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Summary of the Judgment
Summary of the Judgment
Judgment of the Court of 14 December 1989.
The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Agegate Ltd.
Reference for a preliminary ruling: High Court of Justice, Queen's Bench Division - United Kingdom.
Fishing - Licences - Conditions.
1.Fishing - Common structural policy - Conservation of the resources of the sea - Fishing quota system - Regulation by a Member State of the use of its quotas - Grant of licences - Composition of crews of vessels registered in that State - Minimum proportion of Community citizens - Requirement to be paying contributions to the national social security scheme - Whether permissible - Requirement to reside ashore in the Member State concerned - Not permissible - Whether individuals may rely on the relevant provisions of Community law before the national court
( Council Regulation No 1408/71, Arts 13(2)(c ) and 14C, No 101/76, Art . 2(1 ), No 170/83, Art . 4, and No 172/83 )
2.Free movement of persons - Worker - Concept - Existence of an employment relationship - Criteria of assessment - Persons paid a "share" - Included
( EEC Treaty, Art . 48 : 1985 Act of Accession, Art . 55 )
3.Accession of new Member States to the Communities - Spain - Free movement of persons - Workers - Exemptions - Strict interpretation - Prohibition of the introduction of new restrictions regarding access to employment - Restrictions relating to employment on board fishing vessels - Whether permissible - Conditions
( 1985 Act of Accession, Arts 55 and 56(1 ); Regulation No 1612/68 of the Council, Arts 1 to 6 ).
1.Community law does not preclude a Member State, in issuing to one of its vessels a licence authorizing it to fish against national quotas, from requiring that 75% of the crew of the vessel must be nationals of the Member States of the Community and that its skipper and all the crew must be making contributions to the social security scheme of that State, provided that the obligation to be making contributions is in conformity with the conflict rules laid down in Regulation No 1408/71 regarding the application of national legislation . However, Community law, which individuals may rely on in the present case before the national court, precludes a Member State from requiring for that purpose that 75% of the crew should reside ashore in that State .
2.The concept of worker, within the meaning of both Article 48 of the Treaty and Article 55 of the 1985 Act of Accession, must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned . The essential feature of an employment relationship is that for a certain period of time a person performs services for, and under the direction of, another person in return for which he receives remuneration . In order to determine whether such a relationship is absent, it is necessary to take into account all the factors and circumstances characterizing the arrangements between the parties, such as, for example, the sharing of the commercial risks of the business, the freedom for a person to choose his own working hours and to engage his own assistants . The sole fact that a person is paid a "share" and that his remuneration may be calculated on a collective basis is not of such a nature as to deprive that person of his status of worker within the meaning of the aforesaid provisions .
3.Articles 55 and 56(1 ) of the Act of Accession of Spain, being a derogation from the principle of the free movement of workers laid down in Article 48 of the Treaty, must be interpreted strictly . Accordingly, whilst the old Member States are authorized to maintain existing restrictions in regard to Spanish nationals, they may not in any circumstances during the transitional period make more stringent the conditions governing the taking-up of employment by those persons . Therefore, those articles, on which individuals may rely before a national court, do not preclude national legislation or a national practice whereby Spanish workers are excluded, until 1 January 1993, from 75% of the crew of vessels of another Member State, provided that such a restriction, introduced after the 1985 Act of Accession, does not in any circumstances make the position of Spanish workers more unfavourable and that the restriction does not concern Spanish workers already employed at the time of accession as workers on the territory or aboard a vessel of that Member State where the employment relationship displays a sufficiently close link with that territory .