C-137/81

PROCUREUR DE LA RÉPUBLIQUE [Public Prosecutor ], intervening,

and

ALFONSO CAMPANDEGUY SAGARZAZU, Fuentarrabia , Spain (Case 137 / 81 ),

and between

ADMINISTRATEUR DES AFFAIRES MARITIMES [Administrator of Marine Affairs], BAYONNE , AND PROCUREUR DE LA RÉPUBLIQUE

and

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of They were discovered fishing, Mr the procedure and the observations Campandeguy Sagarzazu on 2 February submitted under Article 20 of the 1981 and Mr Echevarría Sagasti on 10 Protocol on the Statute of the Court of March 1981, off Bayonne within the Justice of the EEC may be summarized French economic zone extending as follows: between 12 and 200 miles from the coast.

Government of Spain signed on 15 April Journal 1981, C 105, p. 1) the Member 1980, which provides inter alia for the States of the Community extended their grant of licences for fishing vessels, was fishing zones with effect from 1 January not yet in force in February 1981. It 1977 to 200 miles off their North Sea considered that the Agreement did not and North Atlantic coasts. Since then the appear to be provisionally applicable and exploitation of fishery resources in those that it was capable of modifying the said zones by the fishing vessels of non- prior international obligations. member countries has been governed by a series of interim Community measures relating to each of the countries involved. The measures were adopted Consequently the Tribunal de Grande pending the conclusion of framework Instance, by judgments of 23 April 1981 agreements on fisheries between the (Case 137/81) and 21 May 1981 (Case Community and those non-member 140/81), decided to stay the proceedings countries. until the Court of Justice delivered a preliminary ruling on' whether, having regard to prior international obligations, regulations of the Communities laying The provisions applicable from the down certain interim measures for the beginning of 1981 to vessels flying the conservation and management of fishery flag of Spain were laid down initially by resources applicable to vessels flying the Council Regulation No 1719/80 of 30 flag of Spain were valid, in so far as they June 1980 laying down for 1980 certain laid down certain conditions for fishing measures for the conservation and operations carried out by Spanish management of fishery resources nationals, in the economic zone applicable to vessels flying the flag of established by Decree No 77-130 of 11 Spain (Official Journal L 168, p. 27). February 1977 and whether, if valid, those regulations were enforceable against Spanish nationals. According to the recitals in the preamble to that regulation the Community and Spain consulted each other, under the procedure laid down in the framework agreement, namely the Agreement on 2. The provisions of the regulations Fisheries signed by the Community and and of the international agreements Spain on 15 April 1980, on the involved in the two cases may be conditions for fishing by the vessels of summarized as follows: each of the parties in the fishing zone of the other party during 1980 and, following the consultations, the Com­ munity delegation undertook to (a) Community provisions on fishing recommend that the Community auth­ applicable to vessels flying the flag of orities adopt for that period certain Spain measures authorizing Spanish vessels to fish in the fishing zones of the Member States covered by Community rules on fisheries. Pursuant to the Council Resolution of 3 November 1976 on certain external aspects of the creation of a 200-mile fishing zone in the Community with Articles 1 and 2 of Regulation No effect from 1 January 1977 (Official 1719/80 are worded as follows:

"Article 1 The final rules for the year 1981 are given in Council Regulation No 1569/81 The only catches which vessels flying the of 1 June 1981 laying down for 1981 flag of Spain are authorized to make certain measures for the conservation during the period 1 January to 31 and management of fishery resources December 1980 in the 200-mile fishing applicable to vessels flying the flag of zone of the Member States covered by Spain (Official Journal L 154, p. 1). Community rules on fisheries shall be those set out in Annex I, within the Article 10 (3) of that regulation reads as quantitative limits laid down therein and follows : caught under the conditions laid down by this regulation. " No licence shall be valid for the period 1 February to 3 March 1981. All fishing by vessels flying the flag of Spain in the Article 2 area referred to in Article 1 shall be prohibited during that period." (1) Fishing shall be subject to the holding on board of a licence, issued by (b) Provisions of the international agree- the Commission on behalf of the ments Community, and to compliance with the conservation and supervisory measures Following the extension by the Member and other provisions governing fishing in States of the Community of their fishing the zone referred to in Article 1. limits to 200 miles on 1 January 1977, the Commission of the European (2) The number of licences which may Communities embarked upon a series of be issued to vessels flying the flag of negotiations on fisheries agreements to Spain shall be as laid down in point 3 of be concluded between the Community Annex I." and non-member countries, including Spain. Thus, a framework Agreement By Council Regulation No 3305/80 of with Spain was initialled on 23 17 December 1980 (Official Journal September 1978 and signed on 15 April L 344, p. 33) the validity of fishing 1980. That Agreement was approved on licences valid on 31 December 1980 in behalf of the Community by Council accordance with Regulation No 1719/80 Regulation (EEC) No 3062/80 of 25 for vessels flying the flag of Spain was November 1980 on the conclusion of the extended until 31 January 1981. Agreement on Fisheries between the European Economic Community and the Subsequently the Council laid down, in Government of Spain (Official Journal Regulation No 554/81 of 27 February 1980, L 322, p. 3). On completion of the 1981 (Official Journal L 57, p. 1), similar ratification procedure in Spain, the interim measures for the period 4 March Agreement entered into force on 22 May to 31 May 1981 since it considered, on 1981 (Official Journal 1981, I. 204, p. 34). the one hand, that fishing by Spanish vessels in the fishing zones of Member States had been interrupted since 1 It was provided in Article 12 of the February 1981 (fifth recital in the Agreement that, pending its entry into preamble) and, on the other, under the force, the Agreement should applypro­ terms of Article 12 of the Agreement on visionally from the date of its signature, Fisheries signed on 15 April 1980 by the namely 15 April 1980. Community and Spain that Agreement was applicable from the date of signature Articles 1 (1), 2, 3 and 4 of the (first recital in the preamble). Agreement are worded as follows:

(ii) the need to minimize the difficulties encountered by the party whose fishing possibilities may be reduced Article 2 in the course of achieving the above-mentioned balance; Each party shall grant access to the fishing zone falling under its jurisdiction to the fishing vessels of the other party (iii) all other relevant factors. under the conditions laid down by the following articles. (2) Each party shall be able to take any Article 3 other measures to ensure the conser­ vation and rational management of resources in the fishing zones falling 1. Each party shall determine each under its jurisdiction. Such measures year, for the fishing zone falling under when taken following the annual fixing its jurisdiction, subject to adjustments of the other party's fishing possibilities, necessitated by unforeseen circum­ should not be such as to compromise the stances, and on the basis of the need for effective operation of fishing. rational management of the biological resources :

The London Fisheries Convention of 9 (2) Before issuing regulations, the March 1964 (United Nations Treaty coastal State shall inform the other Series Vol. 581, No 8432) defines the Contracting Parties concerned and common aspects of a fisheries regime for consult those Contracting Parties, if they the 6-mile zone measured from the so wish." baseline and for the zone between 6 and 12 miles from that line. Article 10 provides that nothing in the Convention is to prevent the main­ Each of the contracting parties tenance or establishment of a special recognizes the right of the other regime in matters of fisheries between contracting parties to establish the inter alia the Member States of the fishery regime described in the European Economic Community. Convention (Article 1 (1)). Articles 2, 3 and 5 of the Convention provide as France and Spain ratified the Convention follows: in 1965.

"Article 2 Within the framework of the voisinage arrangements provided for in Article 9 The coastal State has the exclusive right (2) of the London Convention, France to fish and exclusive jurisdiction in and Spain, by an exchange of notes of 20 matters of fisheries within the belt of 6 March 1967, concluded a general miles measured from the baseline of its agreement on fishing. With regard to the territorial sea. rights of Spanish fishermen to fish in the waters under French jurisdiction, Article 1 (b) of the Agreement provides as Article 3 follows :

Within the belt between 6 and 12 miles "In the 6 to 12-mile zone off the French measured from the baseline of the coasts, Spanish nationals shall have a territorial sea, the right to fish shall be permanent right to fish : exercised only by the coastal State and by such other Contracting Parties, the for all species on the Atlantic coast from fishing vessels of which have habitually the mouth of Bidassoa as far as the fished in that belt between 1 January parallel which passes through the north­ 1953 and 31 December 1962. ernmost point of Belle-Ile."

"Subject to the provisions of the Treaty establishing the European Economic Article 7 Community and instruments adopted in implementation thereof, fishing by foreign vessels in the above-mentioned (1) Having regard to the provisions of economic zone is prohibited, in paragraph 1 of Article 6, any coastal accordance with the Law of 1 March State may, with a view to the main­ 1888 as amended. tenance of the productivity of the living resources of the sea, adopt unilateral measures of conservation appropriate to However, notwithstanding these pro­ any stock of fish or other marine visions, fishing permits may be issued to resources in any area of the high seas certain foreign vessels in accordance with adjacent to its territorial sea, provided the conditions laid down in the Treaty that negotiations to that effect with the establishing the European Economic other States concerned have not led to Community and the instruments adopted an agreement within six months. in implementation thereof, by inter­ national agreements and by internal French law." (2) The measures which the coastal State adopts under the previous paragraph shall be valid as to other Article 3 lays down the applicable States only if the following requirements penalties. are fulfilled:

Director of Legal Matters at the Ministry fishermen was in force in the period of Foreign Affairs, acting as Agent; by between 1 February and 3 March 1981 the Council of the European Communi­ when the facts in Case 137/81 occurred. ties, represented by Daniel Vignes, Since it was therefore unnecessary for Director in its Legal Department, acting vessels flying the flag of Spain to hold a as Agent, assisted by Aidan Larkin, an licence in order to fish, penalties under administrator in that department, and by the criminal law may not be imposed for the Commission of the European failure to hold such a licence. Communities, represented by its Legal Adviser Jacques Bourgeois, assisted by François Lamoureux, a member of its Legal Department. The fifth recital in the preamble to Regu­ lation No 554/81, in which it is stated that fishing by Spanish vessels in the fishing zones of the Member States had By order of 20 January 1982 the Court been interrupted since 1 February 1981, decided to join Cases 137/81 and creates the false impression that there is 140/81 for the purposes of the oral a general prohibition mitigated by the procedure and the judgment. grant of authorizations in particular cases under interim regulations. Such a view negates the prior rights which Spanish fishermen are acknowledged as having, in particular off the French By order of 20 January 1982 the Court, coasts. It implies the complete abolition pursuant to Article 95 (1) and (2) of the of such prior rights, which is also Rules of Procedure, decided to refer the incompatible with the idea, sometimes joined cases to the First Chamber. put forward, that the system of licences imposed unilaterally on Spanish nationals merely constitutes a non-discriminatory restriction justified by the need for a Upon hearing the report of the Judge- priori control of fishing by nationals of Rapporteur and the views of the non-member countries. Article 10 (3) of Advocate General, the Court decided to Regulation No 1569/81 of 1 June 1981, open the oral procedure without any which expressly confirms the prohibition preparatory inquiry. of fishing for the earlier period from 1 February to 3 March 1981, is thus unlawful, at least in so far as it is retro­ active.

On the one hand, Article 7 of the from the 6-mile limit to the high seas Geneva Convention, which provides that and in particular to the 12 to 200-mile a costal State may not unilaterally adopt zone. Finally the preamble to the conservation measures if they Franco-Spanish Agreement refers ex­ "discriminate in form or in fact against pressly to an extension of the reserved foreign fishermen", and fishing areas to 12 miles, given effect in France by the Decree of 7 June 1967 In fact the 12-mile limit adopted by the Agreement does not constitute a rigid frontier, since the geographical scope of the Franco-Spanish Agreement extends from 6 miles to the present boundary of on the other hand, Article 5 of the the reserved fishery zones falling under London Convention which prohibits in the jurisdiction of the two States. particular, in the belt between 6 and 12 miles, any discrimination in form or in fast against fishing vessels of other Contracting Parties fishing there in accordance with Articles 3 and 4 of that Convention. Moreover, they refer to the With regard to the London Convention permanent right conferred on Spanish the defendants in the main proceedings fishermen by Article 1 (b) of the point out that Article 11 of the Agreement betweenTrance and Spain of Convention, in accordance with which a 20 March 1967 to fish for all species in coastal State may exclude particular the belt between 6 and 12 miles off the areas from the full application of Articles French coasts. 3 and 4 for the benefit of the local popu­ lation, constitutes the sole exception to the prohibition in principle of discrimi­ nation which is laid down by Article 5. Article 10 of the Convention, which enables a special régime to be established between the Member States of the As regards the geographical scope of the Community, constitutes a derogation international agreements to which they from the most-favoured-nation clause refer, they take the view that, having embodied in Article 8 (2) of the regard to their rationale, they must, if Convention since its sole objective is to they are to be effective, apply not only to avoid any impediment to the the 6 to 12-mile zone, to which they establishment of a common fisheries expressly refer, but also the 12 to policy between the Member States and 200-mile exclusive economic zone. Thus the associated States of the Communities the French economic zone which, by and thereby to provide access to the virtue of Law No 76-655 of 16 July 1976 reserved zones for their nationals even and Decree no 77-130 of 11 February though the latter had no claim to 1977, extends "from the limit of the exercise historical rights for the purposes territorial waters to a line 188 miles of Article 3 of the Convention. That beyond that limit" is covered by the provision may not have the effect of expression "any area of the high seas displacing the nationals of another adjacent to its territorial sea" contained contracting party, in this case Spain, in Article 7 of the Geneva Convention. from a zone to which they are Furthermore, the traditional fishing guaranteed access on an equal footing rights recognized by the London with the nationals of the coastal State. In Convention apply to the zone extending this connection they refer to the

That view is confirmed by the Agreement on Fisheries concluded on 15 In accordance with the judgment of the April 1980 between the Community and Court of 14 October 1980 (Attorney Spain. According to Article 1 thereof the General v Burgoa, Case 812/79 [1980] sole purpose of the Agreement is to ECR 2787) the institutions of the govern the conditions for fishing. Only Community are under a duty not to to that extent did Spain, in a declaration impede the performance of the prior which it made at the time of the obligations of the Member States. That initialling of the Agreement, recognize principle also applies to provisions of that the provisions of the Agreement secondary law. should be substituted for those of the previous agreements. The historical fishing rights as such and the rule of non-discrimination laid down by the In so far as the Community regulations Geneva Convention and the London may nevertheless be declared valid, the Convention are accordingly not affected Court of Justice lacks jurisdiction to by the Agreement. The measures to be decide whether they are enforceable applied in the reserved zones and to against Spanish nationals, since such a particular species must be the same for question involves interpretation by the foreign fishermen as for fishermen Court of provisions of international law subject to the domestic jurisdiction of the which bind Member States outside the State in question (cf. J. L. Meseguer, framework of Community law (cf. "Accord de Pêche entre l'Espagne et la judgment of 27 November 1973 in Case CEE"; Revue du Marché Commun 1980, 130/73 Vandeweghe[1973] ECR 1329).

The French Government considers that zone extending 200 miles from their with regard to Case 137/81 the Court coasts; it was against that background may confine itself to informing the that the Community created its fishing Tribunal de Grande Instance, Bayonne, zone and adopted the regulation at issue. that at the material times in the cases in The same conclusion is unavoidable with point no Community regulation laid regard to the London Convention of 9 down measures for the conservation March 1964 and the Franco-Spanish and management of fishery resources Agreement of 20 March 1967, which do applicable to Spanish fishermen and not relate to the 12 to 200-mile zone leave that court to apply the ruling in the where the events in issue in these two context of French municipal law. The cases took place. result of the proceedings is determined by the French legislation applicable in the matter according to which fishing is prohibited to foreigners in the French economic zone unless they hold a licence granted in accordance with Community Furthermore the Agreement on Fisheries law. Since no Community regulation signed on 15 April 1980 by the made provision for the granting of Community and Spain has superseded licences for the period between 1 the provisions of these international February and 3 March 1981 and conventions. Although the Agreement on consequently no licence was issued, the Fisheries only entered into force on 22 defendant in Case 137/81 has committed May 1980 it nevertheless applied pro­ the offence of unauthorized fishing. The visionally, pursuant to Article 12, since Court of Justice may not, however, subs­ the date of its signature and was thus titute its own determination in this binding on the EEC and Spain after 15 respect for that of the national court. April 1980 in accordance with prevailing practice in the provisional application of treaties, as set forth in Article 25 of the Vienna Convention on the Law on Treaties. It is therefore sufficient for the Court, in Case 14/80, to establish that In so far as it is necessary in Case one instrument has replaced the others 137/81, and more particularly with and to infer from that the neccessary regard to the validity of Council Regu­ conclusions regarding the question lation No 554/81 of 27 February 1981, raised. which was applicable at the time of the facts in Case 140/81, the French Government next examines the state of the provisions in question in relation to the prior international obligations relied upon. The French Government also adds that the Geneva Convention and the London Convention do not bind the Community and that in so far as the Agreement of 15 April 1980 is invoked against the provisions in dispute that Agreement In this connection it recalls that the does not give rise to rights which may be Geneva Convention of 29 April 1958 has relied upon before the courts. Finally been superseded by the development of Regulation No 554/81 is in accordance an international custom enabling coastal with all the provisions of the conventions States to declare , an exclusive fishing which have been invoked.

The Council of the European Agreement between France and Spain of Communities recalls first of all that, in its 1967 have thus been frozen and have opinion, pursuant to Article 10 of the ceased to produce effects following the London Convention which confers a jus signature of the Agreement on 15 April quaesitum tertio on the Community, all 1980 and during its provisional Community provisions on fisheries take application. Since the entry into force of precedence over that convention and the the Agreement on 22 May 1981 the prior agreement between France and Spain agreements were superseded although which is directly connected with it. With they may, perhaps, become applicable regard to the Geneva Convention the again if the Agreement of 15 April 1980 Council points out that it is not is denounced. applicable to the territorial sea or to the reserved fishing zone adjacent to the territorial sea.

The coming under the jurisdiction of such Council states that because of a disa States. That interpretation is confirmed greement between the Community and by the declaration made on 23 Spain on the number of licences and on September 1978, when the Agreement the volume of quotas it was impossible to between the Community and Spain was determine the arrangements for 1981 initialled, to the effect that "with regard either in December 1980 or in January to Article 1 the Spanish delegation 1981. When the consultations finally recognizes that the provisions of the resulted in agreement on 17 February agreements relating to fisheries to which 1981 Regulation No 554/81 was quickly the Member States of the EEC and Spain

JUDGMENT OF 28. 10. 1982 — JOINED CASES 137 AND 140/81

entails as a general rule the requirement the events at issue took place within or that a licence should be obtained or, beyond the 12-mile limit. It states that exceptionally, a prohibition of all fishing, according to that judgment, it is not as was the case at the material time in necessary, in order to assess the validity Case 137/81. In the opinion of the of the interim measures adopted by the Commission the requirement that a Community, to have regard to the licence should be obtained or that fishing régime applicable before the entry into should be suspended constitutes a means force of the Community provisions. In of exercising the general powers of the fact those provisions are based on the Community for the purposes of adopting new relations between Spain and the measures to protect resources within its Community established following the exclusive fishing zone. extension of the fishing zones to 200 miles.

The Commission states that as from the Finally it points out that neither the provisional application of the Agreement Geneva Convention, the London on fisheries between the Community and Convention nor the Agreement between Spain the Council, after consultation France and Spain are applicable in the with the Spanish authorities in zone between 12 and 200 miles which is accordance with the Agreement, fixed at issue. Furthermore, the Community the measures applicable to Spanish rules are not incompatible with the vessels for the whole of each year by provisions of those conventions. Regulation No 1719/80 of 30 June 1980 for the year 1980 and by Regulation No 1569/81 of 1 June 1981 for the year 1981.

1 By judgments of 23 April and 21 May 1981, which were received at the Court on 5 June 1981, the Tribunal de Grande Instance [Regional Court], Bayonne, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question as to whether, having regard to prior inter­ national obligations, regulations of the Council of the European Communities laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain are valid, in so far as they have laid down certain conditions for fishing operations carried out by Spanish nationals in the economic zone established by French Decree No 77-130 of 11 February 1977 (Journal Officiel de la République Française of 12 February 1977, p. 864) and whether, if valid, those regulations are enforceable against Spanish nationals.

2 The question was raised by criminal proceedings against the masters of two fishing vessels registered in Spain, who were charged with fishing in waters within the French economic zone, without being in possession of a fishing licence.

3 Mr Campandeguy Sagarzazu, the defendant in the main proceedings in Case 137/81, was discovered fishing on 2 February 1981 in the zone between 12 and 200 nautical miles from the baselines. Mr Echevarria Sagasti, the defendant in the main proceedings in Case 140/81, fished in the same zone on 10 March 1981.

4 The national court considered that the defendants were unable to produce the licence required by Council Regulations No 1719/80, No 3305/80 and No 554/81 and that in those circumstances the fishing in which the defendants had engaged constituted an offence created and punished by French criminal legislation.

6 Council Regulation No 1719/80 of 30 June 1980 laying down for 1980 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain (Official Journal L 168, p. 27) was, according to the second paragraph of Article 12 thereof, applicable from 1 January to 31 December 1980. Council Regulation No 3305/80 of 17 December 1980 extending the period of validity of fishing licences for vessels flying the flag of Spain (Official Journal L 344, p. 33) provides that fishing licences valid on 31 December 1980 in accordance with Regulation No 1719/80 remain valid until 31 January 1981. Council Regulation No 554/81 of 27 February 1981 fixing certain interim measures for the conser­ vation and management of fisheries resources applicable to vessels flying the flag of Spain (Official Journal L 57, p. 1), which entered into force on 4 March 1981, provides in the second paragraph of Article 11 thereof, that it is applicable until 31 May 1981.

7 The three regulations cited above form part of a series of Council regulations which, pending the entry into force of the Agreement on Fisheries between the European Economic Community and the Government of Spain of 15 April 1980 (Official Journal L 263, p. 1), established for short periods interim provisions prescribing catch quotas for Spanish fishermen.

8 The Court has already stated in its judgment of 8 December 1981 (Crujeiras Tome and Yurrita, Cases 180/80 and 266/80, [1981] ECR) 2997) that the interim regime established by the Community falls within the framework of the relations established between it and Spain in order to resolve the problems inherent in conservation measures and the extension of fishery zones and in order to ensure reciprocal access by fishermen to the waters subject to such measures and that those relations were substituted for the regime which previously applied in those zones in order to take account of the general development of international law in relation to fishing on the high seas and the increasingly urgent need to conserve the living resources of the sea.

12 The defendants in the main proceedings have claimed that under the Agreement on Fisheries Spanish fishermen were entitled to fish in the fishing zones in question during the periods when no Community regulation established a system of licences for them.

13 It is nevertheless for the national court to consider the consequences of the absence of any Community regulations concerning fishing licences applicable to Spanish fishing vessels during the period from 1 February 1981 to 4 March 1981.

OPINION OF MR CAPOTORTI — JOINED CASES 137 AND 140/81

Costs

14 The costs incurred by the French Government and by the Council 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 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,

H. A. Rühi A. O'Keeffe Principal Administrator President of the First Chamber

OPINION OF MR ADVOCATE GENERAL CAPOTORTI

(see Joined Cases 138 and 139/81, p. 3836)