C-124/80

JUDGMENT OF 2. 6. 1981 — CASE 124/80

In Case 124/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the Economische Politierechter of the Arrondissementsrechbank, Rotterdam, for a preliminary ruling in the proceedings pending before it between OFFICIER V A N JUSTÍTIE

and J. V A N D A M & ZONEN

on the conformity with Community law of the interim measures adopted by the Netherlands authorities laying down for 1979 limitations of catches of sea fish other than sole and plaice,

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

JUDGMENT

Adjustments to the Treaties, annexed to by concerted action extend as from the Treaty of 22 January 1972, known 1 January 1977 their fisheries jurisdiction as "the Accession Treaty," contain to 200 miles off their North Sea and provisions relating to fisheries. In North Atlantic coasts. particular, Article 102 provides that the Council, acting on a proposal from the On the same occasion, the Council Commission, shall determine, from the agreed (Annex VI to the Resolution) to a sixth yiar after accession at the latest, Commission declaration (hereinafter conditions for fishing with a view to referred to as "The Hague Resolution") ensuring protection of the fishing worded as follows: grounds and conservation of the biological resources of the sea. "Pending the implementation of the Community measures at present in On 19 January 1976, the Council preparation relating to the conservation adopted Regulation (EEC) N o 100/76 of resources, the Member States will not on the common organization of the take any unilateral measures in respect of market in fishery products (Official the conservation of resources. Journal L 20, p. 1) and Regulation (EEC) No 101/76 laying down a However, if no agreement is reached for common structural policy for the fishing 1977 within the international fisheries industry (Official Journal L 20, p. 19). commissions and if subsequently no The first of those regulations repeals autonomous Community measures could Regulation (EEC) No 2142/70 and the be adopted immediately, the Member second regulation repeals Regulation States could then adopt, as an interim (EEC) N o 2142/70 and the second regu- measure and in a form which avoids lation repeals Regulation (EEC) No discrimination, appropriate measures to 2141/70. ensure the protection of resources situated in the fishing zones off their Article 4 of Regulation No 101/76 coasts. provides that: 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."

empowered to adopt appropriate than sole and plaice. Those measures measures where there are no auton- were approved by the Commission on omous Community measures. 25 July 1979 (Official Journal 1980, C 133, p. 4). When, in December 1978, at the end of the transitional period provided for in In October 1979, one of Firma van Dam Article 102 of the Act of Accession, it & Zonen's boats fished and landed cod became clear to the Council that it in the Netherlands port of Stellendam in would not manage to adopt in good time breach of the conservation measures the conservation measures necessary for adopted by the Netherlands Govern- the year 1979, it decided as follows on ment. 19 December 1978: When criminal proceedings were brought 1. "Member States shall conduct their before the Economische Politierechter fisheries in such a way that the [Magistrate dealing with commercial catches of their vessels during the offences] of the Arrondissements- interim period shall take into account rechtbank [District Court] Rotterdam, TACs [total allowable catches] Firma van Dam & Zonen claimed that submitted by the Commission to the the measures adopted by the Netherlands Council in its communication of Government were contrary to Com- 23 November 1978 and the part of munity law. This prompted the court the TACs made available to third making the reference to refer to the countries under agreements or Court of Justice, by a judgment of 4 arrangements made with them by the March 1980, a request for a preliminary Community. The catches taken in the ruling worded as follows : interim period will be offset against the allocations eventually decided "Are the measures adopted for 1979 by upon by the Council for 1979. the Netherlands authorities, such as the regulations referred to in the summons, 2. As regards technical measures for the namely the dicision laying down for conservation and surveillance of 1979 interim measures on the limitaiton fishery resources, Member States shall of catches of sea fish other than sole and apply the same measures as they plaice [Beschikking voorlopige Regeling applied on 3 November 1976, and Vangstbeperking andere Zeevissoorten other measures taken in accordance dan Tong en Schol 1979] (Nederlandse with the procedures and criteria of Staatscourant [Netherlands Official Annex VI of the Council resolution of Journal] 1979-124) and the Decision 3 November 1976." [Beschikking] of 27 August 1979 under No J 3247 (Nederlandse Staatscourant The system thus established was No 167 of 28 August 1979) based on extended every three months by Council Community law?" decisions adopted on 9 April 1979 (Official Journal L 93, p. 40), 25 June The judgment making the reference was 1979 (Official Journal L 161, p. 46) and registered at the Court on 22 May 1980. 29 October 1979 (Official Jounal L 277, p. 10). Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the Pursuant to the Council decision of EEC, observations were submitted by the 19 December 1978 and subsequent Netherlands Government, by the decisions, the Netherlands Government Government of the United Kingdom, adopted for 1979 interim measures on represented by its Agent, G. Dagtoglou, the limitation of catches of sea fish other Treasury Solicitor's Department, by the

II — W r i t t e n o b s e r v a t i o n s s u b - m i t t e d p u r s u a n t to A r t i c l e In conclusion, the Netherlands Govern- 20 of t h e P r o t o c o l on t h e ment suggests that the Court should S t a t u t e of t h e C o u r t of reply to the question referred to it that in J u s t i c e of t h e E E C the given circumstances Member States not only had the power but were also under a duty to take the necessary conservation measures for the purpose A — Observations submitted by the of implementing the above-mentioned Netherlands Government decisions of the Council in so far as those measures satisfy the conditions set out above. According to the Netherlands Government, which insists on the need to lay down a Community policy for the conservation of resources, the Member B — Observations submitted by the States may no longer adopt unilateral Government of the United Kingdom conservation measures without adversely affecting the common fisheries policy. However, in the absence of final The Government of the United Kingdom agreement on Community conservation first of all questions the exact scope of measures before 1 January 1979, it was the question and considers that the necessary to establish a Community question should be directed to ascer- framework enabling the Member States taining whether the measures taken are to adopt conservation measures The compatible with or in accordance with

JUDGMENT OF 2. 6. 1981 — CASE 124/80

The Commission concludes from an examination of the procedure followed In the Commission's view, the Member and the contents of the measures States no longer have power, in any case adopted by the Netherlands Government after the end of the transitional period, that those measures are in accordance in other words after 31 December 1978, with Community law and suggests that

OFFICIER VAN JUSTITIE v VAN DAM

the Court of Justice should give the In the absence of Community measures following reply to the question referred to take over from national measures to it: when the transitional period expires, the rules of the Treaty which have become directly applicable provide the legal “The decision of 1979 laying down framework sought. interim measures on the limitation of catches of sea fish other than sole and plaice (Nederlandse Staatscourant 1979/ Having thus emphasized the risks to 124) and the provisions extending and which the maintenance of national implementing that decision were adopted powers with regard to the conservation by the Netherlands Government taking of resources exposes the common into account the requirements of fisheries policy and the interests of Community law." fishermen, the French Gouvernment concludes that

JUDGMENT OF 2. 6. 1981 — CASE 124/80

of the protection of biological resources. European Communities, represented by Since this finding was reached after the H. Bronkhorst, acting as Agent, and the Council adopted the above-mentioned Council of the European Communities, decision of 19 December 1978, it follows represented by B. Schloh, acting as that in the opinion of the Court that Agent, presented oral argument. vacuum exists in spite of that decision and in spite of its extension during 1979.

At the sitting on 9 December 1980, the The French Government considers that Netherlands Government, represented by the decisions of the Council do not come A. Bos, acting as Agent, the French within the scope of Council Regulation Government, represented by G. No 101/76 because they constitute mere Guillaume, acting as Agent, the standstill decisions under the terms of Government of the United Kingdom, which the Member States are not auth- represented by Lord Mackay of orized to enact new measures. They may Clashfern Q.C., the Commission of the not be interpreted as delegating the

OFFICIER VAN JUSTITIE v VAN DAM

power of the Council to the Member the field. The decisions of the Council States, which would be entirely unlawful. merely recognize that situation by requiring a certain surveillance of the exercise by the Member States of their The Government of the United Kingdom power. In adopting those decisions the for its part maintains that the Member Council was not subject to the States remain entitled to enact conser- requirements of Article 4 of Council vation measures even after the end of the Regulation No 101/76. transitional period provided for in Article 102 of the Act of Accession; that The Advocate General delivered his entitlement is only terminated when the opinion at the sitting on 12 February Council lays down a common policy in 1981.

Decision

1 By judgment of 4 March 1980, which was received at the Court on 22 May 1980, the Economische Politierechter [Magistrate dealing with commercial offences] of the Arrondissementsrechtbank [District Court], Rotterdam referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question as to the interpretation of the Community provisions on the conservation of fishery resources for the year 1979 in order to ascertain whether measures enacted by the Netherlands Government for 1979 laying down limitations on catches of sea fish other than sole and plaice are compatible with Community law.

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 [total allowable catches] 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.”

3 By a Decision [Beschikking] No J 4569 (Nederlandse Staatscourant [Netherlands Official Journal] 1978-253) of 28 December 1978, the Netherlands Minister of Agriculture and Fisheries laid down for 1979 interim measures on the limitation of catches of sea fish other than sole and plaice. These arrangements, which were extended by Decision No J 23451 of

OFFICIER VAN JUSTITIE v VAN DAM

27 June 1979 (Nederlandse Staatscourant, 1979-124), were amended by Decision N o J 3247 of 27 August 1979 (Nederlandse Staatscourant, 1979- 167) prohibiting the catching and unloading of cod in a specified zone. On 25 July 1979 the Commission found that the interim measures thereby laid down by the Netherlands authorities were in conformity with the Council Decisions of December 1978 and of April and June 1979 (Official Journal 1980 C 133, p. 4). On 22 November 1979 it found those measures were in conformity with the Council Decision of October 1979 (Official Journal C 133, p. 5).

6 The Council does not dispute that the decisions in question were not in the form provided for in Article 4 of Regulation No 101/76 but claims that the

JUDGMENT OF 2. 6. 1981 — CASE 124/80

regulation does not apply to those decisions. Those decisions are ad hoc measures taken by the Council in order to preserve, in a way not provided for by Regulation No 101/76, the biological resources of the sea; they crys- tallize certain situations and, at the same time, entail a "limited restoration of certain powers" to the Member States. Regulation No 101/76 is in fact obsolete and is no longer sufficient to meet problems the scope of which was not envisaged at the time when it was drafted.

OFFICIER VAN JUSTITIE v VAN DAM

9 It should be recalled in this connexion that the Court, in its judgment of 5 May 1981 (Commission v United Kingdom Case 804/79), whilst emphasizing that since the end of the transitional period provided for in Article 102 of the Act of Accession there has been a total transfer of powers to the Community, stated in its judgment that, it is not possible, on the basis of the failure of the Council to act in that matter 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. It added that such amendments would be of a 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.

10 With regard to the conditions under which national conservation measures may be taken, the Court took the following view:

"As this is a field reserved to the powers of the Community, within which Member States may henceforth act only as trustees of the common interest, a Member State cannot therefore, in the absence of appropriate action on the part of the Council, bring into force any interim conservation measures which may be required by the situation except as part of a process of col- laboration with the Commission and with due regard to the general task of supervision which Article 155, in conjunction, in this case, with the decision of 25 June 1979 and the parallel decisions, gives to the Commission.

Costs

13 The costs incurred by the Government of the Netherlands, the Government of the French Republic, the Government of the United Kingdom, the Commission and the Council, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

T H E COURT,

in answer to the questions referred to it by the Economische Politierechter of the Arrondissementsrechtbank, Rotterdam, by judgment of 4 March 1980, hereby rules:

National measures concerning the conservation of the biological resources of the sea such as those enacted by the Netherlands Government for the year 1979 concerning the limitation of catches of

O P I N I O N O F MR ADVOCATE GENERAL REISCHL DELIVERED O N 12 FEBRUARY 1981 1

Mr President, reference for a preliminary ruling stems, Members of the Court, Firma van Dam en Zonen, as in Joined Cases 185 to 204/78 (Firma J. van Dam As in the proceedings for failure on the en Zonen and Others, judgment of 3 July part of a State to fulfil its obligations 1979, [1979] ECR 2345), is charged with under the EEC Treaty, in Commission v the infringement in the North Sea United Kingdom (Case 804/79), on of limitations on fishing which the which I also delivered an opinion, this Netherlands authorities laid down, in reference for a preliminary ruling centres this case after the expiry of the aforesaid round the question whether the Member transitional period. States have power to issue provisions on the conservation of the biological That limitation on catches is contained in resources of the sea after the expiry of the decision of the Netherlands Minister the transitional period laid down in of Agriculture and Fisheries of 28 Article 102 of the Act of Accession, and December 1978 laying down for 1979 if so, under what conditions. In the interim measures on the limitation of criminal proceedings, from which this catches of sea fish other than sole and

1 — Translated from the German.