgment in Case 6/64 Costa v ENEL?

6. Has sufficient account been taken of farmers' interests?

7. Does such an amendment of the Law on Fishing 1045/1996 concerning spinning contravene or not contravene the rules governing the free movement of goods (or the free provision of services) laid down in the European Community's basic treaty?'

III - Observations

6 Written and oral observations were submitted by the applicant, the Republic of Finland and the Commission. The defendant submitted oral observations only.

IV - Analysis

Admissibility

7 The Commission submits that the request for a preliminary ruling is inadmissible, inter alia because no real legal dispute exists: the order for reference states that the defendant did not address the Community-law issues, thereby indicating possible acquiescence. (4) Furthermore, the order for reference is alleged not to contain sufficient factual information or a sufficient explanation of the relevance of the Community-law issues raised by the national court. (5) Finland argues that the case has no cross-border element which would bring it within the scope of Community law. (6)

8 The doubts raised by the Commission have been amplified by the oral observations of the defendant which were all, in effect, critical of the licence regime. Although he formally contested the application, stating that the licence regime was lawful, and stated that he had an interest in knowing whether he had a right to engage in angling under the 1996 Law, he revealed that he too was a landowner with an interest in the private exploitation of fishing 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 renting holiday cottages to tourists, including 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 could engage in angling in such waters. This, he said, was the reason for his agreeing with the applicant on the necessity of seeking a preliminary ruling in the present case. He agreed with the applicant's submission that the method of distribution of licence fees among owners takes no account of the differing levels of use of the affected waters by anglers.

9 The Court addressed the consequences of a collusive national action resulting in a request for a preliminary ruling in the Foglia v Novello cases. (7) The national proceedings before the Italian courts concerned a French charge on the importation of wines, which was raised in the context of the enforcement of a clause, common to two interconnected contracts for the export and the transport of wine from Italy to France, providing that a specified party to each contract would not be liable for any charges should they be imposed contrary to Community law. In Foglia v Novello 1, the Court observed that the attitude of one...