The Gazette 1985

GAZETTE

APRIL 1985

How EEC Law Affects Practitioners

Part III

Senator Mary Robinson, S.C.

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

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,

or where the

agricultural holding had been abandoned or left

uncultivated for more than two years.

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

Category of Qualified Person) Regulations 1983

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.

A different, but analagous, issue arose in

Robert Fearon

& Co. Ltd.

-v-

Irish Land Commission,

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:

"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