C-804/79

In Case 804/79

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Advisers, Donald W. Allen and John Temple Lang, acting as Agents, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,

applicant,

supported by

FRENCH REPUBLIC, represented by Gilbert Guillaume, Director of Legal Affairs at the Ministry of Foreign Affairs, acting as Agent, and for the

JUDGMENT OF 5. 5. 1981 — CASE 804/79

APPLICATION for a declaration that, by adopting and applying in 1979 certain national measures relating to sea fisheries, the United Kingdom has failed to fulfil its obligations under the EEC Treaty,

THE COURT

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

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

gives the following

COMMISSION v UNITED KINGDOM

On 19 January 1976, the Council Article 2 (2) of Regulation (EEC) N o adopted Regulation (EEC) N o 100/76 101/76 provides that Member States on the common organization of the must notify other Member States and the market in fishery products (Official Commission of the existing laws and Journal L 20, p. 1) and Regulation administrative rules and regulations in (EEC) N o 101/76 laying down a respect of fishing in their maritime common structural policy for the fishing waters and those rules arising out of the

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duty to ensure equal conditions of access commissions and if subsequently no to and use of the fishing grounds; under autonomous Community measures could Article 3, Member States must notify be adopted immediately, the Member other Member States and the Com- States could then adopt, as an interim mission of any alterations they intend to measure and in a form which avoids make to their fishery rules. discrimination, appropriate measures to ensure the protection of resources Article 4 of Regulation No 101/76 situated in the fishing zones off their provides that: coasts.

Before adopting such measures, the ‘‘Where there is a risk of over-fishing of Member State concerned will seek the certain stocks in the maritime waters approval of the Commission, which must referred to in Article 2, of one or other be consulted at all stages of the pro- Member State, the Council, acting in cedures. accordance with the procedure provided for in Article 43 (2) of the Treaty on a Any such measures shall not prejudice proposal from the Commission may the guidelines to be adopted for the adopt the necessary conservation implementation of Community provisions measures. on the conservation of resources."

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basis pending the adoption of permanent matter of the latter decision were Community measures". applicable until 31 October 1979 at the latest.

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national powers to adopt them and as operating within United Kingdom fishery regards several of their provisions and limits; an exemption is provided for as the detailed rules for their adoption were regards by-catches in industrial fishery. as follows: the Fishing Nets (North-East Atlantic) (Variation) Order 1979, Statu- tory Instrument No 744, the Immature (c) The Immature Nephrops Order Sea Fish Order 1979, Statutory Instru- 1979 fixes a minimum landing size of 25 ment N o 741, the Immature Nephrops mm, measured by the length of the Order 1979, Statutory Instrument N o carapace, which corresponds to a total 742, the Nephrops Tails (Restrictions on length of 86 mm, for nephrops landed in Landing) Order 1979, Statutory Instru- the United Kingdom, and lays down ment N o 743, the Sea Fish (Minimum Size) Order (Northern Ireland) 1979, detailed rules for that measurement; it replaced, on 29 June 1979, by the Sea prohibits foreign fishing boats from Fish (Minimum Size) (Amendment) carrying on board in United Kingdom Order (Northern Ireland) 1979, waters nephrops of less than the size laid Statutory Rules of Northern Ireland N o down in that order. 235.

(d) The Nephrops Tails (Restrictions on Landing) Order 1979 prohibits the (a) The Fishing Nets (North-East landing of nephrops tails except where Atlantic) (Variation) Order 1979 the quantity consists of not more than imposes, as regards fishing for protected 290 tails per kilogram of the landed species of whitefish in Region 2 of the weight. North-East Atlantic Fisheries Com- mission, except the Irish Sea, a minimum mesh size of 75 mm for trawl nets made of single twine and 80 mm for such nets (e) The Sea Fish (Minimum Size) made of double twine, whilst the existing (Amendment) Order (Northern Ireland) North-East Atlantic Fisheries Com- 1979 fixes, in Irish waters, the minimum mission regulations provide for a mesh landing size for whiting at 27 cm and for size of 70 and 75 mm respectively. nephrops at 25 mm carapace length.

After a further exchange of correspon- II — W r i t t e n p r o c e d u r e dence and further consultations, the Commission, by a letter of 6 July 1979, By application lodged on 13 November initiated against the United Kingdom the 1979, the Commission, pursuant to the procedure laid down in Article 169 of second paragraph of Article 169 of the the EEC Treaty. In that letter it EEC Treaty, brought before the Court complained that the United Kingdom of Justice the alleged failure of the had failed to fulfil its obligations under United Kingdom to fulfil its obligations Community law by adopting the in the sea fisheries sector. contested national fisheries measures; consequently, the Government of the By orders of 12 December 1979 and 26 United Kingdom was requested to March 1980, the Court permitted the submit its observations before 20 July French Republic and Ireland to intervene 1979. in support of the Commission's submissions. The written procedure followed the By a letter of 31 July 1979, the normal course. Government of the United Kingdom submitted its observations on its alleged The Court, after hearing the report of failure to fulfil its obligations under the the Judge-Rapporteur and the views of Treaty. the Advocate General, decided to open the oral procedure without any pre- paratory inquiry. However, it requested Since these observations did not satisfy the Commission on 10 July 1980 to the Commission, it issued on 3 August specify with regard to each of the 1979 the reasoned opinion provided for measures forming the subject-matter of in Article 169 of the EEC Treaty. In that its application the submissions on which opinion it requested the Government of it requires the Court to rule and, on 7 the United Kingdom to take, within 45 October 1980, requested the Commission days, the necessary steps to bring to an and the Government of the United end the infringements of Community law Kingdom to reply in writing to several consisting, in its view, in the application questions. Those requests were complied of the statutory instruments relating to with within the prescribed periods. sea fisheries brought into force on 1 July 1979; the Commission reserved to itself the right to take a final position shortly I I I — C o n c l u s i o n s of t h e p a r t i e s on the arrangements for herring fishing in the waters of the Isle of Man and Northern Irish Sea. The Commission, in the last part of its conclusions, which were made specific at the request of the Court, concludes that the Court should: After further consultations, the Com- mission issued on 2 October 1979 a — Declare that the United Kingdom has second reasoned opinion in which the failed to fulfil its obligations under Government of the United Kingdom was the EEC Treaty and the Hague requested to bring to an end the Resolution by adopting and applying, infringements of Community law con- in 1979, the Fishing Nets (North- sisting in the application of certain East Atlantic) (Variation) Order, the measures affecting herring fishing in the Immature Sea Fish Order, the waters of the Isle of Man and Northern Immature Nephrops Order, the Irish Sea. Nephrops Tails (Restrictions on

A — The problem of competence IV — S u b m i s s i o n s a n d a r g u m e n t s of t h e p a r t i e s in t h e c o u r s e of t h e w r i t t e n p r o c e d u r e The Commission maintains that since the expiry of the transitional period referred to in Article 102 of the Act of Accession, The Commission puts forward objections the Member States no longer have power to the measures in question from two to take conservation measures in the points of view: on the one hand, fisheries sector and that such measures ' generally, as regards the competence of may only validly be adopted by the Member States to adopt after 31 Member States if they have previously December 1978 autonomous measures in been authorized by the Community.

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(b) This opinion is based on the case-law of the Court of Justice, in particular the judgments of 14 July 1976 (Joined Cases 3, 4 and 6/76, Kramer and (d) The fact that the Hague Resolution Others [1976] ECR 1279), 16 February of 1976 prohibits, for a short period, 1978 (Case 61/77, Commission v Ireland Member States from adopting unilateral [1978] ECR 417) and 3 July 1979 measures for the conservation of (Joined Cases 185 to 204/78, Van Dam resources, which is at first sight sur- and Others [1979] ECR 2345). It follows prising, seems natural when Article 102 in particular from those judgments that is interpreted as depriving Member States the competence of the Member States in of their entire legislative powers in relation to conservation measures is only fisheries matters from a date only just of a transitional nature and that they over two years later. Apart from the were only permitted to take such question of the date on which the period measures at national level as long as the laid down in Article 102 expires, which transitional period laid down by Article has in the meantime been decided by the 102 of the Act of Accession continued to Court, the wording of that provision is run and as long as the Community had unambiguous: after the date laid down not yet fully exercised its powers in the therein,' the Council, and only the matter. The words used by the Court Council, has power to lay down the show clearly that it paid particular conditions for fishing, for protection of attention to the date marking the end the fishing grounds and conservation of of the competence of the Member the biological resources of the sea. States. The rule about the temporary competence of Member States is additional to and separate from the rule that national measures enacted under Member States' powers have to comply with Community law; it is also separate (e) The substantial arguments for from the normal rule that when the treating the fisheries sector in this way

are to be found in the real nature of this only be taken by the Council and not by activity: in the sector of the conservation Member States. of the biological resources of the sea, worthwhile results can only be attained thanks to the cooperation of all the Member States and through a system of rules binding on all the States concerned, including non-member countries. Since the Member States no longer have competence to adopt national fisheries measures they may adopt them only if they are authorized by the Community to do so. The Council, unable to agree on a Community measure, might be able to agree to authorize national measures; if a particular measure has not been so authorized, the Commission must The links between the internal and necessarily have the power under Article external powers of the Community are 155 in these exceptional circumstances to particularly close in the fisheries sector. authorize a Member State to adopt The great proportion of Community national conservation measures. The fishery resources has come within Commission's power thus to authorize Community jurisdiction because of the certain national conservation measures Community decision to extend fishing has been recognized by the Decisions of limits to 200 miles. In no other area of the Council of 19 December 1978, law is the jurisdiction of Member States 9 April and 25 June 1979. based so completely on a Community measure; in no other area have measures adopted by the Community such an immediate and direct impact on the rights of citizens of non-member countries and on the relations of the (g) As regards the criteria and other Community with those countries. procedures applicable, the Commission agrees with the United Kingdom that the Hague Resolution applies and is legally binding. The Commission must be consulted by the Member States concerned at all stages of the pro- cedures; as to the criteria applicable, it follows from the Hague Resolution that the Member States may adopt "as an (f) The Court has ruled that the interim measure and in a form which Council's power to adopt conservation avoids discrimination, appropriate measures derives from the EEC Treaty, measures to ensure the protection of in particular from Article 43. Article 102 resources . . . " and from the Council of the Act of Accession was not intended declaration of 31 January 1978 that to be the basis of the Council's power in national measures may only be taken in this sector; it was intended to be an as far as they are strictly necessary for invitation to the Council to adopt a the conservation and management of common fisheries policy within a certain fishery resources, are non-discriminatory period. Since such a provision cannot and in conformity with the Treaty and if have no legal effects, it means that the the approval of the Commission has been action for which it makes provision may sought beforehand.

The Hague Resolution remains ap- so only with the consent of a plicable but in a situation substantially Community institution. changed by the expiration of the period contemplated by Article 102. The legal regime applicable since 1 January 1979 is based on Article 102 and not on a new strict interpretation of the Hague If the Council had acted in accordance Resolution. In these circumstances, with Article 102, Member States would neither the Hague Resolution nor Regu- incontestably already have lost their lation N o 101/76 could have given back powers in fisheries matters; if they now to Member States the competence which have such powers, they have them only Article 102 brought to an end. because of the default of the Council, and any national measures are merely a substitute for those measures which should by now have been adopted by the Council. Those national powers cannot be greater than those which the Council would now have; the Member States may therefore in any case only adopt measures proposed or approved by the (h) In the alternative, it is necessary to Commission, just as the Council can state that if Member States still have adopt only such measures (subject to an powers in fisheries matters after the date exception). If the Member States still by which the Council should have acted, have powers in fisheries matters, they they have a strict duty to cooperate and may exercise them, because of Article they may exercise those powers only 102, only with the consent of the with the approval of either the Council Commission. or the Commission. This view is based on Article 5 of the EEC Treaty but does not depend on the interpretation of Article 102 which the United Kingdom is unwilling to accept. It would be incompatible with Article 5 of the EEC Treaty for Member States to take advantage of the default of the Council to adopt national measures which they would not be able to adopt if the Council had acted in accordance with Article 102 and which ex hypothesi are not measures which the Council had Article 102 shows that Member States agreed to adopt. This reasoning unanimously agreed that the Council assimilates the need for Commission should adopt comprehensive fisheries approval in fisheries matters to the need measures by the end of the period for Commission approval, by way of a referred to in that article. Since the Commission proposal, for most decisions Council has failed to adopt Community of the Council. In the sector of measures, Member States have a duty to protection of fishery resources, the cooperate so as to remedy as far as measures which the Commission ex possible the failure of the Council. They hypothesi must approve are measures of have two duties: a duty to take measures the same kind which the Commission is on the problems with which the Council and should be proposing to the Council should have dealt, in particular urgent and which the Council should seek to conservation problems, and a duty to do adopt.

The Hague Resolution was itself adopted from the same perspective. That The Government of the French Republic Resolution was drawn up "pending the recalls that the fisheries sector, and more implementation of the Community precisely that of the conservation of measures at present in preparation marine species, indisputably falls within relating to the conservation of resources" the powers expressly devolved to the and it was never envisaged that its Community by the Treaties. application would be prolonged beyond 31 December 1978, the end of the transitional period. (a) As regards the circumstances in which the Council was obliged to exercise and has exercised Community All national powers in the field of the powers in regard to the conservation of protection of the fishing grounds and the the resources of the sea, a fundamental conservation of the biological resources

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The Government of the United Kingdom is of the opinion that the Member States The Government of Ireland, as regards have an inherent power and right to take the competence of a Member State to conservation measures, except in so far

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as they have limited that right by treaty. (c) The Council has not however been These limitations are that the measures completely inactive; without having must comply with the positive adopted comprehensive Community requirements of Community law, notably conservation measures in accordance Regulation No 101/76 and the Hague with its obligation under Article 102, it Resolution, and must not conflict with has however made a series of decisions Community measures taken in that field. declaring its intention of reaching an Member States are under an obligation agreement as early as possible on to seek the approval of such measures Community measures for the conser- from the Commission, not to obtain the vation and management of fishery Commission's authorization. resources and related matters and meanwhile providing for interim measures until a definitive agreement has been reached.

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limit set by Article 102 should pass measures including one such application without the Council having complied by the French Government itself. fully with its duty to take conservation measures. 0) The Commission's alternative argu- ment is as fallacious as its original (g) To state that only the Council has argument: the powers of the Member competence does not enable it to be States have so far been limited only by argued that national measures may the terms of the Hague Resolution which nevertheless be authorized by the only requires them to "seek the Commission. approval" of the Commission, not to obtain its consent. The Commission has in no way acquired a power of veto over national conservation measures. In this respect it is necessary first of all to state that in fact the Council has auth- orized national measures by its decision of 25 June 1979; moreover, Article 155 (k) It is quite wrong to request the of the EEC Treaty cannot be interpreted Court to express an opinion on the as empowering the Commission to conduct of Member States in the per- authorize a Member State to take a formance of their legislative functions; in measure which ex hypothesi it had no any case such an examination cannot power to take. In fact the Commission constitute a ground for conferring a claims a power not to authorize a power of veto on the Commission. measure which is not authorized by the Council but to veto a measure which is authorized by the Council. B — Procedural rules

for this; it therefore clearly failed to effects. The fact that it refused to fulfil its obligations under the Hague adopt as Community measures certain Resolution, according to which it must measures to which it agreed fully as a consult the Commission "at all stages of matter of substance is incompatible with the procedures". the obligations of a Member State under the Treaty, in particular Article 5 thereof. The complaint that the Commission itself was responsible for the lack of discussion is refuted by the facts. (d) With one exception, the Govern- ment of the United Kingdom refused to modify the measures in question in the There is no justification for attempting light of the Commission's objections. to make a distinction between "changes This refusal cannot in this case be in fishing rules" within the meaning of objectively justified by the alleged Regulation No 101/76 which must lateness of the request. merely be notified and the measures to which the Hague Resolution applies. Although the wording of the Resolution and Article 3 of Regulation No 101/76 is (e) The United Kingdom was in breach not the same, they do not apply to of its obligations under the Hague different categories of measure. The Resolution by adopting the measures Hague Resolution, according to the which it notified in accordance with case-law of the Court, must be Article 3 of Regulation No 101/76 but interpreted as referring to all conser- for which it did not seek the vation measures. Commission's approval.

In any case, less than 48 hours' notice of (f) As a whole, the Government of the a change which the United Kingdom United Kingdom failed properly to intended to make to existing rules is not inform and consult the Commission and sufficient to comply with Article 3 of to give it adequate time to reach a Regulation No 101/76. decision, contrary to Article 5 of the Treaty and the Hague Resolution.

(a) The Government of the United Kingdom initially supplied the Com- mission only with incomplete infor- (c) In any case, Ireland was not mation, particularly in the case of the notified in advance by the United Isle of Man measures; reasonable Kingdom or Isle of Man authorities of requests by the Commission for further the measures proposed by those auth- information were only answered after orities for fishing by Irish boats in the long delays, in some instances even after "low season" in the water within 12 the measures in question had been miles of the Isle of Man coast, either implemented. The general tendency of pursuant to Article 3 of Regulation No the United Kingdom's conduct was to 101/76 or otherwise. regard the procedural obligations imposed by the Council decisions of 1979 and by the more general rules of the Treaty as a series of mere formalities The Government of the United Kingdom rather than as substantive obligations to contests the procedural infringements cooperate by giving adequate notice complained of. and adequate information concerning measures proposed, and by making a genuine effort to reach agreement in advance on such measures which seriously affected the interests of (a) The lack of consultation is attri- fishermen of other Member States. butable to the Commission which, instead of accepting the invitation to discuss the proposed measures, asked to see the draft statutory instruments, thus postponing discussion of the proposals (b) The argument that some of these until their final form had been decided measures were merely "changes in upon. fishing rules" rather than measures of fisheries conservation and were not therefore subject to the requirements of the Council decisions and the Hague In any case, the Commission has no right Resolution cannot be accepted. The to see the draft instruments as such; it is measures in question were all taken in entitled to know in sufficient time and in connexion with the objective of conser- sufficient detail what is proposed and to vation of fish stocks; the fact that no be consulted at all stages of the pro- new legislation or statutory instrument cedures. The United Kingdom has may have been adopted in 1979 for the fulfilled this requirement fully. Isle of Man fishery is irrelevant. The administrative measures taken in 1979 by the United Kingdom and Isle of Man authorities under pre-existing statutory The Commission is setting up two powers were as much subject to the standards: several measures adopted by procedures of the Hague Resolution and the other Member States were not Article 3 of Regulation N o 101/76 as the notified to the Commission until some

The United Kingdom should have provided for a period of grace of several (c) The reasons why a Member State weeks, giving fishermen a reasonable takes action within the Council, the time to write off and replace nets legislative organ of the Community, do previously used; the fishermen had not come within the jurisdiction of the legitimate expectations that the existing Court. rules would be maintained. Protection of that legitimate expectation required the grant of a period of grace. By refusing this, the United Kingdom failed in its (d) T o air a political grievance before duty only to take conservation measures the Court amounts to inviting the Court which are strictly necessary and to avoid, to interfere with the internal functioning as it is obliged to do under Article 5 of of another Community institution in the EEC Treaty, causing unnecessary defiance of the requirements of Article 4 and unreasonable inconvenience and loss (1) of the EEC Treaty. to fishermen of other Member States, or at least to minimize such inconvenience or loss.

In fact, the request to modify its The measures in question gave rise to proposals was not made to the various incidents: the boarding of several Government of the United Kingdom French fishing boats and the institution until 27 June 1979, three days before of criminal proceedings against and they came into force; that request was conviction of their skippers. belated.

(b) The agreements reached between the Governments of the United Kingdom (e) Since the measures in question were and of the Isle of Man with regard to the changes in fishing rules, not conservation conditions laid down for herring fishing measures, the question of seeking the in the Northern Irish Sea made it Commission's approval under the Hague necessary for fishermen to possess a Resolution did not arise. licence in order to be able to fish within

Irish fishermen were subject to many (b) The measures in question create forms of discrimination compared with unjustified discrimination between the United Kingdom and Isle of Man Member States and between types of fishermen: they were not informed in fishing. good time of the duty to hold a licence; they were not enabled to satisfy that requirement by normal and reasonable The abrupt change to a mesh size of means; criteria of "historic interests" 70 mm is such as to accelerate the were applied to them, obliging them to movement towards progressive subs- acknowledge that they had fished titution of British nephrops fishermen for without licences in 1977 and 1978 or to French fishermen. Since the stock of reduce their individual claims to an nephrops is not threatened, the only "historic interest" in the fisheries possible reason for a change to a mesh concerned. As a whole, they were victims size of 70 mm is the desire to reduce the of very subtle administrative obstruc- by-catches of bottom species; such a tionism. reason may be criticized at a scientific level, at a political levai and at a legal level. Even if the Community fishery rules did not apply to the Isle of Man, Article 4 of Protocol No 3 to the Treaty of (c) The unilateral British decision on Accession unequivocally prohibits all the mesh size for nephrops fishing is of discrimination. such a nature as adversely to affect and to jeopardize the formulation of a common fisheries policy. The Government of the French Republic considers that the measure increasing the minimum mesh size for nephrops fishing (d) The measure in question causes nets is incompatible with Community serious financial loss to French law. fishermen, the magnitude of which is such as to encourage fishermen no longer to visit the waters in which they have traditionally carried on their (a) The unilateral introduction by the activities in accordance with their United Kingdom on 1 July 1979 of a historic rights and with Community law. 70 mm mesh size is premature having This loss consists of the boarding of regard to the conservation needs of the boats, the fining of their skippers, the species. confiscation of gear and the deterrent

The Government of the United Kingdom The Government of Ireland, complains considers the substantive infringements that the measures concerning herring complained of to be unfounded. fishing in the waters of the Isle of Man and Northern Irish Sea are discrimi- natory to Irish fishermen. (a) The increase in the mesh size of the nets for nephrops fishing, of the minimum landing size of nephrops and of the mesh size for fishing for wnitefish The Community rules, including the were justified for good scientific reasons, prohibition on discrimination, apply to in particular the recommendations of the the waters within the 12-mile zone of the International Council for the Exploration Isle of Man, if not outside three miles of the Sea; the United Kingdom's refusal then at least outside six miles from that to agree to the proposed Community coast. Moreover, the traditional rights of regulation which would have delayed the Ireland and her fishermen under the introduction of those measures was London Convention of 1964 to fish amply justified. within a defined area between six and 12 miles off the west side of the Isle of Man have the force of law under the Conservation measures decided upon Community Treaties, in particular Article with the aim of increasing yields of fish 100 (2) of the Act of Accession. The to all concerned in the long term may in exercise of the special fishing rights of the short term involve temporary losses Ireland is also covered by the "equal for fishermen. treatment" rule in Article 4 of Protocol N o 3 to the Act of Accession concerning the Channel Islands and the Isle of Man. To delay the introduction of the measures beyond 1 July 1979 would have caused damage to the stocks and hence to the livelihoods of fishermen; the Irish fishermen or their representatives measures in question were therefore both received application forms for fishing in appropriate and necessary. the Isle of Man and Northern Irish Sea fishery, including the zone between six and 12 miles of the Isle of Man coast, The introduction of an interim measure only very belatedly, as regards both the relating to nephrops fishing was not low and the high seasons; they were contrary to the Council declaration of moreover placed in an unfavourable 4 April 1979. position to establish their "historical interest". The criticisms of the French Government are based on social and economic grounds, whereas the measures in The whole of the licensing system for question are based in essence on the fishing within the waters adjacent to the scientific recommendations of the Inter- Isle of Man in 1979, including the national Council for the Exploration of "historic interest" criterion, as that the Sea.

2 The measures belonging to the first group comprise the following statutory instruments, which were brought into force on 1 July 1979:

— The Fishing Nets (North-East Atlantic) (Variation) Order 1979, SI N o 744;

— The Immature Sea Fish Order 1979, SI N o 741;

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— The Immature Nephrops Order 1979, SI N o 742; — The Nephrops Tails (Restrictions on Landing) Order 1979, SI N o 743; — The Sea Fish (Minimum Size) (Amendment) Order (Northern Ireland) 1979, SI No 235.

3 The provisions applied in the Irish Sea and the waters round the Isle on Man are based on two orders : — The Herring (Irish Sea) Licensing Order 1977, SI N o 1388; and — The Herring (Isle of Man) Licensing Order 1977, SI N o 1389. It should be noted that these are the same measures as have already been the subject of the Court judgment of 10 July 1980 (Case 32/79 Commission v United Kingdom).

both of Article 102 of the Act of Accession and of the need to protect the biological resources and to maintain suitable relations with third countries in fisheries matters, the Council, on 19 December 1978 and 9 April 1979, adopted interim measures which were in force from 1 January to 31 March 1979 and from 1 April to 30 June 1979 respectively. Following on from these measures, the Council has decided on the following interim measures which will apply from 1 July 1979 until the Council has reached a definitive agreement or until 31 October 1979, whichever is the earlier.

1. Member States shall conduct their fishery in such a way that the catches of their vessels during the interim period shall take into account TACs submitted by the Commission to the Council in their communications of 23 November 1978 and 16 February 1979 and the part of the TACs made available to third countries under agreements or arrangements made with them by the Community. The catches taken in the interim period will be offset against the allocations eventually decided upon by the Council for 1979.

2. As regards technical measures for the conservation and surveillance of fishery resources, Member States shall apply the same measures as they applied on 3 November 1976, and other measures taken in accordance with the procedures and criteria of Annex VI to the Council resolution of 3 November 1976."

5 By a letter of 21 March 1979 the Government of the United Kingdom informed the Commission of its intention to bring into force on 1 June 1979 a series of measures for the conservation of fishery resources concerning the mesh of nets, minimum landing sizes and by-catches and sought the approval of the Commission in this matter in accordance with Annex VI to the Hague Resolution (the text of which, hereinafter referred to as "the Hague Resolution", which was not published in the Official Journal, was quoted in the Court's judgment of 16 February 1978 (Case 61/77 Commission v Ireland [1978] ECR 417, at paragraph 37). Subsequently the Government informed the Commission that the proposed measures would not come into force until 1 July.

9 The parties do not dispute the fact that the statutory instruments brought into force on 1 July 1979 by the United Kingdom are genuine conservation measures and that they correspond, at least in principle, to the measures proposed at the same time by the Commission to the Council as regards the whole of the sea areas in question. The criticisms made by the Commission are based on the consideration that measures of this type cannot be effectively adopted except for the whole of the Community, that the Council would have been in a position to adopt them in the form intended by the Treaty if the United Kingdom had not itself blocked the decision-making process in the Council and that by unilaterally adopting the measures in question the United Kingdom has encroached upon the powers which belong in their entirety, as from 1 January 1979, to the Community. According to the Commission, in the circumstances the disputed measures could therefore be adopted only with its authorization.

10 It is only in the alternative that the Commission has considered the substance of the various measures adopted in order to show that, even though they are genuine measures of conservation, their adoption has breached the principle

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of the equality of treatment of all Community fishermen, either as regards the time at which they came into force or as regards the detailed methods of their application.

1 1 The Government of the French Republic and the Government of Ireland have expressed their support for the Commission's case.

1 4 The Government of the United Kingdom claims that as long as the Council has not exercised the powers conferred upon it by Article 102 of the Act of Accession, even after the expiration of the period laid down in that article,

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the Member States retain residual powers and duties until the Community has fully exercised its powers. It does not dispute that the measures adopted in these circumstances by the Member States must be compatible with all relevant provisions of Community law; in this case the real question therefore is whether the measures are in conflict with the Community legislation in force and whether, in adopting them, the United Kingdom has disregarded any one of its obligations in pursuance of Community law.

15 The Government of the United Kingdom takes the view that at the time when it introduced the five statutory instruments at issue there was no Community legislation in force on the same matter just as there was no Community legislation affecting herring fishing in the Irish Sea and the waters round the Isle of Man. The Government feels that it has satisfied the obligations resulting from the Council's decisions and the Hague Resolution in view of the fact that it consulted the Commission at all stages of the preparation of the disputed measures and sought its approval. On the other hand it does not agree that that Resolution and the decisions extending its application may be interpreted as requiring the prior authorization of the Commission for any action by the Member States.

16 Having regard to the uncertainties characterizing the legal situation in the field in question it is appropriate in the first place to establish what the state of Community law was as regards conservation measures at the relevant period. Once the bases of the legal situation have been established it will then be necessary to consider separately on the one hand the question of the compatibility with Community law of the adoption of the five statutory instruments disputed by the Commission and on the other the fisheries situation in the Irish Sea and the waters round the Isle of Man, which raises special legal problems.

20 On this subject it is appropriate to stress, first of all, that the transfer to the Community of powers in this matter being total and definitive, such a failure to act could not in any case restore to the Member States the power and freedom to act unilaterally in this field.

21 It follows, as has been stated by the French Government, that in the absence of provisions adopted by the Council in accordance with the forms and pro- cedures prescribed by the Treaty, the conservation measures as they existed at the end of the period referred to in Article 102 of the Act of Accession are maintained in the state in which they were at the time of the expiration of the transitional period laid down by that provision.

22 However, it is not possible to extend that idea to the point of making it entirely impossible for the Member States to amend the existing conservation measures in case of need owing to the development of the relevant biological and technological facts in this sphere. Such amendments would be of a

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limited scope only and could not involve a new conservation policy on the part of a Member State, since the power to lay down such a policy belongs henceforth to the Community institutions.

23 Having regard to the situation created by the inaction of the Council, the conditions in which such measures may be adopted must be defined by means of all the available elements of law, even though fragmentary, and by having regard, for the remainder, to the structural principles on which the Community is founded. These principles require the Community to retain in all circumstances its capacity to comply with its responsibilities, subject to the observance of the essential balances intended by the Treaty.

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measures adopted to ensure the protection of resources and in a form which avoids discrimination. Furthermore it emphasizes that such measures shall not prejudice the guide-lines to be adopted for Community policy on the conservation of resources.

27 Before adopting such measures the Member State concerned is required to seek the approval of the Commission, which must be consulted at all stages of the procedure. It should be noted that these requirements, which were originally defined during the transitional period laid down by Article 102 of the Act of Accession, must be considered henceforth in a new setting, characterized by the exclusive powers of the Community on this subject and by the full effect of the relevant rules of Community law, without prejudice to the transitional provisions of Articles 100, 101 and 103 of the Act of Accession, the application of which is however not at issue in this case.

28 According to Article 5 of the Treaty Member States are required to take all appropriate measures to facilitate the achievement of the Community's task and to abstain from any measure which might jeopardize the attainment of the objectives of the Treaty. This provision imposes on Member States special duties of action and abstention in a situation in which the Commission, in order to meet urgent needs of conservation, has submitted to the Council proposals which, althought they have not been adopted by the Council, represent the point of departure for concerted Community action.

29 Furthermore it should be remembered that in pursuance of Article 7 of the Treaty, Community fishermen must have, subject to the exceptions mentioned above, equal access to the fish stocks coming within the jurisdiction of the Member States. The Council alone has the power to determine the detailed conditions of such access in accordance with the pro- cedures laid down by the third subparagraph of Article 43 (2) of the Treaty and Article 102 of the Act of Accession. This legal situation cannot be modified by measures adopted unilaterally by the Member States.

33 It is in the light of the state of law as thus defined that the two groups of measures which are the subject of the dispute must be considered.

T h e s t a t u t o r y i n s t r u m e n t s c o n t e s t e d by t h e C o m m i s s i o n

34 The Government of the United Kingdom claims that the five statutory instru- ments contested by the Commission were the subject of prior consultation on

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its part in accordance with the decisions of the Council and the procedure laid down by the Hague Resolution. There can be no question of its having brought them into force before obtaining the Commission's view, the more so as it may be seen from the information supplied by the Commission itself that the majority of the measures adopted by the Member States at the time in question had been notified only after they entered into force and that the cases of prior approval were exceptional.

35 In this respect it must be stated that the consultation carried out by the Government of the United Kingdom was unsatisfactory and cannot be considered as being in accordance with the requirements of the Council decisions. Although it is true that the Commission was informed on 21 March 1979 of the Government's intentions it was only on 19 June that it was able to acquaint itself with the text of the proposed measures. Having regard to the technical complexity of the matter it is clear that this way of handling the matter did not allow the Commission to weigh up all the implications of the provisions proposed and to exercise properly the duty of supervision devolving upon it in pursuance of Article 155 of the Treaty.

The measures applicable to the Irish Sea and the waters round the Isle of Man

39 The Government of Ireland, which attaches special importance to this aspect of the dispute, has asked the Court to clarify the legal situation as regards the application of the relevant rules of Community law in the territorial waters around the Isle of Man.

40 As the Court has already declared in its judgment of 10 July 1980, it is not necessary in this connexion to consider the constitutional position of the Isle of Man or the relationship of that territory to the Community as it is clear from the very wording of the order in question, namely the Herring (Isle of Man) Licensing Order, SI No 1389, that that measure was adopted under the legislation of the United Kingdom by the British Government so that the United Kingdom must take full responsibility for that measure vis-à-vis the Community.

41 It is sufficient to state that the legal bases of the fishery regime disputed by the Commission remained in 1979 the same as those which the Court had to consider in its judgment of 10 July 1980 for the years 1977 and 1978. Even though it appears from the file that the regime seems to have been slightly liberalized in favour of Irish fishermen, the Court can only maintain the

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assessment which it made in the judgment referred to, to the effect that the system of fishing licences applied in the Irish Sea and the waters round the Isle of Man did not form the subject-matter of any consultation or consequently of any authorization on the part of the Commission, that the detailed rules for its implementation 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 legally certain how the system would actually be applied.

hereby:

1. Declares that the United Kingdom has failed to fulfil its obligations under the EEC Treaty: (a) by having brought into force on 1 July 1979 without appropriate prior consultation and in spite of the Commission's objections, the following statutory instruments:

JUDGMENT OF 5. 5. 1981 — CASE 804/79

— The Fishing Nets (North-East Atlantic) (Variation) Order 1979, SI No 744; — The Immature Sea Fish Order 1979, SI No 741; — The Immature Nephrops Order 1979, SI No 742; — The Nephrops Tails (Restrictions on Landing) Order 1979, SI No 743; — The Sea Fish (Minimum Size) (Amendment) Order (Northern Ireland) 1979, SI No 235;

(b) by having maintained in force in the Irish Sea and the waters round the Isle of Man in pursuance of the Herring (Irish Sea) Licensing Order 1977, SI No 1388, and the Herring (Isle of Man) Licensing Order 1977, SI No 1389, a system of fishing licences which had not been the subject of appropriate consultation with or an authorization from the Commission, 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 legally certain how the system would actually be applied and which, as a result, had the effect of preventing fishermen from other Member States from having access to fishery zones which ought to be open to them on an equal footing with the fishermen of the United Kingdom;

2. Orders the United Kingdom to pay the costs including those of the interveners.