C-87/82

H. B. L. DARTHENAY

on the interpretation of Council Regulation (EEC) No 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources (Official Journal 1980, L 258, p. 1),

T H E C O U R T (Second Chamber)

composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges,

Advocate General: S. Rozès Registrar: H . A. Rühi, Principal Administrator

gives the following

Regulation No 2527/80 was in force at The accused in the main proceedings, the material time, having been extended Mr Darthenay, a French national, was by successive regulations until 31 master of a fishing boat called the October 1981. Christine Marie, which on 5 August 1981 was fishing in waters adjacent to the United Kingdom and within British fishery limits. Lieutenant Commander However, it is clear from the order Rogers, Royal Navy, the prosecutor in making the reference that the accused the main proceedings, for the Ministiy of contended that Article 7 did not apply to Agriculture, Fisheries and Food, brought him on the ground that that provision a prosecution against the accused on the provided not only for the prohibition of grounds that, while fishing on 5 August devices by means of which the mesh in a 1981, he had carried on board and used fishing net was obstructed or diminished "a trawl, Danish Seine or similar net but also for exceptions to that having attached to it (on the top of the prohibition which were to be laid down cod-end) a device, a second piece of in detailed implementing rules which at net." That was admitted by the accused the material time had not been adopted. but it was not, on the other hand, And, as it has been established since the admitted that "the second piece of net judgment of the Court of Justice of necessarily had the effect of obstructing 5 May 1981 in Case 804/79, Commission or diminishing the original net." v United Kingdom, [1981] ECR 1045, that "Member States are therefore no longer entitled to exercise any power of their own in the matter of conservation Before Plymouth Magistrates' Court, the measures in the waters under their prosecutor claimed that the device used jurisdiction", the United Kingdom did by the accused has the effect of ob- not have the authority to exclude certain

In view of that argument, Plymouth By order of 19 January 1983 the Court, Magistrates' Court referred the following after establishing that no Member State questions to the Court of Justice for a or institution, being a party to the preliminary ruling: proceedings, had requested that the case be decided in plenary session, assigned it (a) Whether Article 7 of EEC Regu- to the Second Chamber pursuant to lation No 2527/80 (as extended) has Article 95 (1) and (2) of the Rules of any effect when no detailed Procedure. implementing rules have been adopted. Upon hearing the report of the Judge- Rapporteur and the views of the (b) If not, has a Member State any Advocate General, the Court decided to competence to adopt a measure such open the oral procedure without any as Statutory Instrument No 1994 of preliminary inquiry but nevertheless 1980? requested the Commission to submit to it before the sitting any national provisions (c) If Article 7 does have some effect similar to those adopted by the United when no implementing rules have Kingdom and in dispute in this case. been adopted, has a Member State any power to define the exceptions to the prohibition upon net attachments in such a way as II — O b s e r v a t i o n s s u b m i t t e d to Statutory Instrument No 1994 of the Court pursuant to 1980 does? A r t i c l e 20 of t h e P r o t o c o l on t h e S t a t u t e of t h e C o u r t (d) If the answer is " n o " to Question of J u s t i c e of t h e E E C (a), (b) or (c), what rights result for an EEC citizen prosecuted under a A •— First question law such as Statutory Instrument No 1994 of 1980? According to the accused in the main proceedings, the very wording of Article 7 The order making the reference was of Regulation No 2527/80 itself shows received at the Court Registry on 11 that it can have no effect until the March 1982. detailed implementing rules on the exceptions provided for therein have In accordance with Article 20 of the been adopted. Moreover, if the first Protocol on the Statute of the Court of sentence of Article 7 only were to have Justice of the EEC, written observations effect, the consequences would be, on were submitted by Hubert Darthenay, the one hand, ridiculous, for it is in fact represented by Patrick O'Connor, impossible to envisage a fishing net's Barrister, London, Xavier Ghelber of the being usable without an attachment of Paris Bar and J. Evans, Solicitor, the type mentioned therein because it Cardiff; by the United Kingdom, must be protected from any damage and, represented by R. N. Ricks of the on the other hand, financially disastrous, Treasury Solicitor's Department, acting since that provision would compel all

The United Kingdom further submits that the wording of Article 7 ought not Consequently the accused in the main to lead to such an obstructive interpre- proceedings invites the Court: tation, for there is no obligation on the Commission or Council to adopt any exceptions to the prohibition mentioned in the first sentence of Article 7. The "to conclude in answer to Question (a) effectiveness of the prohibition in no way that Article 7 of Regulation (EEC) No depends upon the creation of exceptions. 2527/80 (as extended) has no effect The first sentence thus stands on its own when no detailed implementing rules and is perfectly clear: the Council have been adopted." intended to create a prohibition with immediate effect and to allow exceptions if and when agreement on those On the other hand, the United Kingdom exceptions could be achieved. takes the view that the contested Article 7 had effect from the time at which it was adopted. In its submission, that In conclusion, the United Kingdom article must be interpreted in relation to considers that at the time at which the the legal context in which it was inserted regulation was adopted conservation of and the time at which it came into being. fish stocks was needed and without Regulation No 2527/80 is designed to Article 7 no effective conservation was further the achievement by the possible. Thus having regard to the Community of the objectives of the declared purpose of the regulation, the common fisheries policy, which is part of objectives of the Community, the time of the common agricultural policy, and was the adoption of that regulation and the adopted after the end of the transitional wording of Article 7 itself, the United period provided for in Article 102 of the Kingdom submits that Question (a) Act of 22 January 1972 concerning the should be answered in the affirmative. Conditions of Accession and the Adjustments to the Treaties (hereinafter referred to as "the Act of Accession"). The Commission shares the United Kingdom's view. It stresses in particular that the exceptions provided for in the The United Kingdom stresses that if second sentence of Article 7 were to Article 7 had no immediate effect from be adopted in accordance with the 30 September 1980 fishermen were free procedure laid down in Article 20, that is to obstruct and effectively to diminish to say after consultation with the the mesh in any part of their nets; in Management Committee for Fishery those conditions, there were no effective Products. Community conservation measures. Consequently, to interpret Article 7 as having no effect unless and until detailed rules were adopted is to adopt "an The Commission states that the original interpretation which flies in the face of draft regulation which it submitted to the the regulation and amounts to a grave Council contained detailed technical

provisions laying down exceptions to the B —· Second question prohibition contained in the first sentence of Article 7, but in order to The accused in the main action considers reach agreement on the regulation as a that the scope of this question may be whole it was decided to remove those confined to Article 8 of Statutory provisions and provide for the adoption Instrument N o 1994 of 1980. of exceptions by the Management Committee. In view of the complexity of The accused argues that, in view of the those questions, the Commission was judgment in Case 804/79, Commission v unable to submit to the Management United Kingdom, cited above, since the Committee any proposal concerning end of the transitional period provided Article 7 in the relatively short time in for in Article 102 of the Act of which Regulation No 2527/80 was in Accession, the Member States no longer force. have the power to act unilaterally in the field of sea-fish conservation. However, the Commission submits that Consequently, he invites the Court to the first sentence of Article 7 was conclude in answer to Question (b) that applicable and binding throughout that if Question (a) is answered in the period, since its application "is not made negative, a Member State has no conditional on exceptions being laid competence to adopt a measure such as down under the second sentence." Article 8 of Statutory Instrument No 1994 of 1980. In that regard the Commission stresses that no argument that the first sentence The United Kingdom and the Com- is so conditional can be deduced from mission consider that since Question (a) the wording of Article 7. The expression has been answered in the affirmative, "detailed implementing rules" in the Question (b) does not require an answer. second sentence does not mean that exceptions adopted under the second sentence in any way "implement" the C — Third question first sentence; on the contrary, the expression "detailed implementing rules" The accused in the main proceedings notes is a general term used throughout the by way of preliminary that Article 8 (1) regulation to refer to secondary of the United Kingdom Order in legislation based on that regulation. question prohibits the carrying of a net with an attachment having the effect of Like the United Kingdom, the obstructing the mesh, whereas Article 7 Commission considers that Article 7 is of Regulation No 2527/80 prohibits the essential to the operation of the entire using of such a net. In his submission, regulation. the United Kingdom Order thus creates "a quite different and much wider" Consequently, the Commission proposes criminal offence than that which is that Question (a) should be answered as envisaged by the Council regulation. follows : Similarly, Article 8 (2) of the United Kingdom Order purports to create a "The first sentence of Article 7 of Regu- single and strictly-defined exception to lation (EEC) No 2527/80 was applicable the total prohibition laid down in throughout the period during which that paragraph (1); the scope of that regulation was in force, in spite of the exception is limited, whereas no such fact that no exceptions were laid down limited exception may be found in under the second sentence of that Article 7 of Regulation No 2527/80. article." Finally, the accused in the main

(iii) The Community nature of the Consequently, he submits first that " the conservation measure is obscured by adoption of a national measure such as a national measure purporting to this United Kingdom Order is in breach implement a Council regulation but of the binding procedure laid down in also limiting its scope. Regulation No 2527/80 and thus incompatible with Community law." (iv) The jurisdiction of the Court of Secondly, the accused in the main Justice may be restricted because proceedings submits that, in the event of Article 177 of the Treaty does not the Court's nevertheless deciding that provide for a reference to the Court Regulation No 2527/80 does not in order to obtain an interpretation prohibit a national measure such as the of the provisions of national United Kingdom Order in question, legislation. implementation by internal legislation jeopardizes the simultaneous and uniform application of the regulation throughout the Community. Moreover Thirdly, the accused in the main the Court of Justice has already upheld proceedings submits that, if that second that view, in particular in its judgments argument should also be rejected by the of 7 February 1973 in Case 39/73 Court, national implementing measures Commission v Italy [1973] ECR 101, and may not alter the scope of a Community of 10 October 1973 in Case 34/73 regulation. That principle was laid down Variola v Amministrazione Italiana delle by the Court of Justice in its judgment of Finanze [1973] ECR 891. 18 February 1970 in Case 40/69 Haupt- zollamt Hamburg v Bollmann [1969] ECR 69, and reaffirmed in several later The accused in the main proceedings judgments. According to the accused in next sets out the dangers inherent in the main proceedings, the national national implementing measures of that provision in question is in breach of that kind : prohibition in two vital respects: in creating a different and much wider criminal offence than is envisaged by the (i) The entry into force of Article 7 of Council and in providing for only a Regulation No 2527/80 would be single and strictly-defined exception.

Consequently: to exercise powers of their own in relation to conservation of the resources of the sea, they nevertheless had a right (a) in view of the express prohibition -and a duty to act as trustees of the laid down in Article 7 of Regulation common interest in the absence of No 2527/80, appropriate action on the part of the Council. (b) in view of the settled principles of the case-law of the Court of Justice As the Community had not defined any prohibiting national implementing exceptions to Article 7, the United measures, Kingdom was entitled to create the exception laid down in Article 8 (2) of the Fishing Nets (No 2) Order 1980 (c) in view of the content of the United provided that it was consistent with Kingdom measure which differs Community policy as expressed in Regu- markedly from that of the Council lation No 2527/80 and the United regulation, Kingdom had sought and obtained approval of that measure. The United Kingdom submits that since those two the accused in the main proceedings conditions were fulfilled, Question (c) proposes that the answer to Question (c) should be answered in the affirmative. should be: The Commission shares the United "Even if Article 7 does have some effect, Kingdom's view. In its opinion, since the the United Kingdom had no power to accused in the main proceedings does define the exceptions to the prohibition not claim that the device used by him in such a way as that in which' they were falls within the exceptions to the defined in Statutory Instrument No 1994 prohibition on net attachments contained of 1980." in Article 8 (2) of the Fishing Nets (No 2) Order 1980, and the only other relevant exception clause, that is to say The United Kingdom submits that it is Article 9 of the 1980 Order, is not unnecessary to answer Question (c), relevant, Question (c) does not relate to since the accused in the main any point at issue in this case; proceedings does not rely upon the consequently, the Commission suggests exception laid down in Article 8 (2) of that the Court decline to answer that the national provision in question; question. indeed, his Counsel admitted before the Divisional Court that his defence rested upon the proposition that Article 7 of the However, the Commission wishes to Council regulation had not yet been state that the wording of the second implemented at the time of his alleged sentence of Article 7 of the Community offence. regulations makes it clear that exceptions to the prohibition laid down in the first sentence may be adopted only by the However, in the alternative, the United Management Committee procedure. It is Kingdom submits that if that question true that the minutes of the meeting of must be answered, it should be answered the Council contain a declaration in in the affirmative. Indeed, although it is which the Commission and the Council accepted that from 1 January 1979 agree, pending the adoption of measures Member States were no longer entitled provided for in the second sentence of

"Where criminal proceedings are brought under a national measure such The United Kingdom therefore submits as Statutory Instrument No 1994 of that persons fishing in waters of Member 1980, which is held to be contraiy to States cannot defeat the object of the Community law, a conviction in those Community by reference to invalid proceedings is also incompatible with exceptions on which they do not rely. Community law." Even if the United Kingdom had no power to adopt Article 8 (2), the accused is not entitled to an acquittal unless Questions (a) and (b) are answered in the negative. According to the United Kingdom, it is accepted that if the first sentence of Article 7 had no effect at the date of the offence and if the United Kingdom had The Commission, in the light of its reply no power to adopt a national measure to the preceding questions, sees no need providing for its enforcement, the for the Court to reply to Question (d).

JUDGMENT OF 11. 5. 1983 — CASE 87/82

III — Oral procedure proceedings; R. N. Ricks, acting as Agent, assisted by A. Moses, Barrister, At the sitting on 24 March 1983 oral Middle Temple, for the United argument and answers to questions put Kingdom; and J. Sack and P. Oliver, by the Court were presented by the acting as Agents, for the Commission. following: P. O'Connor, Barrister, Inner Temple, and Mr Ghelber, of the Paris The Advocate General delivered her Bar, for the accused in the main opinion at the sitting on 28 April 1983.

Decision

1 By an order dated 7 August 1981, which was received at the Registry on 11 March 1982, Plymouth Magistrates' Court referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Regulation N o 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources (Official Journal 1980, L 258, p. 1).

5 During that period the British Government issued Statutory Instrument No 1994 of 1980, Article 8 of which provides:

"(1) A trawl, Danish seine or similar net carried

(a) in any British fishing boat registered in the United Kingdom, or

(b) in any waters adjacent to the United Kingdom and within British fishery limits by a fishing boat not registered in the United Kingdom or not registered in any country shall not have attached to it a device having the effect of obstructing or diminishing the mesh in contravention of Article 7 of the Council Regulation.

(2) Notwithstanding paragraph (1) of this article, any canvas, netting or other material may be attached to the underside of the cod-end of a net for the purpose of preventing or reducing wear and tear, if it is fastened to the cod-end only along the forward and lateral edges of such canvas, netting or other material."

6 On 5 August 1981, the fishing boat Christine Marie was fishing within British fishery limits and using, as was stated by the national court, "a trawl, Danish Seine or similar net having attached to it (on the top of the cod-end) a device, a second piece of net". That was admitted by the accused in the main proceedings, but he contested Lieutenant Commander Roger's statement that "the second piece of net necessarily had the effect of obstructing or diminishing the original net".

(d) If the answer is " n o " to questions (a) (b) or (c), what rights result for an EEC citizen prosecuted under a law such as Statutory Instrument N o 1994 of 1980?

First question

9 The first question asks whether Article 7 of Regulation N o 2527/80 can have effect even though the detailed implementing measures provided for in the second sentence of that article were not adopted by the competent Community authorities.

io The purpose of Regulation No 2527/80 is to ensure the protection of fishing stocks and also a balanced exploitation of the resources of the sea in the interests both of fishermen and of consumers. It follows that the prohibition laid down in the first sentence of Article 7 of the regulation constitutes an

ROGERS v DARTHENAY

essential provision for the achievement of the objective pursued, since without that prohibition there would be no effective conservation measure at Community level.

is In the third question the national court, having established that the detailed implementing rules provided for in the second sentence of Article 7 have not been adopted, refers to the law applicable in this case. In that regard it must be borne in mind that since the expiry on 1 January 1979 of the transitional period provided for in Article 102 of the Act of Accession the power to adopt, as part of the common fisheries policy, measures to conserve the resources of the sea vests fully and finally in the Community.

JUDGMENT OF 11. 5. 1983 — CASE 87/82

i6 Consequently, it is necessary first to examine whether Article 7 may be interpreted in such a way that, even in the absence of the detailed implementing rules provided for in the second sentence, it is possible to infer directly from that provision whether and on what conditions the use of devices for the protection of nets is permitted.

i7 In this regard it should be noted that until the end of the transitional period the use of devices for the protection of fishing nets was permitted under the rules and practice of several Member States and that Article 7 does not intend to substitute for such a possibility a general prohibition on the use of all, even protective, devices.

is Such an interpretation would in fact be contrary to the purpose of Article 7, the first sentence of which, although it lays down a general prohibition, nevertheless does not exclude the use of certain devices. It is true that the aim of the first sentence of Article 7, which is to protect fishing stocks, requires that the mesh of fishing nets may not be obstructed or diminished; however, that requirement must be qualified inasmuch as account should be taken of the fact that fishermen need to use certain types of device in order to protect their fishing nets.

Fourth question

24 In so far as the use of devices for the protection of fishing nets is compatible with Community law, the fourth question has ceased to have any purpose.

Costs

25 The costs incurred by the United Kingdom and the Commission of the European Communities, which have submitted observations 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 before the national court, costs are a matter for that court.

On those grounds,

T H E COURT (Second Chamber),

P. Heim P. Pescatore Registrar President of the Second Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 28 APRIL 1983 1

Mr President, Marie, which was not registered in the Members of the Court, United Kingdom, on 5 August 1981 within British fishery limits, in a position The reference for a preliminary ruling 50° 23.6' N and 2° 54.2'W, and carrying made by Plymouth Magistrates' Court on board and using within British fishery on which I give my opinion today arose limits a trawl, Danish seine or similar out of a prosecution in relation to a net, having attached to it on the top a fishing incident. device consisting of a second piece of net which had the effect of obstructing or I — The facts of the case are as diminishing the mesh in contravention of follows : Article 7 of Regulation (EEC) No In the prosecution brought in the name 2527/80 of 30 September 1980. 2 That of Lieutenant Commander Anthony regulation lays down technical measures George Rogers, Royal Navy, for the for the conservation of fishery re- Ministry of Agriculture, Fisheries and sources 3 and its validity was extended by Food of the United Kingdom, Hubert Bernard Louis Darthenay, a French 2 — " N o device shall be used by means of which the mesh national from Caen, is charged with in any part of a fishing-net is obstructed or otherwise being in his fishing-boat, the Christine effectively diminished. This provision does not exclude the use of the devices referred to in the detailed implementing rules to be adopted in accordance with the procedure laid down in Article 20." 1 — Translated from the French. 3 — Official Journal 1980, L 258, 1. 10. 1980, p. 1.