C-370/88

MARSHALL

O P I N I O N OF M R ADVOCATE GENERAL TESAURO delivered on 6 J u n e 1990 *

Mr President, Community law and are in conformity with Members of the Court, the common fisheries policy.

2. Member States shall be authorized to lay 1. These proceedings are concerned with a down any strictly local conditions or reference for a preliminary ruling made detailed arrangements, applying to their under Anicie 177 of the Treaty by the High national fishermen only, designed to limit Court of Justiciary (Scotland) in the catches by technical measures in proceedings pending before that court addition to those defined in the Community between the Procurator Fiscal, Stranraer, regulations, provided that such measures are and Mr Andrew Marshall. compatible with Community law and are in conformity with the common fisheries policy.

2. The legislative background to the proceedings is relatively straightforward. 3. Before adopting any measures referred to in paragraphs 1 and 2, the Member State concerned shall obtain the agreement of the Article 19 of Council Regulation (EEC) No Commission on the finding that the 171/83 of 25 January 1983 laying down measures are in conformity with one or certain technical measures for the conser- other of these paragraphs. vation of fishery resources 1authorizes the Member States to take, within the context of the common fisheries policy, additional The Commission shall take a reasoned national measures designed to secure a more decision within three months of a request balanced exploitation of those resources. being submitted under the terms of the first subparagraph.

4. The facts which gave rise to these proceedings can readily be summarized. '(1) Do the provisions of Article 7 or Article 40(3) of the EEC Treaty, or any other provision of Community law, prevent a Member State from adopting, On 20 September 1986, following an with the prior valid approval of the inspection carried out in waters adjacent to Commission, a measure prohibiting the the coast of Scotland on board a vessel carriage on a fishing vessel registered in belonging to Mr Marshall, a British subject that Member State, while that vessel is resident in Scotland, the latter was charged within an area of the inshore waters of with unlawfully carrying a monofilament that Member State adjacent to a part of gill net in his boat. the coast thereof, of a fishing net of a specified type and construction, the use of which is otherwise not prohibited under Community legislation; and if so, In criminal proceedings against him in the in what circumstances? Sheriff Court at Stranraer, Mr Marshall maintained, inter alia, that the order was unlawful on the ground that it discriminated against Scottish fishermen in comparison (2) (a) Is Article 19 of Council Regulation with other Community fishermen, and (EEC) No 171/83. valid under between Scottish fishermen and other British fishermen operating from ports Community law? outside the waters to which the ban applied.

(b) If so, does a measure such as that Only British fishermen operating from described in Question 1 properly Scottish ports cannot use the type of net at come within the scope of issue even where its use is permitted, Article 19?'

The measure appears to be completely consistent with the line of reasoning followed by the Court in the judgment in However, Mr Marshall, who has not Case 804/79 Commission v United submitted written observations in the course Kingdom, 2to the effect that even though of these proceedings, stated at the hearing power to adopt, as part of the common that he did not seek to contest the validity fisheries policy, measures relating to the of Article 19 but only the validity under conservation of the resources of the sea has Community law of the order of the passed fully and definitively to the Secretary of State for Scotland. Community, it is not entirely impossible for the Member States to amend the existing conservation measures in case of need owing to the development of the relevant biological and technological facts in this In any event, I shall make the following sphere, provided that such amendments are observations of a general tenor in order to of limited scope and do not involve a new answer the question put by the national conservation policy on the part of a court. Member State.

It is also worthwhile observing that in the 7. As we have seen, Article 19 of Regu- same judgment the Court stated that the lation No 171/83 authorizes Member States process of cooperation between Member to take measures for the conservation and States and the Commission in the sector in management of strictly local stocks or to lay question has been confirmed by a practice down conditions or detailed arrangements — of a local nature and applying to national 2 — Judgment in Case 804/79 Commission v United Kingdom fishermen only — designed to limit catches. [1981] ECR 1045, paragraphs 17 and 22.

12. In Question 1 the High Court of Justiciary asks the Court whether the Indeed, as the Court has stated, whilst provisions of Article 7 or Article 40(3) of measures for the conservation of the the EEC Treaty, or any other provision of resources of the sea restrict 'production' in Community law, prevent a Member State the short term, they are aimed precisely at from adopting, with the prior valid approval preventing such 'production' from being of the Commission, a measure of the kind marked by a fall in the future and, in the described above and, if so, in what circum- absence of measures designed to ensure stances. optimum utilization of the factors of production, certain resources of the sea would rapidly become exhausted. 3 13. Before considering the substance of the question, it is necessary in my view to clarify a number of matters relating to the actual nature of the measure in question. 10. As for the argument that the national measures taken may have the effect of subjecting fisherman operating on vessels subject to the jurisdiction of the State in question to more stringent measures than In that connection, it should be pointed out those applying to fishermen operating on that what is involved in this case is in reality vessels subject to the jurisdiction of other a complex process consisting, on the one Member States, it is sufficient to observe hand, of the national measures and, on the that, as the Court has repeatedly stated, the other, of the necessary decision giving the fact that the rules applied by one Member Commission's 'approval'.

14. Having said that, I shall consider the substance of the question submitted to the Court. 16. The Court has also made it clear that different treatment may not be regarded as discrimination prohibited by Article 40(3) of the Treaty unless it appears to be arbitrary, As regards the consistency of the measures or in other words devoid of adequate justifi- in question with Article 7 of the Treaty I cation and not based on objective criteria. 7 consider that I have already dealt with that aspect (see point 10).

particularly affecting fishermen operating on non-discrimination, when they act as British vessels sailing from Scottish ports, 'managers' of the common interest in the can truly be described as discriminatory. context of a common organization of the markets, requires that the restrictive measures adopted should be appropriate for the attainment of the objective sought and It must be borne in mind in fact that the should not exceed what is necessary in order in question constitutes a typical order to attain that objective. ancillary measure adopted in order to ensure that the prohibition on fishing for salmon along the Scottish coasts is complied with. Applying that principle it seems clear that a prohibition of the type laid down in the British order would be completely lawful if It does not appear that doubt has been cast particular fish stocks were under serious in these proceedings on the legality of the threat, if there was no reasonable possibility prohibition on salmon fishing, either as of adopting alternative measures which regards its substance or the area to which it would be equally effective and if the applies. fishermen did not have to make an excessive sacrifice (that is to say, if they did not have a genuine interest in using the particular kind of net at issue). It follows that an ancillary measure, such as the one described, by reason of its very nature — given that it is concerned with inshore waters — affects fishermen sailing 18. Now, even though the request for a from the ports affected by the prohibition preliminary ruling casts but little light on more and indeed, in certain respects, exclu- the question whether those circumstances sively. actually obtain, I consider that I should make the following remarks in the light of the facts which have emerged in the course of the proceedings. Furthermore, any ban restricted to a particular geographical area affects the various economic agents to a different extent depending on their location but, in so In the first place, it appears to be uncon- far as the territorial scope of the measure is tested that owing to its particular objectively justified, the measure cannot be construction the monofilament gill net regarded as discriminatory on that ground. affords a particularly effective means of catching salmon, as witness, moreover, the fact that Ireland, too, which is faced with 17. The problem arising for a measure of similar problems, prohibits the use of that this type is therefore not so much one of type of net for salmon fishing in its waters. discrimination as one of proportionality.

19. As regards the possibility of ensuring that the ban on salmon fishing is complied with simply by stepping up checks and thus without prohibiting the carriage of the nets in question, it must be borne in mind that 22. However, it is clear that should the the Scottish coastline — which is moreover national court find that different circum- thinly populated — is so extensive that it is stances or new factors exist compared with difficult in practice to check that a vessel those set out above, it could refer the carrying such a net does not subsequently question back to the Court of Justice; use it for unlawful purposes. indeed, given that the measures adopted pursuant to Article 19 of Regulation No 171/83 are supported by a Commission decision holding that they are compatible with Community law, I take the view that in Moreover, there has been a ban on salmon any event the national court could not fishing in Scottish inshore waters using refrain from applying them without the monofilament gill nets for decades but, prior intervention of the Court of Justice. according to the United Kingdom, it was sparsely complied with before the adoption in 1986 of the contested ban on the carriage of such nets.

In that connection I would observe in the Lastly, as regards the claim that the decision first place that the measure in question, by which the Commission authorized the when placed in the wider context of the Community, undoubtedly acquires a local adoption of the measure is insufficiently character despite the extent of the waters reasoned, I would merely point out that in concerned. view of the nature of that decision — in practice a simple check that the conditions laid down in Article 19 are fulfilled — even a brief statement of reasons, such as that set Furthermore, the scope of the measure as out in the decision in this case, may be regards British vessels does not seem to me regarded as sufficient.

25. In the light of the considerations set out above, I therefore propose that the Court should answer the questions put by the High Court of Justiciary as follows:

'(1) Consideration of the question submitted to the Court has disclosed no factor of such a kind as to cast doubt on the validity of Article 19 of Council Regu- lation (EEC) No 171/83.

(2) Community law, in particular Article 7 and Article 40(3) of the EEC Treaty, does not prevent a Member State from adopting, with the prior valid approval of the Commission, a measure prohibiting the carriage on a fishing vessel registered in that Member State, while that vessel is within an area of the inshore waters of that Member State adjacent to a part of the coast thereof, of a fishing net of a specified type and construction, the use of which is otherwise not prohibited under Community legislation, provided that, as it appears in this case in the light of the facts available to the Court, that measure appears appropriate for the attainment of the objective sought and does not exceed what is necessary in order to attain that objective.