C-63/83

JUDGMENT OF 10. 7. 1984 — CASE 63/83

States had the power to act in the exist, to take temporary conservation place of the Council, in particular by measures. extending the derogation beyond the prescribed time-limits. 3. The principle that penal provisions may not have retroactive effect is one It follows that between 31 December which is common to all the legal 1982, the date of the expiry of the orders of the Member States and is period laid down in Article 100 of the enshrined in Article 7 of the European Act of Accession, and the adoption of Convention for the Protection of Regulation No 170/83 on 25 January Human Rights and Fundamental 1983, Article 2 (1) of Regulation No Freedoms as a fundamental right; it 101/76, which provided for equal takes its place among the general conditions of access to waters coming principles of law whose observance is within the jurisdiction of Member ensured by the Court of Justice. States and, in consequence, the Consequently the retroactivity pro- abolition of all discrimination based vided for in Article 6 (1) of Regu- on nationality against nationals of lation No 170/83 of 25 January 1983 Member States, was fully applicable. authorizing, as from 1 January 1983, the retention of the derogation regime 2. National rules which prohibit defined in Article 100 of the 1972 Act access to national waters and which of Accession cannot validate ex post are not intended to achieve an facto national measures of a penal objective of conservation cannot be nature which at the time of their covered by the power of Member implementation were incompatible States, where no Community rules with Community law.

REGINA v KIRK

THE COURT

c o m p o s e d of: Lord M a c k e n z i e Stuart, President, T . K o o p m a n s , K. B a h l m a n n and Y. G a l m o t (Presidents of C h a m b e r s ) , P . Pescatore, A. O-Keeffe, G. Bosco, O . D u e and C. K a k o u r i s , J u d g e s ,

Advocate G e n e r a l : M . D a r m o n Registrar: P. H e i m

gives the following

JUDGMENT

JUDGMENT OF 10. 7. 1984 — CASE 63/83

Mr Kirk then appealed against both the fishing grounds situated in the waters conviction and sentence and on 8 March referred to in the preceding sub- 1983 he appeared before the Newcastle- paragraph for all fishing vessels flying upon-Tyne Crown Court. On 9 March, the flag of a Member State and having heard argument from both sides, registered in Community territory." that court referred the following question to the Court of Justice for a preliminary ruling: 2. Derogations from that principle of "equal conditions of access" for a period "Having regard to all the relevant of 10 years expiring on 31 December provisions of Community law did the 1982 were authorized under Articles 100 United Kingdom have the right after 31 and 101 of the Act of 22 January 1972 December 1981 to bring into force the concerning the conditions of accession of Sea Fish (Specified United Kingdom the three new Member States. Article Waters) (Prohibition of Fishing) Order 100 authorized the Member States to 1982 to the extent that that Order restrict fishing within the six-mile zone prohibits only vessels registered in "to vessels which fish traditionally in Denmark from fishing as specified in those waters and which operate from that Order?" ports in that geographical coastal area".

REGINA v KIRK

Flamborough Head, the area where Mr 4. By letter dated 22 December 1982, Kirk was fishing on 6 January 1983. addressed to the Member of the Com- mission with responsibility for fisheries, the United Kingdom submitted four Under Article 103 of the 1972 Act of measures to the Commission for Accession, "before 31 December 1982", approval. The United Kingdom claimed in other words before the expiry of the that it was "unthinkable that the fish 10-year period, stocks should remain unprotected" and it emphasized that the measures were "in conformity with the current proposals of the Commission" and "acceptable to ". . . the Council, acting on a proposal nine delegations". One of those from the Commission, shall examine the measures was a ban on "fishing within provisions which could follow the dero- the United Kingdom 12-mile limit by gations in force until 31 December vessels registered in Denmark". That 1982". measure was submitted in the form of a draft of the Sea Fish (Specified United Kingdom Waters) (Prohibition of Fish- ing) Order 1982, the measure underlying the main proceedings. 3. At its meeting on 21 December 1982, the Council was unable to adopt measures concerning the organization of a common fisheries policy. Section 3 (1) of the Sea Fish Order 1982 provides that:

JUDGMENT OF 10. 7. 1984 — CASE 63/83

5. By Decision 83/3/EEC of 5 January All those regulations came into force on 1983 (Official Journal L 12 of 14. 1. the day of their publication in the 1983, p. 50), the Commission authorized Official Journal, namely 27 January on a provisional basis the national 1983. measures concerning fisheries notified to the Commission by certain Member States, not including Denmark, Belgium However some provisions were declared and Greece. Article 1 of that Decision, to apply also to the intervening period which was addressed to the Member' from 1 January 1983 to 26 January 1983. States, provided that during a period to One such provision was Article 6 (1) of expire not later than 26 January 1983, Council Regulation (EEC) N o 170/83 fishing in Community waters was to be establishing a Community system for the carried out in compliance with the conservation and management of fishery Commission's proposals and that con- resources (Official Journal L 24 of 27. 1. sequently the national measures notified 1983, p. 1) which provides that: to the Commission by a number of Member States, including the United Kingdom, which corresponded "in their "As from 1 January 1983 and until 31 results" to the Commission's proposals, December 1992, Member States shall be were "provisionally authorized" for that authorized to retain the arrangements period. The Decision was also stated to defined in Article 100 of the 1972 Act of be "without prejudice to any subsequent Accession and to generalize up to 12 decisions adopted by the Commission in nautical miles for all waters under their which the substance of the measures sovereignty or jurisdiction the limit of six notified shall be assessed" (Article 2). miles laid down in that article."

IV — W r i t t e n observations sub- 1. The Commission maintains that the mitted pursuant to Article fundamental rule governing access to 20 of t h e P r o t o c o l on the fishing within the maritime waters of a S t a t u t e of t h e C o u r t of Member State for vessels registered in J u s t i c e of t h e European another Member State is that laid down Economic Community in Article 2 (1) of Regulation N o 101/76. The Commission takes the view that the provisions of Regulation N o The Commission begins by making two 101/76 are "supplemented" but not preliminary points : repealed by Regulation No 170/83, which, according to the first recital in its preamble, was adopted by the Council (a) The question submitted for a pre- on 25 January 1983 in the light of the liminary ruling, as formulated by extension of fishing zones and the "over- the national court, asks whether fishing of stocks of the main species". a specified national provision is compatible with Community law. The Court has no jurisdiction under According to the Commission, Article 6 Article 177 of the Treaty to decide of that regulation authorized with retro- upon such a question. Consequently active effect and for 10 years Member the Commission proposes to rephrase States to retain the arrangements defined the question so that those elements in Article 100 of the 1972 Act of that come within the interpretation Accession and to generalize up to 12 of Community law may be extracted nautical miles for all their waters the from the wording of the question. limit of six miles.

(c) A measure such as the Sea Fish According to the case-law of the Court, Order 1982 constitutes a proper Community measures may exceptionally exercise of the authorization. have retroactive effect where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (judgments As regards (a), the Commission considers of 25. 1. 1979 in Case 98/78 Racke that Article 6 is to be interpreted as [1979] ECR 69 and Case 99/78 Decker having retroactive effect to 1 January [1979] ECR 101). 1983. That conclusion is based on the clear and unambiguous wording of the article in question which provides that As regards the objective pursued, the the authorization applies "as from Commission considers that the above- 1 January 1983". The date of 1 January mentioned principle has been applied by 1983 is consistent with the use of the the Court, in circumstances similar to word "retain" in Article 6 (1) which those of this case, when it confirmed the demonstrates the continuity in the validity of the retroactive effect for a arrangements defined under Article 100 period of three weeks of a Council regu- of the 1972 Act of Accession. The date is lation re-establishing a system intro- also consistent with Article 103 of the ducing the European Currency Unit for 1972 Act of Accession which provides the purposes of the common agri- for arrangements "following" or suc- cultural policy (judgment of 19. 5. 1982 ceeding those provided for up to 31 in Case 84/81 Staple Dairy Products December 1982, as is made clear in the [1982] ECR 1763). Still more recently, eighth recital of the preamble to that the Court applied the principle in the regulation. isoglucose cases (judgments of 30. 9. 1982 in Case 108/81, Amylum, Case 110/81, Roquette, and Case 114/81, The date is also consistent with the pro- Tunnel Refineries, [1982] ECR 3107 et visional TAC (total allowable catch) and seq.). In those judgments, the Court quota arrangements for 1983 which are confirmed the principles to be applied in stated to apply as from 1 January 1983 examining the validity of retroactive (Regulation No 198/83, Article 2) and Community measures and, in particular, with the new system of "control clarified the first condition to be applied measures" which was adopted on 29 regarding the purpose or objective to be June 1982 but which was to apply from a achieved. Clearly that objective must be date not later than 1 January 1983 pursued "in the general interest" or be (Regulation N o 2057/82, Article 16). an objective of "public interest".

In the alternative and should the Court As regards legitimate expectations, the not accept its argument, the Commission Commission maintains that the situation then considers the question in the at the time gave the fishermen concerned absence of any Community rules. no cause to expect that the 12-mile coastal preference zones would be abolished at the end of 1982. On the contrary, those zones set up under It maintains that after the end of 1978 Articles 100 and 101 of the 1972 Act of the power to adopt measures for the Accession had become a well-established conservation and management of fishery feature of the system of conservation and resources belonged fully and definitively management which operated during the to the Community, pursuant to Regu- period up to 1983. The Commission's lation No 101/76 and Article 102 of the proposals for their extension and gener- Act of Accession. Member States are alization had been before the Council therefore no longer entitled to exercise since March 1981. Those proposals were any power of their own in those matters. widely publicized and had appeared However, so long as the Community in the Official Journal. Moreover failed to exercise that exclusive com- Community fishermen would have been petence, it was still possible for Member aware on 6 January 1983 of the States to take measures of limited scope Commission Decision of 5 January 1983, provided that they complied with certain which had been given wide coverage by rules of substance and procedure. If radio stations and from which it coud be circumstances required, Member States concluded that the Commission was were even under an obligation to take maintaining its proposals concerning such measures. access. The fishermen therefore had every reason to expect that, if the Council succeeded in reaching agree- ment at its next meeting the measures it As regards the substance, the measures adopted would have retroactive effect to must be non-discriminatory and neces- 1 January. sary for the purpose of conservation. The requirements as to procedure derive from

the Member State's duty to "cooperate" Act of Accession and in Articles 1 and 9 and to facilitate the achievement of the of Regulation No 101/76, and also the Community's tasks. Commission proposals which led to Regulation No 170/83 and indeed the Hague Resolution of 1976 and the Member States are therefore acting Council Declaration of 30 May 1980. merely as "trustees" of the common interest and are under an obligation to undertake detailed consultations with the In the United Kingdom's opinion, Commission and to seek its approval for control of access still contributes to the their measures in good faith. objective of the rational and orderly development of the fishing industry. That objective is reflected in the preamble to 2. The United Kingdom submits that Regulation No 101/76 and Articles 1 throughout the period during which the and 9 thereof, in the Council Dec- common fisheries policy was being laration of 30 May 1980 and in the developed there had never been a régime Commission's proposals to the Council of free access to coastal waters. Regu- (Official Journal C 228 of 1. 9. 1982, p. lation No 2141/70 and Articles 100 and 1) which were adopted by the latter in 101 of the 1972 Act of Accession Regulation No 170/83. restricted such access. Article 103 of that Act of Accession recognizes the need to restrict access even after the end of the transitional period on 31 December 3. The Netherlands Government main- 1982. tains that the Community law applicable in the period after 31 December 1982 and before the agreement of 25 January Moreover, Annex VII to the Hague 1983 was that which applied before the Resolution of October 1976 made it Act of Accession. clear that it was intended to restrict access to coastal waters. That intention was confirmed by the Council Declaration of 30 May 1980 (Official The Community law applicable at that J o u r n a l C 158 of 27. 6. 1980). time consisted of the principle of non- discrimination, on which the EEC Treaty is based, which was implemented by The United Kingdom also maintains that Article 2 of Regulation No 101/76 control of access to inshore waters is replacing the identical provision in linked to objectives pursued under the Article 2 of Regulation N o 2141/70. common fisheries policy such as: (a) Although after 31 December 1982 that the protection of coastal population legal situation was different in formal dependent on fishing, and (b) the terms, in substance it was absolutely the rational development of the fishing same as that which existed prior to the industry. Act of Accession.

by the Commission. That argument has There can be no doubt that the been accepted by the C o u n on the foregoing means that the transitional conservation question but may not be period ended on 31 December 1982 after applied to the question of access. The 10 years had elapsed and that thereafter provisions of the Act of Accession are the authority of the Member States to too clear for that. The duration of the maintain or establish national coastal derogations is limited and they expire on zones terminated unless the Council 31 December 1982. Moreover the task were to adopt measures allowing them to assigned to the Council by Article 103 of do so. the Act of Accession is a fairly tentative one: the Council must "examine" the provisions which "could follow" the derogations. The fact that after 31 December 1982 the Council did not That is confirmed, in the view of the establish any new rules on access does Danish Government, by the Court's not necessarily indicate remissness. judgment of 29 March 1979 in Case 231/78 Commission v United Kingdom ([1979] ECR 1447) in which it was held that the expiry of a transitional period 4. The Danish Government submits that laid down in the Act of Accession meant the Community provision applicable in that a national organization of the this instance is that contained in Article 2 market in potatoes which was already (1) of Regulation No 101/76 which in existence was rendered inoperative implements "with regard to the fishing when the Commission had submitted a industry the prohibition of discrimination proposal on the establishment of the laid down in Article 7 of the Treaty. common organization of the market in It therefore represents a fundamental that product, although the Council had element of the common fisheries policy not acted on the proposal. which was implemented in 1970. Article 100 of the 1972 Act of Accession established a derogation-for a period of 10 years until 31 December 1982. In this instance the United Kingdom Sea Fish Order 1982 must a fortiori be inap- plicable in view of the following factors : Article 103 of the Act of Accession provides that the Council "shall examine the provisions which could follow the derogations in force until 31 December In contrast to Case 231/78, there is a 1982". It follows from that text that: common policy which has already been adopted, namely that under Article 2 (1) of Regulation No 101 /76 ; N o decision was taken as to whether the Council had any power at all to allow the exceptional arrangements to continue after that time or whether it might In contrast to the situation in Case merely make other appropriate arrange- 231/78, the Council did not fail to fulfil ments; one of its obligations by not acting on the Commission's proposal; on the contrary, the Council was instead subject The Council was not obliged to adopt to a general duty to avoid, as far as it any provisions replacing Articles 100 and could, extending and expanding an 101. exceptional arrangement which was

Article 100 of the Act of Accession provided a specific derogation from the basic rule governing access contained in B — The United Kingdom's power to Article 2 of Regulation No 101/76, adopt the Sea Fish Order 1982 which authorized Member States to restrict access in waters under their jurisdiction until 31 December 1982. Without such a derogation there can be 1. Since it considers that during the no doubt that the principles of full and period in question, the Community equal access would have applied with full provision applicable was Article 6 (1) force after 1 January 1973 as they did of Regulation No 170/83 by virtue of before that date. its retroactive effect, the Commission

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JUDGMENT OF 10. 7. 1984 — CASE 63/83

REGINA v KIRK

Community law applicable (Article 2 (1) cases decided by the Court deal with that of Regulation No 101/76, Article 7 of matter. It follows from that case-law that the EEC Treaty and Articles 100 and measures which are intended to protect 103 of the 1972 Act of Accession) that the biological resources of the sea must the Member States were not entitled be urgent and necessary (Joined Cases 3, either acting individually or collectively 4 and 6/76 Kramer [1976] ECR 1279, to enact provisions contrary to the the Advocate General's opinion; Case common policy adopted by the Council 61/77 Commission v / r e / W [ 1 9 7 8 ] ECR in Regulation No 101/76. In contrast to 417, the Advocate General's opinion) the situation in Case 231/78 (cited and further, there must be "a compelling above), the Council did not fail to fulfil biological justification" (judgment in one of its obligations by not fixing a new Case 88/77 Schonenberg [1978] ECR system after 1 January 1983. On the 473). Examples of such measures are the contrary, the Council was subject to a fixing of total allowable catches and general duty to avoid, in so far as quotas (Case 287/81 Noble Kerr [1972] possible, extending and expanding an ECR 4053), regulation of the number of exceptional arrangement which was boats, authorized fishing zones, fishing contrary to the most fundamental periods, and methods and tackle so that principle of the EEC Treaty, namely the nothing is "likely to interfere with repro- principle of non-discrimination. duction or feeding or to injure the marine ecosystem" (Case 61/77, cited above, at p. 413).

by the Council, it is unthinkable that pursuance of Regulation No 101/76 and fishing stocks should remain unpro- Article 7 of the EEC Treaty. tected. In such circumstances Member States can act but only as trustees of the Community interest and solely in respect of conservation measures, as the Court In the alternative, Mr Kirk submits that, has held in Case 804/79 Commission v even if the United Kingdom did have the United Kingdom ([1981] ECR 1045) and power to legislate on and implement Case 269/80 Tymen ([1981] ECR 3079). access measures as trustee of the Community interest, or even if the Sea Fish Order 1982 can be regarded as a conservation measure, the United Kingdom failed to act in accordance As regards access, on the other hand, the with that Community interest inasmuch Court emphasized in Case 804/79 (cited as it adopted a measure which was above, at paragraph 29 of the decision) discriminatory and excessively severe and that Community fishermen must have therefore in breach of the principle of equal access to the fishery stocks coming proportionality. within the jurisdiction of the Member States and that the Council alone has the power to determine the detailed conditions of such access in accordance with the procedures laid down in the C — The nature of the Sea Fish Order third subparagraph of Article 43 (2) of 1982 the Treaty and Article 102 of the Act of Accession. That legal situation cannot be modified by measures adopted uni- 1. In the course of its main argument, laterally by the Member States. the Commission notes that the Sea Fish Order 1982 was discriminatory and incompatible with the general scheme of Article 6 of Regulation No 170/83 and Annex I thereto in so far as the United That is so, a fortiori, after the expiry of Kingdom refused Danish ships all access, the derogation period on 31 December while not restricting the access of vessels 1982. In Mr Kirk's view, there can be no of other Member States. Nevertheless, doubt that any restriction upon rights of the Commission considers that in the access allowed thereafter, other than by particular circumstances, namely that all the Council, is incompatible with the the Member States, with the exception of regime of free and equal access which Denmark, had taken measures restricting prevails in the absence of derogating the access of their own nationals to measures provided for under a new United Kingdom waters and since the common fisheries policy. period of application was short, the order conforms to Article 6 of Regu- lation No 170/83.

particular circumstances of the case it which had not enacted measures re- was "an emergency measure". stricting access to United Kingdom waters, it would have been discriminating against all the other Member States who 2. The United Kingdom submits that had adopted measures restricting the the Sea Fish Order 1982 was not dis- access of their nationals to United criminatory since different situations Kingdom waters. The United Kingdom were treated differently on the basis of therefore adopted a protective measure objective criteria. which was both effective and workable, which conformed to the Commission's proposals and which pursued the object- Those criteria were (a) the need to ives of the common fisheries policy. protect coastal States whose local popu- lations were dependent on fishing and (b) the historical fishing activities of Nor was the United Kingdom measure Member States. contrary to Article 2 of Regulation No 101/76, since that provision is only a particular aspect of Article 7 of the EEC As regards the first criterion the United Treaty. Furthermore, a wide interpret- Kingdom refers to its argument sum- ation of Article 2 as establishing a "free- marized above under A.2, on page 2698. for-all" is contrary to the aims of the common fisheries policy. Article 2 must be interpreted in accordance with Article As regards the second criterion, the 39 of the EEC Treaty, with the preamble United Kingdom points out that Den- to Regulation No 101/76 and with mark was not entitled to fish in United Articles 1 and 9 of that regulation. The . Kingdom coastal waters under the latter articles envisage further measures London Fisheries Convention 1964. The for the establishment of a common importance of historical fishing activities structural policy for the fishing industry. is reflected in Article 100 (2) of the 1972 Act of Accession, in Annex VIII to the Hague Resolution, in the Council Declaration of 30 May 1980, and in the In view of the fact that such measures judgment of the Court in Case 287/81 had still not been adopted on 31 (cited above). That judgment recognized December 1982, equal conditions of the need to advance the objectives of the access must be interpreted in a way common fisheries policy even if that consistent with all the objectives of the involved different treatment of vessels common fisheries policy. The United from different Member States. Kingdom's action was consistent with those objectives. In the United King- dom's view differences in treatment in The fact that Danish vessels were relation to access are lawful if they are prohibited from fishing in United objectively justified. Kingdom waters after 31 December 1982 reflects Denmark's lack of historical fishing rights under the London Fisheries Convention 1964. 3. The Netherlands Government con- siders that the Sea Fish Order 1982 is incompatible with Article 2 of Regu- Moreover if the United Kingdom had lation No 101/76 which relates to equal failed to take measures in respect of access and with Article 7.of the EEC vessels from Denmark, the only country Treaty.

The fact that that measures applied only The Court of Justice laid down in its to Danish fishermen makes no differ- judgment of 30 November 1982 in Case' ence. Even if fishermen from other 287/81 (cited above) that regard for the Member States, except the United interestes of the coastal population Kingdom, were barred from fishing constituted an element which might within the 12-mile limit the conclusion properly be taken into account in would be no different. The essential allocating a total allowable catch which point is that after the expiry of the was biologically necessary. Nevertheless transitional period prescribed in the 1972 that does not justify the view that such Act of Accession, the United Kingdom regard should permit exclusive coastal had created conditions for access to zones when they are clearly and un- certain waters which were more equivocally prohibited. favourable to its own fishermen than to those from another Member'State. The fact that other Member States may also have enacted provisions concerning coastal zones does not justify the United Moreover the fact that Denmark: is Kingdom Order. unable to claim any historical fishing rights cannot justify a unilateral re-:, striction, contrary to Article 2 of Regu- Even if all the other Member States, lation No 101/76. In addition, there are including Denmark, had denied their no other objective reasons capable of fishermen access to the coastal zones of justifying a breach of the prohibition of other Member States the outcome would discrimination. in any case simply have been the establishment of exclusive coastal zones contrary to Article 2 (1) of Regulation No 101/76, Article 7 of the EEC Treaty and to Articles 100 and 103 of the 1972 4. The Danish Government cites several Act of Accession. judgments of the Court and submits that the Sea Fish Order 1982 is clearly and directly contrary to Article 2 (1) of Regulation No 101/76 and, therefore, In the opinion of the Danish Govern- also contrary to Article 7 of the EEC ment, it is clear from those provisions Treaty. In addition, in its view, that that the Member States had no power emerges clearly from Article 100 of the either acting individually or collectively Act of Accession, which authorizes to enact provisions contrary to the exclusive coastal zones, by way of common policy adopted by the Council. exception, for a 10-year period "not- withstanding the provisions of Article 2 of Regulation (EEC) No 2141/70" (now Even if it were to be accepted, contrary Regulation No 101/76). to the view of the Danish Government, that it was not contrary to Article 2 (1) of Regulation No 101/76 for a Member State itself to divest its citizens of rights In the opinion of the Danish Govern- which they otherwise enjoy in other ment the fact that the Sea Fish Order Member States' fishing grounds, it does 1982 concerned fishing vessels not follow that the United Kingdom is exclusively from one Member State entitled to take such rights away from constitutes an aggravating circumstance. Danish nationals, in direct contravention

of Article 2 (1) of Regulation No was precisely concerned — in derogation 101/76. from the provisions of Regulation No 101/76 — to exclude non-traditional fishing since traditional fishing rights In the view of the Danish Government could be exercised throughout the whole the fact that the Sea Fish Order 1982, of the 10-year period until 31 December unlike the Commission's proposal, ap- 1982. plied exclusively to Danish fishing vessels constitutes an aggravating circumstances. 5. Mr Kirk takes the view that the Sea As a result, the nationals of a number of Fish Order 1982, which is an access other Member States were free to fish measure, discriminates on grounds of within the United Kingdom's coastal nationality and, in consequence, is zone on 6 January 1983 whilst only incompatible with Article 2 (1) of Regu- Danish, Irish and Netherlands fishermen lation No 101/76, the provision which were excluded. applies in the fishing sector the general principles of equality laid down in Article 7 of the EEC Treaty. A further consequence is that any penalties for failure to comply with that prohibition are not uniform, as they In particular, he maintains that the order would have been under the Com- is plainly discriminatory. It is a blatantly mission's proposal. discriminatory measure aimed at treating nationals of some Member States, and in particular United Kingdom nationals, In addition, the Danish Government more favourably than Danish nationals. concedes that in the period between 1 January 1973 and 31 December 1982 there was no traditional fishing by To exclude Danish fishermen from all Danish fishermen in what was then the United Kingdom waters from 1 January United Kingdom's exclusive coastal 1983 amounts to dissimilar treatment of zone. comparable situations and places Danish fishermen at a severe competitive disad- vantage. However, that in no way supports the view that Danish fishermen could not exercise the right incontestably conferred Nevertheless, differentiation can be upon them by Article 2 (1) of Regulation justified and may be permissible when No 101/76 and Article 7 of the EEC based on objective criteria, as the Court Treaty which they have enjoyed recognized in Case 11/74 Union des throughout the 10 years which have Minotiers de la Champagne ([1974] ECR elapsed, so far as the coastal zones of the 877). United Kingdom are concerned, where, until 1 January 1983, there were only The justifications which the United exclusive zones within a limit of six Kingdom sought to rely on in support of nautical miles, pursuant to Article 100 of its action do not however satisfy that the Act of Accession. requirement.

Mr Kirk also disputes the argument The fact that such a drastic measure was advanced in the main proceedings, that not necessary at all; since Denmark could not lay claim to historical fishing rights under the London Fishery Convention 1964, The fact that it jeopardizes the objectives Danish vessels were precluded from and functioning of the Community fishing in the disputed area after 31 system. December 1982. That argument is not relevant and it in no way affects the principle of freedom and equality of He maintains that the desired objective access laid down by the EEC Treaty. could have been attained by other methods.

Moreover it was submitted on behalf of the prosecution that the Sea Fish Order 1982 had been adopted at a time of great D — The Commission's approval of the uncertainty. In that respect Mr Kirk Sea Fish Order 1982 notes that an order made by a Member State spurred on by a sense of unease or uncertainty cannot legalize an otherwise 1. The Commission explains that by its illegal act; nor can it constitute a justi- Decision of 5 January 1983 (see above fication for adopting measures contrary p. 2694) it "provisionally" authorized to Article 7 of the EEC Treaty. several national measures including the

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Sea Fish Order 1982 for the period up to interpretation which would have involved 26 January 1983 whilst reserving its a "break in continuity" (judgment of the position on the substance of the Court in Case 7/71 Commission w France measures notified. The provisional auth- [1974] ECR 1003). The principle of orization was based on the following two continuity is also implicit in the Court's considerations: conclusion that despite the "total and definitive" transfer to the Community of powers relating to the conservation of fishery resources, Member States may still amend existing conservation the impossibility in the short time measures in case of need and where the available of deciding whether the Community has failed to act (judgments measures were "well founded" or of the Court in Case 804/79, cited "coordinated"; above, and Case 124/80 Van Dam [1981] ECR 1447).

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tation with the Commission. The The Danish Government submits that the Commission was able to take a balanced grounds on which the Commission's view and to eliminate any inequalities by Decision is stated to be based are not consultation. On that point, the United relevant to the question of access to Kingdom refers to Joined Cases 185 to fishing waters. Since the Member States 204/78 (cited above) as regards the were not able, and in any event were not importance of collaboration with the obliged, to adopt national measures Commission. The United Kingdom acted contrary to Article 2 (1) of Regulation in accordance with Community law No 101/76 and to Article 7 of the EEC inasmuch as the measure exactly Treaty, they were under no obligation to reflected the proposals of the Com- enact legislation in accordance with the mission (Official Journal C 228 of Commission's proposal concerning re- 1 September 1982). The measure was served areas within 12 miles of the coast. submitted to the Commission which Accordingly there was no justification approved it by decision of 5 January for instituting proceedings under Article 1983. 169 for failure to notify the United Kingdom measure concerning access to fishing areas.

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JUDGMENT OF 10. 7. 1984 — CASE 63/83

could not approve that measure without 3. The Netherlands Government con- following the procedures laid down in cludes by asserting that "the imposition Article 170 of the EEC Treaty. by the United Kingdom of a 12-mile zone in which Danish fishing vessels may not fish must be considered to be Moreover, the Commission was not contrary to Article 2 of Regulation No legally entitled to approve the measures. 101/76 read together with Article 7 of That was a matter for the Council. the EEC Treaty".

In Mr Kirk's view the whole process was a redundant exercise since the Com- mission's action was not legally valid and 4. The Danish Government considers since there was no uniform notification that the Court should reply to the of national measures by the Member question submitted as follows : States.

In any event, such a decision cannot "Under Community law — in particular retroactively validate prior legislation, Article 7 of the EEC Treaty, Anicie 2 particularly legislation creating criminal (1) of Regulation No 101/76 and offences, especially since the decision Articles 100 and 103 of the Act of was adopted after Captain Kirk had left Accession — the United Kingdom was port and was not published in the not entitled after 31 December 1982 to Official Journal until well after he had adopt or enforce national measures been convicted. prohibiting only vessels registered in Denmark from fishing within 12 nautical miles from the baselines of the United Kingdom." E — Replies to be given to the question referred to the Court

Decision

1 By order of 9 March 1983, received at the Court on 20 April 1983, the Newcastle-upon-Tyne Crown Court referred a question to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty on the interpret- ation of the Community law on fisheries in order to enable it to determine whether a measure adopted by the United Kingdom prohibiting vessels registered in Denmark from fishing within its 12-mile coastal zone was compatible with that law.

2 By the Sea Fish (Specified United Kingdom Waters) (Prohibition of Fishing) Order 1982 (hereinafter referred to as "the Sea Fish Order 1982") the United Kingdom prohibited "fishing within such part of British fishery limits as lies within 12 miles from the baselines adjacent to the United Kingdom by any fishing boat registered in Denmark .'..". Kent Kirk, the master of a Danish fishing vessel, was intercepted in that vessel on 6 January 1983 by a ship of the Royal Navy whilst he was engaged in fishing within the coastal zone and was fined UKL 30 000 by North Shields Magistrates Court. H e appealed to the Newcastle-upon-Tyne Crown Court where he claimed that the United Kingdom was not entitled to bring into force the Sea Fish Order 1982 and that, consequently, no offence had been committed.

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3 The Newcastle-upon-Tyne Crown Court took the view that in order to enable it to determine whether the Sea Fish Order 1982 was compatible with Community law a preliminary ruling from the Court of Justice was necessary. It therefore stayed the proceedings and referred the following question to the Court:

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each Member State 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 must 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.

8 Article 100 (1) of the 1972 Act of Accession authorized a derogation from those principles for a period expiring on 31 December 1982, so that the Member States could restrict fishing by nationals of other Member States in waters under their sovereignty or jurisdiction, situated within a limit which was fixed in principle at 6 nautical miles.

9 Under Article 103 of the 1972 Act of Accession, before 31 December 1982 the Council, acting on a proposal from the Commission, was to examine the provisions which could follow the derogations in force until 31 December 1982.

io The modified proposal for a Council Regulation establishing a Community system for the conservation and management of fishery resources, submitted ' by the Commission tõ the Council on 11 June 1982 (Official Journal C 228 of 1. 9. 1982, p. 1) proposed that the zone covered by the derogation defined in Article 100 of the 1972 Act of Accession should be extended to 12 nautical miles and should remain in force for a period expiring on 31 December 1992.

1 1 Following the Council's failure to adopt the proposed provisions at its meeting on 21 December 1982, the Commission that same day made a declaration (Official Journal C 343 of 31. 12. 1982, p. 2), in which it pointed out that the conservation of fishery resources had been the exclusive responsibility of the Community since 1 January 1979 but that the Community had still· not succeeded in adopting a comprehensive conser- vation system. It further stated that Member States not only had the right to adopt the necessary measures but also had the duty to take those measures in the collective interest. The Commission therefore:

u It follows from the abovementioned provisions of Articles 100 and 103 of the 1972 Act of Accession that the measures derogating from a fundamental principle of Community law, namely non-discrimination, were limited to the transitional period and that the power to bring into force any provisions thereafter was entrusted to the Community authorities, in particular to the Council.

REGINA v KIRK

is It cannot be concluded from the fact that the Council failed to adopt such provisions within the period provided for in Article 103 that the Member States had the power to act in the place of the Council, in particular by extending the derogation beyond the prescribed time-limits.

IC It follows that at the time of the events at issue before the national court, Article 2 (1) of Regulation N o 101/76, which provided for equal conditions of access to waters coming within the jurisdiction of Member States and, in consequence, the abolition of all discrimination based on nationality against nationals of Member States, was fully applicable.

i7 The United Kingdom and the Commission claim that the fact that after the end of the transitional period the measures prescribed by Article 103 of the 1972 Act of Accession were not adopted created a legal vacuum which the Member States were entitled to fill as "trustees" of the common interest by measures approved by the Commission, as was recognized by the Court in its judgment of 5 May 1981 (Case 804/79 Commission v United Kingdom [1981] ECR 1045).

is In the said judgment of 5 May 1981 the Court stated that in the absence of Community rules, Member States had the power to take temporary measures for the conservation of fishery resources in order to avoid irreparable damage contrary to the objectives of the common conservation policy.

22 The principle that penal provisions may not have retroactive effect is one which is common to all the legal orders of the Member States and is enshrined in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as a fundamental right; it takes its place among the general principles of law whose observance is ensured by the Court of Justice.

23 Consequently the retroactivity provided for in Article 6 (1) of Regulation N o 170/83 cannot be regarded as validating ex post facto national measures which imposed criminal penalties, at the time of the conduct at issue, if those measures were not valid.

24 It follows from the foregoing considerations that Community law regarding fishing did not authorize a Member State, at the time of the adoption of the Sea Fish Order 1982, to prohibit vessels registered in another named Member State from fishing within a coastal zone specified by that order and not covered by conservation measures.

REGINA v KIRK

Costs

25 The costs incurred by the Governments of Denmark and the Netherlands, by the United Kingdom and by 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 pending before the national court, costs are a matter for that court.

Delivered in open court in Luxembourg on 10 July 1984.

D. Louterman A. J. Mackenzie Stuart Administrator President