The Gazette 1983

GAZETTE

SEPTEMBER 1983

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.

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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194

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.

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,

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

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-