C-21/81

JUDGMENT OF 10. 2. 1982 — CASE 21/81

by the inaction of the Council and by with those measures adopted by it the maintenance, in principle, of the in conformity with its Community conservation measures in force the obligations. Member States have an obligation to 3. Substantive rules of Community law undertake detailed consultations with must be interpreted, in order to the Commission and to seek its ensure respect for the principles of approval in good time and also a duty legal certainty and the protection of not to lay down national conservation legitimate expectation, as applying to measures in spite of objections, reser- situations existing before their entry vations or conditions which may be into force only in so far as it clearly formulated by the Commission. follows from their terms, objectives or 2. Where criminal proceedings are general scheme that such an effect brought by virtue of a national must be given to them. measure which is held to be contrary 4. Neither Council Regulation (EEC) to Community law, a conviction No 2527/80 of 30 September 1980 in those proceedings is likewise laying down technical measures for incompatible with Community law. the conservation of fishery resources On the contrary, it is for the Member nor any subsequent regulations States to enforce compliance in the extending its validity have retroactive zone coming within its jurisdiction effect.

In Case 21/81

REFERENCE to the Court under Article 177 of the EEC Treaty, by the Rechtbank van Eerste Aanleg [Court of First Instance], Bruges, for a pre- liminary ruling in the action pending before that court between

THE 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

Facts and Issues

JUDGMENT OF 10. 2. 1982 — CASE 21/81

Member State, the Council, acting in be consulted at all stages of the pro- accordance with the procedure provided cedures. for in Article 32 (2) of the Treaty on a proposal from the Commission, may Any such measure shall not prejudice adopt the necessary conservation the guidelines to be adopted for the measures. implementation of Community provisions on the conservation of resources." In particular, these measures may include restrictions relating to the catching of certain species, to areas, to fishing Whilst on 18 February 1977 the Council seasons, to methods of fishing and to adopted Regulation (EEC) No 350/77 fishing gear." laying down interim measures for the conservation and management of fishery resources (Official Journal 1977 L 48, The Council agreed upon, at its meeting p. 28) it was necessary, so far as the year in The Hague on 30 October 1976, and 1978 was concerned, to take advantage formally adopted on 3 November 1976, of the possibility provided for in the a Resolution whereby the Member States second paragraph of Annex VI of The agreed that they would, as from Hague Resolution under the terms of 1 January 1977, by means of concerted which Member States are empowered, in action, extend the limits of their fishing the absence of autonomous Community zones to 200 miles off their North Sea measures, to adopt appropriate measures. and North Atlantic coasts.

OPENBAAR MINISTERIE v BOUT

L 161, p. 46), on 29 October 1979 and the company which owned it, the (Official Journal 1979 L 277, p. 10), on Rechtbank van Eerste Aanleg, Bruges, by 3 December 1979 (Official Journal 1979 judgment of 9 January 1981, requested L 312, p. 31) and on 26 March 1980 the Court to rule on the following (Official Journal 1980 L 84, p. 41). questions:

In application of those Council decisions, " 1 . Did the Member States at the time the Belgian Government introduced, by of the occurrences submitted for means of a Koninklijke Besluit [Royal judgment to this court remain Decree] dated 23 April 1979, measures competent to enact provisions for for the protection of resources in fish, the limitation of fishing such as crustaceans and molluscs in the Belgian those embodied in the Royal Decree fishing zone. Those measures, as they of 23 April 1979 laying down apply to the present case, constitute a measures for the protection of prohibition on fishing by means of boom resources in fish, crustaceans and trawl and on fishing for sole and plaice molluscs in the Belgian fishing zone even by using other fishing gear, in (Belgisch Staatsblad [Belgian coastal waters, with a vessel having a Gazette] of 15 May 1979) and were gross registered tonnage (GRT) of more they entitled to enforce compliance than 50 tonnes, and were approved by with such provisions within the zone the Commission on 12 July 1979 coming within their jurisdiction (Official Journal 1980 C 133, p. 2). By having regard to Articles 30, 34, 38 Royal Decree of 20 December 1979, to 47 of the EEC Treaty of 25 the Belgian Government introduced March 1957, Article 102 of the Act temporary measures for the protection of of Accession and of Regulations resources in fish, crustaceans and (EEC) Nos 100/76 and 101/76 on molluscs in the North Sea, amending the the common organization of the aforementioned decree inasmuch as the market in fishery products and minimum mesh-size of double-twine nets laying down a common structural was increased from 75 to 80 mm. That policy for the fishing industry measure was not submitted to the respectively (Official Journal 1976, Commission for approval. L 20)?

The Belgian Government is of the The Belgian Government and the opinion that, at the material time, Commission agree that a regulation may Member States had the power to adopt not be applied retroactively where the measures such as those adopted in the date of its entry into force is fixed in the Royal Decree of 23 April 1979. In regulation itself at 1 October 1980 and support of that statement it relies on where the regulation contains no other the aforementioned Council Decision provision to that effect. 79/383 of 9 April 1979 and furthermore emphasizes that the Commission, by its approval of 12 July 1979, declared the III — Oral p r o c e d u r e measures to be compatible with the Decision which, in the version of The Court invited the parties to bring Council Decision 80/365 of 26 March their observations up to date at the 1980, was still in force at the time of the hearing in the light of its judgment of occurrences on 7 May 1980. 5 May 1981 in Case 804/79, Commission v United Kingdom [1981] ECR 1045. The Commission states that after the At the sitting on 29 September 1981, expiry, on 31 December 1978, of the the Commission represented by J.-F. period provided for in Article 102 of the Verstrynge, a member of its Legal Act of Accession, Member States have Department, acting as Agent, presented no longer the power to adopt conser- oral argument. vation measures although it itself may authorize their adoption. It follows that The Advocate General delivered his the Royal Decree of 23 April 1979, opinion at the sitting on 11 November which was submitted to the Commission 1981.

2 Those questions were raised in the course of criminal proceedings brought against Daniël Bout, the captain of the Netherlands fishing vessel Christina, for offences against, inter alia, the Belgian Koninklijke Besluit [Royal Decree] of 23 April 1979 adopting measures for the protection of resources of fish, crustaceans and molluscs in the Belgian fishing zone (Belgisch Staatsblad [Belgian Gazette] of 15 May 1979 at p. 5791), as amended by the Royal Decree of 20 December 1979 adopting similar temporary measures in respect of the North Sea (Belgisch Staatsblad [Belgian Gazette] of 29 February 1980 at p. 2566). The former decree prohibited, inter alia, fishing for sole and plaice in Belgian coastal waters with a vessel having a gross registered tonnage (GRT) of more than 50 registered tonnes, as well as the use of double-twine nets with an average mesh-size smaller than 75 mm. The latter decree, of 20 December 1979, raised the 'minimum mesh-size from 75 to 80 mm.

3 On 7 May 1980 the fishing vessel Christina, having a tonnage of 67 G R T , fished for sole and plaice in Belgian coastal waters using a double-twine net having a mesh-size of more than 75 mm but less than 80 mm.

4 In the course of the criminal proceedings, the accused claimed that the aforementioned Council Regulation (EEC) N o 2527/80 of 30 September 1980, which entered into force on 1 October 1980, contained provisions more favourable to him inasmuch as it raised the tonnage limit to 70 G R T and fixed the minimum mesh-size for double-twine nets at 75 mm. Considering that a ruling of the Court of Justice was necessary not merely for the purpose of adjudicating upon that submission but also and above all of judging whether the Belgian measures mentioned above were compatible with Community law, the Rechtbank van Eerste Aanleg requested the Court to give a preliminary ruling on the following questions :

6 As the Court has already held in its judgment of 5 May 1981 in Case 804/79 Commission v United Kingdom [1981] ECR 1045, the power to adopt, as part of the common fisheries policy, measures relating to the conservation of the resources of the sea has belonged fully and definitively to the Communities since the expiration on 1 January 1979 of the transitional period laid down by Article 102 of the Act of Accession so that after that date the Member States are no longer entitled to exercise any power of their own in this matter and may henceforth only act as trustees of the common interest, in the absence of appropriate action on the part of the Council.

7 The Court consequently held that, in a situation characterized by the inaction of the Council and by the maintenance, in principle, of the conser- vation measures in force the Member States have an obligation to undertake detailed consultations with the Commission and to seek its approval in good faith and also a duty not to lay down national conservation measures in spite of objections, reservations or conditions which may be formulated by the Commission.

OPENBAAR MINISTERIE v BOUT

8 As regards the Belgian Royal Decree of 23 April 1979, it is apparent from the communication from the Commission, published in the Official Journal of the European Communities of 4 June 1980, (C 133, p. 2), that the Commission was consulted concerning that decree on 12 January and 6 April 1979 and that it was approved by the Commission on 12 July 1979. It follows therefore that the decree was adopted in conformity with those obligations of the Member States as described above.

JUDGMENT OF 10. 2. 1982 — CASE 21/81

The second question

13 The second question raises the issue whether Regulation (EEC) No 2527/80 mentioned above must be interpreted as having retroactive effect. In that respect it should be noted that, according to well-established case-law of the Court, confirmed most recently in the Court's judgment of 12 November 1981 in Joined Cases 212 and 217/80 Salumi and Others [1981] ECR (non- published), substantive rules of Community law must be interpreted, in order to ensure respect for the principles of legal certainty and the protection of legitimate expectation, as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such an effect must be given to them.

1 4 By virtue of Article 22 of Regulation (EEC) N o 2527/80, that regulation entered into force on 1 October 1980. There is nothing in the regulation, or in subsequent regulations extending its validity, to justify the conclusion that it is intended to apply to situations existing prior to that date.

15 The reply to the second question must accordingly be that neither Council Regulation (EEC) N o 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources nor any subsequent regu- lations extending its validity have retroactive effect.

Costs

2. Neither Council Regulation (EEC) No 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources nor any subsequent regulations extending its validity have retroactive effect.

Mertens de Wilmars Bosco Touffait Due Pescatore Mackenzie Stuart O'Keeffe Koopmans Everling Chloros Grévisse

Delivered in open court in Luxembourg on 10 February 1982.

P. Heim J. Mertens de Wilmars Registrar President