C-138/81

JUDGMENT OF 28. 10. 1982 — JOINED CASES 138 AND 139/81

Fisheries of 1980, replaced the prior 2. Within the framework of criminal international obligations existing proceedings against Spanish fishermen between certain Member States and charged with fishing in French Spain in order to deal with the in­ territorial waters without being in creasingly urgent need to conserve the possession of a fishing licence it is for living resources of the sea and to take the national court to consider the into account the general evolution of consequences of the absence of any international law in the field of sea Community regulations concerning fishing. Accordingly, Spanish fisher­ fishing licences applicable to Spanish men may not rely on prior inter­ fishing vessels during the time national commitments as between between the periods when Regu­ France and Spain in order to prevent lations Nos 3305/80 and 554/81 were the application of the interim regu­ in force. lations adopted by the Community in the event of any incompatibility between the two categories of provisions.

In Joined Cases 138 and 139/81

REFERENCES to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance [Regional Court], Bayonne, for a preliminary ruling in the action pending before that court between

DIRECTEUR DES AFFAIRES MARITIMES DU LITTORAL DU SUD-OUEST [Director of Maritime Affairs for the South-western Seaboard], Bayonne, prosecutor, and

PROCUREUR DE LA RÉPUBLIQUE [Public Prosecutor], intervening,

Advocate General : F. Capotorti Registrar : A. W . H . Meij , Legal Secretary

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of Bayonne within the zone extending the procedure and the observations between 6 and 12 miles from the coast. submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows: The judgments making the references in the two cases show that the Tribunal de Grande Instance considered that the Community regulations in question, I — Facts and written procedure which restrict the fishing right of Spanish nationals by prescribing various con­ ditions, in particular that they should 1. Mr Marticorena-Otazo and Mr obtain a licence, are capable of modify­ Prego Parada, the captains of fishing ing prior international obligations — vessels registered in Spain, were pros­ arising in particular from the London ecuted before the Tribunal de Grande Fisheries Convention of 9 March 1964 Instance [Regional Court], Bayonne, for and the Agreement on Fisheries between unlawfully fishing without holding the France and Spain of 20 March 1967. fishing licence required by the Furthermore, it found that the Community provisions applicable to Agreement on Fisheries between the vessels flying the flag of Spain and of European Economic Community and the having contravened the Community Government of Spain signed on 15 April provisions on the mesh-size of fishing 1980, which provides inter alia for the nets. grant of licences for fishing vessels, was not yet in force in February 1981. It They were discovered fishing, Mr considered that that agreement did not Marticorena-Otazo on 2 February 1981 appear to be provisionally applicable as it and Mr Prego Parada on 9 February was capable of modifying the said prior 1981, in French territorial waters, off international obligations.

Consequently the Tribunal de Grande The provisions applicable from the Instance, by judgments of 23 April 1981, beginning of 1981 to vessels flying the decided to stay the proceedings until the flag of Spain were fixed initially by Court of Justice delivered a preliminary Council Regulation No 1719/80 of ruling on whether, having regard to prior 30 June 1980 laying down for 1980 international obligations, regulations of certain measures for the conservation the Communities laying down certain and management of fishery resources interim measures for the conservation applicable to vessels flying the flag of and management of fishery resources Spain (Official Journal L 169, p. 27). applicable to vessels flying the flag of Spain were valid, in so far as they laid According to the recitals in the preamble down new detailed rules for fishing to that regulation the Community and operations carried out by Spanish vessels Spain consulted each other under the in the reserved fishing zone from 6 to 12 procedure laid down in the framework nautical miles, and whether, if valid, agreement, namely the Agreement on those regulations were enforceable Fisheries signed by the Community and against Spanish nationals. Spain on 15 April 1980, on the conditions for fishing by the vessels of each of the parties in the fishing zone of the other party during 1980 and, 2. The provisions of the regulations following the consultations, the and of the international agreements Community delegation undertook to involved in the two cases may be recommend that the Community auth­ summarized as follows: orities adopt for that period certain measures authorizing Spanish vessels to fish in the fishing zones of the Member States covered by Community rules on (a) Community provisions on fishing fisheries. applicable to vessels flying the flag of Spain Articles 1 and 2 of Regulation No 1719/80 are worded as follows: Pursuant to the Council Resolution of 3 November 1976 on certain external "Article 1 aspects of the creation of a 200-mile fishing zone in the Community with The only catches which vessels flying the effect from 1 January 1977 (Official flag of Spain are authorized to make Journal 1981, C 105, p. 1), the Member during the period 1 January to 31 States of the Community extended their December 1980 in the 200-mile fishing fishing zones with effect from 1 January zone of the Member States covered by 1977 to 200 miles off their North Sea Community rules on fisheries shall be and North Atlantic coasts. Since then the those set out in Annex I, within the exploitation of fishery resources in those quantitative limits laid down therein and zones by the fishing vessels of non- caught under the conditions laid down member countries has been governed by by this regulation. a series of interim Community measures relating to each of the countries involved. The measures were adopted Article 2 pending the conclusion of outline agreements on fisheries between the (1) Fishing shall be subject to the Community and those non-member holding on board of a licence, issued by countries. the Commission on behalf of the

Community, and to compliance with the Council Regulation (EEC) No 2527/80 conservation and supervisory measures of 30 September 1980 laying down and other provisions governing fishing in technical measures for the conservation the zone referred to in Article 1. of fishery resources (Official Journal L 258, p. 1), whose validity was extended (2) The number of licences which may until 28 February 1981 by Council Regu­ be issued to vessels flying the flag of lation (EEC) No 272/81 of 27 January Spain shall be as laid down in point 3 of 1981 (Official Journal L 27, p. 72), lays Annex I." down the Community rules on the mesh- size of nets. By Council Regulation No 3305/80 of 17 December 1980 (Official Journal (b) Provisions of the international L 344, p. 33) the validity of fishing agreements licences valid on 31 December 1980 in accordance with Regulation No 1719/80 Following the extension by the Member for vessels flying the flag of Spain was States of the Community of their fishing extended until 31 January 1981. limits to 200 miles on 1 January 1977, the Commission of the European Subsequently the Council laid down, in Communities embarked upon a series of Regulation No 554/81 of 27 February negotiations on fisheries agreements to 1981 (Official Journal 57, p. 1) similar be concluded between the Community interim measures for the period 4 March and non-member countries, including to 31 May 1981 since it considered, on Spain. Thus, a framework agreement the one hand, that fishing by Spanish with Spain was initialled on 23 vessels in the fishing zones of Member September 1978 and signed on 15 April States had been interrupted since 1980. That agreement was approved on 1 February 1981 (fifth recital in the behalf of the Community by Council preamble) and, on the other, that under Regulation (EEC) No 3062/80 of the terms of Article 12 of the Agreement 25 November 1980 on the conclusion of on Fisheries signed on 15 April 1980 by the Agreement on Fisheries between the the Community and Spain, that European Economic Community and the agreement was applicable from the date Government of Spain (Official Journal of signature (first recital in the 1980, L 322, p. 3). On completion of the preamble). ratification procedure in Spain, the Agreement entered into force on 22 May 1981 (Official Journal 1981, L 204, The final rules for the year 1981 are p. 34). given in Council Regulation No 1569/81 of 1 June 1981 laying down for 1981 certain measures for the conservation It was provided in Article 12 of the and management of fishery resources Agreement that, pending its entry into applicable to vessels flying the flag of force, the Agreement should apply pro­ Spain (Official Journal 1. 154, p. 1). visionally from the date of its signature, namely 15 April 1980. Article 10 (3; of that regulation reads as Articles 1 (1), 2, 3 and 4 of the follows: Agreement are worded as follows:

(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 : Article 4 (a) the total allowable catch for individual stocks or complexes of Each party may require that in the stocks, taking into account the most fishing zone falling under its jurisdiction reliable scientific information avail­ fishing by vessels of the other party shall able to it, the interdependence of be subject to licence. stocks, the work of appropriate international organizations and other relevant factors; The competent authorities of each party shall communicate to the other party the name, registration number and other (b) after appropriate reciprocal consul­ relevant particulars of vessels requesting tations, the catch allotted to the authorization to fish in the fishing zone fishing vessels of the other party and of the other party. This povision shall the zones in which these catches may also apply to any vessel intended to aid be made. The two parties shall have or assist a fishing vessel in carrying out as their objective the attainment of a tasks directly related to the latter's satisfactory balance between their fishing activity. The second party shall respective fishing possibilities in the issue licences commensurate with the fishing zones falling under the possibilities for fishing granted under jurisdiction of the other party. Article 3 (1) (b)."

"Article 2 France and Spain ratified the Convention in 1965. The coastal State has the exclusive right to fish and exclusive jurisdiction in Within the framework of the voisinage matters of fisheries within the belt of 6 arrangements provided for in Article 9 miles measured from the baseline of its (2) of the London Convention, France territorial sea. and Spain, by an exchange of notes of 20 March 1967, concluded a general Article 3 agreement on fishing. With regard to the rights of Spanish fishermen to fish in the waters under French jurisdiction, Article Within the belt between 6 and 12 miles 1 (b) of the agreement provides as measured from the baseline of the follows : territorial sea, the right to fish shall be exercised only by the coastal State and by such other contracting parties, the "In the 6 to 12-mile zone off the French fishing vessels of which have habitually coasts, Spanish nationals shall have a fished in that belt between 1 January permanent right to fish : 1953 and 31 December 1962. for all species on the Atlantic coast from the mouth of Bidassoa as far as the parallel which passes through the north­ ernmost point of Belle-Ile." Article 5

1. Within the belt mentioned in Article (c) French legislation 3 the coastal State has the power to regulate the fisheries and to enforce such regulations, including regulations to give The French legislation applicable to the effect to internationally agreed measures cases is embodied in the Law of 1 March of conservation, provided that there shall 1888 prohibiting foreigners from fishing be no discrimination in form or in fact in French territorial waters, as amended against fishing vessels of other by Decree No 67-451 of 7 June 1967 contracting parties fishing in conformity and by Law No 67-1086 of 15 December with Articles 3 and 4. 1967.

By Law No 71-1060 of 24 December By order of 20 January 1982 the Court, 1971 the limit of French territorial pursuant to Article 95 (1) and (2) of the waters was extended to 12 miles. Rules of Procedure, decided to refer the joined cases to the First Chamber.

The infringements of the Community provisions on the mesh-size of nets come Upon hearing the report of the Judge- within 7the purview of the Decree-Law of Rapporteur and the views of the 9 January 1852 on seafishing which also Advocate General, the Court decided to lays down the applicable penalties. open the oral procedure without any preparatory inquiry.

3. The judgments of the Tribunal de Grande Instance, Bayonne, of 23 April II •—· Summary of the written 1981 whereby that court made the observations submitted to references for a preliminary ruling were the Court received at the Registry of the Court of Justice on 5 June 1981.

The defendants in the main proceedings, In accordance with Article 20 of the Mr Marticorena-Otazo and Mr Prego Protocol on the Statute of the Court of Parada, remark first of all that the Justice of the EEC written observations Community provisions on the mesh-size were lodged by the defendant in the of nets, which apply without discrimi­ main proceedings in Case 138/81, nation to Spanish fishermen, are not at

AFFAIRES MARITIMES DU LITTORAL DU SUD-OUEST v MARTICORENA-OTAZO AND PREGO PARADA

issue in the proceedings before the unlawful, at least in so far as it is Court. retroactive.

JUDGMENT OF 28. 10. 1982 — JOINED CASES 138 AND 139/81

policy between the Member States and April 1980 between the Community and the Associated States of the Communities Spain. According to Article 1 thereof the and thereby to provide access to the sole purpose of the Agreement is to reserved zones for their nationals even govern the conditions for fishing. Only though the latter had no claim to to that extent did Spain, in a declaration exercise historical rights for the purposes which it made at the time of the of Article 3 of the Convention. That initialling of the Agreement, recognize provision may not have the affect of that the provisions of the Agreement displacing the nationals of another should be substituted for those of the contracting party, in this case Spain, previous agreements. The historical from a zone to which they are fishing rights as such and the rule of guaranteed access on a equal footing non-discrimination laid down by the with the nationals of the coastal State. In London Convention are accordingly not this connection the defendants in the affected by the Agreement. In fact the main proceedings refer to the judgment measures to be applied in the reserved of the Court of 16 February 1978 zones and to particular species must be (Commission v Ireland Case 61/77, the same for foreign fishermen as for [1978] ECR 417) which establishes that fishermen subject to the domestic "the rules regarding equality of jurisdiction of the State in question (cf. treatment enshrined in Community law J. L. Meseguer, "Accord de Pêche entre forbid not only overt discrimination by l'Espagne et la CEE", Revue du Marché reason of nationality but also covert Commun 1980, pp. 527 to 534 and 589 forms of discrimination which, by the to 594, at p. 594). application of other criteria of differen­ tiation, lead in fact to the same result".

Community are under a duty not to between 1 February and 3 March 1981 impede the performance of the prior and consequently no licence was issued, obligations of the Member State the defendants have committed the concerned. That principle also applies to offence of unauthorized fishing. The provisions of secondary law. Court of Justice may not, however, sub­ stitute its own determination for that of the national court.

In so far as the Community regulations may nevertheless be declared valid, the Court of Justice lacks jurisdiction to decide whether they are enforceable In so far as it is necessary to clarify the against Spanish nationals, since such a state of Community law in relation to question involves interpretation by the the prior international obligations relied Court of provisions of international law upon the French Government observes which bind Member States outside the that the London Convention and the framework of Community law (cf. Agreement between France and Spain judgment of 27 November 1973 in Case were superseded at the time of the facts 130/73 Vandeweghe [1973] ECR 1329). in question, in particular as a consequence of the signature on 15 April 1980 of the Agreement on Fisheries between the EEC and Spain. Although The French Government considers that the Agreement on Fisheries did not in the Court may confine itself to informing fact enter into force until 22 May 1980 the Tribunal de Grande Instance, nevertheless it has been provisionally Bayonne, that at the material times in the applicable, pursuant to Article 12 cases in point no Community regulation thereof, since the date of signature and laid down measures for the conservation thus has bound the EEC and Spain since and management of fishery resources 15 April 1980. The French Government applicable to Spanish fishermen and considers that the Agreement on leave that court to apply the ruling in the Fisheries eliminates all rights of access context of French municipal law. which Spanish fishermen might enjoy under prior international instruments.

Community provisions on fisheries take again if the Agreement of 15 April 1980 precedence over that convention and the is denounced. agreement between France and Spain which is directly connected with it. Since that has been the position since the beginning of the Community fisheries régime so far as the Spanish fishermen With regard to the period between 1 are concerned the Agreement on February and 3 March 1981 the Council Fisheries between the Community and claims that the Community rules did not Spain has replaced these earlier provide any possibility for Spanish agreements since the Community has fishermen to obtain a licence since succeeded to rights of the Member States relations concerning fishing were to conclude treaties with non-member interrupted between the Community and countries concerning fishing in waters Spain. That interruption nevertheless did coming under the jurisdiction of such not entail freedom to fish since French States. That interpretation is confirmed legislation expressly prohibits fishing in by the declaration made on 23 territorial waters and the economic zone September 1978, when the Agreement except with an authorization granted in between the Community and Spain was accordance with Community law. The initialled, to the effect that "with regard Council states that because of a dis­ to Article 1 the Spanish delegation agreement between the Community and recognizes that the provisions of the Spain on the number of licences and on agreements relating to fisheries to which the volume of quotas it was impossible to the Member States of the EEC and Spain determine the arrangements for 1981 are parties are superseded by the either in December 1980 or in January provisions of the Agreement [initialled 1981. When the consultations finally on 23 September 1978]; if that resulted in agreement on 17 February agreement is denounced Spain reserves 1981 Regulation No 554/81 was quickly the right to invoke against the adopted. Community the provisions of the agreements on fisheries which formerly governed its relations with the Member States of the Community concerning fisheries". Having regard to the fact that, according to the judgment making the reference, the national court was by no means unaware that fishing by Spanish vessels was interrupted the Commission of the European Communities considers that the preliminary question concerns the very principle of the restriction on the access The Council accordingly considers that of Spanish vessels to the fishing zone of the London Convention and the the Community and that that restriction Agreement between France and Spain of entails as a general rule the requirement 1967 have thus been frozen and have that a licence should be obtained or, ceased to produce effects following the exceptionally, a prohibition of all fishing, signature of the Agreement on 15 April as was the case at the material time in 1980 and during its provisional these cases. In the opinion of the application. Since the entry into force of Commission the requirements that a the Agreement on 22 May 1981 the prior licence should be obtained or that fishing agreements were superseded although should be suspended constitutes a means they may, perhaps, become applicable of exercising the general powers of the

With regard to the validity of the Community regulations in question in relation to the prior international Pending the conclusion of the agreement agreements the Commission considers on fisheries which was being negotiated that the solution adopted in the the conditions of access for Spanish judgment of 14 October 1980 in Case fishermen were first of all fixed unilat­ 812/79 (Attorney General v Burgoa) is erally by the Community within the general in scope irrespective of whether framework of a temporary system, in the the events at issue took place within or operation of which Spain collaborated, beyond the 12-mile limit. It states that for the issue of licences. Subsequently according to that judgment it is not these conditions were fixed under the necessary, in order to assess the validity Agreement on Fisheries between the of the interim measures adopted by the Community and Spain which provides Community, to have regard to the arrangements for consultation on this régime applicable before the entry into matter. From the provisional application force of the Community provisions. In of the Agreement on Fisheries the fact those provisions are based on the Council, after consultation with the new relations between Spain and the Spanish authorities in accordance with Community established following the the Agreement, established the measures extension of the fishing zones to 200 applicable to Spanish vessels for the miles. whole of each year by 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. The Commission states that the latter regu­ lation, which authorizes the interruption According to the Commission, the of fishing for the period from 1 February developments in the international law of to 3 March 1981, pursuant to Article 10 the sea which led to the establishment of (3) thereof, ascribes only the catches those new relations concern not only the made under the interim Regulations Nos fishing zones between 12 and 200 miles 3305/80 and 554/81, to the quotas fixed but also the zones between 6 and 12 for the year 1981. miles. In fact, as may be seen from the

2 The question was raised in criminal proceedings against the masters of two fishing vessels registered in Spain, who were charged with fishing in French territorial waters without being in possession of a fishing licence and with nets whose mesh-size did not comply with the regulations.

AFFAIRES MARITIMES DU LITTORAL DU SUD-OUEST v MARTICORENA-OTAZO AND PREGO PARADA

3 The two defendants in the main proceedings were discovered fishing on 2 and 9 February 1981 respectively off Bayonne in the waters in the area between 6 and 12 miles from the baselines, some 10 miles from the French coast.

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. It was also considered that the defendats had committed an offence created and punished by that legislation by fishing with nets whose mesh-size did not comply with the requirements of Council Regulations No 2527/80 and No 272/81.

5 In both cases the defendants in the main proceedings maintain that the Community regulations are invalid or in any event inapplicable as against them, being incompatible with the rights upon which they may rely in consequence of international commitments previously entered into between France and Spain. For that purpose they rely in particular upon the London Fisheries Convention of 9 March 1964 (United Nations Treaty Series, Vol. 581, No 8432) and upon the Agreement on Fisheries between France and Spain of 1967 (Journal Officiel de la République Française of 4 August 1967, p. 7807).

9 Accordingly, Spanish fishermen may not rely on prior international commitments as between France and Spain in order to prevent the application of the interim regulations adopted by the Community in the event of any incompatibility between the two categories of provisions.

10 Consideration of the question raised has thus disclosed no factor of such a kind as to affect the validity of Regulations No 1719/80, No 3305/80 and No 554/81. Those regulations are enforceable against Spanish nationals.

11 The defendants in the main proceedings, the French Government, the Council and the Commission have drawn the attention of the Court to the fact that at the material times in the two cases namely 2 and 9 February 1981, no Community regulation concerning the system of licences was applicable to vessels Hying the flag of Spain. The recitals in the preamble to

AFFAIRES MARITIMES DU LITTORAL DU SUD-OUEST v MARTICORENA-OTAZO AND PREGO PARADA

Regulation No 554/81 state in this connection that the consultations between the Community and Spain which are provided for by the Agreement on Fisheries of 1980, which was provisionally applied from the date of signature, were not concluded until 17 February 1981, that fishing by Spanish vessels in the fishing zones of Member States which were subject to Community fisheries regulations was authorized during the .period from 1 to 31 January 1981 by Regulation No 3305/80 and that such fishing had been interrupted since 1 February 1981.

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.

On those grounds,

THE COURT (First chamber),

in answer to the question submitted to it by the Tribunal de Grande Instance, Bayonne, by judgments of 23 April 1981, hereby rules:

Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Council Regulations No 1719/80 of 30 June 1980 (Official Journal L 1ú8, p. 27), No 2527/80 of 30 September 1980 (Official Journal L 258, p. 1) No 3305/80 of 17 December 1980 (Official Journal L 344, p. 33), No 272/81 of 27 January 1981 (Official Journal L 27, p. 72) and No 554/81 of 27 February 1981 (Official Journal L 57, p. 1). The provisions of those regulations are enforceable against Spanish nationals.

O'Keeffe Bosco Koopmans

Delivered in open court in Luxembourg on 28 October 1982.