C-32/79

COMMISSION v UNITED KINGDOM

5. The duty to consult the Commission management of fisheries, so as to and to seek its approval, flowing from enable all other Member States and Annex VI to the Hague Resolution, is all persons concerned, in the same general and applies to any measures way as the Community authorities, to of conservation emanating from the see whether the system put into Member States and not from the operation fulfils both the particular Community authorities. Conse- obligations of the Member State in quently, the measures adopted by a question under the relevant regulation Member State in implementation of a and the general requirements of non- Community regulation are not discrimination and equality as regards exempted from that duty or from the the conditions of access to the fishing duty of notification laid down in grounds enshrined in Article 2 of Articles 2 and 3 of Regulation No Regulation No 101/76 and Article 7 101/76. of the EEC Treaty. This obligation to introduce implementing measures 6. In order to safeguard the rights and which are effective in law and with interests protected by Community law which those concerned may readily for other Member States and their acquaint themselves is particularly nationals it is necessary to lay down necessary where sea fisheries are and publish, in a form binding upon concerned, which must be planned the Member State concerned, all the and organized in advance; the detailed rules of the system chosen by requirement of legal clarity is indeed the authorities of that Member State imperative in a sector in which any for the implementation of a uncertainty may well lead to incidents Community regulation laying down and the application of particularly measures for the conservation and serious sanctions.

IRELAND, represented, for the purposes of the written procedure, by Louis J. Dockery, Chief State Solicitor, acting as Agent, and, for the purposes of the oral procedure, by D.N.C. Budd, Barrister at the Dublin Bar, with an address for 'service in Luxembourg at the Irish Embassy,

KINGDOM OF THE NETHERLANDS, represented by A. Bos, Assistant Legal Adviser at the Ministry for Foreign Affairs, acting as Agent, assisted by C. J. Heringa, Legal Adviser at the Ministry for Agriculture and Fisheries, with an address for service in Luxembourg at the Netherlands Embassy, interveners,

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, represented, for the purposes of the written procedure, by R. D. Munrow, Assistant Treasury Solicitor, acting as Agent, assisted by T. H. Bingham, QC, Gray's Inn, and P. G. Langdon-Davies, Barrister of the Inner Temple, and, for the purposes of the oral procedure, by the Lord Advocate, Lord Mackay of Clashfern, QC, with an address for service in Luxembourg at the British Embassy, defendant,

APPLICATION for a declaration that, by applying unilateral sea fisheries measures in certain fisheries off its coasts, the United Kingdom has failed to fulfil its obligations under the Treaty,

COMMISSION v UNITED KINGDOM

T H E COURT

On 19 January 1976, the Council On 20 October 1970 the Council of adopted Regulation (EEC) No 100/76 the European Communities adopted, on the common organization of the pursuant in particular to Articles 42 and market in fishery products (Official 43 of the EEC Treaty, Regulation (EEC) Journal L 20, p. 1) and Regulation No 2141/70 laying down a common (EEC) No 101/76 laying down a structural policy for the fishing industry common structural policy for the fishing (Official Journal, English Special Edition industry (Official Journal L 20, p. 19). 1970 (III), p. 703) and Regulation (EEC) The first of those regulations repeals No 2142/70 on the common organiz- Regulation (EEC) No 2142/70 and the ation of the market in fishery products second regulation repeals Regulation (Official Journal, English Special Edition (EEC) No 2141/70. 1970 (III), p. 707). Article 1 of Regulation (EEC) No Articles 98 to 103 of the Act concerning 101/76 provides as follows: the Conditions of Accession and the Adjustments to the Treaties, annexed to "Common rules shall be laid down for the Treaty of 22 January 1972, known fishing in maritime waters and specific as "the Accession Treaty", contain measures shall be adopted for appro- provisions relating to fisheries. In priate action and the coordination of particular, Article 102 provides that the structural policies of Member States

JUDGMENT OF 10. 7. 1980 — CASE 32/79

Article 4 of Regulation No 101/76 Before adopting such measures, the provides that: Member State concerned will seek the "Where there is a risk of over-fishing of approval of the Commission, which must certain stocks in the maritime waters be consulted at all stages of the pro- referred to in Article 2, of one or other cedures. Member State, the Council, acting in accordance with the procedure provided Any such measures shall not prejudice for in Article 43 (2) of the Treaty on a the guidelines to be adopted for the proposal from the Commission may implementation of Community provisions adopt the necessary conservation on the conservation of resources". measures. On 18 February 1977, the Council In particular, these measures may include adopted Regulation (EEC) No 350/77 restrictions relating to the catching of laying down certain interim measures for certain species, to areas, to fishing the conservation and management of seasons, to methods of fishing and to fishery resources (Official Journal L 48, fishing gear". p. 28). At its meeting on 30 October 1976 in At its meeting on 30 and 31 January The Hague the Council drew up and 1978, the Council reached agreement on formally adopted on 3 November 1976 a the following declaration: resolution that the Member States would by concerted action extend as from 1 January 1977 their fisheries jurisdiction "The Council failed to reach agreement to 200 miles off their North Sea and at this meeting on the definition of a North Atlantic coasts. new common fisheries policy but agreed to resume examination of these matters On the same occasion, the Council at a later date. Pending the introduction agreed (Annex VI to the Resolution) to a of a common system for the conservation

In the course of 1978, the Commission was informed of various measures The Commission submitted to the adopted by the Government of the Council on 16 June 1978 a proposal for United Kingdom in the sea fisheries a regulation laying down, for 1978, sector which did not seem to it to be in measures for the conservation and conformity with the Community law management of fishery resources applicable. These measures related more including the establishment of catch particularly to a restriction on catches of quotas for herring stocks (Official herring in the Mourne Fishery, the intro- Journal C 160, p. 3). Article 3 of that duction of a licensing system, the proposal provided for the extension of temporary closure and the introduction ' the ban on direct fishing for herring in of catch quotas in the Isle of Man and the zone referred to by Regulation No Northern Irish Sea Fishery and the 1672/77. extension of the Norwegian Pout "Box". By letter of 18 September 1978, the Government of the United Kingdom A — The Mourne Fishery sought the approval of the Commission for conservation measures in the Mourne Fishery in accordance with the Hague The Mourne Herring Fishery is made up Resolution. of the waters within twelve miles from the baselines off the East coast of Ireland and Northern Ireland between 53° 00' By the Herring (Restriction of Fishing) and 55° 00' latitude North. Regulations (Northern Ireland) 1978, Statutory Rules of Northern Ireland No Article 3 of Council Regulation (EEC) 277, which were adopted on 18 No 1672/77 of 25 July 1977 laying September and came into force on 20 down interim measures for the conser- September 1978, the Government of the vation and management of certain United Kingdom prohibited all herring herring stocks (Official Journal L 186, fishing within a zone of twelve miles p. 27) had prohibited until 31 December from the Northern Irish baselines within 1977 direct fishing for herring in most of British fishery limits adjacent to that zone (Irish Sea, Division VII (a)) Northern Ireland between 55° 00' lati- defined by the International Council for tude North and a line running due the Exploration of the Sea, a zone of south-east from the Haulbowline Rocks twelve miles between 53° 20' latitude (approximately 54° 00' latitude North). North and 54° 40' latitude North. ' However, between 20 September 1978 In an amended proposal for a regulation and 27 October 1978 fishing boats of submitted by the Commission to the under 35 feet registered length were authorized to fish up to a total catch of 1 — This prohibition was extended until 31 January 1978 400 tonnes of herring in an area from by Council Regulation No 2899/77 of 21 December 1977 (Official Journal L 338, p. 5). half-a-mile from the baselines off the

Northern Ireland coast bounded on catch quotas for France, Ireland, the the east by a line from Roaring Rock Netherlands and the United Kingdom. (approximately 54° 10' latitude North) and on the south-east by a line from Haulbowline Rocks (approximately 54°00' latitude North). The last recital of the preamble to the regulation recalled that Article 227 (5) (c) of the EEC Treaty and Protocol 3 of On 26 September 1978, the Government the Act of Accession lay down the of the United Kingdom issued the conditions under which the Treaty Herring (Restriction of Fishing) applies to the Isle of Man in particular. (Amendment) Regulations (Northern Ireland) 1978, Statutory Rules of Northern Ireland No 286, which came into force on the same date and which^ The Government of the United Kingdom revoked the exception to the prohibition issued on 8 August and brought into on herring fishing laid down in favour of force on 12 August 1977 the Herring boats under 35 feet in length. That new (Irish Sea) Licensing Order 1977, enactment was communicated to the Statutory Instrument No 1388, and the Commission on 4 October 1978. Herring (Isle of Man) Licensing Order 1977, Statutory Instrument No 1389. The first of those orders prohibits fishing for herring by British fishing boats in the B — THe Isle of Man and Northern Irish Irish Sea, and the second fishing for Sea Fishery herring by British fishing boats and Irish fishing boats in various parts of the fishery around the Isle of Man; however, Article 1 of Council Regulation (EEC) fishing licences could be granted by the No 1779/77 of 2 August 1977 laying United Kingdom or Isle of Man· down interim conservation and Ministers for Agriculture, Fisheries and management measures for herring fishing Food. in the Irish Sea (Official Journal L 196, p. 4) prohibited direct fishing for herring for Community fishermen from 1 October to 19 November 1977 in the After asking the Commission on 13 part of Division VII (a) (as defined by February 1978 for approval of a certain the International Council for the number of conservation measures Exploration of the Sea) surrounding the concerning in particular the Isle of Man Isle of Man and in that between the Isle and the Irish Sea, the Government of the of Man and the west coast of the United United Kingdom requested the Kingdom. This area is bounded by a line Commission by telex on 17 August 1978 running from Carmel Head (Anglesey) to give its agreement to measures to the Chicken Rock Lighthouse (Calf of intended to be applied on 21 August. Man), thence running clockwise round Those measures provided for the the Isle of Man (at a distance of twelve allocation to the United Kingdom and miles from the baselines) as far as Point Isle of Man fishing boats of a catch of Ayre (Isle of Man), then eastward to quota of 8 100 tonnes of herring, the St Bees Head (United Kingdom). issue of 120 licences to British boats to fish in the United Kingdom and Isle of Man waters and the closure of the As regards the other periods, the regu- fishery from 24 September to 31 lation provided for the allocation of December 1978.

That closure was the subject-matter the Norway Pout (Prohibition of of the Irish Sea Herring (Prohibition Fishing) (No 3) Order 1977, Statutory of Fishing) Order 1978, Statutory Instrument No 1756, which prohibited Instrument No 1374, of 20 September all fishing for Norway pout in the area 1978. referred to by Regulation (EEC) No 2243/77 from 1 November 1977. The measures adopted by the Government of the United Kingdom were not approved by the Commission. As regards 1978, the Commission submitted to the Council on 14 October 1977 a proposal for a regulation laying C — The Norway Pout Box down technical measures for the conser- vation of fishery resources (Official Journal 1977 C 278, p. 8); that proposal The Norway Pout Box is formed by that fixed at 20% the maximum permitted part of the North Sea bounded by a line by-catch for industrial fishery but joining the following points: contained no provisions relating to a Norway pout box. On 1 December 1977 — East coast of the United Kingdom at the Commission introduced an 56° 00' latitude North, amendment to that proposal providing for a Norway pout box which kept the — 56° 00' latitude North to 00° 00' limit of the area at 0° longitude East but longitude, provided for a seasonal extension to 1° longitude East for the periods from — 60° 00' latitude North to 00° 00' 1 January to 31 March 1978 and longitude, 1 October to 31 December 1978. — 60° 00' latitude North to 04° 00' longitude West, On 16 January 1978 the Commission submitted a revised proposal for a regu- — Coast of the United Kingdom at lation laying down technical measures 04° 00' longitude West. for the conservation of fishery resources. That proposal provided for a Norway Article 5 of Council Regulation (EEC) pout box at 0° longitude East and a 10% No 350/77 of 18 February 1977 had limit on the by-catch authorized for prohibited fishing for Norwegian pout in industrial fishery. that area from 21 February 1977 to 31 March 1977. Council Regulation (EEC) No 1673/77 of 25 July 1977 amending After requesting the approval of the Regulation (EEC) No 350/77 as regards Commission by letters of 3 and 20 July the prohibition of fishing for Norwegian 1978, the Government of the United pout (Official Journal L 186, p. 30) laid Kingdom issued on 20 September and down a prohibition on fishing for brought into force on 1 October 1978 Norwegian pout in the same area from the Norway Pout (Prohibition of 1 September to 15 October 1977; that Fishing) (No 3) (Variation) Order 1978, period of prohibition was extended as Statutory Instrument No 1379. That regards part of the area from 16 to 31 order contains with regard to the period October 1977 by Council Regulation from 1 October of each year to (EEC) No 2243/77 of 11 October 1977 31 March of the following year an (Official Journal L 260, p. 1). extension of the area within which all fishing for Norway pout is prohibited On 31 October 1977, the Government of from the limit of 0° to that of 2° the United Kingdom brought into force longitude East.

The Commission did not give its By four orders of 12 April (as regards approval to that measure adopted by the the first two), 13 June and 23 July 1979, Government of the United Kingdom. the Court permitted the French Republic, the Kingdom of Denmark, the Kingdom of the Netherlands and Ireland D — The procedure for a declaration that to intervene in support of the a Member State has failed to fulfil Commission's submissions. its obligations under the Treaty The written procedure followed the The Commission, by letter of 27 October normal course. 1978, initiated against the United Kingdom the procedure provided for in The Court, after hearing the report of Article 169 of the EEC Treaty. It found the Judge-Rapporteur and the view of therein that the United Kingdom had the Advocate General, decided to open failed to fulfil its obligations under the oral procedure without any Community law by applying unilateral preparatory inquiry. However, it measures in the sea fisheries sector in the requested the Commission and the Mourne Fishery, the Isle of Man and Government of the United Kingdom to Northern Irish Sea Fishery and the supply it with some documents and Norway Pout "Box". Consequently, the information; that request was complied Government of the United Kingdom was with within the prescribed periods. requested to submit its observations to the Commission before 20 November The Commission and the Government of 1978. the United Kingdom, at the request of the Court, supplied it with some The Government of the United Kingdom additional information before the submitted to the Commission by letter of hearing. 8 December 1978 its observations on the measure relating to Norway pout and, by letter of 2 January 1979, its obser- vations concerning the Mourne Fishery. I l l — C o n c l u s i o n s of the p a r t i e s Since these observations did not satisfy it, the Commission delivered on 17 January 1979 and sent to the The Commission claims that the Court Government of the United Kingdom on should: 22 January the reasoned opinion provided for in Article 169 of the EEC Treaty. — Declare that the United Kingdom has failed to fulfil its obligations under the EEC Treaty in the respects set out in the reasoned opinion; II —· W r i t t e n p r o c e d u r e — Order the United Kingdom to pay the costs. By application lodged on 27 February 1979, the Commission pursuant to the second paragraph of Article 169 of the The Government of the Kingdom of EEC Treaty, brought before the Court Denmark, intervener, claims that the of Justice the United Kingdom's alleged Court should rule that the United failure to fulfil its obligations in the sea Kingdom has failed to fulfil its fisheries sector. obligations under Community law.

The Government of the French Republic, policy depends on the answers given to intervener, claims that the Court should them. rule that the British Government has failed to fulfil its obligations under Community law by adopting the measures contested by the Commission. (a) Under the EEC Treaty, Member States are entitled, during the period indicated in Article 102 of the Act of The Government of Ireland, intervener, Accession, to adopt nationally conser- claims that the Court should declare vation measures in the field of fisheries, that, in adopting and applying the within their own jurisdictions; such measures in respect of the Isle of Man measures must, however, be consistent and North Irish Sea Herring Fishery for with several rules of Community law, 1978, the United Kingdom has failed to both substantive and procedural. fulfil its obligations under the EEC Treaty. (b) In considering the substantive rules, The Government of the Kingdom of the it is necessary to distinguish between Netherlands, intervener, claims that the measures taken with a view to conserving Court should: the resources of the sea and national fisheries measures which are not conser- vation measures. — Declare that, by introducing the disputed unilateral measures, the United Kingdom has failed to fulfil It follows from the case-law of the Court an obligation imposed on it by the that conservation measures may interfere EEC Treaty; with the functioning of the common organization of the market provided that these effects are kept to a minimum. — Order the Government of the United Only genuine conservation measures Kingdom to pay the costs. which are strictly necessary, are not discriminatory, and are temporary or The Government of the United Kingdom interim are lawful. requests the Court to rule that it has not been in breach of its obligations under the EEC Treaty. Measures which are not conservation measures must be judged more strictly: they may be measures having an effect equivalent to a quantitative restriction which are incompatible with Community IV — S u b m i s s i o n s and a r g u m e n t s law, and national fisheries measures are of the p a r t i e s d u r i n g the subject to stricter requirements than written procedure those affecting other aspects of the common agricultural policy. In any case they must comply with the criteria A — General considerations developed by the Court with regard to other national measures in the agri- cultural sector; in particular, they must The Commission takes the view that its be compatible with the aims and application submits to the Court objectives of the common organization fundamental questions of principle and of the market and comply with the that the future of the Community fishery general principle of proportionality.

The Government of the Kingdom of The measures in question adopted by the Denmark takes the view that the United Kingdom are contrary to provisions of Community law to which Community law: they were taken in the Member States were subject in sectors in which the EEC had already exercising the residual competence to exercised its power and was about to do take conservation measures in regard to so again; they constituted a breach of the fisheries which they had until 31 procedure laid down in the Hague December 1978 are essentially the title of Resolution; they are excessive and the Treaty concerning agriculture, in discriminatory; they impair the strengh particular Articles 40 and 43, and the of certain agreements concluded between rules of law applicable to fisheries, the Community and third countries. Article 102 of the Act of Accession, the general provisions of Articles 5 and 7 of the EEC Treaty and general principles of Community law. Article 5 of the Treaty is of particular importance and extent, The Government of the Kingdom of the specifically in regard to fishery in the Netherlands considers that primary situation of the case now prevailing importance in this case must be accorded where the EEC fisheries policy has not to Article 5 of the EEC Treaty. This yet been adopted. provision imposes on Member States a

COMMISSION v UNITED KINGDOM

JUDGMENT OF 10. 7. 1980 — CASE 32/79

actions of Member States should be have been a conservation measure and judged. was moreover one which the Commission proposed.

COMMISSION v UNITED KINGDOM

of any kind for the 400-tonne to be exercised again when the British exemption; the failure of the United Government intervened unilaterally. Kingdom to suspend that exemption immediately as the Commission suggested was also an infringement of the United Kingdom's obligations under (b) The procedure set out in the Hague Article 5 of the Treaty. Resolution was not followed in good faith since the Commission was simply notified of the measure but not asked to give its approval thereof on the day (c) Since the Mourne Fishery occupies before its coming into force. both United Kingdom and Irish waters, the failure of the United Kingdom to close the fishery in United Kingdom waters damaged the interests of (c) The measure in question is unlawful fishermen who fished the stock in Irish considering the line of decisions made by waters, where the fishery had been the Court of Justice because it does not closed by an Irish Government measure constitute a true conservation measure since 6 February 1978. and is moreover discriminatory.

Irish fishermen also traditionally fish the The International Council for the Mourne Fishery in both United Kingdom Exploration of the Sea recommended a and Irish waters. The effect of the total ban on herring fishery within a United Kingdom measure has been twelve-mile limit between 53° and 55° 00' discriminatory: the 400-tonne exemption latitude North; the British measure, was not stated to be open to Irish however, permitted a catch of 400 tonnes fishermen also; in any case it would have and the prohibition covered a smaller been impractical for small boats to travel area between 54° and 55° latitude far from their Irish home ports to fish in North. accordance with that exemption.

The fact that the measure took effect In view of the political and social harshly in the middle of the year is also situation in Northern Ireland and the discriminatory: although the fishing fact that fishing for human consumption quotas have been set on an annual basis, and industrial fishery continued in 1978 fishing seasons vary considerably from in the waters of the Republic of Ireland, one State to another; a prohibition it was difficult to impose a total ban on ordered in the middle of a year produces the small local fishermen. The best different effects when the fishermen of solution was a very limited exception for one Member State may have already those fishermen; the Government of the partly or totally filled their quotas while United Kingdom judged that 400 tonnes those of another State have not even of herring would be sufficient to be of begun their season. genuine economic help to those fishermen who had no alternative source of income, whilst its effects would be very small in relation to what was likely to be caught in total and would be parti- The Government of the United Kingdom cularly small in relation to the effect of observes that the Herring (Restriction of the catch of immature fish in the Fishing) Regulations (Northern Ireland) industrial fishery. The exemption was 1978, amended by the Herring removed as from 26 September 1978. (Restriction of Fishing) (Amendment) Regulations (Northern Ireland) 1978, totally prohibit from 26 September 1978 fishing for herring in the part of the Mourne Fishery coming within the (b) The ban on fishing and the jurisdiction of the United Kingdom. This conditions under which a limited measure is compatible with Community exception was granted applied equally to law. all fishermen. Nothing in the British statutory instruments implied that Irish fishermen would on this occasion be treated any differently from usual.

If Irish fishermen had applied for The Commission considers that the licences they would not have been measures adopted unilaterally by the allowed to land their catches in Irish Government of the United Kingdom are ports since the Irish Government was not contrary to Community law. participating in the 1978 licensing arrangements.

(a) Over the period when the 1978 Allowing Irish fishermen to land fish on system was planned, the United the Isle of Man only if they had both Kingdom failed to give the Commission fishing licences and landing licences is clear and worthwhile information as to contrary to the Community rules on free what was proposed; this was a violation movement of goods, which undoubtedly of its obligations under Article 5 of the apply to the Isle of Man. Treaty, the Hague Resolution, the Council declaration of January 1978 and Article 3 of Regulation No 101/76. The licensing system had the result of excluding Irish fishermen from Isle of Man waters and depriving them of their historic right there or of compelling The approval of the Commission was them, in order to get a licence to never sought for the 1977 arrangements. exercise their historic rights, to accept the imposition of a quota which their government did not accept and to which French and Dutch fishermen were not (b) The licensing system practised by subjected. Since Irish boats were entitled the United Kingdom had several effects to both historic rights and equal contrary to Community law. treatment it is contrary to Community law to force them to choose between them.

France, have traditionally caught most of and its waters under Protocol No 3 to their catch is unnecessary on biological the Act of Accession. grounds; it is discriminatory in that it allowed United Kingdom boats to fish their quota and prevented French boats from fishing theirs. The purpose of Regulation (EEC) No 706/73 of the Council of 12 March 1973 concernig the Community arrangements applicable to the Channel Islands and the Isle of Man for trade in agricultural (d) The quotas suggested by the United products (Official Journal L 68, p. 1) Kingdom for 1978 were not based on the was merely to clarify some technical Commission's proposal for 1978, nor administrative matters and not to specify were they agreed by the other Member exhaustively which provisions of Com- States concerned. Even if the munity law are applicable to the Isle of Government of the United Kingdom Man. was entitled to base itself on the recommendation of the International Council for the Exploration of the Sea it did not have the right to impose quotas The United Kingdom cannot evade its on other Member States according to its obligations under the Treaties by own ideas. allowing the Isle of Man to adopt measures and then claiming that it did not itself adopt the measures and cannot be held responsible for them. (e) Annex VII to the Hague Reso- lution, on the Irish fishing industry, is binding on Member States when they The argument that Community fishery adopt national measures in so far as they policy does not apply in Isle of Man may have power to do so; it is binding waters is in any case irrelevant to this by virtue of Article 5 of the Treaty. Since point. Licensing in Isle of Man waters the Irish fleet is composed of relatively cannot be lawfully used to impose small boats, quotas must be so fixed that discriminatory treatment or to end the the objectives laid down in Annex VII to exercise of historic rights which are the Hague Resolution may be achieved protected by Community law, in in the fisheries which are accessible to particular Article 100 of the Act of them. The United Kingdom has a special Accession. obligation under Article 5 of the Treaty and the Hague Resolution to consult the Commission before deciding a quota for Irish boats in 1978 and an obligation to The Government of the French Republic allow Irish boats a greater quota than in points out three reasons why the measure 1977 and earlier years; the United in question is unlawful under Com- Kingdom consulted nobody and imposed munity law. a quota lower than Irish catches in 1974 to 1976 and lower than the Irish quota in 1977. (a) The decision of the British Government was taken in a matter which the Council had already regulated and (f) The present rules of Community for which further proposals were to be law on fisheries apply to the Isle of Man introduced by the Commission.

(c) The British measure is discrimi- natory and does not constitute a real (b) The United Kingdom failed to conservation measure. observe its substantive obligations under Article 5 of the EEC Treaty and its pro- cedural obligations under the Hague Resolution and the Council declaration The Government of the United Kingdom of January 1978. allots to itself 90% of the total allowable catch whereas in 1976 the take of its nationals represented only 64% of the entire Community catch; moreover, the (c) These considerations apply irres- period of closure of the fishing season pective of whether the waters within 12 was set in such a way as to prevent miles of the Isle of Man are subject to French fishermen from fishing in that the common fisheries policy or not, since area. the quota and licensing measures taken by the United Kingdom apply to sea areas outside those waters. The United Kingdom made it clear that Irish boats The measure in question goes beyond would be excluded from fishing in waters conservation needs: it advances the adjacent to the Isle of Man in which they prohibited season laid down by the had traditional rights unless they Community rules and establishes a accepted a restrictive quota for fishing maximum catch of 9 000 tonnes, whereas for herring in a much more extensive sea the Commission's proposals, incor- area which included those waters. porated in the internal regulations of eight of the Member States, set the total at 12 500 tonnes. (d) Special provision would have been made for Irish fishermen pursuant to The Government of Ireland considers that Annex VII to the Hague Resolution; this the measures adopted by the Govern- should have meant an increase in the ment ot the United Kingdom with regard three years from 1977 in the Irish fishing to the Isle of Man and North Irish Sea quotas. That annex is an established part Fishery in 1978 are contrary to of the common fisheries policy of which Community law. Member States are obliged, like the Community institutions, to take due account. The conduct of the British Government amounts to an implicit rejection of the whole policy of Annex (a) There are substantial doubts as to VII and is thus a specific breach of whether the United Kingdom had any Community law.

(b) They are not strictly necessary: the (f) Because of the prices paid for recommendation of the Consultative herring on the. Isle of Man market, Committee of the International Council access to that market is of particular for the Exploration of the Sea that the economic importance to Irish fishermen. total allowable catch be reduced to 9 000 tonnes had not been approved and the necessity for such a measure had been called in question; neither this rec- (g) The status in Community law of ommendation nor any scientific advice the Isle of Man is the subject-matter of had called for the season to be closed Article 227 (5) (c) of the EEC Treaty earlier and longer than in 1977. added by Article 26 (3) of the Act of Accession in the version resulting from Article 15 (2) of the Adaptation Decision and from Protocol No 3. The question arising in this context is what is meant by (c) The British measures encroached on the Isle of Man within the meaning of an area in which the Community had the Treaty; in particular, in so far as the acted in 1977 and in which the Isle of Man has territorial waters, these Commission had submitted proposals to only extend out to three miles from the the Council in 1978 on the continuation baselines of the island. The waters of the Community policy. situated between 3 and 12 miles from Isle of Man baselines are within the sovereignty or jurisdiction of the United Kingdom. This position seems to be confirmed by Section 1 of the Fishery Limits Act, 1976, and the Herring (Isle (d) The Commission's approval prior to of Man) Licensing Order, 1977. In these the adoption of the measures in question circumstances, the common fisheries had not been sought by the United policy, in particular Article 2 of Council Kingdom and there had not been any Regulation No 101/76, applies to those real consultation with the Commission waters, and the measures taken in respect during the procedures. of the waters outside Isle of Man territorial waters are discriminatory and contrary to Community law.

taken in contravention of Article 5 of the It follows from all these provisions that Treaty. the treatment granted to the Isle of Man looks like a general regime of exclusion except in respect of the Community rules The Government of the United Kingdom concerning the exchange of products and contests the complaints which have been the application of the agricultural policy, made against it. in so far as it affects the movement of products. Rules regarding the restriction of fishing in order to conserve fish stocks are not part of the rules of Community law applicable to the Isle of Man. (a) The Herring (Irish Sea) Licensing Order, 1977 applied only to British vessels and was enacted solely to enable the United Kingdom Government to comply with its duties under Article 4 of At the time of the signature of the Act of Regulation No 1779/77; it involved no Accession, the Isle of Man had its own approval on the part of the Commission. fishery limits extending to 12 miles from baselines. This situation has not been altered; in spite of the extension of the British fishery limits to 200 miles, the The Herring (Isle of Man) Licensing powers of the Isle of Man authorities to Order, 1977 also required Irish fishing control fishing within the 12-mile fishery boats to have licences to fish in those Isle limits of that island remain unimpaired. of Man coastal waters in which the Irish Republic enjoys fishing rights by virtue of the London Convention of 1964; that requirement applied exclusively, The constitutional position of the Isle of however, to waters within the Isle of Man is unusual; it is subject to the Man 12-mile limit which is outside Crown but not part of the United Community fisheries jurisdiction. Kingdom. The United Kingdom Par- liament has legislative powers over the island, but by long-established consti- tutional convention does not exercise (b) The intention and effect of Article those powers in domestic matters 227 (5) of the EEC Treaty and of without the consent of the island author- Protocol 3 to the Act of Accession is that ities. the Community rules on fisheries do not apply to Isle of Man waters.

United Kingdom did not adopt any The proposed measure was submitted to measures for which the approval of the the Commission on 17 August 1978 with Commission was required and there was a formal request for approval under the no further information for the United Hague Resolution; the matter was far to Kingdom to give to the Commission. urgent to wait until the next Council meeting on 26 September. In those circumstances, the United Kingdom adopted on 20 September the measure prohibiting all fishing for herring in the The Commission's complaints are based area from 24 September to 31 December solely on the "hint" alleged to have been 1978. given by British officials that Irish vessels would be arrested if they fished in United Kingdom waters without a licence. However, no evidence of such a "hint" has been brought. (e) The licensing system did not discriminate against Irish boats in favour of French and Dutch boats; the latter, having no historic Treaty rights in those waters, were not allowed to fish there at (d) Since the beginning of 1978, the all. Government of the United Kingdom has attempted to contribute to the im- plementation of a satisfactory arrange- ment concerning fishing in the area under consideration. Since the Council Irish fishermen did not require licences did not succeed in reaching an in 1978 except for Isle of Man waters. agreement at its meetings on 24 and 25 July 1978 the United Kingdom and Isle of Man authorities decided that it was necessary to take appropriate measures The reason for the limitation of landing to protect the herring stock, as permitted ports in the licences was to ensure by the Hague Resolution. That stock is control; only United Kingdom and Isle of vital importance to the fishermen of of Man fishermen required licences so the Isle of Man and the north of the that only United Kingdom and Isle of United Kingdom. It is in danger: the Man ports were proscribed. International Council for the Exploration of the Sea reported that the need for a reduction in the exploitation rate was becoming acute and recommended for 1978 a toul allowable catch of 9 000 A restriction on the ports at which fish tonnes. Since the Council had failed to may be landed is not contrary to the adopt any conservation measures for Community rules on the free movement 1978 and the main fishing season was of goods. due to commence on about 21 August, the Government of the United Kingdom reached the conclusion that in the absence of any quotas or any licensing system applicable to vessels other than (f) There was no discrimination against those from the United Kingdom and the French fishermen: there was no quota Isle of Man the only course open was to for French fishing boats and the closure shorten the fishing season for all vessels. of the main fishery one week earlier than

The British measure establishing a Norway pout box to 2° longitude East is (h) As regards Annex VII to the Hague contrary to Community law. Resolution, it is necessary to state that it is only a declaration of intent on the part of the Council; it cannot affect the legality of provisional measures adopted by Member States. (a) The problem raised by the Norway pout is not a conservation problem since none of the species in question is in any danger; the problem is in fact how to reconcile the economic interests of two Moreover, no quota was in fact imposed groups of fishermen fishing different by the United Kingdom on the Republic species of fish and of the two groups of of Ireland and the special position of the consumers who buy different kinds of fishing industry of certain regions, products. This is a question of fisheries including among others north Britain, economic policy; a national measure in referred to in the Hague Resolution is this context is a measure of economic just as relevant as that of the fishing policy. industry of the Irish Republic.

Member Sutes are not free to adopt measures of fisheries economic policy if D — The Norway Pout Box the immediate and necessary effect of those measures is seriously to damage the fisheries industries of other Member States. In so far as they are necessary, such measures may be uken only at The Commission recalls that industrial Community level where the interests of fishing with small-mesh nets for Norway all Member Sutes can be uken into pout in the north-western pan of the account and balanced.

The Government of the Kingdom of (b) Article 5 of the EEC Treaty Denmark, after a brief description of imposes stricter duties on Member States fishing for human consumption and when the measures they are fishing for industrial purposes in the contemplating adopting have greater and North Sea, states as follows as regards more serious effects on other States. The the central factual questions: the stocks United Kingdom has failed to fulfil that of haddock and whiting are not obligation and that contained in the endangered; measures against Norway Hague Resolution. pout fishery were taken with a view to increasing the catches of haddock and whiting in fisheries for human consumption; the measures referred to (c) The British measure seriously upset have caused considerable reduction of the balance of the agreements made with the by-catches of haddock and whiting Norway and the Faeroes. As a result of in connexion with Norway pout fishing; the British measure the Community was there are no biological scientific reasons obliged to re-negotiate those agreements for the establishment of Norway pout and was placed in the position as if it boxes; the long-term gains of haddock had broken its obligation to consult the and whiting fisheries for human Norwegian Government as provided in consumption obtained through the a framework agreement with that extension of the Norway Pout Box will government. only be approximately 10 000 tonnes in respect of haddock and whiting respectively; the losses suffered by the Danish fisheries for industrial purposes total 300 000 to 350 000 tonnes. (d) A national measure which is expressed to apply "each year" is incompatible with Community law, at least when it is of considerable economic As regards the legal appraisal of the importance; it is not a temporary measures in question, it is necessary to measure and applies irrespective of state that the extension of the Norway whether it is still "necessary" under Pout Box does not constitute a conser- Community law criteria in changed vation measure and that in any case it circumstances. does not satisfy any one of the requirements under Community law in regard to unilateral' measures.

The extension of the Norway Pout Box The extension of the Norway Pout Box to 2° longitude East cannot in any case is a discriminatory measure: it involves be considered as a conservation measure: barring from the most important part of neither according to its antecedents nor the British waters of an essential part of in its effects does it aim at increasing or the Danish fishing fleet which has maximizing the combined yield of the traditionally been fishing in these areas, three stocks concerned; its purpose is whereas it has not the same effect in solely to improve the yields of haddock regard to the subjects of the United and whiting, irrespective of the total Kingdom. result being a gain or otherwise for the three stocks. The measure in question is contrary to the principle of proportionality: the gain obtained from it is in every respect out (b) Even if the fresh delimitation of the of proportion to the injury caused to Norway Pout Box could be considered Danish industrial fishing as a whole. as a conservation measure, it could not legally be the subject-matter of a unilateral British measure. The Government of the French Republic has two basic complaints against the measure in question. It is apt to jeopardize the realization of the Treaty's objective of a common fishery policy and is thus contrary to (a) The United Kingdom decision was Article 5 of the Treaty. taken in a field that had been the subject of Community decisions and a proposal put forward by the Commission. The extension of the box is not strictly necessary: it was not considered necessary by the Commission or the (b) The measure in question constitutes Council; it was not urgent and similar a direct threat to the Community's advantages could have been attained power to negotiate international through other less radical measures. agreements, in particular with the Faeroe Islands. The extension of the Norway Pout Box is not a temporary measure: the fact that The Government of the United Kingdom the measure in question will be justifies the extension of the Norway superseded by a Community regulation, Pout Box essentially by the following if issued, does not' make that measure considerations: temporary; it was not applicable solely in 1978 nor limited to the winter half 1978/79. (a) The effect of the restriction of industrial fishing for pout is to prevent juvenile whiting and haddock from being Approval by the Commission was in destroyed in order to allow them to reality not applied for: the Commission grow to maturity so that they can be

caught and used as food for human appreciable difficulty with Norway or consumption. It is a typical conservation the Faeroes is put forward; moreover, measure. the agreements relating thereto have not yet been formally adopted by the Council. The fact that a restriction on fishing may affect one group of fishermen more than another does not mean that it ceases to (d) The measure in question is in fact be a conservation measure. The aim of an "interim measure" within the the United Kingdom measures is to meaning of the Hague Resolution since provide for the necessary conservation of it is only applicable until the necessary a stock, not to promote the interests of Community legislation is implemented. particular fishermen. Since a national measure is automatically superseded by a Community regulation which is inconsistent with it, any conser- It is not only when a species is in danger vation measure now taken by the United of extinction that conservation measures Kingdom is an interim measure. should be taken; the aim of conservation measures is to maintain the stock at its maximum sustainable yield. (e) The necessity for the control of industrial fishing for pout in the north- western North Sea is not contested. The measure in question is based on scientific advice for the protection of the The United Kingdom considers that the fish stocks in question, in particular the Commission's proposals are inadequate; reports drawn up by the International in any event, until there are autonomous Council for the Exploration of the Sea. Community measures the protection of fish stocks remains the responsibility of the coastal State. In 1977 the Commission gave its approval under the Hague Resolution to a unilateral United Kingdom measure (f) As regards the Hague Resolution, it restricting fishing in the Norway Pout is necessary to state that there is no Box; the Commission could only have Community measure in force and that if approved that measure as a necessary the United Kingdom did not impose conservation measure. interim measures the juvenile haddock and whiting in the north-western North Sea would remain unprotected, which (b) The complaint that the discussions would be contrary to the recommen- held by the United Kingdom before dations of the International Council for adopting its measures were inadequate the Exploration of the Sea and to the must be viewed in the light of the very interests of Community fishermen as a full discussions of the whole of the whole. question which have taken place since 1976 in particular within the North-East Atlantic Fisheries Commission, the Inter- (g) Several of the findings of fact put national Council for the Exploration of forward by the Danish Government are the Sea and the Community itself. incorrect or contestable; in particular, the British measures in the long term procure a gain to human consumption fishery of the order of 35 000 tonnes per (c) No real evidence that the adoption annum and cause a loss of only 78 000 of the British order caused any tonnes to Danish industrial fishery.

— Fishing for Norway pout in the zone known as "the Norway Pout Box" adjoining the east and north coasts of Scotland.

The background to the disputes

2 It should be recalled that during 1977 the three fishing zones in question were governed by regulations adopted by the Council as indicated below with regard to each of the three heads of the dispute. The Commission had duly submitted to the Council proposals to extend the period of validity of those measures, with certain amendments, to 1978. However, because of the continued differences of opinion within the Council, it became evident that it was impossible to bring into force Community conservation measures for 1978. During the meeting on 30 and 31 January 1978 it became clear that attempts to reach a solution within the Council had finally failed.

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3 In view of this situation, the Council, on 31 January 1978, issued the following statement:'

"The Council failed to reach agreement at this meeting on the definition of a new common fisheries policy but agreed to resume examination of these matters at a later date. Pending the introduction of a common system for the conservation and management of fishery resources, all the delegations undertook to apply national measures only where they were strictly necessary, to seek the approval of the Commission for them and to ensure that they were non-discriminatory and in conformity with the Treaty".

COMMISSION v UNITED KINGDOM

7 The complaints put forward by the Commission may be summarized as follows:

(a) With regard to the Monrne Fishery, the Commission complains that the United Kingdom left unprotected for most of 1978 a herring stock in danger of extinction, failed in its duties of consultation laid down by Community law in respect of the protective measures adopted, belatedly, in September 1978, and coupled those measures with an exception for coastal fishing in a zone of Northern Ireland which was directly contrary to conservation needs and was, moreover, granted in conditions discriminating against the fishermen of the other Member States;

(b) With regard to the Isle of Man and Northern Irish Sea Fishery, the Commission complains that the United Kingdom applied unilaterally, both in 1977 and 1978, a system of fishing licences with regard to which there was no appropriate consultation and the detailed rules for the application of which were such as to exclude from the fishing zone in question fishermen from the other Member States and, more particularly, Irish fishermen who traditionally fished in those waters;

(c) With regard to the Norway Pout Box, the Commission complains that the United Kingdom unilaterally extended the eastern limits of that box by 2° longitude without having shown the justification for that measure as a necessary and urgent conservation measure, thus causing considerable damage to the industrial fishery traditionally carried on in that zone by the Danish fishing fleet.

The applicable law and the distribution of powers

n In view of the difficulties preventing the implementation within the pre- scribed period of a common policy for the conservation of fishery resources, the Council adopted on 3 November 1976, on a proposal by the Commission, a resolution known as "Annex VI to the Hague Resolution" according to which if no Community measures were brought into force within the prescribed period, "the Member States could then adopt, as an interim measure and in a form which avoids discrimination, appropriate measures to ensure the protection of resources situated in the fishing zones off their coasts". The resolution adds that "before adopting such measures the Member States concerned will seek the approval of the Commission, which must be consulted at all suges of the procedures". It is not contested that this resolution is binding on the Member States. In view of the failure of its negotiations at the beginning of 1978, the Council confirmed once more the provisions of the Hague Resolution by the above-mentioned resolution of 31 January 1978.

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u In contrast to this viewpoint, the Commission claims that the Council had exercised its powers with regard to the three fishing zones in question by bringing into force Community regulations and that it had itself taken the initiative of submitting to the Council proposals for defining the fisheries arrangements applicable in 1978. This point of view is developed by the French Government which claims that if, during the transitional period laid down in Article 102 of the Act of Accession, Member States of the Community retain any power to regulate fisheries, such power is residual and transitional. The unilateral British measures which form the subject- matter of the dispute were taken in sectors in which Community regulations had been adopted and in which the Council was considering proposals put forward by the Commission for the adoption of further measures. The assertion of a Community presence in this sector was therefore very clear and the expiry of the Community rules cannot have the effect of removing the sector covered by those rules from the Community's jurisdiction and does not therefore bring that competence to an end.

M In this connexion the Court recalls, what it has already said in the judgments mentioned above, namely that pursuant to the obligations arising both from the EEC Treaty and from the Act of Accession, the Community has power

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to introduce fishery conservation measures in the waters within the jurisdiction of the Member States. The purpose of Article 102 of the Act of Accession, which is based on the recognition of the legal situation described above, is to open, following the considerable increase in the maritime sector as a result of the enlargement of the Community, a new transitional period within which the Council was required to introduce the necessary conser- vation measures.

COMMISSION v UNITED KINGDOM

extended until 31 January 1978 by Regulation No 2899/77 of 21 December 1977 (Official Journal L 338, p. 5). In the proposals which it had submitted to the Council for 1978, the Commission had proposed to extend that prohibition throughout 1978. It is an established fact that immediately after the failure of the negotiations within the Council Ireland adopted, with the approval of the Commission, provisions prohibiting all fishing for herring in the part of the Mourne Fishery coming within its jurisdiction; this prohibition was effective as from 6 February 1978.

19 For its part, the United Kingdom did not adopt measures concerning the part of the Mourne Fishery coming within its jurisdiction until September 1978. On 18 September 1978 the British Government notified the Commission pursuant to Annex VI to the Hague Resolution in order to obtain the Commission's approval for the immediate closure of the part of the Mourne Fishery off the coast of Northern Ireland for the remainder of 1978. A draft order was annexed to that notification.

20 In terms of this draft the measure was to take effect at midnight on 19 September but the fishing ban included an exemption for boats of under 35 feet registered length, applicable within a half-mile off the coast of County Down in Northern Ireland for a catch of 400 tonnes of herring during a period from 20 September to the date of exhaustion of the quota of 400 tonnes, or, at the latest, 27 October 1978. It should be observed that it has been impossible to clarify whether that quota was intended to be caught during the period thus defined, as seems to follow from the British Government's notification, or whether it is the total quota for the whole fishing season, as explained at the hearing by the United Kingdom.

22 The Commission's complaints, as set out in the reasoned opinion and the application, essentially concern the procedure followed by the United Kingdom for the purpose of introducing the measure described above and the provisions of that measure. The Commission considers that by notifying on 18 September a measure intended to come into operation the following day the Government of the United Kingdom cannot be considered seriously to have sought the Commission's approval in accordance with Annex VI to the Hague Resolution. It claims that this conduct is all the more unac- ceptable since it is common knowledge that on 7 July 1978 the Minister for Fisheries made a statement to the House of Commons from which it emerges that at that date the measure notified on 18 September 1978 was already in preparation. With regard to the details of the measure adopted, the Commission considers that an exemption for a specific region of the coast of Northern Ireland, even if limited to a toul catch of 400 tonnes, was directly contrary to conservation needs and that, moreover, the reference in the Herring (Restriction of Fishing) Regulations (Northern Ireland) 1978, S.R. 1978 No 277, to the maximum length of the fishing boats was manifestly discriminatory in that that exemption was deliberately defined so as to benefit exclusively the small boats characteristic of coastal fishing.

24 The Government of the United Kingdom does not contest the actual existence of the catches in the Mourne Fishery during 1978 but claims that the figures given by the Commission relate to the whole fishery so that only part of the tonnage given was caught in the part along the coast of the United Kingdom, the remainder having been caught off the coast of Ireland and in the north part of the Irish Sea. As regards the measure introduced in September 1978, the United Kingdom explains that urgent action was necessary because at that time the British authorities had established that trawlers had entered the fishing zone in question. The British Government claims, with regard to the exemption for a quota of 400 tonnes for fishing boats under 35 feet registered length, that this was merely an interim measure intended to protect the interests of small coastal fishermen affected by the consequences of the total closure of the fishery. It claims that interim measures of this kind are moreover to be found in the Community regu- lations themselves

JUDGMENT OF 10. 7. 1980 — CASE 32/79

view and designed so as to be not only to the particular advantage of the Member State concerned but in the collective interests of the Community.

26 As the Commission has not submitted any formal conclusions on the question from what date in 1978 the closure of the fishing zone in question should have taken effect, the Court will merely examine the compatibility with the requirements of Community law of the measure introduced by the United Kingdom as from 20 September 1978. T h e principle underlying this measure cannot be criticized since it acknowledges, albeit belatedly, the United Kingdom's duty to introduce in this fishing zone a conservation measure appropriate to the seriousness of the danger to the existence of the fish stocks in question.

in Annex VI to the Hague Resolution. The fact that a draft measure, the details of which clearly raised problems from the point of view of Community law, was submitted to the Commission at a day's notice after a long period during which the United Kingdom had failed to act cannot be considered as being in accordance with the duties laid down in Annex VI to the Hague Resolution which requires that the Commission should be consulted at all stages of the drawing-up of proposed measures allowing for the necessary time to study those measures and to give its opinion in good time. In the circumstances, the methods adopted by the British Government amount to a fait accompli and cannot therefore be considered to be in accordance with the requirements of Community law.

29 F o r all these reasons, it is therefore necessary t o declare that both because of the procedure used a n d because of the exemption attached t o the prohibition introduced o n 20 September 1978 the United K i n g d o m has failed t o fulfil it's obligations under the Treaty.

The Isle of Man and Northern Irish Sea Fishery

30 The fishing zone in question, which corresponds to Division VII (a) defined by the International Council for the Exploration of the Sea, the exact boundaries of which are irrelevant for the solution of the dispute, is situated in the Irish Sea midway between Great Britain and Ireland; the Isle of Man fishery, which is subject to special rules, is formed by a 12-mile belt around the island in the Irish Sea.

33 The purpose of the two orders is to prohibit fishing for herring in the maritime zones in question, except for fishermen with a licence issued, as regards the Irish Sea, by the Government of the United Kingdom, and, as regards Isle of Man waters, by the Board of Agriculture and Fisheries of that island. The two orders do not contain any other indications as to the conditions in which those licences are issued, the rights which they confer and the duties linked to their issue. They thus leave complete discretion to the competent authorities as regards the issue of the licences and their scope. It follows from specimen applications for a licence and licences issued under the orders mentioned above which have been submitted by the Commission and whose authenticity is not in dispute that those licences contained restrictions as to the period of the fishing seasons and indicated a certain number of ports in which the catches were to be landed. Those licences were in addition made subject to any other conditions which might be notified verbally or in writing by the competent authorities.

34 The application of this licensing system was the subject-matter of negotiations between the Irish authorities, on the one hand, and the United Kingdom and Isle of Man authorities, on the other, according to information communicated by the Commission and Ireland. These negotiations, which

COMMISSION v UNITED KINGDOM

were largely verbal, did not result in an arrangement satisfactory to the Irish authorities. The result of this was, and this fact does not seem to be contested, that no licences were issued in 1977 or 1978 to Irish fishermen.

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37 O n 20 September 1978, the United K i n g d o m introduced the Irish Sea H e r r i n g (Prohibition of Fishing) O r d e r 1978, S.I. 1978 N o 1374, prohibiting fishing for herring as from 24 September 1978 t h r o u g h o u t the Irish Sea.

38 The Commission's complaints, in the last stage of the procedure, relate primarily to the fact that the Commission and the Member States concerned were not duly informed, either in 1977 or in 1978, of the true extent of the system of restriction and management of fishing as resulted from the application of the licensing system brought into force from 1977. More parti- cularly, the Commission claims that the licensing system has been applied so that Irish fishermen wishing to exercise their historic rights in Isle of Man waters were subject to a restriction on their fishing activities in United Kingdom waters by conditions attached to the issue of the licences. The practical result of this system was to oust Irish fishermen from a fishing zone in which they had traditionally carried on their activities. The Commission complains in addition that the United Kingdom has, by bringing forward the closure of the fishing season, caused damage to the fishermen of other Member States, in particular French and Netherlands fishermen, by shortening the period during which they traditionally fished in the waters in question, and has thus benefited its own fishing industry in respect of the quota in question. Finally, the Commission points out the fact that by making it practically impossible, by the licensing system, to land fish in the Isle of Man, the United Kingdom has blocked off from Irish fishermen a market which is particularly remunerative and has thus violated the rule of the free movement of goods which undoubtedly applies also to the Isle of Man.

40 In its defence, the United Kingdom claims that the licensing system cannot be contested in itself since it constitutes a particularly effective means of ensuring that the fishing restrictions existing in the region in question are being observed. Since the licensing orders were adopted in implementation of Regulation No 1779/77, the United Kingdom was under no obligation to notify them under Articles 2 and 3 of Regulation No 101/76 or to seek the Commission's approval of them under Annex VI to the Hague Resolution, since the two national measures in question were only applicable to United Kingdom and Isle of Man fishing boats. As for the measures laid down by the Commission for 1978, the effect of which was to fix a total catch higher than that recommended by the International Council for the Exploration of the Sea and to reduce relatively, as compared with the previous year, the quota reserved to the United Kingdom, the British Government was unable to give its agreement. The British Government contests the existence of any threat to Irish fishermen who fished in United Kingdom waters without licences since those licences were only required for United Kingdom and Isle of Man fishing boats. Proceedings could not be brought against the United Kingdom only because of an intention attributed to it. Finally, with regard to the bringing forward of the date of closure of the fishing season to 24 September 1978, the British Government claims that it was an appropriate conservation measure which was strictly necessary and applied without any discrimination, and that it had been duly notified to the Commission whose approval had been sought.

The arrangements applying in 1977

44 During 1977, the maritime zone in question was governed by Regulation N o 1779/77 which, as recalled above, involved the fixing of catch quotas and a seasonal fishing ban from 1 October to 19 November 1977 in a limited zone covering the Isle of Man waters and the waters between that island and the coast of Great Britain.

COMMISSION v UNITED KINGDOM

45 Under Article 4 of that regulation, Member Sutes were under a duty to take the measures necessary to ensure that those provisions were complied with. The United Kingdom has raised the question whether the duty to consult the Commission and to seek its approval applies to measures of that kind. As the Court has stated in paragraph 11 of the decision in its judgment of 4 October 1979 in Case 141/78, French Republic v United Kingdom of Great Britain and Northern Ireland, that duty is general and applies to any measures of conservation emanating from the Member States and not from the Community authorities. Consequendy, the measures adopted by a Member State in implementation of a Community regulation are not exempted from the duty of consultation laid down in Annex VI to the Hague Resolution as well as from the duty of notification laid down in Articles 2 and 3 of Regu- lation No 101/76. The reason for this twofold duty is particularly evident in view of the measures adopted by the United Kingdom, which consisted in bringing into force a licensing system the application of which was entirely at the discretion of the United Kingdom and Isle of Man authorities.

The arrangements applicable in 1978

48 As regards the provisions in force during 1978, it is necessary to point out first of all that the United Kingdom has allowed complete uncertainty to continue to exist as to the system of conservation measures applied in the zone in question, in spite of repeated requests by the Commission for precise information binding upon the United Kingdom. In particular, the notification of 17 August 1978 before bringing in force the Irish Sea Herring (Prohibition of Fishing) Order 1978, S.I. 1978 N o 1374 on 20 September 1978 did not fulfil the requirements laid down in Annex VI to the Hague Resolution. In fact, in view of the long period of inactivity before that notification, the fact that the Commission was suddenly consulted on 17 August about measures intended to be brought into force, according to the communication, four days later, cannot be considered to be a procedure complying with that resolution. This is all the more so since the United Kingdom's communication contains only incomplete information as to the scope of the measure envisaged: its contains no express justification for that measure in view of conservation needs and gives no indications regarding the safeguard of the interests of the other Member States concerned. In these circumstances, the Commission was entitled to withhold its approval for a measure whose scope and justification it was unable to assess.

49 T h e measure which was in fact brought into force on 20 September 1978 merely orders the closure of all fishing grounds in the Irish Sea from 24 September 1978. It concerns a geographical area different from that to which the seasonal closure provided for in Article 1 of Regulation N o 1779/77 applied. Moreover, the measure adopted contains no indications as to the quantity of catches authorized or as to the distribution of those catches between the fishermen of the various Member States concerned. T h e measure introduced unilaterally by the United Kingdom therefore appreciably amended the Community conservation measures in force during

so During 1977, the Council had thrice adopted measures prohibiting fishing for Norway pout: by Article 5 of Regulation No 350/77 of 18 February 1977 laying down certain interim measures for the conservation and management of fishery resources (Official Journal L 48, p. 28), for the period from 21 February to 31 March 1977, by Regulation No 1673/77 of 25 July 1977 on the prohibition on fishing for Norway pout (Official Journal L 186, p. 30), for the period from 1 September to 15 October 1977 and, finally, by Regulation No 2243/77 of 11 October 1977 prohibiting fishing for Norway pout (Official Journal L 260, p. 1), for an additional period from 16 to 31 October 1977. The zone to which that prohibition applied adjoins the east and north coasts of Scotland; these limits, as laid down in the regulations mentioned above, are not wholly identical but the common feature of the measures adopted was that they did not extend further east than a line represented by 00° 00' longitude (or the Greenwich meridian).

si On 31 October 1977, the British Government adopted the Norway Pout (Prohibition of Fishing) (No 3) Order 1977, S.I. 1977 No 1756, prohibiting fishing for Norway pout from 1 November 1977 in the same zone bounded to the east by the Greenwich meridian. For its part, the Commission submitted to the Council at the same time a proposal which, after certain amendments and in its final state, aimed at maintaining the Norway Pout Box according to its former definition, in other words bounded to the east by 00° 00' longitude. This proposal suffered the same fate as all the measures of fishing policy pending before the Council at its meeting on 30 and 31 January 1978, so that there were no Community conservation measures for the zone in question during 1978.

55 T h e United Kingdom contends that the measure adopted is a genuine conservation measure since fishing for N o r w a y pout with small-mesh nets results in large by-catches of juvenile haddock and whiting, reducing sub-

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sequent catches of those fish when mature for human consumption whilst prejudicing the reproduction capacity of the stocks.

56 It follows from the Community provisions mentioned above, especially Annex VI to the Hague Resolution and the Council declaration of 31 January 1978 that unilateral conservation measures may only be adopted by the Member States where there is an established need. In this respect, it is necessary to point out first of all that the United Kingdom has not complied with the procedural requirements laid down by the Hague Resolution. The letters addressed to the Commission by the Government of the United Kingdom when it was seeking approval for the measure envisaged contain no indications as to the objective and justification thereof; the Government merely notified the text of the proposed measure and announced its intention of introducing it shortly.

ss It is therefore clear that the United Kingdom has failed to fulfil its obligations under the Treaty by having unilaterally altered a situation established by measures previously agreed within a Community procedure and by thus having adversely affected the interests for another Member State, without having shown the need for and urgency of its action in accordance with the requirements laid down in Annex VI to the Hague Resolution and Article 3 of Regulation No 101/76.

Costs

59 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party should be ordered to pay the costs. As the defendant has failed in its submissions, it is necessary to order it to pay the costs including the costs of the interveners. '

On those grounds,

THE COURT

hereby:

(b) As regards the Isle of Man and Northern Irish Sea Fishery, by applying in 1977, for the purpose of implementing Council Regu- lation No 1779/77 of 2 August 1977 and pursuant to the Herring (Irish Sea) Licensing Order 1977, S.I. 1977 No 1388, and the Herring (Isle of Man) Licensing Order 1977, S.I. 1977 No 1389, a system of fishing licences which had not formed the subject- matter of an appropriate consultation and the detailed rules for the implementation of which were reserved wholly to the discretion of the United Kingdom authorities, without its being possible for the Community authorities, the other Member States and those concerned to be certain how the system would actually be applied in law; by maintaining in 1978 that state of uncertainty in relation to fishermen of other Member States and by, during the same year, unilaterally amending the existing protective measures to the detriment of fishermen of other Member States by the Irish Sea Herring (Prohibition of Fishing) Order 1978, S.I. 1978 No 1374, without consulting the Commission in accordance with the rules of Community law and without showing that the detailed rules for the implementation of the measure adopted meet a genuine and urgent conservation need in that form;

(c) As regards the Norway Pout Box, by extending eastwards to 2° longitude East, or to the boundaries of the United Kingdom fishing zone, the scope of a seasonal prohibition on fishing for Norway pout by the Norway Pout (Prohibition of Fishing) (No 3) (Variation) Order 1978, S.I. 1978 No 1379, thus causing considerable damage to the fishing of another Member State, without seeking the Commission's approval for this in satisfactory circumstances and without showing the justification for the measure adopted as a strictly necessary conservation measure;

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 21 MAY 1980 '

Mr President, (Criminal proceedings against Firma J. Members of the Court, van Dam en Zonen and Others, judgment of 3 July 1979 [1979] ECR 2345) and The procedure for a declaration that a Case 141/78 (French Republic v United Member Sute has failed to fulfil its Kingdom of Great Britain and Northern obligations under the Treaty on which I Ireland, judgment of 4 October 1979). am giving my opinion today concerns serverai fisheries measures unilaterally The powers of the Community to adopt adopted by the Government of the Community rules on the conservation United Kingdom. I shall, therefore, and management of fishery resources are before describing the measures in detail, based on Articles 3 and 38 et seq. briefly recall once more the relevant including Annex II to the EEC Treaty. provisions of Community law on fishery products, the scope of which has already Articles 98 to 103 of the Act concerning been defined in some instances by the the Conditions of Accession and the Court of Justice in Joined Cases 3, 4 and Adjustments to the Treaties annexed to 6/76 (Comelis Kramer and Others, the Accession Treaty of 22 January 1972 judgment of 14 July 1976 [1976] ECR contain additional provisions on fishery 1279), Case 61/77 (Commission of the products. In particular, Article 102 of the European Communitiei v Ireland, Act concerning the Conditions of judgment of 16 February 1978 [1978] Accession and the Adjustments to the ECR 417). Joined Cases 185 to 204/78 Treaties provides that, from the sixth