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.
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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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.
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-