C-269/80

JUDGMENT OF 16. 12. 1981 — CASE 269/80

and to seek its approval in good faith lead to a distortion of the division of but also a duty not to lay down powers between the Community and national conservation measures in the Member States and would thus spite of objections, reservations or adversely affect the essential balances conditions which may be formulated established by the Treaty. by the Commission. 3. Where, with regard to fishery conser- vation measures adopted during the 2. A proposal submitted by the period in which the Council had not Commission to the Council with a yet exercised the powers which it view to taking concerted Community possesses, the Commission has put action cannot be considered as forward express objections to the constituting in itself approval of a national measure contemplated, such unilateral national measure, even of objections may be considered to have one having the same content, which is been withdrawn only when the adopted in a sphere coming within Commission has clearly and expressly the powers of the Community. The indicated that it no longer intends to lawfulness of national measures insist on them. adopted in a sphere within which the powers of the Community apply may 4. Where criminal proceedings are not be recognized solely by reason brought by virtue of a national of the existence of a Community measure which is held to be contrary proposal which is identical in to Community law a conviction in principle. That would not only be those proceedings is also incompatible contrary to legal certainty but would with that law.

REGINA v TYMEN

T H E COURT

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

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

gives the following

JUDGMENT

United Kingdom had failed to fulfil its fisheries provisions in force in the United obligations under the EEC Treaty. The Kingdom. decision of the Court was based on the fact that the United Kingdom failed to provide the other Member States and the As a result, Mr Tymen was convicted at Commission with prior notification of Cardiff Crown Court for offences the measure adopted and to seek the contrary to the above-mentioned orders. approval of the Commission. The judge imposed on him a total fine of £250 and made an order for the forfeiture of the nets. The 1977 Order was amended by the Fishing Nets (North-East Atlantic) (Variation) Order 1979 (SI 1979 No When an appeal was lodged with the 744) which entered into force on 1 July Court of Appeal Criminal Division that 1979. The latter order, according to the court, in order to be enabled to judge information provided by the court whether the British provisions were making the reference, amended Schedule compatible with Community law, stayed I to the 1977 Order by increasing the the proceedings and referred to the minimum size of mesh authorized for Court of Justice under Article 177 of the double-twine nets from 75 to 80 EEC Treaty the following questions: millimetres. In the case of fishing for nephrops, however, the minimum size of mesh authorized for double-twine nets " 1 . Does a Member State have power to was fixed at 75 millimetres. adopt and bring into force a fishery conservation measure prescribing a The 1979 Order, together with other minimum mesh size for nephrops of British legislation, has in the meantime a kind contained in the United formed the subject-matter of the Kingdom's Fishing Nets (North-East judgment of the Court of 5 May 1981 Atlantic) (Variation) Order 1979 (SI (Case 804/79, Commission v United 1979 No 744) after the expiry of the Kingdom, [1981] ECR 1045). In that period referred to in Article 102 of judgment, which was delivered in the Act of Accession on 31 proceedings under Article 169 of the December 1978? EEC Treaty, the Court declared that the United Kingdom had failed to fulfil its obligations under the EEC Treaty, inter 2. If not, have individuals prosecuted alia, by having brought the said order under such a measure any and if so into force on 1 July 1979 without appro- what rights which national courts priate prior consultation and in spite of must protect? the Commission's objections. 3. If the answer to 1 above is yes, 2. On 16 October 1979 Mr Robert would Tymen, a French national and master of (a) the procedural requirements or a French trawler, was arrested whilst (b) the other requirements of the fishing for nephrops some 50 miles following provisions : south-west of the Pembrokeshire coast, (i) Article 3 of Council Regu- within the United Kingdom fishing zone. On board his boat were found two nets lation No 101/76 of 19 of double twine which proved to have an January 1976; average mesh size of some 62 to 63 (ii) Annex VI to the Hague millimetres, which was thus less than the Resolution of 3 November minimum size of mesh authorized by the 1976;

3. The order making the reference was registered at the Court of Justice on (a) The reply to the first question has 5 December 1980. already been settled by the judgment in Case 804/79 in which it was stated " . . . since the expiration on 1 January 1979 of In accordance with Article 20 of the the transitional period laid down by Protocol on the Statute of the Court of Article 102 of the Act of Accession, Justice of the EEC written observations power to adopt, as part of the common were submitted by Robert Tymen, fisheries policy, measures relating to the represented by Patrick O'Connor, of the conservation of the resources of the sea English Bar and by Xavier Ghelber, of has belonged fully and definitively to the the Paris Bar; by the United Kingdom, Community". The transfer of powers to represented by Lord Mackay of the Community being total and definitive Clashfern QC, David Vaughan QC, and the failure of the Council to adopt R. D. Munrow of the Treasury the conservation measures within the Solicitor's Department; by the French required period could in no case restore Government, represented by Thierry Le to the Member States the power and

JUDGMENT OF 16. 12. 1981 — CASE 269/80

freedom to act unilaterally. Although in Act of Accession, but also from the that judgment the Court permitted the cumulative effect of Articles 3 (d), 5, 8 Member States "to amend the existing (7), and 38 to 47 of the Treaty together conservation measures in case of need" it with the preamble to and Articles 1 and stated that such amendments must be "of 4 of Council Regulation No 101/76, a limited scope only" and that a Member Annex VI to the Hague Resolution and State might not bring into force any the Council Decision of 25 June 1979. interim conservation measures, "except That prohibition corresponds to the as part of a process of collaboration with criteria for the direct effect of the Commission". Community measures laid down by the case-law of the Court.

Consequently the Court should reply to (b) With regard to the second question the second question to the effect that Mr Tymen states that the total and no Member State may prosecute an definitive transfer of powers to the individual under a national measure Community goes beyond the effects of which it had no power to introduce individual "stand-still" provisions. It is a and which falls within the exclusive , fundamental implication of that transfer competence and jurisdiction of the that no Member State may invoke Community. Any such prosecution measures which are outside its own would be incompatible with Community jurisdiction or power. Authority for that law. is provided both by the English doctrine of ultra vires and the concept of "incompétence" in French administrative law and has been confirmed by the (c) With regard to the third question Court in its judgment of 9 March 1978, Mr Tymen maintains that the Fishing (Case 106/77, Simmenthal, [1978] ECR Nets (North-East Atlantic) (Variation) 629). Order 1979 was adopted in breach of the prohibitions set out clearly in Annex VI to the Hague Resolution of 3 November 1976 and in paragraph 2 of Council Since the Member States have no powers Decision 79/590/EEC of 25 June 1979 whatever in this field Mr Tymen as the United Kingdom has failed to considers that the question of "direct fulfil the duty incumbent on Member effect" does not arise. He nevertheless States to seek the approval of the adds in the alternative that the Commission and to consult it at all prohibition of conservation measures stages of the procedure, having regard to results not only from Article 102 of the the requirements laid down in this

Consequently Mr Tymen suggests that the Court should reply to the fifth (d) With regard to the fourth question question to the effect that for a Member Mr Tymen submits that the infringement State to invoke a unilateral measure such which forms the subject-matter of the as the Fishing Nets (North-East Atlantic) main proceedings is based precisely upon (Variation) Order 1979 or to prosecute the British Order of 1977 which was an individual pursuant to such a measure merely modified by the Fishing Nets is contrary to Community law if the (North-East Atlantic) (Variation) Order measure was adopted in breach of sub- 1979. Since, as the Court held in its stantive or formal provisions of Com- judgment of 4 October 1979 (Case munity law. 141/78, France v United Kingdom, [1979] ECR 2923) the United Kingdom failed to fulfil its obligations under the Treaty 2. The United Kingdom makes the by adopting the 1977 Order it has following observations: likewise failed to fulfil its obligations by adopting the 1979 Order. (a) The reply to the first question, in the light of the judgment in Case 804/79, is that a Member State, after the expiry of The fact that the arrest, conviction and the period provided for in Article 102 of punishment took place after the Court the Act of Accession, does have the gave its judgment in Case 141/78 also power to adopt and enforce a fishery constitutes a breach of Community law conservation measure prescribing a on the part of the United Kingdom. The minimum mesh size for nephrops of a consequence of that judgment is that not kind contained in the Fishing Nets only the 1977 Order but all amendments which, as in the present case, are wholly (North-East Atlantic) (Variation) Order dependent upon the original measure are 1979 provided that: retroactively rendered unlawful. (i) the conservation measure can be properly considered as an amend- ment of existing conservation (e) With regard to the fifth question Mr measures in the case of need owing Tymen submits that the prohibition of to the development of the relevant unilateral conservation measures laid biological and technical effects in down in Annex VI and Decision this sphere, and does not involve a 79/590/EEC corresponds to the basic new conservation policy on the part criteria which must be satisfied, accord- of the Member State; and ing to a consistent line of decisions of the Court, for Community measures to (ii) it is introduced as a part of a process have direct effect. of collaboration with the Com-

Thus, even if it were supposed that the failure of the United Kingdom to consult and to heed the objections of the (c) With regard to the third question Commission gave rights to individuals, the United Kingdom emphasizes that, the common interest requires that such even if it were supposed that the rights should be limited to the period in adoption of the 1979 Order on 1 July the measure to which the Commission 1979 was in breach of Community law, objects, that is the period between 1 July that does not mean that after 1 1979 and 1 September 1979. Thus, as September 1979 the maintenance of that from 1 September 1979 the United measure in force and the prosecution Kingdom was entitled to and had a duty of Mr Tymen were also in breach to maintain and enforce in the common of Community law. By withholding interest legislation such as the Fishing approval of the 1979 Order solely on the Nets (North-East Atlantic) (Variation) ground that it should not have come into Order 1979 in order to prevent force before 1 September 1979, the fishermen from using nets such as Mr Commission implicitly approved the Tymen was using for nephrops fishing. measure as from that date.

(b) The second question is only submitted in the alternative in case, (d) With regard to the fourth question despite the views of the United the United Kingdom takes the view Kingdom, the reply to the first question that the form and method of United is in the negative. Kingdom legislation is a matter for the United Kingdom alone and that it is irrelevant to Community law whether the It is apparent that Article 102 of the Act requirements as to minimum mesh sizes of Accession and the other Community in force in United Kingdom waters in

The United Kingdom accordingly The United Kingdom also disregarded proposes that the reply to the fifth Articles 2 and 3 of Regulation No question should be that, even if the 101/76 by not notifying the other requirements referred to in the third Member States in good time of the question were not satisfied, whether at proposed measures. the time of the introduction of the 1979 Order or the date of arrest of Mr Tymen, any failure to comply with such (c) With regard to the fourth question requirements does not give rights to the reply must be that the irregularity individuals which national courts must affecting the Fishing Nets (North-East protect. Atlantic) Order 1977, which was found in the above-mentioned judgment of 4 October 1979, affects the lawfulness of the Fishing Nets (North-East Atlantic) 3. The French Government submits that (Variation) Order 1979. No criminal the state of the law underwent a proceedings may lawfully be brought considerable change after the expiry of under the 1977 Order for failure to the transitional period provided for in comply with the provisions on sizes of Article 102 of the Act of Accession. mesh laid down by the 1979 Order.

(d) With regard to the second and fifth (a) With regard to the first question the questions the French Government submits French Government considers that the that a national measure adopted in expiry of the transitional period entailed breach of Community law may not the loss of all national powers in relation lawfully be applied by the national court. to fisheries and the conservation of That means that in this case the the biological resources of the sea. conviction of the accused of the charges Consequently the Member States might brought against him must be quashed. no longer adopt any national measures in that field, the more so since the so-called "roll-over" decisions adopted on a 4. The Commission of the European temporary basis "pending the adoption Communities outlines the views which it

set out in Case 804/79 (Commission v having regard to the arguments set out United Kingdom) and indicates the above in connection with the first consequences which they have for this question. A measure adopted by a case. Member State in excess of its powers must be without legal effect and, in particular, cannot found a criminal pros- (a) The first question must be analysed ecution. That principle has been in the light of both the judgment in Case confirmed by the case-law of the Court, 804/79 and the judgment of 2 June 1981 in particular by its judgment of 16 (Case 124/80, Van Dam, [1981] ECR February 1978 (Case 88/77, Schonenberg, 1447). These two judgments confirm that [1978] ECR 473). In that judgment, the Member States no longer have power which in fact goes beyond the question to adopt fishery conservation measures of competence, the Court held that " . . . unless they have been specifically auth- where criminal proceedings are brought orized by the Community to adopt such by virtue of a national legislative measure measures. They also recognize that, which is held to be contrary to where the Council has failed to adopt Community law, a conviction in those conservation measures, it is for the proceedings is also incompatible with Commission to supervise the national that law" (paragraph 16 of the decision). measures by giving or withholding its approval of their adoption. Accordingly, the Commission suggests the following reply to the second question : Consequently the reply to the first question should be as follows: "Where criminal proceedings are brought by virtue of a national legislative "Since the end of the transitional period measure which is held to be contrary to under Article 102 of the Act of Accession Community law a conviction in those Member States no longer have power of proceedings is also incompatible with their own to adopt sea-fishery conser- that law." vation measures. Where the Council has failed to act, Member States may adopt conservation measures in case of need. (c) The third, fourth and fifth questions However such measures may only be are, in the Commission's view, adopted after appropriate consultation redundant, as they assume a positive with the Commission and where the reply to the first question to the effect Commission has not formulated objec- that the Member States still have power tions, reservations or conditions." to adopt conservation measures.

3 In the case in point Mr Tymen was found guilty by Cardiff Crown Court of offences contrary to the above-mentioned orders, having been found in possession on 16 October 1979 on board his ship within the United Kingdom fishing zone of nets having an average mesh-size less than the minimum permitted mesh-size. He appealed against that judgment to the Court of Appeal, Criminal Division.

4 It should be recalled that the above-mentioned United Kingdom orders have led to two actions against the United Kingdom for failure to fulfil its obligations under the Treaty, brought by France and the Commission under

JUDGMENT OF 16. 12. 1981 — CASE 269/80

Articles 170 and 169 of the EEC Treaty respectively. In the first of these cases the Court declared, in its judgment of 4 October 1979 (Case 141/78, France v United Kingdom, [1979] ECR 2923) that, by bringing into force on 1 April 1977 the Fishing Nets (North-East Atlantic) Order 1977, the United Kingdom had failed to fulfil its obligations under the EEC Treaty. In the second case the Court declared, by judgment of 5 May 1981 (Case 804/79, Commission v United Kingdom, [1981] ECR 1045) that the United Kingdom had failed to fulfil its obligations under the EEC Treaty inter alia by having brought into force on 1 July 1979, without appropriate prior consultation and in spite of the Commission's objections, the Fishing Nets (North-East Atlantic) (Variation) Order 1979 (SI No 744).

5 'Since the Court of Appeal, Criminal Division, considered that a ruling of the Court of Justice was necessary to enable it to decide whether the United Kingdom order of 1979 was compatible with Community law it submitted the following questions:

REGINA v TYMEN

(ii) Annex VI to the Hague Resolution of 3 November 1976;

(iii) Decision 79/590/EEC of 25 June 1979;

(iv) Article 5 of the EEC Treaty,

have been satisfied by a Member State which, before adopting such a fishery conservation measure, acted in the way the United Kingdom acted as shown in the file marked 'Statement of Facts' annexed hereto?

4. Does the fact that the Court of Justice in Case 141/78 French Republics United Kingdom [1979] ECR 2923 found that the United Kingdom, in bringing into force the Fishing Nets (North-East Atlantic) Order 1977 (SI 1977 No 440), failed to fulfil its obligations under the EEC Treaty, make any difference to the answer to 3 above?

obligation to undertake detailed consultations with the Commission and to seek its approval in good faith but also a duty not to lay down national conservation measures in spite of objections, reservations or conditions which may be formulated by the Commission.

9 The United Kingdom claimed that the Commission had in essence opposed the date of the entry into force of the order referred to by the national court, that is 1 July 1979, without putting forward objections as to its content. Since the Commission had submitted to the Council at the same time, that is in June 1979, proposals which in substance were identical and which were to enter into force on 1 September 1979, it by implication approved the order with effect from that date.

10 In this connection it is not contested by the Commission that the United Kingdom order of 1979 corresponded, in principle at least, to the measures proposed at the same time by the Commission to the Council for the whole of the relevant areas of sea. The criticisms advanced by the Commission were based on the consideration that measures of that nature could not be introduced without affording fishermen a reasonable time within which to adapt themselves to them. Moreover, according to the Commission, such measures might properly be taken only for the Community as a whole. By unilaterally adopting the measures in question the United Kingdom has encroached on powers which, from 1 January 1979, belonged entirely to the Community.

12 Furthermore, where, with regard to fishery conservation measures adopted during the period in which the Council had not yet exercised the powers which it possesses, the Commission has put forward express objections to the national measure contemplated, such objections may be considered to have been withdrawn only when the Commission has clearly and expressly indicated that it no longer intends to insist on them. Consideration, in the light of the state of the law thus defined, of the measure referred to by the national court does not disclose any factor of such a kind as to allow the conclusion that that is the position. On the contrary, as is made clear by the communication from the Commission relating to the publication of national fishery conservation measures of 4 June 1980 (Official Journal C 133, p. 2), the Commission, on 3 August 1979, expressly persisted in its disapproval of the disputed order as such although it approved of the designation in the order of a certain fish as a protected species.

13 Similarly, the United Kingdom's alternative argument to the effect that the Commission acted unreasonably by refusing its approval must be rejected. Where, as was found with regard to the contested measures in the above- mentioned judgment of 5 May 1981, the Member State concerned has omitted to apply the procedure of consultation in such a way as to enable the Commission to undertake an appropriate examination of the measures contemplated it is impossible to charge the Commission with having acted in breach of the law by failing to approve the measure retroactively.

Third, fourth and fifth questions

18 Since the third, fourth and fifth questions were submitted only in the event of an affirmative reply to the first question it is unnecessary to reply to them.

Costs

19 The costs incurred by the United Kingdom, the French Republic and the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so far as the main action is 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,

THE COURT,

Due Pescatore Mackenzie Stuart O'Keeffe

Koopmans Everling Chloros Grévisse

Delivered in open court in Luxembourg on 16 December 1981.

A. Van Houtte J. Mertens de Wilmars Registrar President

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED O N 11 NOVEMBER 1981 1

Mr President, provisions of Community law. Both the Members of the Court, United Kingdom measures, which concern the conservation of fishing The main action, which gave rise to the stocks, have already formed the subject- reference for a preliminary ruling which matter of proceedings for breach of is to be considered today, concerns the Treaty obligations in which the Court of point whether the United Kingdom Justice was able to consider in detail the Fishing Nets (North-East Atlantic) orders in question together with the Order 1977, as amended by the Fishing relevant provisions of Community law. Nets (North-East Atlantic) (Variation) In its judgment of 4 October 1979 in Order 1979, is compatible with the Case 141/78, French Republic v United 1 — Translated from the German