C-88/77

C. A. SCHONENBERG, PETER STAM, NICO DE NIET, ARIE HOFLAND, J. V. Rijn, J. M. PlUG, Huiberius R. PLUG, J. M. BAL, C. ZWAN AND PETER C. HAASNOOT, Masters of Netherlands trawlers,

on the interpretation of Article 7 of the EEC Treaty, of Articles 2 and 4 of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry and of Articles 100 to 103 of the Treaty, known as the Treaty of Accession, of 22 January 1972, with, regard to two orders made by the Irish Minister for Fisheries on 16 February 1977 in relation to sea fishing (Sea Fisheries (Conservation and Rational Exploitation) Orders 1977),

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco, Presidents of Chambers, A. M. Donner, P. Pescatore, Lord Mackenzie Stuart and A. O'Keeffe, Judges,

Advocate General: G. Reischl

Registrar: A. Van Houtte

The facts of the anion, the procedure of the meridian of 12° West longitude and the observations submitted under and north of the parallel of 50° 30' Article 20 of the Protocol on the Statute North latitude. It is also an offence of the Court of Justice of the EEC may under the order for any person on a sea be summarized as follows: fishing boat to fish or to attempt to fish in the area in question or for such a vessel to have fish on board unless the I — Facts and written procedure fishing was in accordance with law, or for the boat not to keep its fishing gear In Ireland Article 35 of the Fisheries stowed away while in the area. (Amendment) Act 1962 confers certain The second, the Sea Fisheries (Conser­ powers on the Minister for Fisheries vation and Rational Exploitation) (No as regards the conservation and 2) Order 1977 exempts from the management of fish stocks. It provides, foregoing prohibition any sea fishing in particular, boat not exceeding 33 metres in 'Where the Minister, having regard to registered length or having a main any International Agreement to which engine or engines not exceeding a total the State is a party is satisfied that it is of 1 100 brake horse-power. necessary to do so, the Minister may by The orders came into force on 10 April Order prescribe and adopt such 1977. measures of conservation of fish stocks and Rational Exploitation of Fisheries On 29 April 1977 ten trawlers registered as the Minister thinks proper'. in the Netherlands, all of which exceeded the registered dimension and Any offence against such a ministerial order is subject to a maximum fine of brake horse-power authorized by the Irish orders, fished in a group, £100 and the provisions of Chapter IV of Part XIII of the Fisheries accompanied by a hospital ship, between 25 and 28 miles from the Irish (Consolidation) Act 1959 are applicable coast due South of the Old Head of to such offence. Kinsale. When detected they were The statutory consequence of between 40 and 45 miles inside the conviction is the forfeiture of any reserved area. One of the Dutch boats, fishing gear or fish. the VL 89 Monica, the Master of which The Irish Minister for Fisheries was C. A. Schonenberg, was boarded by exercised those powers by two orders a boarding party from an Irish Naval dated 16 February 1977. Sea Fisheries Protection vessel, placed The first, the Sea Fisheries (Conser­ under arrest and brought to Cork vation and Rational Exploitation) Order Harbour, whereupon the other nine 1977, makes it an offence for any sea boats also proceeded to Cork. The Masters of the trawlers were arrested fishing boat to enter and remain and to and the boats and their crews were fish in a maritime area situated within detained. that portion of the exclusive fishery limits of Ireland which lies south of the On 2 May 1977 the Masters of the ten parallel of 56° 30' North latitude, east Dutch trawlers in question were pros-

(No 2) Order 1977 (S.I. No 39 of 1977)? II — Written observations sub­ 2. Does Community law and in mitted before the Court particular Articles 102 and 103 of the Treaty of Accession either taken After observing that to a considerable alone or read with Council Regu­ extent the legal questions raised in the lation (EEC) No 101/76 Article 4, present case are similar to those raised preclude Ireland from taking in Case 61/77 (Commission v Ireland) measures such as are set out in the which is also pending before the Court, Fisheries (Conservation and the Irish Minister for Fisheries, the Exploitation) Order 1977 (S.I. No 38 complainant in the main action, of 1977) and/or the Sea Fisheries maintains that none of the submissions (Conservation and Rational made in their defence by the defendants Exploitation) (No 2) Order 1977 in the main action can be accepted. (S.I. No 39 of 1977)? (a) The argument that by virtue of 3. Would a conviction of the Articles 100 and 101 of the Act of defendants by this court on the Accession Ireland has no jurisdiction charges referred to in the Second whatever over the maritime waters Schedule hereto be incompatible with outside its 6 to 12 mile limits, as the Community law? case may be, and within the 200 mile

MINISTER FOR FISHERIES ν SCHONENBERG

present case. mile limit. The right of a Member Sute to take It is clear from its very wording proper conservation measures in ('notwithsunding the provisions of accordance with Community law has Article 2 of Regulation (EEC) No 2141/ been repeatedly recognized by the 70') that the terms of Article 100 of the organs of the Community, in particular Act of Accession are a limited dero by the Commission in Case 61/77 and gation from provisions which clearly by the Council in the recitals to Regu applied to the whole of the waters lation No 350/77 of 18 February 1977 under the jurisdiction of the original laying down certain interim measures Member States at the time when the for the conservation and management regulation was made. It is quite clear of fishery resources (OJ L 48, p. 28). that the limitation of 6 to 12 miles The terms of Article 4 of Regulation conuined in Articles 100 and 101, No 101/76 are the same as those of which appears in no other provision of Article 5 of Regulation No 2141/70 of Community law, has nothing to do with the extent of the waters under the the Council of 20 October 1970 laying down a common structural policy for sovereignty or within the jurisdiction of the fishing industry (OJ, English Special

States. In the course of Case 61/77 that competence is retained, at the very neither the Commission nor the least, up to the time when the procedure Government of the Kingdom of the outlined in Articles 102 and 103 of the Netherlands contended that Member Act of Accession has been carried into States, and Ireland in particular, did not effect. have jurisdiction, in accordance with Community law, over the maritime (c) As regards the allegation of waters within the 200 mile limit. In its discrimination the following factors

must be borne in mind: the urgency and on 14 January 1977. Because it feared necessity of proper measures for conser that the 85 feet limit might be unduly vation of fish stocks is universally harsh on some traditional fishermen the recognized; pending the adoption of a Irish Government increased it to 33 Community regime the jurisdiction to metres (approximately 110 feet) so as to introduce such measures is vested in lessen impact of the measure. It was of Member States; any measures course absolutely necessary to extend introduced will, of necessity, have the area of its operation outside the old different effects on different Member 12 mile limit. The orders of 16 February States; since the Irish measures are real 1977, implemented only in April 1977, and genuine conservation measures their are genuine, real and reasonable conser validity cannot be challenged merely vation measures. because they weigh more heavily on They are not contrary to Article 2 of some Member States than on others; the Regulation No 101/76. Irish measures are not discriminatory That article does not affect the Irish either in form or in substance and the measures: it took effect only in relation fact that they have a somewhat more to the maritime waters coming under severe effect on the Dutch fishing the sovereignty or within the industry emerges not from any discrim jurisdiction of Member States at the inatory content but from the fact that the conservation effects of the measures, time of the adoption of the regulation and does not relate to the maritime in themselves, have a greater impact on waters coming under the sovereignty or the fishing fleet which takes most fish from the Irish waters. within the jurisdiction of Ireland sub sequent to that date. The question of the validity of the Irish Furthermore, at all events, granted the measures must be viewed in the light of genuine nature of the conservation the serious situation which justified their measures, they do in fact allow equal introduction and implementation and conditions of access for all Community which still prevailed at the time of the vessels. Given that the Irish Government

January and 11 March 1977. Since no merely because of their very nature they conservation measures could be adopted affect him. at Community level, despite the insistence of the Irish authorities, the The criterion relating to the size of the Irish Minister for Fisheries found fishing boats is objective in nature and himself faced with the need to act has already been applied within the context of the North East Atlantic quickly to introduce measures which are Fisheries Convention and in the genuine conservation measures, lead to a reduction of fishing effort in the proposals of the Commission itself. short term and are capable of There is no legal authority for the stati speedy implementation and effective stical tests adopted by the Commission enforcement by an admittedly small to establish the discriminatory nature of protection fleet. The measures chosen the Irish orders.

MINISTER FOR FISHERIES ν SCHONENBERG

of the Community; The fact that the Dutch fishing fleet and, in particular, the trawler fleet 3. Having regard to the answers which has traditionally fished in Irish suggested in the last two preceding waters, has been reduced substantially subparagraphs, it is unnecessary for since 1975 is not disputed. It gives even the Court of Justice to proceed to more cause for concern in respect of give a preliminary ruling in relation conservation in Irish waters in future, in to the question referred to at paragraph 7 (c) of the reference. particular, by reason of the foreseeable diversion of fishing effort and a greater Mr C.A_ Schonenberg and the other concentration on larger vessels. The defendants in the main action make in Irish measures involve no discrimination essence the following observations: against Dutch vessels as such; the trend of the Dutch fishing industry in the past (a) The essence of the second two years has in itself tended to increase question, which must logically be dealt the necessity for conservation and has with first, relates to the extent of the made it particularly vulnerable to any powers retained by the Member States serious conservation measures which in relation to the making of conser might be taken. vation orders in fishery matters, a matter which has been, to some extent, (d) The following replies should be transferred to the organs of the given to the questions referred:

Community; ECR 1279) in which the Court 2. Ireland was not precluded at any considered the effect of Community law time material to the proceedings now on the power of the Member States to pending before the District Court in adopt unilateral measures in areas to Cork City, from taking measures which common rules apply.

As regards the facts, there are important Furthermore, the method adopted by differences between the present case and the Irish Government, consisting in a the Kramer case: the Irish Government total ban on boats exceeding a certain was acting unilaterally, it was not length or a certain brake horse-power, responding to any international did not, as required by the judgment in commitments and, indeed, was opposing the Kramer case, 'keep the effects on the the Commission's view as well as the functioning of the common organi view of other Member States. The Irish zation 'to a minimum'.

It was not merely advantages associated with the anticipating Community actions but was economies of scale. Furthermore, for acting contrary to the Commission's technical reasons the Irish measures do stated position. There is no scientific not in fact promote conservation basis for the action of the Irish objectives. Government. The Irish measures also constitute Therefore, the principles established in measures having an effect equivalent to the Kramer case should not auto quantitative restrictions and are as such matically extend to the conservation prohibited by Article 30 et seq. of the measures adopted by the Irish EEC Treaty and, in particular, by

Certain of its Council and the Commission more provisions affect the production stage of difficult in three ways: it is liable to the fishing industry. According to the jeopardize the success of the reasoning followed by the Court in its Community deliberations which aim at judgment of 30 October 1974 in Case the elaboration of a common fishing 190/73 (Officier van Justitie ν Van policy; because of its discriminatory Haaster [1974] ECR 1123) the Irish nature, it might provoke other Member measures should be struck down as States into taking retaliatory action to hindering intra-Community trade protect their own interests; it could covered by a common organization of prejudice the Community's position in the market. negotiations with third countries. Nor can the Irish measures be excused In taking the unilateral measures in under Article 36 of the EEC Treaty. question the Irish Government disre That article must be construed narrowly garded the obligation imposed upon it in the present circumstances and, in any by Article 5 of the EEC Treaty. event, must be read as permitting only

those measures which place no more by the application of other criteria of burden on intra-Community trade than differentiation, lead in fact to the same is strictly necessary to achieve the result. desired end. The Irish measures could Although discriminating only by size of have achieved their conservation boat and engine, the Irish measures objectives with less disruption to intra- discriminated in fact, and intended to Community trade if a scientifically do so, on the basis of nationality. That based quota system had been adopted admission was made in a public or if the procedure established by Annex statement by the newly appointed Irish VI to the Resolutions adopted at The Minister for Fisheries. The structure and Hague had been adhered to. drafting of the two orders in question The Irish Government's action was in tends to support the view that their breach of its obligations under the EEC objective was to impose a tout ban on Treaty in that it usurped Community all fishing in the area designated and functions and rendered more difficult then to exempt the whole of the Irish the attainment of the objectives of the fleet.

March 1977. If the Irish Government contrary to Article 2 (1) of Regulation No 101/76. considered itself to be acting as an 'agent of necessity' for Community They discriminate in substance, if not in interests in the matter of conservation form, on the basis of nationality and as then surely the proper way for it to do such are in direct conflict with Article 7 so would have been to adopt the scheme of the EEC Treaty and the first sub which had the support of the paragraph of Article 2 (1) of Regulation Commission and Ireland itself and of all No 101/76. but one of the other Member States. The Irish measures are also in direct Such a course of action, operating by conflict with the second subparagraph way of quota, would have achieved the of Article 2 (1) of Regulation No conservation objectives that Ireland was 101/76 in that they do not ensure equal promoting and would not necessarily conditions of access for all fishing have involved herein measures which vessels from the Member States. discriminate on the basis of nationality. The rule on equality of treatment is one Only two fishing boats in the entire of the fundamental legal provisions of Irish fleet of 2 346 vessels were the Community. It is directly applicable prohibited from fishing in the and capable of being invoked by designated areas mentioned in the nationals of all Member States. The orders. The concepts of discrimination prohibition against discrimination and of nationality must be interpreted applies not only to formal and obvious on the basis of factual criteria.

JUDGMENT OF 16. 2. 1978 — CASE 88/72

Member States. Secondly, the general determined, when coupled with the fact rules of the Common Market are that only two Irish vessels could possibly be excluded on such criteria, applicable to the fishing industry, in amounts to factual discrimination on the particular, Article 7 of the EEC Treaty basis of nationality. prohibiting any discrimination on grounds of nationality, which was Even if there were no national discrimi reaffirmed with regard to fishing in the nation in the Irish measures, they would second subparagraph of Article 2 (1) of be contrary to the second subparagraph

invalid. (b) In view of the present situation of Community law, determined in The Government of the French Republic particular by the Statement on Annex emphasizes the fact that the fishing VI to the Hague Resolutions, the policy is a Community one. That is clear from Article 38 (1) of the EEC validity of the Irish measures must be Treaty, in relation to which the examined essentially having regard to, first, their non-discriminatory nature Community laid down, first by means of Regulations Nos 2141/70 and and whether they are adequate for the objective in question and, secondly, 2142/70 and subsequently by Regu their effect on the establishment of the

MINISTER FOR FISHERIES v SCHONENBERG

for 1977 must not be discriminatory. that reasoning in its order of 22 May The practical consequences of the Irish 1977.

measures are that, whilst they have the If in practice unilateral measures have appearance of giving formal equality of the effect of prohibiting the fishing treatment, their effects are discrimi­ vessels of a Member State from carrying natory. Numerous fishermen who are out their traditional fishing activities it nationals of other countries of the is evident that the functioning of the Community and have traditionally common organization of the market is fished in the waters subject to the directly jeopardized. measures in question have boats in excess of the dimensions and the power The Government of the Kingdom of the specified in those orders. On the other Netherlands considers that a comparison hand, the large majority of Irish boats must be made between the circum­ fall within the category of boats which stances giving rise to the present dispute are permitted to carry on fishing. The and those which gave rise to the evidence clearly suggests that those judgment of 14 July 1976 in the Kramer measures are in fact of a discriminatory case.

concerning the relations of the the biological resources of the sea under Article 102 of the Act of Accession. A Community with third countries have third difference relates to the fact that a been adopted. The permanent Community rules relating to fishing national provision such as that adopted must be adopted in conformity with the by Ireland cannot reasonably be general rules of Community law. regarded as serving to safeguard the resources of the sea. Contrary to Article In substance the Irish measures prejudge 4 of Regulation No 101/76 and to the the result of the future negotiations on practice of international fishery organi­ Community rules and thus run the risk zations it contains no definition of of compromising the achievement of an species of fish, areas, fishing seasons, agreement within the Community. methods of fishing or fishing gear. Moreover they may have the effect of Biological considerations based on causing those Member States which factual calculations of the risks of believe that their interests have been overfishing, relating to certain areas and prejudiced to adopt comparable certain species, cannot reasonably unilateral measures. The Court accepted constitute grounds for such a provision.

JUDGMENT OF 16. 2. 1978 — CASE 88/72

of fish stocks. On the one hand of restricting catches which is not restrictions on catches imposed on the justified on the grounds of protecting fishing industry must be strictly fish stocks and the discriminatory effect necessary for the achievement of the of the measures, both individually and common objective; on the other, the in conjunction with each other, effects of the national measure on the Community law bars measures such as functioning of the common organi those adopted by Ireland. zation of the market must be kept to a After recalling the special situation in

Furth November 1976 and the case-law of the ermore, the Irish measures are Court, the Commission maintains that detrimental to a rational development of national measures are compatible with the fishing industry in that particularly Community law only if they comply the more modern trawlers are excluded. with three tests: they do not lead to The modernization of the Netherlands differences in treatment of fishing boats fleet was rather related to its being of other Member States and do provide designed for selective fishing of high equal conditions of access; they are, quality fish intended for human objectively considered, real conservation consumption.

The equal rights of all fishing vessels from the (a) Article 2 (1) of Regulation No Community in respect to access to and 101/76 prohibits 'differences in use of the fishing grounds as guaranteed treatment of other Member States', not by Article 2 of Regulation No 101/76 merely express or open discrimination

United Kingdom 2 520 276 10.6

That table clearly establishes the discrim­ disunces in bad weather to fish, or to inatory nature of the measures in stay at sea for long periods, it seems dispute. clear that the Irish measures have a The second test is whether the discriminatory effect though not a prohibition, which applies in a large readily quantifiable one. area of the open Atlantic, most of it The third test is the extent to which substantially nearer to Ireland than to boats from other Member States which ports in other Member States, has a are over the Irish size limits have until different effect with regard to boats now fished regularly in the zone to based in other Member States. which the orders relate. The available Since smaller boats are less able in information is set out in the following practice regularly to travel long table:

Total fishing vessels of which over 33 m Member State normally operating in waters registered length and 1 100 affected by the Irish b.h.p. measures

Ireland 1 100 1 0.19

France 407 101 24.8

Netherlands 57 57 100

area concerned. On the other hand, should be able to reduce the total catch many Dutch and French boats are in the zone in question in the short prohibited by the Irish measures from term. Neverthelees, they cannot be fishing in areas where they obtained a regarded objectively as conservation very substantial proportion of their total measures in the true sense of the term. catches. The Irish authorities have not produced Judged by all four tests, the Irish any estimate of the reduction in the catches which should result from the measures are contrary to the principles of equal access and no difference in measures in dispute. The scientific treatment. evidence available suggests that measures as far-reaching in their effects Even supposing a restriction on size and as the Irish measures can neither be engine power had been the only type of regarded as necessary for the stocks of effective action possible and even if such all species in the Irish seas, nor as appro­ a restriction should be regarded priate. objectively as a conservation measure, Certain recommendations of the North nevertheless the limits chosen were East Atlantic Fisheries Commission and unnecessarily discriminatory in their effects. in the Commission's proposals dated 20 December 1976 and 14 January 1977 The answer to the argument that almost certainly also included limitations on any measure is likely to have a different boat size. However, they were intended effect on the fishing fleets of the only to protect certain limited areas different Member States is that national where there are particularly vulnerable measures must be so designed as to ecosystems. It would be unnecessary avoid having a substantially different and entirely inappropriate to adopt such effect on the different fleets, unless the limitations for a large area of open different effects are strictly necessary ocean.

MINISTER FOR FISHERIES ν SCHONENBERG

Community. They prevent a large disadvantages which might result during number of fishing boats registered in the the negotiations with third countries Community from fishing in a very large from the existence of certain national sea area in which they have traditionally conservation measures. However, the fished. adoption of unilateral measures The Irish measures cannot be regarded affecting a large number of boats over a objectively as conservation measures large sea area, in particular when and they are therefore not consistent adopted by a Member State having sovereignty or jurisdiction over a large with the system established by Regu lations Nos 100/76 and 101/76, even if proportion of Community seas, calls in question the credibility of the they were compatible with Article 2 of Community in negotiations with third Regulation No 101/76. countries. The Irish measures have extra ordinarily disruptive effects on the (c) Annex VI to the Hague implementation of the Community's Resolutions, whatever its exact legal external fisheries policy. effect, does not lay down rules of substance or of procedure which are Supposing the Irish measures are substantially different from the relevant regarded as compatible with Community law, other Member States rules of Community law.

The Community law. could only give assurances to third countries on condition that each The Community is now actively involved with a number of third Member State was legally obliged to countries in fisheries negotiations which obey them. may involve some degree of reciprocity. The Irish measures exerted an adverse Measures such as the Irish measures influence in particular on the violate Community law, since they negotiations with the USSR, which seriously interfere with those contested the effectiveness of control by negotiations. the Community of the Community

Norway to renegotiate them, and with 2. Community law also precludes certain other third countries which have Member Sutes from adopting threatened retaliation. fisheries measures which are not, The fact that in its negotiations with objectively considered, conservation third countries the Community has measures appropriate and effective in always reserved the right to regulate its relation to the needs of the stocks in internal regime in accordance with its question. A national measure is not a own needs in no way permits individual conservation measure merely because Member States, acting unilaterally it has the effect of reducing catches without the agreement of the of fish. A non-selective measure the Commission, to adopt measures as only effect of which is totally to important and as serious in their effects prohibit all fishing of all species of as the Irish measures. fish" by boats over a certain size throughout the year and for an (d) Article 2 of Regulation No 101/76 unlimited time in a large area which is directly applicable by virtue of Article does not correspond to any known 189 of the EEC Treaty. Individuals and fish stocks, and which does not limit companies have rights under it which the total number of fish caught, or are enforceable before national courts. the total number of boats fishing, or A conviction of a national of a Member mesh size, or the total fishing effort, State in accordance with a national law is not a conservation measure. which was contrary to Article 2 of Regu­ 3. A national fisheries measure which is lation No 101/76 would be contrary to not a conservation measure or which Community law. goes beyond which is necessary for conservation and which hinders the (e) The following answers should be Community or Community given to the questions referred to the institutions in carrying out tasks Court: entrusted to them in accordance with 1. Community law, in particular Article Community law or policy, or which 2 of Regulation No 101/76, hinders the common action of the precludes Member States from taking Community within the context of measures which lead in practice to international negotiations, is contrary differences in treatment of the to Community law. A national fishing fleets of Member States and measure has these effects if it is so which do not give the fishing fleets extensive in its application (whether of Member States equal conditions to the area of sea, the number of of access to and use of fishing boats, the number of species or the grounds in all maritime waters length of time to which it applies or coming under the sovereignty or otherwise) that it would, if valid, in within the jurisdiction of the practice create serious difficulties for Member Sute in question. A national the Community in carrying out its measure is contrary to the principles tasks or negotiations.

3 The file shows that on 29 April 1977 ten trawlers registered in the Netherlands, all of which exceeded the registered dimension and brake horse-power authorized by the Irish orders, fished within the area reserved by those orders.

JUDGMENT OF 16. J. 1978 — CASE 88/77

4 One of the Dutch trawlers, the Master of which was C. A. Schonenberg, was boarded by a boarding party from an Irish Naval Sea Fisheries Protection vessel and brought to Cork Harbour, where it was followed by the nine other trawlers in the same group.

5 The Masters of the ten Netherlands trawlers in question are at present being prosecuted before the Cork Distria Court for having violated the orders of 16 February 1977.

6 As the compatibility of those orders with Community law was contested in the course of those proceedings the District Court referred three questions to the Court of Justice for a preliminary ruling.

7 The first question, which concerns the interpretation of Article 7 of the EEC Treaty and of Article 2 of Regulation No 101/76, in conjunction with Articles 100 and 101 of the Act of Accession, seeks to enable the national court to assess the compatibility of the Irish orders of 16 February 1977 with the principle of equality of treatment guaranteed by the aforementioned provisions to all fishing boats flying the flag of one of the Member States and registered within the territory of the Community.

13 It is therefore sufficient to refer to the judgment given in Case 61/77, the text of which is annexed to the present judgment.

14 Having regard to the grounds set out in that judgment it is appropriate to reply first to the second question that in the absence of the adoption by the Community of adequate conservation measures under Article 102 of the Act of Accession and Article 4 of Regulation No 101/76, the Member States were, at the period in question, entitled to adopt interim measures as regards the waters under their jurisdiction, provided that such measures are in accordance with the requirements of Community law.

15 The reply to the first question must be that Article 7 of the EEC Treaty, Article 2 of Regulation No 101/76 and, in so far as they have a bearing on the problem, Articles 100 and 101 of the Act of Accession preclude a Member State from adopting measures such as are set out in the Sea Fisheries (Conservation and Rational Exploitation) Order 1977 and the Sea Fisheries (Conservation and Rational Exploitation) (No 2) Order 1977.

16 Finally, as the Court has already held in its judgment of 21 March 1972 in Case 82/71, Pubblico Ministero della Repubblica Italiana ν Società Agricola Industria Latte (SAIL) ([1972] I ECR 119), where criminal proceeding are brought by virtue of a national legislative measure which is held to be contrary to Community law, a conviction in those proceedings is also incompatible with that law.

Costs

17 The costs incurred by the Government of the Kingdom of the Netherlands, the Government of the French Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

2. Article 7 of the EEC Treaty, Article 2 of Regulation No 101/76 and, in so far as they have a bearing on the problem, Articles 100 and 101 of the Act of Accession, preclude a Member State from adopting measures such as are set out in the Sea Fisheries (Conservation and Rational Exploitation) Order 1977 and the Sea Fisheries (Conser­ vation and Rational Exploitation) (No 2) Order 1977;

3. Where criminal proceedings are brought by virtue of a national legislative measure which is held to be contrary to Community law a conviction in those proceedings is also incompatible with that law.

Kutscher Sørensen Bosco

Donner Pescatore Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 16 February 1978.

A. Van Houtte H. Kutscher