C-9/89

Mr President, of fishing activities for each of the stocks Members of the Court, considered'. Article 5(2) provides that 'Member States shall determine, in accordance with the applicable Community provisions, the detailed rules for the utiliz­ 1. The Kingdom of Spain has applied to the ation of the quotas allocated to them'. Each Court for a declaration that Council Regu­ Member State is free to allocate its quotas lation (EEC) No 3483/88 of 7 November by whatever methods it considers to be most 1988 amending Regulation (EEC) No suitable, provided that the criteria used 2241/87 establishing certain control comply with Community law. Those measures for fishing activities is void. ' methods include the system of granting licences to certain vessels, as is the case, for instance, in both the United Kingdom and Spain, but that is a matter to which I shall 2. The object of that regulation is to have occasion to return. Fish caught by remedy certain difficulties which Member those vessels are charged against the quota States have experienced in monitoring of the Member State of registration, irres­ fishing quotas. Before I consider the main pective of the place of landing. In this way, provisions of that regulation and the amounts by which quotas are exceeded are grounds of the application, it is necessary to deducted from subsequent quotas allocated recall the main features of the common to that State. It is thus necessary for the fisheries policy. latter to have rapid and accurate infor­ mation on the amounts of fish caught by vessels flying its flag, in order that it may be able to suspend fishing in good time and avoid exceeding its quota. 3. The Community system for the conser­ vation and management of fishery resources was established under Regulation (EEC) No 2 170/83. Article 3 of that regulation provides for the annual fixing of the total allowable catch (TAC) available to the 4. Compliance with that obligation, Community for each stock or group of however, is made more difficult by the stocks where it becomes necessary to limit possibility that the vessels in question may the catch in the case of one species or a land their catches in any Community port group of related species. Under Article 4(1), whatever. Such a possibility derives from 'the volume of the catches available to the Article 6(1) and Article 7 of Regulation No Community . .. shall be distributed between 3 2241/87. Although the Court, in its recent the Member States in a manner which 4 decision in Jaderow, accepted that national assures each Member State relative stability

rules on quota management which func 7. Article 9a, as added by the contested tioned through the granting of licences regulation, obliges the Member State of could require recipient vessels to operate landing, at the request of the Member State from national ports and that the methods of registration, to provide information on for proving compliance with that fish landed in its ports by vessels flying the requirement might include the landing of flag of the Member State of registration. specific proportions of catches in those The Kingdom of Spain has two objections ports, it nevertheless required that in this regard — first, that such an obli gation entails considerable expense for the Member State of landing and, secondly, that each individual Member State ought to 'the frequency with which the vessel is be responsible alone for the supervision of required to be present in those ports does its own quotas. not impose, directly or indirectly, an obli gation to land the vessel's catches in

In 5. In response to calls from several Member its judgment in Howe & Bainbridge, the States who were experiencing difficulties in Court stated that monitoring how their quotas were being used, the Community institutions decided to 'although difficulties caused by the remedy the situation by adopting the regu application of a Community provision may lation in dispute. The latter adds five new be relevant to its interpretation, they are not articles to Regulation No 2241/87 in order of such a nature as to call its validity in

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9. In that regard, one may ask first whether landed. As the responsible authorities of the that article really does create a new Member State of landing therefore already requirement or, more precisely, whether it possess the information requested, the entails significant additional expense for the additional expense which Spain alleges, even Member State of landing. Article 9(1) of if the Court should consider it at all Regulation No 2241/87 in fact already relevant, would appear in any case to be requires Member States to ensure that all negligible. landings by fishing vessels flying the flag of a Member State are recorded, where such landings relate to stocks or groups of stocks subject to TACs or quotas. In addition, Article 9(2) requires each Member State to notify the Commission, before the 15th of each month, of the quantities of each stock

Article 9(3) provides that vessels flying its flag and also to dissuade 'The Commission shall inform Member skippers of such vessels from providing the States of the notifications competent authorities of that State with received . . . within 10 days of the date on false information. It is difficult to imagine which it received them'. any system which might enable those objectives, which, after all, are perfectly legal, to be met in a more satisfactory manner. That the expense of collating such information falls in practice more heavily on the Kingdom of Spain than on other Member States is due solely to the fact that

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14. "With regard to the first complaint, the Commission points out that Article 1(1) of and concluded that

9 — See paragraphs 40 to 43 below. 10 — Paragraph 24 of the judgment.

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justified only if they are suitable and nothing, apart from infringement of the necessary for attaining the aim of the principle of equality, which prevents the quotas'. " Community legislature from recognizing the existence of, and according a degree of recognition to, national rules or legislative 16. It is therefore beyond dispute that a provisions which in its view are the most licensing system forms part of the provisions suitable for bringing about the objectives of 'in force concerning conservation and the Treaty. Community law must be able to control measures' referred to in Article 1 of draw inspiration from those systems of Regulation No 2241/87. If such a system is national law which appear to be the most one of the measures applicable under the effective in terms of technique.

17. Of course, there is nothing to prevent the majority of Member States, including the Council from laying down such a Spain, have chosen the licensing system for provision for cooperation in respect of managing their quotas and that the systems of quota management other than applicant Member State has failed to show that based on licences. That, however, has how the disputed provision infringes the not been done. Among the various systems principle of equality. for managing quotas which might have been envisaged, the licensing system alone was taken into account by the Community legis lature, since the disputed Article 11a 19. The second complaint based on the provides that a Member State which has transfer to a Member State of the costs connected with a system set up by another instituted such a system for managing its Member State also rests on the principle, quotas may inform the Commission and the the existence of which is affirmed by the other Member States of the identity of applicant Member State, that each Member licensed vessels and of the withdrawal or State ought to be responsible only for the suspension of licences, in which case the monitoring of its own vessels. That is a

20. Article lib , as added to Regulation No 18. The question, however, is not without 2241/87, allows the Member State of regis­ significance. We enter at this point into the tration to require a fishing vessel flying its

11 — Paragraph 25 of the judgment. 12 — Sec paragraphs 40 to 43 below.

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flag, which has failed to comply with rules 'the extensive powers, in particular of a concerning conservation or fishery control sectoral and regional nature, granted to the measures, to retain on board, when landing Community institutions in the conduct of catches in a port or transhipping in the the common agricultural policy must, in any maritime waters of another Member State, a event as from the end of the transitional document certified by the Member State of period, be exercised from the perspective of registration and stating that the latter has the unity of the market to the exclusion of inspected the vessel within the preceding any measure compromising the abolition two months. That measure remains in force between Member States of customs duties for one year from the recording of the and quantitative restrictions or charges or 15 infringement. measures having equivalent effect'.

21. The applicant Member State directs only one complaint against that provision, 23. In its judgment in Denkavit Nederland namely, that it amounts to a measure having BV v Hoofdproduktschap voor Akkerbouw- an effect equivalent to quantitative 16 produkten, the Court applied that doctrine restrictions on exports, as prohibited under to the specific case of Article 34 in order to Article 34 of the EEC Treaty. During the determine whether Commission Regulation oral procedure, the representative of the 17 (EEC) No 1725/79, which introduced a Spanish Government pointed out that system of administrative control for bulk Community measures taken pursuant to the exports of compound feedingstuffs which common fisheries policy may not derogate differed slightly from that applicable to the from Article 34. domestic marketing of such feedingstuffs, was compatible with that article.

14 — Judgment of 20 April 1978 in Joined Cases 80/77 and 18 — At p. 7 of the French translation. 81/77 [1978] ECR 927. 19 — OJ, English Special Edition 1968 (I), p. 165.

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20 exports, it is exceedingly weak and, in particular, is not specific because the disputed provision derived from a general system of administrative monitoring of compliance with Community obligations in 26. It seems to me therefore that there are respect of fishing. three constituent elements in the type of measure prohibited under Article 34 of the Treaty: first, the existence of a specific restrictive effect on patterns of export; 28. Secondly, while the measure would secondly, a difference in treatment between appear to introduce a difference in a Member State's domestic trade and its treatment between domestic trade within export trade; thirdly, the requirement that Member States and their export trade, the measure is intended specifically to place inasmuch as a vessel which regularly lands domestic production or the domestic market its catches only in ports of the Member at an advantage. State of registration cannot be required to undergo periodic inspections, such a difference in treatment is more apparent than real, when one considers the fact that

3409 paragraph 7, of 14 July 1981 in Case 155/80 OerW [ l98l ] ECR 1993, paragraph 15, of 1 April 1982 in Joined Cases 141 io 143/81 Holdijk [\9S2] ECR 1299, of 15 December 1982 in Case 286 /81 Oosthoek's uitgeversmaatschappij 286/ [1982] ECR 4575, paragraph 13, of 10 March 1983 in Case 172 /82 Syndicat national des fabrican i raffineitrs d'bittle de

1984] effect of securing a particular advantage for 4277, paragraph 20 the domestic market of a Member State.

33. I shall leave to the end my examination of the first and third complaints, which are 31. Finally, the application criticizes Article merely the transposition to the area covered lie which was added by the disputed regu­ by Article lie of criticisms previously lation to Regulation No 2241/87. That directed at the other provisions of the provision requires the competent authorities contested regulation and which are all based of the Member State of landing to take on the refusal to recognize any obligation against the master of the vessel concerned, on the part of the Member State of landing or against any other responsible person who to cooperate in control measures directed at has infringed the third subparagraph of vessels from another Member State. Article 11(3), Article 11a or lib , penal or administrative action such as is likely to deprive them of the economic benefit of the infringement. The prosecution of such an 34. As I have already stated, the second infringement may be transferred to the complaint concerns the traditional limits on competent authorities of the Member State the jurisdiction of States in criminal matters. of registration, if the latter so agree, The specific problem here is how to provided that such transfer is more likely to determine what constitutes exceeding a secure the intended result. If the Member quota for the purposes of the third State of landing should fail to act in this subparagraph of Article 11(3) of Regulation regard, the illegal landings may be counted No 2241/87. According to the wording of against its own quota. that provision, fishing vessels must cease fishing once the quota has been exhausted; they must also cease retention on board, 32. The Kingdom of Spain challenges this transhipment or landing of catches taken provision in four respects. First, it claims after the date of cessation of fishing. Thus, that it imposes additional duties on the once a Member State has announced that Member State of landing, which should fishing is to cease, infringement of only be required to monitor vessels flying its Community rules may equally well result own flag. Secondly, it is at variance with the from the catching, retention on board, normal rules in criminal matters which limit transhipment or landing of fish. a State's jurisdiction to its territorial waters. Thirdly, it infringes the principle of propor­ tionality in so far as the counting of illegal landings against the quota of the Member 35. Some of those operations take place State of landing is detrimental to the outside territorial waters. There are, interests of fishermen from that State and however, two factors which convince me burdens that State with the effects of the that the complaint ought to be dismissed. negligent failure on the part of another Member State in its duty to monitor its own vessels. Finally, the penalty which such a charge represents infringes the principle of 36. In the first place, the very principle of the right to a judicial remedy. Instead of the primacy of Community law precludes a recourse being had to the procedure under Member State from pleading provisions of Articles 169 and 170 of the EEC Treaty, all its national law, even its criminal law, in

38. I would refer at this point to the United Nations Convention on the Law of the Sea which, even if it has not yet come into force, reflects international legal opinion on 'The effectiveness of Community law the subject, since, in the words of the Inter cannot vary according to the various national Court of Justice, 'the rules of inter branches of national law which it may national maritime law have been the product 21 affect'. of mutual accommodation, reasonableness 23 and cooperation'. Under Article 61(1) of the Convention, 'the coastal State . . . shall ensure through proper conservation and management measures that the maintenance The primacy of Community law thus of the living resources in the exclusive renders such an argument inoperative. It economic zone is not endangered by over- should also be noted that the freedom of exploitation. As appropriate, the coastal Member States with regard to criminal State and competent international organiz

25 arrest and judicial proceedings, as may be necessary to ensure compliance with the 37. Secondly, it seems that the legality of laws and regulations adopted by it in the regulation may only be questioned in conformity with this Convention'. the light of the rules of public international According to Article 57: 'the exclusive law. Such an argument was not put forward economic zone shall not extend beyond 200 expressly by the Kingdom of Spain, nautical miles from the baselines from which although it is apparently referring to rules the breadth of the territorial sea is

law. For that reason it is necessary to 23 — Judgment of 25 July 1974 Federal Republic of Germany v 1974,, p Iceland fisheries jurisdiction case, Recueil dei arrets 1974 21 — Judgment of 21 March 1972 in Case 82/71 Pubblico 175, paragraph 45 Minulem della Repubblica nahana v SAIL í 1972] ECR 119, paragraph 5; see also, generally, D Maidani and I. Bian- 24 — My emphasis. carclli: 'L'incidence du droit communautaire sur le droit 25 — My emphasis. pénal des Etats membres', Revue de science criminelle et de 26 — For the French text of the Convention, see R. J. Dupuy droit penal compare 1984 No 2, p. 225, and No 3, p. 455. and D. Vignes: 'Traite du nouveau droit de la mer', 22 — Written observations, at p. 10 of the French translation. Economica, Bruylant, 1985.

with regard to the high seas is that 'where 40. However, this analysis stems merely the same stock or stocks of associated from my desire to be comprehensive, since it species occur both within the exclusive should not be forgotten that such a economic zone and in an area beyond and submission was not expressly made by the adjacent to the zone, the coastal State and applicant Member State, and, to reiterate, the States fishing for such stocks in the the principle of the primacy of Community adjacent area shall seek, either directly or law should by itself lead the Court to through appropriate subregional or regional dismiss the complaint. 27 organizations, to agree upon the measures necessary for the conservation of these 28 stocks in the adjacent area'. Furthermore, the Community has acceded to two conventions on future multilateral fisheries 41. The fourth complaint, relating to the 29 cooperation in the North Atlantic, which procedure whereby illegal catches are point out that the coastal States concerned counted against the quota of the Member 'have, in accordance with relevant principles State of landing, appears to me to lack any of international law, extended their juris­ relevance. I do not believe that the Court diction over the living resources of their need take a position on the question which adjacent waters to limits of up to 200 divided the parties as to whether that system nautical miles from the baselines from which of attribution amounts to a penalty against the breadth of the territorial sea is the Member State of landing. Whatever may measured'. The Convention dealing with the be the legal nature of such a measure, the North-West Atlantic entered into force on 1 basic criticism levelled by the applicant January 1979, while that relating to the Member State actually refers to the North-East Atlantic became operative on 17 principle of the right to a judicial remedy, March 1982. since the application draws a comparison between the procedure under Article lie of the contested regulation, a procedure which is strictly 'administrative' and that under Articles 169 and 170 of the EEC Treaty which also involve the bringing of 39. I do not therefore believe that the juris­ proceedings before the Court. On that diction of the Kingdom of Spain to ensure point, however, all that is required is to conservation of fishery resources is limited hold that nothing precludes the Member to its territorial waters, as it contends. On State in question from bringing an action the contrary, the United Nations under Article 173 of the EEC Treaty for the Convention expressly makes possible annulment of the Commission decision. cooperative measures, in relation to fishing There has therefore been no infringement of within the exclusive economic zone and the right to a judicial remedy. even on the high seas, between States which belong to a regional organization, such as the European Economic Community.

involve undue expense, and secondly, overcome those difficulties by taking the because the counting against its quotas of appropriate measures'. illegal catches in respect of which no proceedings have been brought represents a disproportionate sanction. As I have already pointed out on several occasions, the Kingdom of Spain believes that there is a 44. Each Member State of registration is principle of Community law to the effect thus required to monitor catches and conse that each Member State must monitor and quently to obtain as quickly as possible all penalize only those vessels flying its own information necessary for that purpose.

additional control measure contained in Article lib . 43. Since the common fisheries policy may not create exemptions from the other types of freedom guaranteed under the EEC Treaty, the system whereby exploitation of 45. Let me make the point once again that marine resources is allocated by way of this will not be possible without the national quotas cannot obstruct freedom of cooperation of the Member State of establishment or free movement of workers landing. The supposed principle that each and goods. The result, which the Court Member State ought only to monitor its

It is therefore entirely logical for Article 1 of Regulation No 2241/87 to impose an obli gation on all Member States to ensure compliance with the regulations adopted in 'it is for the Member States, which are order to achieve the aims of the common required to implement Community rules fisheries policy. Furthermore, what we have under the common organization of the here is merely the application to the markets in the area of fishery products, to 31 — Judgment of 2 February 1989 in Case 262/87 [1989] ECR 30 — Case 216/87, cued above. 225 (summary publication), paragraph 15.

32 — Judgment of 29 June 1978 in Case 77/77 BP\ Commission 33 — Case 15/83 Denkavit Nederland, cited above, paragraph 25 [1978] ECR 1513, paragraph 15. of the judgment.

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