C-3/76

on the interpretation of Articles 30, 31, 34, 38 to 47 of the said Treaty, of Article 102 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties and, finally, Regulation (EEC) No 2141/70 of 20 October 1970 laying down a common structural policy for the fishing industry and Regulation No 2142/70 of 20 October 1970 on the common organization of the market in fishery products (OJ, English Special Edition 1970 (III), pp. 703 and 707 respectively)

THE COURT

composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, J. Mertens de Wilmars, P. Pescatore, M. Sørensen and F. Capotorti, Judges, Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

gives the following

KRAMER

The facts of this case, the judgments and whether it is only the Community making the orders for reference, the institutions which have the power to proceedure and the written observations enter into international agreements in submitted under Article 20 of the this field. Protocol on the Statute of the Court of Justice of the EEC may be summarized 1. Texts to be taken into consideration as follows: A — On 24 January 1959 several European States including the present I — Facts and procedure Member States of the EEC, with the exception of the Grand Duchy of Criminal proceedings have been Luxembourg and Italy, and the Union of instituted before the Arrondissements­ Soviet Socialist Republics and Poland rechtsbanken of Zwolle and Alkmaar signed the NEAFC in London (United against certain Netherlands fishermen Nations, Treaty Series, Vol. 486 No who are accused of having infringed the 7078). In the preamble to this rules enacted by the Netherlands with a Convention, which entered into force on view to limiting the catches of sole and 25 June 1963, the States Parties to this plaice. These rules had been adopted on Convention state that they desire 'to the basis of the provisions of the ensure the conservation of the fish stocks North-East Atlantic Fisheries Con­ and the national exploitation of the vention which is hereinafter called 'the fisheries of the North-East Atlantic NEAFC'. The abovementioned courts Ocean and adjacent waters, which are of have referred to the Court questions common concern to them'. The relating to the interpretation of Articles Convention inter alia, the contains, 30, 31, 34, 38 to 47 of the EEC Treaty, of following provisions, it being understood Articles 102 of the Act concerning the that subparagraphs (g) and (h) of Article 7 Conditions of Accession and the (1), adopted in May 1970, in accordance Adjustments to the Treaties — which is with the procedure laid down in Article 7 part of the Treaty of Accession by virtue (2), did not enter into force until 4 June of Article 1 thereof and is hereinafter 1974. called 'the Act of Accession' — and also Regulation (EEC) No 2141/70 of the Article 7 Council of 20 October 1970 laying down a common structural policy for the (1) The measures relating to the fishing industry and Regulation (EEC) objectives and purposes of this No 2142/70 also of 20 October 1970 on Convention which the Commission the common organization of the market — the North-East Atlantic Fisheries in fishery products (OJ, English Special Commission established under

(a) — (f) … adopted various recommendations in (g) any measures for the regulation of November 1974 including the following the amount of the total catch and recommendation which applies to its allocation to contracting States fishing for sole and plaice that in any period; and — it should fix the total quotas of fish (h) any measures for the regulation of and inter alia of sole and plaice in the amount of fishing effort and the North Sea for 1975; its allocation for any period. — it should subdivide these quotas into (2) Measures for regulating the amount individual quotas for Belgium, of total catch, or the amount of Denmark, France, the Federal Re­ fishing effort in any period, or any public of Germany, the Netherlands, other kinds of measures for the the United Kingdom respectively and purpose of the conservation of the one single quota for the 'others'; in fish stocks in the Convention area, particular the Netherlands were may be added to the measures listed allocated quotas of 9 200 and 47 000 in paragraph (1) of this article on a tonnes for sole and plaice proposal adopted by not less than a respectively; two-thirds majority of the — it should define the areas to which Delegations present and voting and these rules apply and which cover not subsequently accepted by all only the territorial waters of the Contracting States in accordance with States which are Parties to the their respective constitutional Convention but also a large area of procedures. the high seas; — it should prevent ships of more than Article 8 50 tonnes burden and developing more than 300 hp from trawling in (1) Subject to the provisions of this the 'coastal waters' of Belgium, the Article, the Contracting States under­ Netherlands, the Federal Republic of take to give effect to any Germany and of the Western part of recommendation made by the Denmark, while allowing 10 % of the Commission under Article 7 of this weight of fish landed as a result of Convention and adopted by not less fishing for other kinds of fish to than a two-thirds majority of the consist on each landing of sole and Delegations present and voting. plaice; — it defines the expression coastal Article 13 waters' as an area extending up to a distance of 12 miles from the base (1) Without prejudice to the sovereign lines from which territorial waters are rights of States in regard to their measured. territorial and internal waters, each Contracting State shall take in its territories and in regard to its own B — On the strength of these recommendations the Netherlands nationals and its own vessels appropriate measures to ensure the authorities adopted a series of measures application of the provisions of this the object of which was to restrict the Convention and of the recommen­ fishing for plaice and sole: dations of the Commission which have become binding on that As provided for in Article 2 of the Contracting State and the 'Beschikking vangstbeperking tong en punishment of infractions of the said schol 1975' (Decree of the Netherlands provisions and recommendations. Minister for Agriculture and Fisheries of 25 February 1975, which is hereinafter Pursuant to subparagraphs (g) and (h) of referred to as 'the BV' and which entered Article 7 (1) the Fisheries Commission into force on 2 March 1975),

'during the period commencing at 00.00 Article 8 hrs on the day when this decree enters into force and ending at 24.00 hrs on 31 December 1975 fishing for sole and (3) From 21 July 1975 fishing for sole plaice shall be prohibited in including the voyage to and from the fishing grounds shall be authorized (a) The North Sea for each of the first two Saturdays of a four-week period only with a (b) The English Channel sea-going vessel whose registration (c) The Bristol Channel number, under which it is registered (d) The Irish Sea.' in accordance with the order relating to the registration of fishing vessels, has a letter followed by an uneven However the first paragraph of Article 3 number. of the BV provides an exception in that (4) The shipowner or fisherman shall be in the North Sea Netherlands fishermen deemed to have gone to sea to fish are allowed to catch 9 200 tonnes of sole for sole if the weight of the soles on and 47 000 tonnes of plaice, these board the vessel exceeds 10 % of the quantities being reduced by the weight of the total catch of this boat, quantities already caught in 1975 before or if this weight exceeds 300 kg. the entry into force of the decree. This exception however does not apply to Article 11 fishing 'in coastal waters from vessels of more than 50 tonnes (third burden with an engine rating exceeding 300 hp.' (the (1) Sole may not be landed from a vessel, second paragraph of Article 3); under BV in respect of which proceedings have 'coastal waters' means the waters been taken for infringement of the which are within 12 nautical miles provisions of Article 8. at the most from the base-line (Article (1)). C — (a) Regulations Nos 2141/70 and On the basis of the BV the 2142/70 of the Council, which were 'Produktschap voor Vis en Visprodukte', repealed and replaced by Regulations an organization governed by public law Nos 100/76 and 101/76 (OJ, 1976, L 20 for the fishing industry and fishery pp. 1-19) after the events giving rise to products, adopted on 20 March 1975 the the present disputes include, inter alia, 'Verordening beperking visserij op tong the following recitals and provisions: en schol 1975' (a regulatory decree hereinafter called 'the VB') Article 3 Regulation No 2141/70 adopted pursuant whereof authorizes the President of this to Articles 7, 42, 43 and 235 of the body to adopt implementing measures in Treaty: this field. — recites inter alia: — 'Whereas the establishment of a The President made use of this common organization of the authorization by adopting on 24 April market in fishery products must 1975 the 'Uitvoeringsbesluit beperking be supplemented by the estab­ visserij op tong en schol 1975', an order lishment of a common structural having the same object as the regulations policy for the fishing industry' mentioned above and hereinafter called (first recital): 'the UB'. The version of this order which — 'Whereas sea fisheries form the was in force at the material time in Case most important part of the fishing 3/76 contains inter alia the following industry as a whole; whereas they provisions: have their own social structure

and fish under special conditions' for the fishing industry', the (second recital); Commission being able to 'express its — 'Whereas . . . Community fisher opinion' on such provisions (Article men must have equal access to 11); and use of fishing grounds in — sets up a 'Standing Committee for the maritime waters coming under Fishing Industry which shall be the sovereignty or within the required inter alia 'to ensure that jurisdiction of Member States . . .' Member States and the Commission (third recital); are kept mutually informed of — 'Whereas the Community must structural policies and in particular of be able to adopt measures to measures governing sea fishing' and safeguard the stocks of fish 'to study structural policies of present in the waters in question' Member States' (Articles 12 and 13). (fourth recital); Regulation No 2142/70 adopted on the — states that 'Common rules shall be basis of Articles 42 and 43 of the Treaty: laid down for fishing in maritime — recites inter alia that: waters' in order, inter alia, 'to — 'the operation and development encourage rational use of the of the common market in biological resources of the sea and agricultural products must be inland waters' (Article 1); accompanied by the establish — provides that except in the case of ment of a common agricultural 'certain fishing grounds situated policy; and the latter must within a limit of three nautical miles' include in particular a common (Article 4) 'Rules applied by each organization of agricultural Member State in respect of fishing in markets, which may take various the maritime waters coming under its forms depending on the products sovereignty or within its jurisdiction' concerned' (first recital); that is to say 'those which are so — 'the fishing industry is of special described by the laws in force in each importance to the agricultural Member State' — 'shall not lead to economy of certain coastal differences in treatment of other regions of the Community; that Member States', and that 'Member industry provides a major part of States shall ensure in particular equal the income of fishermen in these conditions of access to and use of the regions; that it is therefore fishing grounds situated in the waters advisable to encourage rational [referred to above] for all fishing marketing of fishery products and vessels flying the flag of a Member to ensure market stability by State and registered in Community appropriate measures' (second

KRAMER

provision relating to intra-Com­ adopted on 6 April 1976, that is to say, munity trade; after the references to the Court in these — provides that this Regulation shall be proceedings, Regulation No 811/76 so applied that appropriate account is 'temporarily authorizing certain systems taken, at the same time, of the of catch quotas in the fisheries sector' objectives set out in Articles 39 and (OJ, No L 94, p. 1) which applies until 110 of the Treaty' (Article 32). 31 December 1976. This regulation which was made pursuant to Article 43 (b) Chapter 3 of Title II ('Agriculture') of the Treaty recites: of Part Four, headed Transitional — 'Whereas the fishery resources of Measures, of the Act of Accession the sea would be considerably contains 'Provisions relating to fishing'. It endangered if catches were not is divided into two sections headed controlled, whereas the rational respectively 'Common Organization of development of the production of the Market' (Articles 98 and 99) and fishery products might be disturbed if 'Fishing Rights' (Articles 100 to 103). no limit was placed on the the size of the landings' (first recital); Article 102 provides that 'From the sixth — Whereas to this end several Member

year after accession at the latest, the States have contracted certain inter­

JUDGMENT OF 14. 7. 1976 — JOINED CASES 3, 4 AND 6/76

number UK 86, that is to say, an Written observations were submitted even number. pursuant to Article 20 of the Protocol on — Case 4/76: On or about 13 May 1975 the Statute of the Court of Justice of the Mr Van Den Berg is alleged to have EEC:

infringed Article 2 of BV in that he — In Cases 3 and 4/76 by the Officier fished for plaice and sole in the van Justitie at the Arrondissements­ coastal waters of the North Sea using rechtbank, Zwolle, and the accused in a vessel of a registered gross tonnage the main proceedings; of more than 50 tonnes and with an — in Case 6/76 by the accused in the engine rating exceeding 300 hp. main proceedings and the Italian — Case 6/76: On or about 12 May 1975 Government; the Kramer en Bais company is — in Case 3, 4 and 6/76 by the British, alleged to have committed an offence Danish and Netherlands Govern­ similar to the one committed by Mr ments and by the Council and the Van den Berg. Commission.

KRAMER

incompatible with the aim and principles Sole and plaice are flat fish and are for of the Community rules. For this the Netherlands the most important purpose reference must be made to species of deep-sea fish, an expression Regulation No 2141/70 which like the which must be understood as contrasted NEAFC aims at conserving fishing with the pelagic species of fish, that is to grounds, rather than to Regulation No say, fish which swim at a certain distance 2142/70.

judgment of 31 March 1971, The European Agreement concerning the The accused produce figures relating work of crews of vehicles engaged in inter alia to the development of the international road transport' AETR, Case Netherlands fleet of deep-sea fishing 22/70, [1971] ECR). It follows that the trawlers, the relative and absolute Member States' powers to introduce quantities of flat fishing caught by this systems of fishing quotas and to enter fleet, the quantities of fish exported and into international agreements relating to imported by the Netherlands and to the the preservation of fishing stocks only operational financial results obtained by cease to exist when the Council adopts Netherlands undertakings engaged in sea measures pursuant to Article 5 of fishing.

JUDGMENT OF 14. 7. 1976 - JOINED CASES 3, 4 AND 6/76

disastrous consequences the public This question has been dealt with in a authorities had to take remedial now well-established line of decisions of measures which, however, proved to the Court from which the rule emerges be inadequate; that Member States must avoid any — if fishermen had kept within the measures likely to derogate from or affect limits of the said quotas many of adversely the organization in question; them would have become bankrupt such an adverse effect may also result and this explains why in 1975 from a conflict with the aims and the Minister initiated criminal objectives of the regulation establishing proceedings in approximately 600 this organization. cases.

KRAMER

(bb) Regulation No 2142/70 aims inter applied unilaterally has a great influence alia at limiting the supply of fish and on the common market. fishery products by introducing a system of common marketing standards and 2. For reasons akin to those given ensuring that there is no reduction in the above the third question must also be demand for fish and fishery products by answered in the negative. Any restriction applying support prices. Such a system of production automatically entails a does not operate smoothly if Member restriction of exports as the present States by fixing quotas unilaterally and proceedings have shown. Furthermore without any coordination affect the the Netherlands system, which is in supply of fish. The accused refer in dispute, deals with trade in fish as well as support of their argument to the production since its rules also cover the judgment in the Van Haaster case and landing of the product. The grounds of call attention to the fact that the the Van Haaster judgment apply organization of the markets in the therefore by analogy. fishing industry, which includes a price system, goes even further than the 3. With regard to the second question, regulation in question in that case. They it follows from the concept developed by also rely on the judgment of 23 January the Court in its AETR judgment that the 1975 in Galli (Case 31/74, [1975] ECR Community alone has power to enter 47) and the judgment of 26 February into agreements with third countries 1976 in Tasca (Case 65/75 [1976] ECR relating to the fishing industry. It is true 291) in which it was held that 'in sectors that Regulations Nos 2141/70 and covered by a common organization of 2142/70, unlike Regulation No 543/59 the market — even more so when this which was at issue in the AETR case, do

JUDGMENT OF 14. 7. 1976 - JOINED CASES 3, 4 AND 6/76

principle of the freedom of fishing. and the Commission of the EEC

conferred together with a view to Under international law there is a solemn adopting a common line. duty to conserve fish stocks: — 'In the judgment of the International The first question Court of Justice in the Fisheries Jurisdiction Cases (ICJ Reports, 1974, It emerges from the case-law of the pp. 3 et seq. and 175 et seq.), it was Court that, where Community rules found that Iceland, the United cover a particular subject-matter only Kingdom and the Federal Republic partially, Member States retain the power of Germany are under the obligation to regulate the remaining area, provided to keep under review (fish) resources that they do not impair Community and to examine together, in the light rules. of scientific and other available information such measures as may be This is the position in these proceedings. required for the conservation ... of As the first and second recitals of those resources'. Regulation No 2142/70 indicate the — In accordance with the first Article of provisions of that regulation apply to the the Geneva Convention on Fishing marketing of landed fish but do not and the Conservation of the Living regulate fisheries as such. Although the

KRAMER

particularly with regard to ground 17 of avoided by claiming that the Community the judgment which states that when the has competence beyond that which Community 'adopts provisions laying presently exists. down common rules' Member States are no longer entitled to enter into Although in the Court's judgment in the obligations with third countries which Van Haaster case it was held, in the affect those rules: In the opinion of the context of that case, that a measure British Government this doctrine does intended to limit production can have an not apply if, as is the case in those effect equivalent to a quantitative proceedings, the subject-matter of the restriction, it seems to be based on 'common rules' and the agreement considerations which have their origin in entered into with third countries are not specific aspects of the Community identical. regulations at issue in the said case and which are not in any way connected with The arguments developed by the Court Articles 30, 31 and 34 of the Treaty. The in Opinion 1/75 also do not apply. This conservation measures at issue in these opinion refers to the rules relating to the proceedings cannot be equated with the

JUDGMENT OF 14. 7. 1976 - JOINED CASES 3, 4 AND 6/76

spite of intensified fishing activity. Fixing quotas is in principle the same as The grounds of judgment in the Van prohibiting fishing for certain periods Haaster case do not apply in the present and in certain areas. proceedings since the system at issue has no effect on the free movement of goods. It is not true that all the principles There is not the slightest reason to applicable in the agricultural sector suppose that the quotas would have been properly so-called also apply to the larger if the Community, instead of fishing sector, as there are fundamental the Member States, had conducted differences between each of them. In the negotiations within the Fisheries particular the 'production' of fish could Commission. The quotas in question, as not be increased or decreased according opposed to the quotas which can be to market requirements with the result fixed for agricultural sectors properly that in the fishing sector conservation so-called, and for the reasons given measures are of cardinal importance. above, cannot be regarded as a means of These measures, far from restricting regulating production. production, guarantee on the contrary over the long term the largest possible Article 102 of the Act of Accession and production. Regulation No 2141/70 only relate to a sea area which at the present time covers As emerges from the recitals and Article at most twelve nautical miles. However, 5 of Regulation No 2142/70 this the quotas fixed under the NEAFC are regulation provides for a genuine mainly concerned with catches on the regulation of production in that it aims high seas. Even if the said Article 102 at adjusting the supply to market also refers to measures which apply requirements. Such an objective is outside the twelve-mile limit, the fact fundamentally different from the aim of remains that, as this provision has not conserving resources. been implemented by the Community, the Members had to adopt conservation There is no Community provision measures.

third questions: The question referred by the national The problem raised by the first question courts should be understood above all in of the possible inconsistency between the the light of the judgment of the Court in national and the Community regulations the Van Haaster case. However, unlike is not one of lack of competence but of the national rules in question in that incompatibility. The Court has case, the object of fixing catch quotas is repeatedly held that Member States have to secure future production. The quotas retained the power to intervene in sectors therefore have a beneficial, long-term governed by common organizations of effect on intra-Comunity trade and the market, provided that they do not comply with the objectives specified in adversely affect attainment of the Article 39 of the Treaty, in particular objectives or the operation of these because they assure the availability of organizations. The first question should supplies. therefore be answered in the affirmative. The fixing of these kinds of quotas is in With regard to the third question the harmony with the objectives of system of quotas which is in dispute does Regulation No 2142/70 (cf. the not contravene the provisions governing twenty-fourth recital). But is must above the free movement of goods because it all be considered in the context of the restricts production and not marketing. structural policy, which differs from the On the other hand, having regard to the market and pricing policy in that the Court's reasoning in the Van Haaster Member States have a greater judgment such a system is incompatible responsibility. Thus Article 2 of with the essential matters with which Regulation No 2141/70 takes as its point Regulations Nos 2141/70 and 2142/70 of departure the provisions existing in are concerned: the guarantee of equal this field in the Member States. It treatment of Member States when fishing appears from Article 5 thereof that the in territorial waters, the assignment to Community institutions are not obliged the Council of the power to adopt the to enact measures for the conservation of necessary measures for the conservation resources and that, until they do so,

have retained the power to enter into feature is the principle that everyone is international agreements for the con­ free to acquire them. More particularly, servation of fishing grounds, it being so far as the resources of the high seas understood that, having regard to Article are concerned, no State may lawfully 5 of Regulation No 2141/70 and Article claim sovereignty over any part thereof. 102 of the Act of Accession, this power is It is clear from all these factors that the neither exclusive nor definitive. It is no regulation of catches must of necessity be doubt undesirable that in this particular international. field Member States should enter into obligations with third countries which (a) Articles 30 to 34 of the Treaty and are long-term and unconnected with the Regulation No 2142/70 Community. This has not been the case, however, since the disputed quotas were The NEAFC system is not concerned fixed each time for one year only and with marketing but is designed to secure adopted after coordination within the the supply of fishery products. 'Its Community. distinguishing feature is rather a system of qualitative restrictions at the The Council states that in Case 3/76 the production level or, more precisely, when offence was committed both on the high the fish are caught, which is intended to seas and in the coastal area (twelve ensure that at the next stage, the nautical miles), whereas in the other two marketing stage, the introduction of cases the offences were committed in the quantitative restrictions is avoided.' A coastal area. ship flying the flag of a Contracting State, which exceeds the quotas allocated As soon as the Fisheries Commission to this State and sells its catches in recommended that the catch should be another State, puts the first State in the determined by quotas the Community position of failing to comply with its took an interest in the work of this obligations under the NEAFC. In all Commission which took the form, not of these circumstances the principle of

quotas 'is something entirely different To sum up, a system of quotas such as from the operations covered by the the one which is at issue is not Community rules prohibiting quanti incompatible with Articles 30 to 34 of tative restrictions' whether they appear in the Treaty or with Regulation No the Treaty or in a regulation on the 2142/70. common organization of the markets: — With regard to the prohibitions (b) The general provisions of the Treaty specified in Article 30 et seq. quotas relating to agriculture cannot be even remotely compared with even a partial prohibition of It may be asked whether fixing a imports or exports, or with rules of maximum quota for each Member State commerce which impede intra- which is a party to the NEAFC and also Community trade, even if only the prohibition on using large-sized indirectly and potentially. vessels are measures which could be said — With regard to the prohibitions in to disregard the prohibition of the basic agricultural regulations the discrimination between producers within same reasoning must be applied. The the Community contained in Article 40 Court's judgment in the Van (3) of the Treaty. The answer is, however, Haaster case cannot be transposed to in the negative. The quotas were fixed on fish products.

. . the social structure of organizations. However, under agriculture and . . . the structural and Regulation No 2142/70 which natural disparities between the various applies to the fishing industry agricultural regions'. common quality standards only play a subordinate role compared with the (c) Regulation No 2141/70 system of withdrawal prices based on intervention by producers' Only Articles 2 and 5 of this regulation organizations (cf. Article 7 of the are relevant to these proceedings. regulation).

On the other hand prohibiting, in intra-Community Regulation No 2140/70 only applies to trade, quantiative restrictions and coastal waters, or to put it more precisely, measures having equivalent effect. to the maritime waters 'coming under

lines of the State in question which are pattern of Community trade. The reserved for fishing by the nationals of NEAFC is not in essence a commercial that State. convention, so that in the light of Opinion 1/75 of the Court it appears The NEAFC is concerned with a policy doubtful whether the Community can of conservation and national exploitation. become a party to it under Article 113. On the other hand the main purpose of Regulation No 2141/70 is to ensure that 2. It follows that it must be ascertained there is no discrimination between whether, having regard to the judgment fishermen of the Member States (cf. of the Court in the AETR case, which Article 2 thereof) and the prevention of has already been mentioned, the overfishing in coastal waters (cf. Article 5) participation of Member States in the is only a subsidiary objective at least at NEAFC has become impossible in law. the present time. However, this latter provision is at present only of minor It is true that the NEAFC was signed importance: since it only applies de facto after the entry into force of the Treaty, within a twelve-mile limit, it cannot form but this was at a time when the the basis of a real conservation policy. Community had not yet adopted any This situation could change if Member measures in the fisheries sector. States had one day to extend their Although this was no longer the situation territorial waters to 200 miles. when subparagraphs (g) and (h) of Article 7 (1) of the NEAFC entered into force, Nevertheless it may be asked whether the fact remains that at that time the the recommendation of the Fisheries Council did not always make use of the Commission is not incompatible with power conferred upon it by Article 5 of the rule of non-discrimination in Article Regulation No 2141/70. 2 of Regulation No 2141/70 in that it prohibits the use of large-sized vessels in According to Article 15 (4) of the a sea area to which the regulation also NEAFC only States can be parties to it. applies. The answer to this question is, Therefore an application by the however, in the negative since this Community to become a party to the prohibition applies no matter what flag NEAFC could only have been granted under which the fisherman sails. with the unanimous agreement of all the Moreover, Article 5 of this regulation signatory States. However it is doubtful itself makes it possible to adopt such whether the States of the East would have restrictive measures. been willing to agree.

that the Community institutions are called upon to adopt general provisions The first and third questions prescribing the conditions of the 'common action' referred to in Article These two questions must be considered 116. But it cannot be said that failing the together since the legal analysis required adoption of such measures the practices is substantially the same both as regards employed were defective. whether Member States have power to fix catch quotas and as regards whether 4. There is finally the question whether fixing such quotas is substantively it would not in any case be better if the compatible with Community law. Community and not each individual Member State were to administer the In general there are grounds for the view quotas allocated under the NEAFC. that, although determining a fixed quota for a specific fishing area amounts to a This is both a delicate and topical conservation measure, allocating this question. It is delicate because it can be quota among the contracting States is anticipated that the future Law of the Sea however an economic and political will deal more extensively with measure.

restrictions on catches, a problem which the Conference on the Law of the Sea is Articles 38 to 47 of the EEC Treaty studying. It is topical because, as these proceedings show, the fishermen from A policy which aims at conserving fish the Member States are more and more stocks falls within the objectives set out inclined to challenge the right of the in Article 39 of the Treaty and, in latter to lay down such restrictions. particular, in subparagraphs (a) and (d) of paragraph (1) thereof. Consequently the In order to 'clear up' the situation common agricultural policy may and, 'politically' the Council took steps which where appropriate, must contain a system culminated in its Regulation No 811/76. of measures for this purpose and the

Community institutions must undertake — include a structural policy, one of the the administration of such a system. objectives whereof is to safeguard resources and which is centred on Notwithstanding the rules relating to the common rules for fishing in power to enter into agreements in this maritime waters, on certain specific field (cf. below with reference to the measures and on the coordination of second question) Member States retain the structural policies of the Member the power to take measures in the States; agricultural sector so long as the — do not, it is true, contain any Community has taken no initiative. provisions expressly prohibiting Consequently whether these States are obstacles to intra-Community trade, empowered or not to adopt rules in a although this fact is not important, specific sector does not depend upon the since the regulations were adopted wording of Article 37 et seq. taken in the after the end of the transitional abstract, but on the question whether the period, from which date the rules adopted under the common policy prohibition relating to the Treaty for this sector are such that no room is applies automatically (cf. the left for national rules. twentieth recital of Regulation No

In so far as the latter the Community exclusive jurisdiction in have powers which can be used outside the field in question. There are other their territories such powers accrue to the decisions of the Court on the same lines. Community which has already exercised them, as is shown in particular by The Commission analyses in detail the Regulation No 802/68 which was quoted regulations referred to above which by the accused in the main proceedings. established an even more comprehensive It follows from this regulation that fish common organization than the one set caught by a vessel belonging to a up by Regulation No 234/68 which was Member State are subject to the

The fact that Articles 2 and 5 of

Article 2 is inconceivable outside the — A shortage on the domestic market is waters coming under the sovereignty manifested in an increase of imports or within the jurisdiction of the from third countries. Member States. — A decrease in the catches by the — Although Article 5 authorizes the fishing fleet of a Member State Council to adopt the necessary cannot fail to have an effect on the measures for the conservation of volume of intra-Communiry trade. stocks in the maritime waters of — Although it is true that, leaving aside Member States, it cannot, however, be Article 100 (1) of the Act of interpreted as meaning that the Accession, the provision which pre Community has no power to take serves the 'status quo', the Com conservation measures which apply munity has not yet adopted measures

contain any provision specifically In particular, for the reasons given in authorizing Member States to adopt detail hereafter by the Commission, a measures aimed at limiting catches or system of quotas such as the one at issue the amount of fishing (cf. the Van in the present proceedings could impede, Haaster judgment). Nor may such an actually or potentially the functioning, of authorization be inferred from the the common organization of the market reference made by Article 2 of in the fishery products sector and is also Regulation No 2141/70 to 'Rules incompatible with the principles of the applied by each Member State in common policy enshrined in Regulation respect of fishing'.

There is Article 102 of the Act of Accession a large increase in prices when the give the Commission the exclusive quotas have been exhausted; on the power to enact conservation other hand if certain kinds of fish are measures. The reason why the Com-

The disputed quotas restrict production Article 43 empowers the Community to and not trade. There is no doubt that take any measures necessary for the they also produce effects at the conservation of fish stocks. This power marketing stage since they are likely to includes entering into international cause imports to increase and exports to agreements relating to such measures. decrease. However that does not mean that they are measures having an effect The Community does not have to adopt equivalent to a quantitative restriction. its own rules on conservation before There are a number of systems which, in opening negotiations with third spite of their restrictive effect on trade, countries. If the Community were to take are compatible with Articles 30 et seq. of such a line it could be blamed for the Treaty because they come within the impeding international cooperation measures which, under the Treaty, can be which is essential in this particular field. adopted by Member States. As the In addition it would run the risk of being Commission indicated in its Directive put in the wrong by third countries and No 70/50 of 22 December 1969 (OJ its own Member States. The Commission L 13 of 19. 1. 1970, p. 29) such systems refers again to Opinion 1/75 of the Court only contravene the said articles if they according to which the common are unnecessary for the attainment of the commercial policy can be worked out by desired objective. However, the limitation means of unilateral regulations and also of catches is absolutely necessary for the with the help of international agreements conservation of maritime resources. If the without either of them taking precedence measures in question are nevertheless over the other.

imposed upon them by Article 5 of the of Regulation No 2141/70 and Article Treaty, they must however: 102 of the Act of Accession). — make way for the Community to negotiate and enter into such It is true that the transitional provision in agreements; the second paragraph of Article 100 (1) of — if that proves to be impossible, the Act. of Accession provides an include in the agreements in exception to this exclusive power by question provisions enabling the granting Member States on a provisional Community to accede to the basis the right to adopt measures agreements in place of or in addition restricting fishing in a limited area of the to Member States and making it waters under their sovereignty or within possible for the latter to fulfil at any their jurisdiction. Furthermore some time their obligations to the people take the view, wrongly according Community and in particular to be to the Commission, that Articles 2 to 5 able to give reasonable notice of the of Regulation No 2141/70 and Article agreements, in so far as the 102 of the Act of Accession authorize Community does not wish to or Member States to take further con cannot take them over.

provisions which have been quoted that Member States have retained the freedom The power to enter into agreements under the policy for the fishing industry to negotiate and enter into agreements with third countries for protecting the Since 1 February 1971, the date when the resources of the fishing industry. common structural and markets policies for the fishing industry entered into force There is no doubt that Member States — and possibly, having regard to Articles cannot be required simply to abolish the 5 and 40 (1) of the Treaty, even since the measures which they have taken while end of the transitional period — the waiting for rules and regulations to be Community alone has power to negotiate drawn up by the Community.

This applies is in the affirmative as the Community applies a fortiori if they enter into has used the power conferred upon it by agreements. Although the Community is Article 43 of the Treaty to take protective not legally bound by these agreements, measures in this field (cf. Articles 1 and 5 they would hinder it in the fulfilment of

its task since it would be difficult for it to NEAFC, on Article 43 as well as Article disregard them in its relations with third 113 of the Treaty. countries. Furthermore, during the nego tiations with those countries Member Conclusions States inevitably give priority to their own interests over those of the Having regard to all these circumstances Community. Only negotiations con the second question should be answered ducted by the Community or, on a in the affirmative. It should also be said transitional basis by a Member State that this reply must not be limited to acting under an authority given by the measures such as those provided for in Community and in accordance with the Article 7 (1) (g) and (h) of the NEAFC latter's general directions, would ensure but can be given in respect of all that all the interests involved are measures which aim at the conservation reconciled. and rational use of the resources of the fishing industry.

these matters. They directly determine submitted to the Council two the Community's share in the total recommendations based on Articles 43 production and in the entire demand for and 113 of the Treaty authorizing the and supply of the species of fish referred Commission inter alia to negotiate to on the world market and consequently respectively the accession of the have an effect on trade between third Community to the NEAFC and, within countries and the Community. They also the Fisheries Commission, the allocation affect the amount of the Community of Community catch quotas.

States concerned. Having regard to all been agreed that the Commission and these considerations the Commission the Member States shall coordinate based the recommendation, which it sent beforehand and on the spot the line to to the Council on 20 March 1973 with a be taken during the negotiations within view to obtaining permission to negotiate the Fisheries Commission, with a view to the accession of the Community to the agreeing a common approach and that as

the responsibility of the Community or Community to the NEAFC such a the common approach which had solution had also to allow negotiations previously been agreed was abandoned within the Community to take place during the discussions. concerning the administration of the quotas allocated to different Member The NEAFC was concluded after the States as the Commission had already entry into force of the Treaty and recommended on 20 March 1973 (cf. consequently does not fall within Article above), that is to say, before 4 June 1974, the date when the beforementioned 234. Nevertheless the Member States did not contravene the provisions of Article 5 subparagraphs (g) and (h) entered into force. of the Treaty when they ratified the Convention, which they did before 1970. From 1974 onwards the Member States It is true that the Convention does not contain an EEC clause or a provision took part, within the Fisheries Com­ permitting the Community to accede to mission, in negotiations relating to the it but it can be terminated after the fixing and allocation of the national expiration of a period of one year. catch quotas under the new powers conferred on this Commission. Further Furthermore any State may object to any binding recommendation of the Fisheries they adopted without any modification Commission. The Community, applying the recommendations drawn up in this Article 234 by analogy, must give connexion without even adding to them the reservation that Member States' Member States a reasonable period of time to adapt their obligations under the national quotas would be administered Convention to those arising under the by the Community. By doing so they Treaty. exceeded their powers and were in breach of their Community obligations. They cannot rely on the said rec­ The situation is different as regards the ommendations for the purposes of fact that all the Member States which are adopting provisions contravening the parties to the NEAFC accepted the rules of the common fisheries policy. proposal made by the Fisheries The courts of the Member States must Commission that subparagraphs (g) and hold that such provisions are not binding (h) be added to Article 7 of the and applicable. These considerations Convention. must be borne in mind independently of the validity under international law of This proposal, in the working out of the obligations which the Member States which the Member States collaborated in intended to fulfil by means of the said the course of the same period during provisions. which they discussed within the Council the implementation of the common The Community is not legally bound by fisheries policy, was accepted by them in these obligations either in relation to the accordance with the procedures pre­ third countries concerned or the Member scribed by their constitutions, although States concerned.

The Commission's view has not been On the second question: supported by the Council. The very cool reception given by the Council to the The Community has exclusive power to Commission's recommendations in 1971 conduct negotiations and conclude and 1973 caused the Commission to agreements in connexion with measures behave with some restraint. The case-law intended to conserve the resources of the of the Court (the van Haaster and Galli fishing industry and designed to limit judgments; Opinion 1/75) has, however, quantitatively the catches or fishing. led the Commission to restate its position clearly before Parliament. On the fourth question: The Council however approved in principle the Commission's argument at Articles 30, 31 and 34 of the Treaty are the meeting on 20 January 1976 (cf. I (1) directly applicable — from the end of C (c) above). By adopting the principle of the transitional period, at the latest from a provisional authorization granted by the expiry of the period for giving notice the Community it admitted that the laid down in the second paragraph of Article 31, and from the end of the first national quotas fixed pursuant to international obligations were illegal. stage of the transitional period re­ spectively — and they create, for the benefit of individuals, in the case of all The fourth question quantitative restrictions and measures Of the provisions which have been having equivalent effect, rights which quoted Article 31 no longer applies as national courts must protect. the transitional period is over. The prohibition in Article 31 on new During the oral proceedings which took quantitative restrictions and measures place on 25 May 1976 the accused in the having equivalent effect has been main proceedings, represented by Mr H. replaced by the absolute prohibition in H. Kroneberg and Mr W. L. Nouwen of Article 30. the Rotterdam bar, the Netherlands

3 These provisions were adopted in performance of commitments which had been entered into by the Netherlands within the framework of the North-East Atlantic Fisheries Convention, signed at London on 24 January 1959, to 'ensure the conservation of the fish stocks and the rational exploitation of the fisheries of the North-East Atlantic Ocean and adjacent waters, which are of common concern'. All the present Member States of the EEC except Italy and the Grand Duchy of Luxembourg, as well as seven non-member countries, are parties to this Convention.

JUDGMENT OF 14. 7. 1976 - JOINED CASES 3, 4 AND 6/76

4 Article 7 (1) (a) — (f) of the Convention provides that the North-East Atlantic Fisheries Commission, established by the Convention as a common body of the Contracting States, may make recommendations to the Contracting States on a series of measures coming within the purposes of the Convention.

5 By a decision adopted in May 1970 and which entered into force on 4 June 1974 in accordance with the procedure laid down in Article 7 (2), there were added to these provisions subparagraphs (g) and (h) authorizing the said Commission to recommend measures for regulating in any period, first, the amount of total catch and the amount of fishing effort and, secondly, the allocation of those amounts to Contracting States.

6 Under Article 8 of the Convention, the Contracting States are obliged to give effect to such recommendations when they have been adopted by not less than a two-thirds majority of the Delegations present and voting, subject however to the right of any Contracting State to release itself from this obligation by objecting to the recommendation within a set period.

KRAMER

— on the internal Community level, whether national measures such as those adopted by the Netherlands, which measures will hereinafter be referred to as 'fixing of catch quotas', are compatible with Community law either as regards the allocation of authority between the Community and its Member States, or as regards the prohibition on jeopardizing the objectives or the functioning of the Community rules on the fishing industry, or finally as regards the prohibition on measures having an effect equivalent to that of a quantitative restriction in trade between Member states.

10 The fourth question asks whether Articles 30, 31 and 34 of the Treaty, laying down the latter prohibition, are directly applicable in the Member States.

11 These different questions should be approached in the order indicated above.

I — The external authority of the Community and of the Member States respectively

12 The second question asked by the national courts relates to 'the power to conclude agreements'.

17/18 Article 210 provides that 'the Community shall have legal personality'. This provision, placed at the head of Part Six of the Treaty, devoted to 'General and Final Provisions', means that in its external relations the Community enjoys the capacity to enter into international commitments over the whole field of objectives defined in Part One of the Treaty, which Part Six supplements.

19/20 To establish in a particular case whether the Community has authority to enter into international commitments, regard must be had to the whole scheme of Community law no less than to its substantive provisions. Such authority arises not only from an express conferment by the Treaty, but may equally flow implicitly from other provisions of the Treaty, from the Act of Accession and from measures adopted, within the framework of those provisions, by the Community institutions.

29 Finally, Article 102 of the Act of Accession provides that from the sixth year after Accession at the latest, the Council 'shall determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea'.

30/33 It follows from these provisions taken as a whole that the Community has at its disposal, on the internal level, the power to take any measures for the conservation of the biological resources of the sea, measures which include the fixing of catch quotas and their allocation between the different Member States. It should be made clear that, although Article 5 of Regulation No 2141/70 is applicable only to a geographically limited fishing area, it none the less follows Article 102 of the Act of Accession, from Article 1 of the said regulation and moreover from the very nature of things that the rule-making authority of the Community ratione materiae also extends — in so far as the Member States have similar authority under public international law — to fishing on the high seas. The only way to ensure the conservation of the biological resources of the sea both effectively and equitably is through a system of rules binding on all the States concerned, including non-member countries. In these circumstances it follows from the very duties and powers which Community law has established and assigned to the institutions of the Community on the internal level that the Community has authority to enter into international commitments for the conservation of the resources of the sea.

40 However, it should be stated first that this authority which the Member States have is only of a transitional nature and secondly that the Member States concerned are now bound by Community obligations in their negotiations within the framework of the Convention and of other comparable agreements.

41 As to the transitional nature of the abovementioned authority, it follows from the foregoing considerations that this authority will come to an end 'from the sixth year after Accession at the latest', since the Council must by then have adopted, in accordance with the obligation imposed on it by Article 102 of the Act of Accession, measures for the conservation of the resources of the sea.

KRAMER

42/43 As to the obligations now incumbent on the Member States concerned, it should be stressed first that under Article 5 of the Treaty, 'Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community', and 'shall facilitate the achievement of the Community's tasks'. Under Article 116 of the Treaty, 'from the end of the transitional period onwards, Member States shall, in respect of all matters of particular interest to the common market, proceed within the framework of international organizations of an economic character only by common action', the Commission being under a duty to submit proposals in this connexion to the Council and the Council being under a duty to act on these proposals.

44/45 It follows from all these factors that Member States participating in the Convention and in other similar agreements are now not only under a duty not to enter into any commitment within the framework of those conventions which could hinder the Community in carrying out the tasks entrusted to it by Article 102 of the Act of Accession, but also under a duty to proceed by common action within the Fisheries Commission. It further follows

so Although such measures may affect the functioning of other parts of this system, and in particular of its price system, such an effect, having been accepted from the outset by the Community regulations themselves, cannot be equated with the disruptive effects, prohibited by Community law, of national measures unrelated to the aim of Community rules.

51 None the less the existence of the common organization of the market involves an obligation on the part of the Member States to ensure that catches should be limited in such a way as to keep the effects on the functioning of that organization to a minimum.

52 Thus the reply to the national courts should be that a Member State does not jeopardize the objectives or the proper functioning of the system established by Regulations Nos 2141/70 and 2142/70 if it adopts measures involving a limitation of fishing activities with a view to conserving the resources of the sea.

53/54 (2) Finally, on the issue whether measures such as those adopted by the Netherlands are prohibited as being measures having an effect equivalent to that of a quantitative restriction, the provisions of Regulation No 2142/70 do not expressly lay down such a prohibition in regard to intra-Community trade. However, it follows from the combined provisions of Articles 38 to 46 and 8 (7) of the Treaty that this prohibition arises out of the Treaty provisions automatically, from the expiry of the transitional period at the latest, as was stressed moreover in the twentieth recital of Regulation No 2142/70.

55 National regulations such as those forming the subject-matter of the present proceedings on the one hand and the prohibition laid down in Article 30 et

61 The fourth question no longer calls for an answer.

Costs

62/63 The costs incurred by the British, Danish, Italian and Netherlands Governments as well as by the Council and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the actions before the national courts, the decision as to costs is a matter for those courts.

JUDGMENT OF 14. 7. 1976 - JOINED CASES 3, 4 AND 6/76

On those grounds,

THE COURT

Mertens de Wilmars Pescatore Sørensen Capotorti

Delivered in open court in Luxembourg on 14 July 1976.

A. Van Houtte R. Lecourt

Registrar President