The Gazette 1985

GAZETTE APRIL 1985 How EEC Law Affects Practitioners Part III

by Senator Mary Robinson, S.C.

Category of Qualified Person) Regulations 1983 5 which extended the category to: " . . . a person who is a citizen of a Member State of the European Communities and who — (a) is exercising in the State the right of establish- ment as a self-employed person under Article 52 of the EEC Treaty (within the meaning of the European Communities Act, 1972 (No. 27 of 1972), by way of an economic activity the nature of which is specified in the relevant certificate given by that person under sub- section (3) of the said section 45, and (b) is acquiring an interest in land to which the said section 45 applies for the purpose of or in connection with such exercise of that right". Soon afterwards the Commission withdrew the action against Ireland for infringement of Article 52. It should be noted, however, that S.1.144 of 1983 confined the extension of a "qualified person" to an individual who was a national of another Member State, which meant that the consent requirement continued to apply to companies registered in other Member States who wished to acquire land in Ireland. This in effect placed them on the same footing as Irish registered companies, which must also obtain consent under s.45 of the 1965 Act, and it is unlikely that this restriction would be held to infringe the EEC provisions relating to freedom of establishment. 6 A different, but analagous, issue arose in Robert Fearon & Co. Ltd. -v- Irish Land Commission, 1 which had been referred by the Supreme Court to the Court of Justice under Article 177, and on which that court gave judgment on 6 November 1984. The plaintiff company was an Irish registered company, but the shareholders were British nationals. The company had purchased land in Cavan in the early 60s, and in 1977 the Land Commission sought to compulsorily acquire part of the land. It contended that the shareholders concerned did not qualify to be exempted as they had not satisfied the residence require- ments in s.35 of the Land Act 1965, which specified that where land was owned by a body corporate each of the persons entitled to a beneficial interest in the body corporate must have, throughout the whole of the qualifying period, resided either on the land or within three miles of it. The Supreme Court submitted the following question to the Court of Justice:

Rights under Community Law: Their Enforceability in the Irish Courts The Right of EEC Nationals to acquire land in Ireland One politically sensitive area which arose at the time of Ireland's accession to the European Communities was the question of whether EEC nationals would be able to acquire Irish land, in particular Irish agricultural land. Under Article 54(3Xe) it was a requirement of the general programme on right of establishment that nationals of one Member State should be able to acquire and use land and buildings situated in the territory of another Member State in so far as this did not conflict with the principles underlying the CAP. The general programme envisaged the adoption of directives to achieve full freedom of establishment, and by 1970 five directives 1 had been adopted whose overall effect was to enable certain categories of nationals in one Member State to acquire agricultural land in another. These categories included nationals of another Member State who had been employed as paid agricultural workers in the country for two years, 2 or where the agricultural holding had been abandoned or left uncultivated for more than two years. 3 Limited as they were, the provisions of these directives conflicted with s.45 of the Land Act 1965, which would not have recognised these categories as being "qualified persons" and would therefore have required them to obtain the consent of the Land Commission and thus discriminated against them on the basis of nationality. The necessary adaptation to comply with the requirements of Contfhunity law was achieved by way of a statutory instrument of quite extraordinary obscurity: the Land Act, 1965 (Additional Categories of Qualified Persons) Regulations 1972 (S.I. No. 332 of 1972) which came into effect on 1 January 1973. This extended the definition of "qualified person" in section 45 of the Land Act 1965 to include the categories covered by the five Council Directives, but did not spell out what their precise effect might be. As a consequence, there was very little public debate at that time on the whole question of acquisition by EEC nationals of Irish land. Although it was envisaged at the time of accession that any extension of the categories of qualified persons would be achieved by way of further directives, this was changed dramatically in 1974 by the judgment of the Court of Justice in the Reyners Case , and would require to be amended in order to afford equal treatment to EEC nationals. When friendly persuasion failed, the Commission finally lost patience and commenced proceedings against Ireland under Article 169 of the Treaty in December 1982. Then, before the case had come on for hearing, the Minister for Agriculture adopted a new statutory instrument, the Land Act, 1965 (Additional

"Where a statute of a Member State contains a condition requiring that a person (other than a body corporate) who owns land should have resided on it for a certain period, if the owner of the land is a 85