C-287/81

JACK NOBLE KERR

on the interpretation of Article 7 of the EEC Treaty and Articles 1 and 2 (1) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (Official Journal 1976, L 20, p. 19),

THE COURT

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

Advocate General: G. Reischl Registrar: P. Heim

gives the following

The facts of the case, the course of to derogate from the principal rule the procedure and the observations concerning equal conditions of access to submitted under Article 20 of the and use of fishing grounds situated in the Protocol on the Statute of the Court of maritime waters of the Member States Justice of the EEC may be summarized for all fishermen in the Community. as follows: Those articles provide for that possibility for a period of 10 years, that is to say, until 31 December 1982. During that period, the Member States are author- I — Facts and written procedure ized to restrict fishing in waters under their sovereignty or within a limit of six nautical miles, calculated from the base- lines of the coastal Member State, to 1. State of Community law when the vessels which fish traditionally in those events in the main proceedings occurredwaters and which operate from ports in (June 1978) that geographical coastal area. Article 101 provides that the limit of six nautical miles is to be extended to 12 nautical The fundamental rules governing the miles for certain listed areas situated in fishing industry were laid down, the three new Member Sutes and in pursuant in particular to Articles 42 and France. 43 of the EEC Treaty, by Regulation (EEC) No 2141/70 of the Council of 20 October 1970 laying down a common The derogations relating to the limits of structural policy for the fishing industry six and 12 nautical miles may not (Official Journal, English Special Edition however prejudice the special fishing 1970 (III), p. 703) and by Regulation rights which the other Member States (EEC) No 2142/70 of the Council of 20 might have enjoyed on 31 January 1971. October 1970 on the common organ- In areas in which a Member State ization of the market in fishery products extends its fishing limits to 12 nautical (Official Journal, English Special Edition miles, the existing fishing activities within 1970 (III), p. 707). 12 nautical miles must be pursued in such a way that there is no regression by comparison with the situation on 31 Articles 98 to 103 of the Act concerning January 1971. the Conditions of Accession and the Adjustments to the Treaties [hereinafter Article 103 provides that, on the basis of referred to as "the Act of Accession"], a report presented by the Commission on annexed to the Treaty of Accession of 22 the economic and social development of January 1972, contain provisions relating the coastal areas of the Member States to fisheries. and the state of stocks, and in the light of the objectives of the common fisheries policy, the Council, acting on a proposal Articles 100 and 101 of the Act of submitted by the Commission before 31 Accession permit all the Member States December 1982, is to examine the

"1. Rules applied by each Member State In particular, those measures may in respect of fishing in the maritime include restrictions relating to the waters coming under its sovereignty catching of certain species, to areas, to or within its jurisdiction shall not fishing seasons, to methods of fishing lead to differences in treatment in and to fishing gear." other Member States. At its meeting on 30 October 1976 at Member States shall ensure in The Hague, the Council passed a particular equal conditions of access resolution, which was formally adopted to and use of the fishing grounds on 3 November 1976, in which it was situated in the waters referred to in agreed that the Member Sutes, by takmg the preceding subparagraph for all concerted action, were to extend as from

ANKLAGEMYNDIGHEDEN v NOBLE KERR

1 January 1977, their fishing zones to Although on 20 October 1977 the 200 nautical miles off their North Sea Commission submitted the Council and North Atlantic coasts (and that as proposal for a regulation laying down from that date, the use by fishing vessels for 1978 measures for the conservation from non-member countries of fishery and management of fishery resources resources situated in those zones was to involving the establishment or quotas, the be governed by agreements between Council confined itself to making the the Community and the non-member following declaration at its meeting on countries concerned). 30 and 31 January 1978:

At the same time, the Council expressed 'The Council approved the Commission its agreement (Annex VI to the communication according to which, in Resolution) to a Commission declaration the absence of a common system, (hereinafter referred to as "the Hague national measures could be taken in as Resolution") which is worded as follows: far as they were strictly necessary for the conservation and management of fishery resources, were non-discriminatory and "Pending implementation of the in conformity with the Treaty, and if the Community measures at present in approval of the Commission had been preparation relating to the conservation sought beforehand." of resources, the Member States will not take any unilateral measures in respect of the conservation of resources. 2. Danish national provisions

JUDGMENT OF 30. 11. 1982 — CASE 287/81

On 20 November 1978, the conservation measures, including the Commission formally approved the said limitation and allocation of catches and Danish measures, subject to certain in particular allocation of national quotas reservations which have no bearing on and fishing activities. the present case (". . . the Commission Pursuant to that article, Order No 88 of understands that the Danish Government 10 March 1978 on the limitation of will amend the provisions concerning catches for the fishing zone off shrimp fishing contained in Article 5 of, Greenland for 1978 (Danish Official and in Annex II to, the Order of 10 Gazette, p. 313) laid down the total March 1978, in view of a reallocation of allowable catch quotas for certain species quotas resulting from negotiations

On to in the annex. As regards shrimps, 14 April 1978 the British Minister for Annex II allocates quotas to Greenland, Agriculture, Fisheries and Food had Denmark, France and the Faeroe Islands. issued a licence permitting the boat to Under Article 7 of the Law of 1973 and catch 475 tonnes of shrimps after 6 June Article 10 of Order No 88, a breach of 1978 in the sub-area 0 — 1 delimited in the aforesaid provisions may entail a the Convention. warning or a fine in addition to the forfeiture of fishing gear and catches. By a telegram of 9 June 1978 to the Landshøvding over Grønland [Chief The total allowable catches and national Administrative Officer of the Danish quotas fixed by Order No 88 had State in Greenland] the "Goth" notified as their purpose to ensure the the latter of its intention to fish for implementation of an "arrangement shrimps off West Greenland; on 12 June concluded between the Community and 1978 it began fishing in Greenland Canada on the basis of a report drawn territorial waters at a position west of up by the scientific committee established Holsteinsborg, between 12 and 200

nautical miles from the Greenland base- to forfeit DKR 41 150 since in the lines. By a telegram of 14 June 1978 court's view the provisions of the Order from the Greenland command, Captain were not contrary to Community law. Kerr was ordered to cease fishing immediately since, in the view of the Danish authorities, such fishing was unlawful as it was contrary to Order Captain Kerr appealed against that No 88. judgment to the Østre Landsret [Eastern Division of the High Court] and his Counsel again asked for a question to be referred to the Court of Justice for a A Danish fishery protection vessel was preliminary ruling. Despite the objections sent to the area but the “Goth” raised by the Public Prosecutor, the continued to fish there, as Captain Kerr Østre Landsret, by Order of 18 June initially refused to cease fishing in 1981, upheld the request to the extent reliance on the licence from the British specified in the questions set out below authorities and on the orders of the ship- which were referred to the Court by owners according to which the British letter of 29 October 1981 for a pre- Government did not consider the Danish liminary ruling under Article 177 of the measures to be compatible with EEC Treaty: Community law. The trawler was arrested and the captain was charged with breach of the said Order and agreed to pay a fine of DKR 80 000 in “1. Is it compatible with the provisions addition to the forfeiture of the catch of of the EEC Treaty, in particular shrimps. Article 7 thereof, for a Member State to have enacted in 1978 national measures on fisheries dividing the total allowable catch of At Captain Kerr's request, the matter a specified kind of fish in a specified, was heard at first instance by the limited area of the State's fishing Grønlands Landsret [Provincial Court, zone on the basis of previous fishing Greenland]; during the proceedings the of the same nature in the area so Anklagenmyndighed [Public Prosecutor] that the Member States which asked for a fine to be imposed on the carried out such fishing before the defendant and for the forfeiture of a sum entry into force of the measures of money, both at least equal to the were allocated a catch-quota whilst amounts which had already been paid. the vessels of other Member States Counsel for the defendant asked for the were excluded from such fishing? matter to be referred to the Court of Justice in order to seek a preliminary ruling on the question whether national measures of the kind referred to in the 2. Did the provisions of Anieles 1 and Order may be considered compatible 2 (1) of Council Regulation (EEC) with Community law. That request was No 101/76 of 19 January 1976 refused by the Landsret by Order of laying down a common structural 6 June 1979 and, in its judgment of policy for the fishing industry 14 November 1979, the national court preclude a Member State from found proven the charge that the enacting in 1978 national measures defendant had infringed the rules laid on fisheries dividing the total down by the Order concerning the allowable catch of a specified kind limitation of shrimp fishing and ordered of fish in a specified, limited area of him to pay a fine of DKR 100 000 and the State's fishing zone on the basis

The Danish Government observes, first The Østre Landsret makes it clear that of all, as far as the facts of the case are those questions presuppose that the concerned, that shrimp fishing off the national measures do not adversely effect west coast of Greenland grew rapidly either the toul catch-quous fixed by, or between 1972 and 1976 (from less than the fishing rights allotted to fishermen 10 000 tonnes to 50 000 tonnes) inter alia from non-member countries under because extensive fishing grounds had agreements concluded between the been newly discovered beyond the 12 Community and non-member countries nautical mile limit. Since that increase and that the measures were notified to over such a short period was beyond the the Commission in accordance with the level accepuble for the conservation of rules conuined in Annex VI to the stocks, a toul allowable catch (TAC) of Hague Resolution of 30 October 1976. 36 000 tonnes was fixed under the Convention as from 1977. Between 1970 and 1977, the fishing was carried out in The Order of the Østre Landsret was particular by the following countries or lodged at the Court Registry on 5 regions: Greenland, Canada, the Faeroe November 1981. Islands, Denmark, France and Norway. United Kingdom vessels had never fished for shrimps off the west coast of In accordance with Article 20 of the Greenland. Protocol on the Sutute of the Court of Justice of the EEC, written observations were submitted by: the Government of the Kingdom of Denmark, represented Following the extension of fishing zones by its Agent, L. Mikaelsen, on 3 as from 1 January 1977, deuiled February; the Government of the French negotiations were conducted concerning Republic, represented by its Agent, Mrs the adoption of legislation on fisheries. M. Aulagnon, on 1 February 1982; the The Commission's proposal for the United Kingdom, represented by its adoption of rules on the size of catches Agent, R. N. Ricks, on 3 February 1982; for 1978 is based partly on a proposed and by the Commission of the European toul allowable shrimp catch off West Communities, represented by its Agents Greenland corresponding to the 35 000 R. Wainwright and H. P. Hartvig, on tonnes recommended by the Convention. 11 January 1982. At the same time, the Commission proposed to allocate catch-quous amongst Greenland, Denmark and On hearing the report of the Judge- France, uking into account the need to Rapporteur and the views of the reserve quous for the Faeroe Islands and Advocate General, the Court decided to Norway. After lengthy and difficult open the oral procedure without any negotiations, in the course of which, preparatory inquiry. moreover, the United Kingdom did not

claim a catch quota for shrimps, in Member States to ensure equal January 1978 all the Member States, conditions of access to and use of the with the exception of the United fishing grounds, which implies that Kingdom, were able to accept the fishermen from the Member States are Commission's proposal as a com- equally entitled to engage in fishing prehensive solution. However, the stocks which are not subject to quotas. If United Kingdom objected to the a species of fish does not require adoption of the Commission proposal in protection in the form of rules on the its entirety in accordance with the voting size of catches, or as long as the procedure provided for by Article 43. requirement of protection may be Following the breakdown of the satisfied merely by the fixing of a total negotiations, the Member States, with allowable catch, all the fishermen of the the exception of the United Kingdom, Member States are equally entitled to stated that they intended to adopt engage in fishing. national measures corresponding to the provisions contained in the Commission proposal; accordingly, the Danish Government implemented a series of measures corresponding to that proposal However, the Danish Government as regards both the technical conditions considers that if it is necessary in the for fishing and the rules on the size of interests of conservation to impose catches. quantitative restrictions and to allocate the quantities by way of quotas, it should be possible to do so in a manner which does not constitute an infringement of As far as the questions submitted are the principles of equality.

That means that where special rules apply, the function of Anicie 7 is mainly interpretative and complementary with the result that the provision may not be applied unless In its judgment of 3 July 1979 in Joined consideration is given at the same time to Cases 185 to 204/78 Van Dam en Zonen the special Community provisions which [1979] ECR 2345, the Court held that are also relevant to the area in question, "national provisions such as those in in this case the fisheries sector. the Netherlands regulations concerning fishing quotas to which the national court has referred, cannot be considered as discriminatory as long as they are The second subparagraph of Article 2 (1) applied uniformly to all the fishermen of Regulation No 101/76 requires the under the jurisdiction of the Member

The Danish Government is of the opinion that "previous fishing" constitutes an objective basis justifying a The Danish Government recalls that the difference in treatment in so far as the order in question laid down rules in existence and the absence of previous respect of fishing for 1978, that is to say fishing gives rise to different situations. before the expiry of the transitional That criterion had and still has an period provided for by Article 102 of the important function as is shown by the Act of Accession. In its view, it is clear proposal submitted to the Council by the from the case-law of the Court that, in Commission and by the negotiations those circumstances, the Member States conducted on that basis within the are under a duty to ensure, in the Council and as is confirmed by the general interest, the necessary conser- Council Declaration of 30 May 1980 on vation of stocks and at the same time to the common fisheries policy (Official exercise restraint. That duty arises under Journal 1980, C 158, p. 2). In the Danish Article 5 of the Treaty and is embodied Government's view, that criterion must in Annex VI to the Hague Resolution as moreover be accepted as a matter of well as in the so-called transitional regu- simple necessity if it is desired to lations adopted by the Council for 1979 promote the harmonious and balanced and 1980. The Danish Government did development of the fishing industry and not uke that obligation to mean that it to encourage the rational use of the was necessary to esublish new policy biological resources of the sea in a during the transitional period but it situation in which the toul catch assumed, rather, that the Member States capacity exceeds the toul catches. The were to try to mainuin the status quo so Court also recognized the importance of as to avoid upsetting the foundations of that criterion, especially in Case 61/77 the future fisheries policy. In its opinion, Commission v Ireland [1978] ECR 417 in that supports the view that it was

2. Observations submitted by the French Government

Furthermore, the Danish Order did not arbitrarily establish a difference in treatment since the criterion adopted by the Danish authority was that of past The French Government adheres to catches — established, what is more, by those decisions of the Court in which the an international body, the fisheries latter accepted that the Member States, commission set up under the Conven- in the absence of common rules adopted tion, whose impartiality is beyond by the Council, were entitled to enact dispute. Since the criterion adopted is national conservation measures, subject strictly objective, no objection based on to prior notification of the Commission arbitrary conduct can be raised against and provided that its approval had been the allocation itself and the fact that the sought in accordance with the provisions latter is based on nationality seems, all of Annex VI to the Hague Resolution. things considered, to be secondary. Finally, under a policy on fisheries which concerns, in the first place, numerous species of fish and, secondly, a large number of fishing zones, entailing in each case the establishment of a total In its view the Danish order is not allowable catch and, subsequently, the incompatible with the principle of non- allocation of that total catch amongst the

JUDGMENT OF 30. 11. 1982 — CASE 287/81

member countries in which the assessed by the competent authorities by Community has obtained certain fishing reference both to the degree of rights. compulsion atuching thereto and to the requirements relating to the short, medium and long-term satisfaction of the needs of the populations concerned. On the other hand, the allocation of the toul allowable catch amongst the various The French Government also considers parties potentially involved should be that the Danish Order does not infringe assimilated only to a management the relevant provisions of Regulation No measure which is sufficiently effective to

should be interpreted. Moreover, that is complements the criterion of traditional the basis adopted by the Danish fishing in a manner which is less authority which, with a view to favourable to the interests of fishermen conserving stocks of various species from other Member Sutes who are of fish which were being depleted accustomed to fish in the waters of the with disconcerting rapidity, fixed, in regions in question (which include accordance with scientific recommen- Greenland, a region particularly dations, a toul allowable catch for dependent on fishing and the industries shrimps in the areas in question. In its allied thereto). judgment of 14 July 1976 in Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279, the Court held that such restrictions on production were in conformity with Community law.

ANKLAGEMYNDIGHEDEN v NOBLE KERR

quotas amongst the Member States conservation measures was vested in the cannot constitute a conservation Member States. However, in its opinion, measure. Moreover, the machinery for it does not follow that the power of the allocation may operate freely within the Member Sutes was an unfettered one. It limits of the total allowable catch was, like any other power exercisable by without at any time jeopardizing the the Member States in relation to matters objective of the conservation of resources affecting the common market, subject to and the protection of the sea bed. In the the general principles of Community law. light of the foregoing considerations, the French Government considers that the provisions of Regulation No 101/76 laying down certain general rules relating to measures for the protection of the sea bed and for the conservation of Annex VI to the Hague Resolution of resources are conservation measures and 3 November 1976 and the declaration may not therefore be applied to measures made by the Council at its meeting on 30 concerning the allocation of quotas. and 31 January 1978 further reinforced However, if the allocation of quotas the prohibition of discrimination on were to be classified as a conservation grounds of nationality, contained in measure, the French Government takes Article 7 of the Treaty and reiterated in the view, in the alternative, that the fisheries sector by Article 2 (1) of reference to the contested regulation Regulation No 101/76, and further would add nothing to the comparison limited the freedom of Member States in made with Anicie 7 of the EEC Treaty. that field by providing that national measures must be necessary, adopted on an interim basis and only after full consultation with the Commission.

However, there is no need for such a The United Kingdom maintains that the total catch limit to be enforced on the incompatibility with Community law of basis of quotas imposed by the coastal Order No 88 and of the prosecution of State on other Member States, whether Captain Kerr is in no way affected by or not those quotas are determined by the Commission's approval of the order reference to the coastal State's of 22 November 1978 since such assessment of previous fishing patterns. approval cannot validate a national order Such a total catch could be enforced where the relevant provisions of that with equal effectiveness on the basis of order are incompatible with, or contrary free fishing for all up to the limit to, Community law. That principle imposed or by means of a licensing clearly emerges from the Court's system open to the fishermen of all the judgment in Joined Cases 142 and Member States. Moreover, the process of 143/80 Essevi and Salengo [1981] ECR allocating national quotas involves 1413 according to which in the absence consideration of the situation in the of any express provision in the Treaty Community as a whole (see Case 32/79 empowering the Commission to Commission v United Kingdom [1980] authorize certain conduct on the part of ECR 2403). Thus, in considering the Member States which would otherwise allocation of national quotas the Council be in breach of the Treaty, the has had regard to a number of factors Commission has no power to exempt a other than traditional fishing patterns, State from compliance with its and it has been particularly concerned obligations under the Treaty. over a number of years with endeav- ouring to ensure that Member States' quotas should to some extent reflect losses sustained by them in the waters of non-member countries. That principle was reaffirmed in the Council's The United Kingdom therefore proposes Declaration of 30 May 1980. that the first question should be answered in the negative and the second question in the affirmative.

with fishermen who are nationals of Community law (see Joined Cases 3, 4 other Member States and who actually and 6/76, referred to above). fished in that area during the period in question, has not been expressly resolved by the case-law of the Court. The answer to that question is important not only as regards the application by the Member States of measures adopted for As regards the criteria to be adopted for the conservation of fishery resources but the allocation of quous amongst the also as regards the adoption of such Member Sutes, the Commission does provisions by the Council. Moreover, in not intend to rule out any of the several order to reply to the decisive question existing possibilities which are whether, from the point of view of compatible with Community law.

It follows from those considerations that a Member Sute which, in implementing its own conservation measures for 1976 complied with the Commission's proposals concerning quous for that year, in fact applied the three above- The fixing of an annual toul allowable mentioned criteria and therefore did not catch by stock or group of stocks for uke into account solely the level of most species of fish constitutes one of previous fishing activity. As regards the the most effective means of ensuring later criterion, the Commission considers both optimum use of the biological that it is in conformity with Community resources of the sea and their conser- law and probably the most appropriate

JUDGMENT OF 30. 11. 1982 — CASE 287/81

the area in question has no serious freedom of access which also applies implications for them. If the quotas were within the Community. Finally, the allocated amongst the fishermen of all Commission observes that, even if the the Member States, especially those Court has not yet expressly adopted a whose fishing fleets have not so far position on the question whether the fished in an area in which it is traditional fishing patterns of the considered necessary to restria catches, Member States constitute a criterion for it would be necessary either to refrain, at the allocation of quotas which is any rate to some extent, from imposing compatible with Community law, it none that essential restriction or to reduce still the less declared on several occasions further the quotas allocated to fishermen that it was important to take account of who have traditionally fished in the area the fishing fleets of Member States which concerned, the sole effect of which have traditionally fished in the region in would be to aggravate their situation. In question. that regard, the Commission emphasizes that the Community provisions adopted in relation to the fishing industry in accordance with Article 39 of the EEC Treaty also have as their purpose to ensure a fair standard of living for the III — Oral procedure population which lives by fishing.

ANKLAGEMYNDIGHEDEN v NOBLE KERR

States. It therefore took as a basis the that the fleet of that Member State quota scale for 1976 used by the North- fished in that zone in 1976. Sub- East Atlantic Fisheries Commission, sequently, the extension of the fishing adjusted in certain instances, in zones to 200 nautical miles, as from 1 particular in the case of Ireland and the January 1977, led to the abandonment of north of Great Britain, in order to take those quotas. Moreover, methods of account of the Hague Resolution. Where compiling statistics had been improved. no such quotas existed, the Commission Since 1979, therefore, the Commission took as a basis the volume of catches of adopted as a criterion the Member the various Member States in 1976. That States' average catches over a reference was the most recent year for which the period of several years. Thus, for necessary information was available and example, the reference period adopted the various fleets had already to some for the proposed allocation of quotas for extent drawn up their catch forecasts on 1981 and 1982 was the period from 1973 that basis. The fishing zone off to 1978. Greenland, which is at issue in the present case, falls within that category. The Advocate General delivered his Accordingly, the allocation of a quota to opinion at the sitting on 29 September France in 1978 was based on the fact 1982.

Decision

1 By letter of 29 October 1981, which was received at the Court on 5 November 1981, the President of the 16th Chamber of the Østre Landsret [Eastern Division of the High Court], giving effect to an order made by that Chamber on 16 June 1981, referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpret- ation of Article 7 of the EEC Treaty and Articles 1 and 2 (1) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (Official Journal 1976, L 20, p. 19).

5 Article 5 of Order No 88 provides that catches of shrimps in open waters surrounding the coast in sub-areas 0 + 1 , defined by the International Convention for the North-West Atlantic Fisheries [hereinafter referred to as "the Convention"] may not exceed 40 000 tonnes and that catches in the fishing zone off West Greenland may not exceed 35 000 tonnes.

6 It is clear from the provisions of Article 8 of the Order taken in conjunction with Annex II thereto, that the quantity of shrimps which it was permissible to catch in the fishing zone off Greenland was divided into catch-quotas allocated to Greenland, Denmark, France and the Faeroe Islands. Article 10 provides, in the event of a breach of those provisions, for the administration of a warning or the imposition of a fine as well as for the forfeiture of fishing gear and catches.

ANKLAGEMYNDIGHEDEN v NOBLE KERR

7 After his ship was arrested on 16 June 1978 in Greenland maritime waters between 12 and 200 nautical miles from the Greenland base-lines, Mr Kerr was ordered by the Grønlands Landsret [Provincial Court, Greenland] for breach of the said Danish legislation to pay a fine of DKR 100 000 and to forfeit DKR 41 150 corresponding to the value of the catch of shrimps. Both the defendant and the Public Prosecutor appealed against that judgment to the Østre Landsret.

8 It should be pointed out that Captain Kerr was the holder of a licence issued on 14 April 1978 by the British Minister for Agriculture, Fisheries and Food authorizing the boat to catch 475 tonnes of shrimps after 6 June 1978 in the aforementioned sub-area 0 — 1.

1 1 Article 2 (1) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (Official Tournai 1976, L 20, p. 19) provides that the rules applied by each Member Sute in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction must not lead to differences in treatment of other Member States. Member States are to ensure in particular equal conditions of access to and use of the fishing grounds situated in the waters referred to for all fishing vessels flying the flag of a Member State and registered in Community territory.

12 The defendant, supported by the United Kingdom and by the Government of the Netherlands, considers that the measures adopted by the Kingdom of Denmark are in breach of the aforesaid provisions and are theretore incompatible with Community law. He does not contest that at the ume when the events in question occurred, namely before the expiry of the period prescribed by Article 102 of the Act of Accession, a Member State was entitled to adopt fisheries conservation measures but he considers that the adoption of measures such as those at issue exceeds the scope of the power vested in the Member States. In his view, even if the fixing of a total allowable catch (TAC) for certain species of fish constitutes a necessary conservation measure/there is no need for such a t o t a l catch limit to be applied in the form of quous imposed by the coasul State.

1 3 The United Kingdom argues that such a measure is unlawful when the adoption of measures not giving rise to discrimination would be sufficient to brine about the same result, namely the restriction of tou catches to a specificfigure. For example, free fishing for the trawlers of all the Member States could be allowed up to the toul allowable catch limit or a licensing Astern open to the fishermen of all the Member States could be introduced.

18 In that Resolution, the Council expressed its agreement (Annex VI to the Resolution) with a Commission Declaration which is worded as follows:

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"Pending the implementation of the Community measures at present in preparation relating to the conservation resources, the Member States will not take any unilateral measures in respect of the conservation of resources.

However, if no agreement is reached for 1977 within the international fisheries commissions and if subsequently no autonomous Community measures could be adopted immediately, the Member States could then adopt, as an interim measure and in a form which avoids discrimination, appropriate measures to ensure the protection of resources situated in the fishing zones off their coasts.

Before adopting such measures, the Member Sute concerned will seek the approval of the Commission which must be consulted at all stages of the procedures.

Any such measures adopted shall not prejudice the guidelines to be adopted for the implementation of Community provisions on the conservation of resources."

23 As regards the fixing of the total allowable catch, it is not disputed that the total allowable catch actually fixed was in conformity with the recommendation made by the commission established by the Convention and that it constituted an appropriate conservation measure.

24 As regards the allocation of the total allowable catch, it must in the first place be borne in mind that the catch-quota allocated to the Faeroe Islands was, as is apparent from Council Regulation (EEC) No 1848/78 of 25 July 1978 (Official Journal 1978, L 211, p. 6) the result of a framework agreement on fisheries signed by the Community on the one hand and by the Government of Denmark and the local administration of the Faeroe Islands on the other, and of consultations which took place between the parties.

25 The advantages accorded to the fishermen of the Faeroe Islands were granted in return for the right which was conferred on Community fishermen to catch other species of fish in the maritime waters within the jurisdiction of those islands; the resultant quotas were allocated by the Council amongst certain Member States under the common fisheries policy, in particular to compensate for the loss of catch potential in the waters of non-member countries, as is clear from Council Regulation (EEC) No 1846/78 of 25 July 1978 (Official Journal 1978, L 211, p. 1).

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30 Examination of t h e m e t h o d applied demonstrates that the Danish authorities allocated the quotas in accordance with objective criteria, taking into account, in the first place, the needs of t h e coastal population, a n d secondly,

ANKLAGEMYNDIGHEDEN v NOBLE KERR

the need to maintain a situation temporarily created in the region in question, even though the fishing zone in question had only recently been discovered and exploited.

31 In those circumstances, regard being had to the legal position during the transitional period, the division of the fishing quota under the measure adopted by the Danish authority cannot be regarded as amounting to discrimination on grounds of nationality contrary to Article 7 of the Treaty and to the provisions of Articles 1 and 2 (1) of Regulation No 101/76.

THE COURT,

in answer to the questions referred to it by the Østre Landsret of 29 October 1981, hereby rules:

"As long as the Community had not exercised its power to take measures for the conservation of the biological resources of the sea, a management and conservation measure adopted by a Member Sute during the transitional period which expired on 31 December 1978 and decided upon in accordance with the procedure provided for by the Hague Resolution of the Council of 3 November 1976, which had as its purpose to fix a total catch-quota, allocating it amongst certain Member States, cannot be regarded as contrary to the principle prohibiting discrimi- nation, embodied in Article 7 of the EEC Treaty and in Articles 1 and 2 (1) of Regulation No 101/76, if it was a conservation measure taken in response to a need arising in the zone concerned and if the measure was justified by objective considerations relating to the protection of the needs of the coastal population concerned and to the maintenance of a situation temporarily created in the area in question."

Mertens de Wilmars Pescatore O'Keeffe

Everling Mackenzie Stuart Bosco Koopmans

Delivered in open court in Luxembourg on 30 November 1982.