The Gazette 1983

GAZETTE

SEPTEMBER 1983

right of establishment. But does it go far enough? We submit that it does not. In the first place, the second paragraph of Art.52 EEC states that "freedom of establishment shall include the right to take up and pursue activities as self-employed persons". A literal interpretation of this section would seem to suggest that the right of establishment is not the exclusive right of the self-employed; the difficulty with paragraph 2(a) of S.I. 144 is that it appears to state that it is only a person who is a citizen of a Member-State and who is exercising in the State the right of establishment as a self-employed person under Art.52 EEC who is entitled to be a "qualified person" for the purposes of S.45 of the Land Act. Thus it may be unduly restrictive in its effect. In the second place, a citizen of a Member-State of the European Communities is obliged to specify the economic activity in which he intends to engage pursuant to the exercise of his right of establishment. There is no such comparable obligation on an Irish citizen imposed by S.45, yet the second paragraph of Art.52 EEC states that "freedom of establishment shall include the right to take up and pursue activities as self- employed persons.... under the conditions laid down for its nationals by the laws of the country where such establishment is effected". Since there is no condition in S.45 or elsewhere requiring an Irish citizen to state anything other than the fact that he is an Irish citizen, there would appear to be a clear discrimination between the obligations imposed on an Irish citizen and those imposed on his European counterpart. Having regard to the second paragraph of Art.52 EEC and in view of what we have said above, we do not feel that this discriminat- ion can be justified. If it cannot, then the State is still in breach of its obligations. 19 Finally, the Instrument limits (erroneously in our view) the right of establishment in general to persons who are citizens of Member-States of the European Communities and who fulfill the criteria set out in the body of the Instrument. There is no reference whatever to. nor any provision for. the right contained in paragraph two of Art.52 EEC, to "set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Art.58, 20 under the conditions laid down for it's own nationals by the law of the country where such establishment is effected...". The present position in respect of the purchase of land by ordinary limited liability companies, whether Irish or foreign and whether public or private is that the consent of the Land Commission in writing to the transaction is required. The essence of the machinery of S.45 is that it confers on the Land Commission the power to refuse such consent for whatever reason it thinks fit. While there can be no apparent question of discrimination in these circumstances since a refusal could in theory apply equally to an Irish company as to a company registered in another Member-State, Art.52 in our view does not permit the State to go so far as to exercise a veto in relation to the express right of a company registered in a Member-State of the EEC to purchase land in the State in pursuance of its right of establishment. The fact that Irish registered companies are equally obliged to obtain Land Commission consent and are subject to the same power of veto, does not relieve the State of its obligations; the proper view of Art.52 is that it only con-

the land at a later date. It is clear that the restriction contained in S.45 in so far as it affects natural persons, is based solely on grounds of Nationality. Although the purpose of the Section was to prevent agricultural land being acquired by non-nationals, the effect of the Section is to subject the guaranteed economic freedom of EEC nationals to a degree of scrut- iny and control which is inconsistent with our Treaty obligations". The invidious nature of this discrimination was im- pliedly recognised by the State in 1972 when it passed the Regulation of that year referred to above which created new categories of "qualified persons" within the meaning of S.45. But the decision in the Reyners Case and subsequent cases truncated the Council's legislative programme and removed the necessity for implement- ing legislation by Member-States. Prior to the introduction of S.I. 144 of 1983 the logical conclusion was that an EEC national "who was acquir- ing land in pursuance of the exercise of his right of establishment" did not require Land Commission con- sent to obtain a valid title to the land and S.45(2)(a) of the Land Act was void and of no effect in so far as it puported to render the vesting of land in such a person a nullity without the consent of the Land Commission in writing. 18 S.I. 144 of 1983 The question must now be asked: Does S.I. 144 adequately discharge our Treaty obligations? Arguably, it goes some of the way towards remedying what was, on the face of it, a discriminatory interference with the guaranteed rights of EEC nationals to exercise their

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