C-141/78

JUDGMENT OF 4. 10. 1979 — CASE 141/78

fishing industry, under which all laws worthwhile results can only be and administrative rules and regu­ attained thanks to the co-operation of lations determining the rules applied all the Member States. by each Member State in respect of Thus the institution of measures of fishing in the maritime waters coming under its sovereignty or within its conservation by a Member State must first be notified to the other Member jurisdiction must be notified to the other Member States and the States and to the Commission; a Commission, together with any Member State proposing to bring alterations which it is intended to such measures into force is required make in the fishery rules so laid to seek the approval of the down, and on the other hand, Annex Commission, which must be consulted VI to the Resolution on fishing at all stages of the procedure. adopted by the Council at The Hague on 30 October 1976 and formally 3. Annex VI to The Hague Resolution approved on 3 November 1976. That in the words of which "the Member resolution, in the particular field to States will not take any unilateral which it applies, makes specific the measures in respect of the conser­ duties of co-operation which the vation of resources", except in certain Member States assumed under Article circumstances and with due 5 of the EEC Treaty when they observance of certain requirements, acceded to the Community. Per­ must be understood as referring to formance of these duties is parti­ any measures of conservation cularly necessary in a situation in emanating from the Member States which it has appeared impossible, by and not from the Community auth­ reason of divergences of interest orities. The duty of consultation which it has not et been possible to arising under that resolution thus resolve, to establish a common policy covers also measures adopted by a and in a field such as that of the Member State to comply with one of conservation of the biological its international obligations in this resources of the sea in which matter.

United Kingdom of Great Britain and Northern Ireland , represented by W. H. Godwin, Under-Secretary (Legal), Treasury Solicitor's Office acting as Agent, assisted by T. H. Bingham, Queen's Counsel, and P. J. Langdon- Davies, Barrister, with an address for service in Luxembourg at the Embassy of the United Kingdom, defendant,

APPLICATION for a declaration that by adopting on 9 March 1977 and by bringing into force on 1 April 1977 the Fishing Nets (North-East Atlantic) Order 1977, the United Kingdom has failed, in the sea fisheries sector, to fulfil its obligations under the EEC Treaty,

THE COURT

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco, A. Touffait and T. Koopmans, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

application in particular of Articles 42 1 January 1977 the Member States and 43 of the EEC Treaty, Regulation would, by means of concerted action, (EEC) No 2141/70 laying down a extend the limits of their fishing zones to common structural policy for the fishing 200 miles off their North Sea and North industry (Official Journal, English Atlantic coasts and that as from the same Special Edition 1970 (III), p. 703) and date the exploitation of fishery resources Regulation (EEC) No 2142/70 on the in those zones by fishing vessels of third common organization of the market in countries would be governed by fishery products (Official Journal, agreements between the Community and English Special Edition 1970 (III), the non-member countries concerned. p. 707). The Council accordingly instructed the Commission forthwith to start negotiations with the non-member Articles 98 to 103 of the Act concerning countries concerned in accordance with the Conditions of Accession and the the Council's directives and decided on Adjustments to the Treaties annexed to concerted action by the Member States the Treaty, known as "the Accession for the purpose of future proceedings of Treaty" of 22 January 1972, contain the international fisheries bodies, in provisions relating to fisheries; in particular the International Commissions particular Article 102 provides that the for North-West Atlantic Fisheries, Council, acting on a proposal from the North-East Atlantic Fisheries and South- Commission, shall determine, from the East Atlantic Fisheries. sixth year after accession at the latest, conditions for fishing with a view to ensuring protection of the fishing On the same occasion the Council grounds and conservation of the approved a statement of the Commission biological resources of the sea. (Annex VI to the resolution) in the following terms: On 19 January 1976, the Council adopted Regulation (EEC) No 100/76 "Pending the implementation of the on the common organization of the Community measures at present in market in fishery products (Official preparation relating to the conservation Journal L 20, p. 1) and Regulation of resources, the Member States will not (EEC) No 101/76 laying down a take any unilateral measures in respect of common structural policy for the fishing the conservation of resources. industry (Official Journal L 20, p. 19). The first of those regulations repeals However, if no agreement is reached for Regulation No 2142/70 and the second 1977 within the international fisheries Regulation No 2141/70. commissions and if subsequently no autonomous Community measures could On 8 October 1976 the Commission be adopted immediately, the Member submitted to the Council a proposal for a States could then adopt, as an interim regulation establishing a Community measure and in a form which avoids system for the conservation and discrimination, appropriate measures to management of fishery resources ensure the protection of resources (Official Journal C 255, p. 3). situated in the fishing zones off their coasts.

On 18 February 1977, the Council By a note of 13 October 1977 the adopted Regulation (EEC) No 350/77 Government of the French Republic laying down certain interim measures for referred to the Commission of the the conservation and management of European Communities, in accordance fishery resources (Official Journal L 48, with the second paragraph of Article 170 p. 28). of the EEC Treaty, the question whether the British order of 9 March 1977 was in

On 9 March 1977 the Minister of Agri­ conformity with Community law. culture, Fisheries and Food and the Secretaries of State for Scotland and Northern Ireland, in exercise of the The United Kingdom Government submitted its written observations to the powers conferred upon them in Commission on 23 December 1977. particular by the Sea Fish (Conservation) Act 1967, made an order entitled the Fishing Nets (North-East Atlantic) Order 1977. The order came into On 2 February 1978 the Commission operation on 1 April 1977. held a hearing during which the

JUDGMENT OF 4 IS. 1979 — CASE 141/78

Government of the French Republic and Further, at the request of the Court, the the Government of the United Kingdom Government of the French Republic were given the opportunity to submit provided further information regarding their own case and their oral obser­ the subject-matter of its action and the vations on the other parry's case. exact content of its conclusions.

By an order of 25 October 1978, the The Commission claims that the Court Court, in pursuance of the first should declare that the United Kingdom, paragraph of Article 37 of the Protocol by failing to seek the Commission's on the Statute of the Court of Justice of approval under Annex VI to the Hague the EEC, allowed the Commission of the Resolution of 30 October 1976 and to European Communities to intervene in notify the order in question to the support of the conclusions of the French Commission under Article 3 of Regu­ Republic. lation No 101/76, has failed to fulfil its obligations under the EEC Treaty. The written procedure followed the normal course. The Government of the United Kingdom contends that the Court should dismiss the French Government's claims and On hearing the report of the Judge- Rapporteur and the views of the order it to pay the costs. Advocate General the Court decided to open the oral procedure without any preparatory inquiry. IV — Submissions and arguments of the parties during the It did however invite the Government of written procedure the United Kingdom to supply it with further information regarding the procedure on 4 October 1977 before the The Government of the French Republic Pembroke Magistrates' Court; this states in particular in support of its request was complied with within the application that the British order of prescribed period. 9 March 1977 does not represent the

FRANCE v UNITED KINGDOM

The British order contains provisions Moreover the order in dispute cannot be which do not follow from justified by a unilateral interpretation by Recommendation No 5: that the British Government of the recommendation does not cover fish Convention recommendations as a catches intended for human consumption whole, including those which have no but those made for industrial processing; direct connexion with the subject in it only makes it mandatory for ships question. Since each of the Convention engaged in fishing for industrial purposes recommendations refers to a well- not to have on board more than 25% of defined sphere of activities, each one species which should be caught with must be applied separately. The large-mesh nets. Convention recommendations cannot be interpreted "as a whole" at will by each State, which would lead to totally arbitrary measures. Nor can Recommendation No 2 of the Convention which limits the use of small-mesh nets, be relied on to justify the British measure; although it lays down the principle that that type of At all events, the Convention recommendations cannot constitute the trawl-net may not be used to fish for species other than those listed in the legal basis for national measures, so far schedule, it does not make any mention as the United Kingdom is concerned, of percentages. after 31 December 1977 (the date on which its denunciation of that Convention became effective).

There is therefore no basis for the United Kingdom's claim that the order of 9 March 1977 constitutes an implementation measure deriving from (b) Since the British order of 9 March obligations contracted under the 1977 was not a measure implementing

the Treaty, from Articles 39 to 46 thereof, from Regulations Nos 2141/70 and 2142/70 and from Article 102 of the Act of Accession. It is obvious from all those provisions that the Community has As regards the actual scope of the power to adopt measures within the procedure laid down by Annex VI to the Community in the field of the conser­ Hague Resolution, the expression "seek vation of fishery stocks. Moreover the the approval of the Commission" must Court of Justice has established, in be interpreted as having a very binding force; it cannot be restricted to a mere particular in its judgment of 14 July 1976 (Joined Cases 3, 4 and 6/76, Cornelis notice given to the Commission, a notice Kramer and Others, [1976] ECR 1279), of a draft order. In requiring the that the Community also enjoys the approval of the Commission to be sought capacity to enter into international "at all stages of the procedure" Annex commitments for the conservation of the VI means that, if the Commission does resources of the sea. not give its approval, the proposed measure will have to be amended. This strict interpretation of the formula has already been made by the Council itself in the written reply to Parliamentary Having over-riding power in fishery Questions Nos 304/77 and 378/77 and matters, the Community has adopted a by the Court of Justice in its judgment of number of regulations and established 16 February 1978 (Case 61/77, procedures which, in an initial period, Commission v Ireland [1978] ECR 417). admit of a concurrent power whereby Member States may take measures concerning fishery but under the supervision of the Commission. The British order did not respect those pro­ The wording referring to approval has a cedures as established by the Hague very strong force so that the British Resolution. order in dispute is in breach of the

By adopting in the order of 9 March Respect for the obligation of securing 1977 measures contrary to the very the Commission's assent would, provisions of Community law, the moreover, make it possible to avoid the United Kingdom has also violated the unilateral adoption of contradictory spirit of that law. national rules which, on the one hand, would strike at the very root of the Community's credibility so far as its power to carry out international negotiations is concerned and, on the The unqualified assertion that Member other hand, would run counter to the States of the Community and the spirit of the rules already elaborated. Community itself have concurrent powers does not seem to tally, in the field of sea fisheries, with developments observed in recent years. If each Member State could unilaterally adopt similar regulations which might therefore extend to the entire area under national jurisdiction, the Community Any powers which the States may still would then no longer be in a position to have are not only of a residual and pro­ carry on serious negotiations with non- member countries. It would be most visional character, but furthermore may be exercised only provided their prejudicial to the position of the consistency is ensured, at Community Community in the context of inter­ level, by the Commission. If, in a purely national negotiations were it to appear that Member States have in fact retained transitional phase, certain national regu­ lations may subsist, they should be co­ the powers which they claim to have ordinated and brought into line so far as transferred to the Community. The co­ possible in order to avoid contributing to existence of concurrent powers in fishery matters would also contradict the the consolidation of a chequer-board of maritime areas covered by national regu­ meaning of certain rules of present lations, whereas the building of Europe Community law. This would be the case calls for an area subject to a body of with the provisions concerning organ­ rules emanating from a single source so izations of the market; thus in the case that it will be consistent in its content. of prawns, national regulations which varied considerably from one State to another might have an appreciable effect on price levels and the regular supply of markets. Such measures, by virtue of Henceforward no national measure may their unilateral and unforeseeable be taken in a field not covered by a character, would be contrary to the Community regulation unless that interests of both producers and measure has the full approval of the consumers. Moreover such varying Commission, and such approval would measures would ultimately create automatically confer upon it the disparities between States, depending character of a Community rule; thus upon whether the practices adopted' were such "national" measures should, in fact, more or less liberal. Above all it is

The Convention rules contain no actual Certain changes which have taken place since 1976 make it advisable to re-read figures regarding the level of by-catches. the proceedings in the Kramer case in the The United Kingdom Government, by light of the new situation which has restricting that level to 20%, whereas a arisen. That judgment upheld a limited regulation of the French Republic and transitional power on the pan of the specifies the figure of 80%, has taken an excessive measure. The Commission, in Member States in case the Community institutions did not yet fulfil their its proposal included in the functions and obligations. It may "compromise" of 28 January 1978 therefore be considered a contrario that submitted to the Council, established a when the Community institutions have figure of 40% for by-catches; that proposal met with no opposition from exercised the power which is theirs there is no room for unilateral measures by the United Kingdom. Member States; the British order entered into force on 1 April 1977 and the Community had by that date already exercised its power, particularly with regard to by-catches and the mesh size of nets, as is clear from Regulation No The Commission considers that there are 350/77. two main questions in this case, namely, whether Article 5 of the EEC Treaty, as explained and made concrete by Annex VI to the Hague Resolution, imposes a legally binding obligation on Member States to seek the approval of the Admittedly those rules covered only Commission before adopting a national certain species; but Article 3 of the regu­ fishery conservation measure, and lation also states that "the Council ... whether Annex VI applies to national shall adopt provisions concerning the measures which are said to facilitate

The EEC Treaty sets up a Community in which there is a clear obligation to co­ operate both in general and in particular Other resolutions adopted at The Hague to achieve common objectives: moral and clearly have legal effects; thus the political commitments freely and openly directives given to the Commission for entered into by all Member States should the negotiations with non-member be honoured; Member States have a duty countries gave it a certain negotiating to proceed by common action. authority although limited in certain

JUDGMENT OF 4. 10. 1979 — CASE 141/78

respects. Member States could not legally involvement would be essential to have acted in a way inconsistent with the minimize differences in national fisheries legal mandate given to the Commission. laws.

Annex VI was prepared by the The case-law of the Court confirms that Commission and agreed to by the Annex VI must be considered as an Council. This procedure was comparable agreement on the practical legal to that used for normal Community obligations of Member States in fisheries legislation and safeguards the general matters under Article 5 of the Treaty. Community interest which the requirement of a Commission proposal is intended to protect.

It clearly obliges Member States to seek in good faith the Commission's approval. Member States are therefore obliged to Annex VI was the only Hague resolution inform the Commission clearly and in dealing comprehensively with the good time; the duty to act bona fide also internal fisheries system; if it had been requires the Member State concerned to extensively disregarded serious legal be willing to adapt its proposals in order problems would have arisen. Control a to obtain the Commission's approval. priori to ensure reasonable consistency is This is also a legal duty under Article 5 clearly much better than control a of the Treaty. posteriori.

for its approval. Such is the case with of a policy of conservation of the national measures designed to give effect resources of the sea, of provisions to Regulation No 350/77; a fortiori, regarding the dimensions of the mesh of national measures designed to give effect nets determined specifically for different to Convention recommendations should groups or species, and the limitation of be submitted to the Commission under "by-catches". Annex VI. The wider the margin of discretion left to Member States, the more vital it is for them to consult the Commission before implementing recommendations. This is even clearer where, as in this case, the national With regard to the legal aspects of this measure goes further than the case it should be stated that the criticisms recommendation because the British made of the order of 9 March 1977 are order applies if the by-catch exceeds unfounded. 20% of the catch whether or not the main catch is intended for human consumption.

(a) Under Article 8 of the Convention Moreover the expression "unilateral" the Contracting States undertook to give national measures has consistently been effect to any recommendation made by used in Community fishery matters to the Commission under Article 7; by mean national as distinct from Article 13 Contracting States agreed to "Community measures". take, in their own territories and with regard to their own nationals and their own vessels, appropriate measures to ensure the application of the Convention.

Annex VI to the Hague Resolution is merely declaratory of the rights of the Member States in fields in which the

The denunciation of the Convention by Community has not yet operated. Since the Member States of the Community the date of the Hague Agreement the was decided in anticipation of the Community has started to take fishery extension of national limits to 200 miles conservation measures; however, these and on the ground that the Convention are not yet in any way comprehensive was no longer the appropriate means for and their application is limited both by securing international co-operation in the areas in which they operate and by fisheries conservation in the North-East the species of fish to which they apply. Atlantic area. It may however be seen Outside these limits there is a wide field in which the Member States are still free clearly from the notice issued by the British Government on 21 February 1977 to operate by taking their own conser­ that it was the machinery of the vation measures, so long as they conform Convention which was felt to require to general law. The case-law of the overhaul and not the recommendations Court has recognized that national made under the Convention. conservation measures are permissible so long as the Community's functions are not affected.

In any event the recommendations did not cease to be of effect before the denunciation by the Member States took The powers of the Member States have effect at the end of December 1977, that not been affected by Regulations Nos is, after the adoption of the order in 101/76 and 350/77 as long as the dispute. Council has not in fact adopted comprehensive fisheries regulations. In particular Member States were not only empowered but obliged by Regulation No 350/77 to alter the maximum by- catch under Resolution No 5 from 25 to (b) As regards the compatibility of the 20%. The procedures prescribed in order with Community law it is fully Annex VI to the Hague Resolution were

In its proposal to the Council of The fact that the Commission's approval 28 January 1978 the Commission is not a prerequisite is confirmed by the proposed various arrangements both for Commission's attitude in the Irish a transitional period and for permanent Fisheries case (Case 61/77), by the requirements: not only a limit to the by reasoned opinion issued by the catch but also provisions concerning Commission in this case, by the mesh size and minimum length of fish declaration made by the Vice-President and, by way of permanent arrangement, of the Commission responsible for agri­ measures relating to fishing areas. culture and fisheries to the European Parliament on 6 July 1977 and by the fact that a number of conservation measures have been introduced by On this point the view may be taken that Member States, in particular Denmark the Community proposal constitutes and Ireland, without the express much more rigorous rules than the approval of the Commission having been requirements made by the United first obtained. Kingdom in the order of 9 March 1977.

The application does not substantiate the suggestion that the order in dispute had V — Oral Procedure or could have an adverse effect on Community negotiations with non- member countries. The Commission itself contests this. The French Republic, represented by its Agent, Guy Ladreit de Lacharrière, the Commission, represented by its Agent, Community law, in particular Article 2 John Temple Lang, and the United (1) of Regulation No 101/76, Annex VI Kingdom, represented by T. H.

2 The action brought by the French Republic originates in an incident at sea which occurred on 1 October 1977 when the French trawler "Cap Caval" which was fishing for prawns within United Kingdom fishery limits, was boarded by British fishery protection officers. The master of the trawler was summoned before the Pembroke Magistrates' Court and convicted on 4 October 1977 of infringing the order in dispute, in particular for having used nets of a mesh smaller than the minimum authorized by the order. Following that incident the French Government commenced the procedure under Article 170, first bringing the matter before the Commission in accordance with the second paragraph of that article. On 22 March 1978 the Commission delivered its reasoned opinion in accordance with the third

FRANCE v UNITED KINGDOM

paragraph of that article. In that opinion the Commission found that by bringing the disputed order into force the United Kingdom was in breach of its obligations under the Treaty. As the United Kingdom did not comply with that opinion the French Government brought the matter before the Court on 14 June 1978.

4 The French Government's position was supported by the Commission which intervened in the action. In the arguments presented to the Court the Commission stated that the Government of the United Kingdom had also failed to observe Article 3 of Council Regulation No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry, under which Member States are required to give prior notification of any alterations to fishery rules. Furthermore, the Commission emphasized parti­ cularly that Annex VI to The Hague Resolution is a specific expression of the duty of co-operation expressed in general terms by Article 5 of the EEC Treaty. Finally, the Commission claims that the British measures are excessive inasmuch as they involve certain specific conditions, in particular relative to the restrictions on by-catches, which are defined more strictly than in the proposals put forward by the Commission for determining common rules in the matter.

JUENT OF 4. 10. 1979 — CASE 141/78

6 As the French Government has correctly stated, the order in dispute was adopted in a field which comes within the powers of the Community. Those powers cover all questions relating to the protection of the fishing grounds and the conservation of the biological resources of the sea both in the Community's internal relations and in its relations with non-member States. Those powers are based on Article 3 (d) of the Treaty in conjunction with Article 38 et seq. relating to agriculture, including Annex II to the Treaty which includes fisheries within the sphere of the common agricultural policy. Subsequently, the fact that conservation measures were included in the Community's powers was specifically confirmed by Article 102 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties. The foundations of a common policy in fisheries matters were laid by Regu­ lations No 2141/70 of the Council of 20 October 1970 laying down a common structural policy for the fishing industry and No 2142/70 of the

FRANCE v UNITED KINGDOM

Council of the same date on the common organization of the market in fishery products (Official Journal, English Special Edition 1970 (III), pages 703 and 707 respectively); following the enlargement of the Community those regulations were replaced by Regulations Nos 100 and 101/76 of 19 January 1976 (Official Journal L 20, pages 1 and 19). The Court, for its part, has had occasion to emphasize the scope of these provisions in its judgments of 14 July 1976 (Joined Cases 3, 4 and 6/76, Kramer and Others, [1976] ECR 1279), of 16 February 1978 (Case 61/77, Commission v Ireland [1978] ECR 417) and of 3 July 1979 (Joined Cases 185 to 204/78, Van Dam and Others).

Any such measures shall not prejudice the guidelines to be adopted for the implementation of Community provisions on the conservation of resources."

JUDGMENT OF 4. 10. 1979 — CASE 141/76

8 The Commission has rightly claimed that that resolution, in the particular field to which it applies, makes specific the duties of co-operation which the Member States assumed under Article 5 of the EEC Treaty when they acceded to the Community. Performance of these duties is particularly necessary in a situation which it has appeared impossible, by reason of divergences of interest ch it has not yet been possible to resolve, to establish a common polic and in a field such as that of the conservation of the biological resources of the sea in which worthwhile results can only be attained thanks to the co-operation of all the Member States.

9 It follows from the foregoing that the institution of measures of conservation by a Member State must first be notified to the other Member States and to the Commission and that such measures are in particular subject to the requirements laid down by Annex VI to The Hague Resolution. In other words, a Member State proposing to bring such measures into force is required to seek the approval of the Commission, which must be consulted at all stages of the procedure.

10 It is common ground that these requirements have not been satisfied in this case. The Government of the United Kingdom, however, claims that it was not required to follow that procedure since it applies exclusively in the case of "unilateral measures" of conservation of resources adopted by a Member State and that the measures which are the subject of the disputed order are not "unilateral" measures, inasmuch as they were adopted in order to ensure, within the jurisdiction of the United Kingdom, the undertakings arising for the United Kingdom from the North-East Atlantic Fisheries Convention and the resolutions adopted thereunder.

Costs

14 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. As the United Kingdom has failed in its submissions it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by bringing into force on 1 April 1977 the Fishing Nets (North-East Atlantic) Order 1977, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the EEC Treaty;

Registrar President

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 11 SEPTEMBER 1979 1

Mr President, whilst fishing, mainly for prawns it Members of the Court, seems, in English territorial waters. The ship was intercepted on the edge of a prawn-fishing area and its owner was On 9 March 1977 the Fishing Nets sentenced to a fine by a British court (North-East Atlantic) Order 1977 was because the ship was using nets whose issued in the United Kingdom. Designed mesh did not comply with the to protect certain species of fish and requirements — only small-mesh nets brought into force on 1 April 1977, the were aboard — and because the limit order contains provisions governing the authorized for by-catches had been mesh size of fishing nets to be used for exceeded: on the master's estimate they certain species of fish and the size of amounted to 61 % of the total catch, what are known as by-catches, that is to whereas 20 % is the amount permitted say catches of species of fish which in by the British order mentioned above. themselves are protected but which are unintentionally taken up together with unprotected species when authorized nets are used. This resulted in an action against the United Kingdom under Article 170 of In autumn 1977 the "Cap Caval", a the EEC Treaty by the French French ship, infringed these provisions Government, which considers that the

1 — Translated from the German.