C-50/82
ECLI:EU:C:1982:378
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JUDGMENT OF 28. 10. 1982 — JOINED CASES 50 TO 58/82
provisions prescribing catch quotas manner of verifying catches is for Spanish fishermen such regu different. Verification by the use lations are enforceable against them of licensing system, as prescribed and the validity of the regulations in Regulations Nos 554/81 and may not be challenged on the basis of 1569/81, is intended to ensure that prior international agreements entered the catch quotas laid down for into between France and Spain. the fishing vessels of non-member countries are complied with since, in 3. A situation in which both Spanish the case of such vessels, no checks can fishermen and fishermen of Member be carried out in the adjacent coastal States must comply with a system of ports as those vessels normally return catch quotas may not be classified to their ports of origin to land their as discriminatory even though the catches.
In Joined Cases 50 to 58 / 82
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
ADMINISTRATEUR DES AFFAIRES MARITIMES [ Administrator of Maritime Affairs], BAYONNE, AND PROCUREUR DE LA RÉPUBLIQUE [Public Prosecutor ]
and
— JOSÉ DORCA MARINA , Pasajes de San Pedro , Spain, AND OTHERS,
on the validity of regulations of the Council laying down certain temporary measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain,
THE COURT (First Chamber )
composed of: A. O'Keeffe, President of Chamber , G. Bosco and T . Koopmans , Judges ,
Advocate General : F. Capotorti Registrar: H . A. Rühi , Principal Administrator
gives the following
AFFAIRES MARITIMES, BAYONNE v DORCA MARINA
JUDGMENT
Facts and Issues
The facts of the case, the course of particular that they should obtain a the procedure and the observations licence, are capable of modifying prior submitted under Article 20 of the international obligations arising in Protocol on the Statute of the Court of particular from the London Fisheries Justice of the EEC may be summarized Convention of 9 March 1964, the as follows: Agreement on Fisheries between France and Spain of 20 March 1967 and the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas of 29 April 1958. I — Facts and written procedure
In Case 50/82 the court found that the Agreement on Fisheries between the European Economic Community and the 1. Mr Dorca Marina and certain other Government of Spain signed on 15 April captains of fishing vessels registered in 1980, which provided inter alia for the Spain were prosecuted before the grant of licences for fishing vessels, was Tribunal de Grande Instance [Regional not yet in force on 28 March 1981, Court], Bayonne, for fishing without accordingly that Agreement did not holding the fishing licence required by appear to be provisionally applicable as it the Community provisions applicable to was capable of modifying the said prior vessels flying the flag of Spain or for international obligations. contravening the conditions of the licences which they held.
In Cases 51 to 58/82 the court considered that Article 1 of the They were discovered fishing off Agreement in fact referred only to the Bayonne within the French economic conditions for engaging in fishing and zone extending between 12 and 200 that accordingly it merely authorized the miles from the coast. The facts occurred EEC and Spain to allocate fairly, in a on 28 March 1981 in Case 50/82 and on spirit of non-discrimination and equality, various dates in the period between 28 such restrictions on fishing as might be July and 21 September 1981 in Cases 51 required, and if necessary by means of to 58/82. licences. The Agreement in no way stated that such restrictions were to be applied solely to Spanish nationals.
The judgments making the references show that the Tribunal de Grande Consequently, the Tribunal de Grande- Instance considered that the Community Instance, by judgments of 17 September regulations in question, which restrict (Case 50/82), 22 October (Cases 51, 52 the fishing rights of Spanish nationals and 58/82) and 5 November 1981 (Cases by prescribing various conditions, in 53 to 57/82) decided to stay the
JUDGMENT OF 28. 10. 1982 — JOINED CASES 50 TO 58/82
proceedings until the Court of Justice "Subject to the provisions of the Treaty delivered a preliminary ruling on the establishing the European Economic question whether, having regard to prior Community and instruments adopted in international obligations, regulations of implementation thereof, fishing by the Communities laying down certain foreign vessels in the above-mentioned interim measures for the conservation economic zone is prohibited, in and management of fishery resources accordance with the Law of 1 March applicable to vessels flying the flag of 1888 as amended. Spain were valid, in so far as they laid down certain conditions for fishing operations carried out by Spanish However, notwithstanding these pro nationals in the economic zone visions, fishing permits may be issued to established by Decree No 77-130 of certain foreign vessels in accordance with 11 February 1977 and whether, if valid, the conditions laid down in the Treaty those regulations were enforceable establishing the European Economic against Spanish nationals. Community and the instruments adopted in implementation thereof, by inter national agreements and by internal French law." 2. The provisions of the regulations and international agreements involved in those cases may be summarized as follows : Article 3 lays down the applicable penalties.
(a) Pursuant to the Council Resolution of 3 November 1976 on certain external (b) After the Member States extended aspects of the creation of a 200-mile these fishing zones to 200 miles the fishing zone in the Community with exploitation of fishery resources in those effect from 1 January 1977 (Official zones by fishing vessels of non-member Journal 1981, C 105, p. 1) the Member countries has been governed by States of the Community extended their Community measures relating to each of fishing zones with effect from 1 January the countries concerned. Pending the 1977 to 200 miles off their North Sea conclusion of framework agreements on and North Atlantic coasts. fisheries between the Community and those non-member countries interim measures were initially adopted. Thus in the case of France Decree No 77-130 of 11 February 1977, adopted in pursuance of Law No 76-655 of 16 July Having regard to the material times in 1976, creates an economic zone off the each of the present cases the Community North Sea, English Channel and Atlantic regime applicable is coasts of the territory of the French Republic, from the Franco-Belgian frontier to the Franco-Spanish frontier, in Case 50/82 Council Regulation (EEC) from the outside limit of the territorial No 554/81 of 27 February 1981 fixing waters to a line 188 nautical miles certain interim measures for the conser beyond that limit. vation and management of fishery resources applicable to vessels flying the flag of Spain (Official Journal L 57, Article 2 of the above decree provides : p. 1);
AFFAIRES MARITIMES, BAYONNE v DORCA MARINA
in Cases 51 to 58/82, Council Regu will govern, in all respects, the fishing lation (EEC) No 1569/81 of 1 June 1981 activities of vessels of either party within laying down for 1981 certain measures the fishing zones falling under the for the conservation and management of jurisdiction of the other party. fishery resources applicable to vessels flying the flag of Spain (Official Journal L 154, p. 1). Article 2 Each of the above-mentioned regulations provides that fishing is subject to the Each party shall grant access to the holding on board of a licence issued by fishing zone falling under its jurisdiction the Commission on behalf on the to the fishing vessels of the other party Communities. The catches which vessels under the conditions laid down by the flying the flag of Spain are authorized to following articles. make during the period in question and the number of licences which may be Article 3 issued for such vessels is fixed in an annex to each regulation. Furthermore (1) Each party shall determine each the regulations lay down a certain year, for the fishing zone falling under number of specific requirements for its jurisdiction, subject to adjustments holders of licences. necessitated by unforeseen circum stances, and on the basis of the need for rational management of the biological (c) The framework agreement, namely resources : the Agreement on Fisheries concluded between the EEC and Spain, was (a) the total allowable catch for initialled on 23 September 1978 and individual stocks or complexes of signed on 15 April 1980. The Agreement stocks, taking into account the most was approved in the name of the reliable scientific information avail Community by Council Regulation able to it, the interdependence of (EEC) No 3062/80 of 25 November stocks, the work of appropriate 1980 on the conclusion of the Agreement international organizations and other on Fisheries between the European relevant factors; Economic Community and the Govern ment of Spain (Official Journal L 322, p. (b) after appropriate reciprocal consul 3). On completion of the ratification tations, the catch allotted to the procedure in Spain the Agreement fishing vessels of the other party and entered into force on 22 May 1981 the zones in which these catches may (Official Journal 1981, L 204, p. 34). be made. The two parties shall have as their objective the attainment of a It was provided in Article 12 of the satisfactory balance between their Agreement that, pending its entry into respective fishing possibilities in the force, the Agreement should apply pro fishing zones falling under the visionally from the date of its signature, jurisdiction of the other party. 15 April 1980.
Articles 1 (1), 2, 3 and 4 of the In determining these possibilities, each Agreement are worded as follows: party shall take into account:
Article 1 (i) the advantage of preserving the traditional characteristics of fishery (1) The purpose of this Agreement is to activities in the frontier coastal establish the principles and rules which areas;
JUDGMENT OF 28. 10. 1982 — JOINED CASES 50 TO 58/82
(ii) the need to minimize the difficulties submitted by the following: the encountered by the party whose defendants in the 'main proceedings, fishing possibilities may be reduced represented by J. Tournaire, of the in the course of achieving the Bayonne Bar; the Government of the above-mentioned balance; French Republic, represented by Gilbert Guillaume, Director of Legal Matters at the Ministry of Foreign Affairs, acting as (iii) all other relevant factors. Agent; the Council of the European Communities, represented by Daniel Vignes, Director in its Legal Depart (2) Each party shall be able to take any ment, acting as Agent, assisted by Mrs other measure to ensure the conservation Moyra Sims, an Administrator in that and rational management of resources in department; and the Commission of the the fishing zones falling under its European Communities, represented by jurisdiction. Such measures when taken François Lamoureux, a member of its following the annual fixing of the other Legal Department, acting as Agent. party's fishing possibilities, should not be such as to compromise the effective operation of fishing. By order of 17 February 1982 the Court decided to join Cases 50 to 58/82 for the purposes of the oral procedure and the Article 4 judgment.
Each party may require that in the fishing zone falling under its jurisidiction By order of 29 June 1982 the Court, fishing by vessels of the other party shall pursuant to Article 95 (1) and (2) of the be subject to licence. Rules of Procedure, decided to refer the joined cases to the First Chamber.
The competent authorities of each party shall communicate to the other party the Upon hearing the report of the Judge- name, registration number and other Rapporteur and the views of the relevant particulars of vessels requesting Advocate General, the Court decided to authorization to fish in the fishing zone open the oral procedure without any of the other party. This provision shall preparatory inquiry. also apply to any vessel intended to aid or assist a fishing vessel in carrying out tasks directly related to the latter's fishing activity. The second party shall II — Summary of the written issue licences commensurate with the observations submitted to possibilites for fishing granted under the Court Article 3 (1) (b).
The defendants in the main proceedings 3. The judgments of the Tribunal de state first of all that the judgments of the Grande Instance, Bayonne, making the Tribunal de Grande Instance, Bayonne, references to the Court were received at making the references to the Court the.Court Registry on 11 February 1982. antedated the judgments of the Court of 8 December 1981 (Cmjeiras Tome and Pursuant to Article 20 of the Protocol on Yurrita, Joined Cases 180 and 266/81 the Statute of the Court of Justice on and Arbelaiz Emazabel, Case 181/80 the EEC, written observations were [1981] ECR 2997 and 2961) in which it
AFFAIRES MARITIMES, BAYONNE v DORCA MARINA
was held that the new relations concluded in New York on 19 December established by the Community regu 1966 and by Articles 2 (2) and 6 of the lations concerning Spanish fishermen International Covenant of New York of replaced the prior international treaties even date on Economic, Social and and that the evidence submitted at that Cultural Rights. time to the Court was not of such a nature as to affect the validity of those regulations. The French Government, the Council and the Commission suggest that the Nevertheless they claim that Regulation judgment of 8 December 1981 in Joined No 1669/81, which is at issue in Cases Cases 180 and 266/80 (Crtijeiras Totne 51 to 58/82, is invalid, or at any rate and Yiirrita [1981] ECR 2997), which inapplicable, for two reasons. First, the concerns a problem in every way the penalties provided for in Article 13 of same as the one raised by the present that regulation for breach of the cases, should be confirmed. conditions on which licences are granted, namely withdrawal of the licence and the non-renewal thereof for a period of from 2 to 4 months, do not provide sufficient In this connection they explain that the guarantees that the right to a hearing facts in Case 50/82 fall within the period will be respected, as is required by when the Agreement on Fisheries Community law. In this connection the between the EEC and Spain was prov defendants in the main proceedings refer isionally applicable and that the facts in to the judgment of the Court of Cases 51 to 58/82 occurred after the 27 October 1977 (Moli, Case 121/76 entry into force of the Agreement. [1977] ECR 1971) in which it was stated that "when any administrative body adopts a measure which is liable gravely to prejudice the interests of an individual With regard to the Community regu it is bound to put him in a position to lations concerning the mesh-size of nets express his point of view". which have led to the convictions in the actual judgments making the references to the Court in Cases 50 and 51/82 but regarding which the Tribunal de Grande Secondly the Agreement on Fisheries of Instance has not expressly requested an 15 April 1980 between the EEC and answer from the Court, the Council and Spain merely authorizes the two parties the Commission point out that they to allocate equitably, in a spirit of non apply to all fishermen in the exclusive discrimination and of equality, such economic zone and that the Spanish restrictions on fishing as may be authorities were made aware of this. required, if necessary by means of licences. In so far as the restrictions are applied exclusively to Spanish fishermen, they entail a serious breach of their right to work and their right to freedom from discrimination on grounds of nationality, III — Oral procedure which are protected in particular by Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November At the sitting on 16 September 1982 oral 1950, by Article 26 of the International argument was presented by the Covenant on Civil and Political Rights following: J. Tournaire of the Bayonne
JUDGMENT OF 28. 10. 1982 — JOINED CASES 50 TO 58/82
Bar, for the defendants in the main which "within the fishing zone falling proceedings; Bernard Botte, Attaché at under its jurisdiction, each party may, in the Ministry of Foreign Affairs, acting as conformity with international law, take Agent, for the French Government; such measures as may be necessary to Daniel Vignes, a Director in the Legal ensure that vessels of the other party Department of the Council, acting as comply with the provisions of this Agent, for the Council of the European agreement". In its view that provision Communities; and F. Lamoureux, was well within the framework of the member of the Legal Department of the wide powers as to policing which Article Commission, acting as Agent, for the 73 of the Draft Convention on the Law Commission of the European Com of the Sea attributed to coastal States. munities. The right to withdraw the licence In the course of the hearing the appeared necessary precisely in order to defendants in the main proceedings prevent fish stocks from being excessively reiterated in particular that they did not exploited. Furthermore it was doubtful have opportunity to make known their whether the principle which had been point of view at the time when the invoked and which had been developed penalties of withdrawal and non-renewal in the context of litigation concerning of their licences, which are provided for the European civil service was applicable by Article 13 of Regulation No 1569/81, to a problem concerning fishery were imposed. The application of these protection. penalties by the Commission on the sole The Commission added on this point that basis of information furnished by the the question of administrative penalties national authorities which found that the under Community law was not raised by conditions of fishing had been infringed the court making the reference which is thus contrary to the audi alteram was concerned with penalties for partem principle. criminal offences laid down by national In this connection the French legislation. Government referred to Article 7 of the Agreement on Fisheries between the The Advocte General delivered his EEC and Spain in accordance with opinion at the sitting on 6 October 1982.
Decision
1 By judgments of 17 September, 22 October and 5 November 1981, which were received at the Court on 11 February 1982, the Tribunal de Grande Instance [Regional Court], Bayonne, referred to the Court for preliminary ruling under Article 177 of the EEC Treaty a question as to whether, having regard to prior international obligations, regulations of the 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
AFFAIRES MARXTIMES, BAYONNE v DORCA MARINA
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 regu lations are enforceable against Spanish nationals.
2 The question was raised in crimimal proceedings against certain masters of fishing vessels registered in Spain, who were charged with fishing within the French economic zone, without being in possession of a fishing licence, or with failing to comply with the conditions of the licence held by them or with fishing outside the zone for which the licence was issued.
3 The defendant in the main proceedings in Case 50/82 was discovered fishing on 28 March 1981 in the zone between 12 and 200 nautical miles from the baselines. The facts alleged against the other defendants, who were discovered fishing in the same zone, occurred between 28 July and 21 September 1981.
4 The requirement that Spanish fishermen should hold a licence is laid down in certain Community regulations and in particular, with regard to Case 50/82, in Council Regulation (EEC) No 554/81 of 27 February 1981 fixing certain interim measures for the conservation and management of fisheries resources applicable to vessels flying the flag of Spain (Official Journal L 57, p. 1) and, with regard to the other cases, in Council Regulation (EEC) No 1569/81 of 1 June 1981 laying down for 1981 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain (Official Journal L 154, p. 1).
5 In all of the cases the defendants in the main proceedings maintain that the Community regulations at issue are invalid or in any event inapplicable in their case, on the ground that they are incompatible with the rights upon which the defendants may rely by virtue of international commitments pre viously entered into between France and Spain. For that purpose they rely in particular upon the Geneva Convention of 29 April 1958 on Fishing and Conservation of the Living Resources of the High Seas (United Nations Treaty Series, Vol. 559, No 8164) and upon the London Fisheries Convention of 9 March 1964 (United Nations Treaty Series, Vol. 581,
JUDGMENT OF 28. 10. 1982 — JOINED CASES 50 TO 58/82
No 8432) which, since it recognized fishing rights in the 6 to 12-mile zone, must, according to the defendants, be understood as meaning that, after the extension of the fishery limits, the same regime extends up to 200 miles.
6 It must be observed that Regulation No 1569/81 was adopted after the entry into force on 22 May 1981 of the Agreement on Fisheries between the European Economic Community and the Government of Spain of 15 April 1980 (Official journal C 263, p. 1) and on the basis of that Agreement. Since the Agreement has superseded the prior international obligations which existed in this field between France and Spain, Spanish fishermen may not rely on such obligations in order to prevent the application of the regime established by the Agreement.
7 Regulation No 554/81 forms part of a series of Council regulations which, pending the entry into force of the Agreement, established for short periods interim provisions prescribing catch quotas for Spanish fishermen. The Court has already held, in particular in its judgment of 18 December 1981 (Crujeiras Tomé and Yurrita, Joined Cases 180/80 and 266/80 [1981] ECR 2997), that those regulations are enforceable against Spanish fishermen and that such fishermen may not rely on prior international obligations entered into by France and Spain in order to challenge its validity.
8 Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Regulations No 554/81 and No 1569/81. Those regulations are enforceable against Spanish nationals.
9 In the course of the procedure before the Court the defendants in the main proceedings also relied upon two other arguments in support of their claim that the two regulations are invalid.
10 They claim first of all that the provisions of those regulations, in so far as they prescribe that Spanish fishermen must hold a fishing licence and do not impose the same requirement for fishing by fishermen of the Member States,
AFFAIRES MARITIMES, BAYONNE v DORCA MARINA
are contrary to the principles of non-discrimination set out in the various conventions on the protection of human rights, and in particular in Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
11 Even if it is supposed that such provisions, which guarantee non-discrim ination in the enjoyment of the rights and freedoms set out in the convention in which they appear, are applicable to economic activities such as fishing it is impossible to classify as discriminatory a situation in which both Spanish fishermen and fishermen of Member States must comply with a system of catch quotas even though the manner of verifying catches is different. Veri fication by the use of a licensing system is intended to ensure that the catch quotas laid down for the fishing vessels of non-member countries are complied with since, in the case of such vessels no checks can be carried out in the adjacent coastal ports as those vessels normally return to their ports of origin to land their catches.
12 The defendants in the main proceedings then claim that Article 13 of Regu lation No 1569/81, which provides for the penalties of withdrawal of fishing licences and the postponement of the granting of new licences which the Commission may impose for failure to comply with the Community rules on fishing, is invalid. That article is said to contitute a breach of the audi alteram partem principle since no provision is made for the right of the fishermen in question to be heard before a penalty is imposed. In addition it is contended that the penalties provided for are excessive since they may be extended to all the vessels of a ship-owner who is found to have contravened the rules.
13 These arguments, however, concern the validity of Regulation No 1569/81 in relation to superior principles of law recognized within the Community legal order, a problem which does not come within the context of the pre liminary question submitted to the Court.
OPINION OF MR CAPOTORTI — JOINED CASES 50 TO 58/82
Costs
1 4 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,
THE COURT (First Chamber)
in answer to the question submitted to it by the Tribunal de Grande Instance, Bayonne, by judgments of 17 September, 22 October and 5 November 1981, hereby rules:
Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Council Regulations (EEC) No 554/81 of 27 February 1981 (Official Journal L 57, p. 1) and No 1569/81 of 1 June 1981 (Official Journal L 154, p. 1). The provisions of those regu- lations are enforceable against Spanish nationals.
O'Keeffe Bosco Koopmans
Delivered in open court in Luxembourg on 28 October 1982.
For the Registrar
H . A. Rühi A. O'Keeffe Principal Administrator President of the First Chamber
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
(see Joined Cases 13 to 28/82, p. 3939)