C-146/89

COMMISSION v UNITED KINGDOM

O P I N I O N OF MR ADVOCATE GENERAL LENZ delivered o n 23 April 1991 *

Mr President, further result that those areas shifted in Members of the Court, accordance with the alteration to the baseline.

A — Facts 4. As we know, the Commission does not consider this justified. It takes the view that for those fishing rights, which are now mentioned in Article 6 of Regulation N o 1. After British fishery limits had already 170/83 establishing a Community system been extended to 12 nautical miles in 1964, for the conservation and management of the defendant in the present case extended fishery resources, ' the baseline in force on the waters under its sovereignty from a the day on which that regulation entered three-mile zone to a 12-mile zone with into force (27 January 1983) is determi- effect from 1 October 1987. native and that subsequent alterations must be regarded as acts which could not properly affect those fishing rights.

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OPINION OF MR LENZ —CASE C-146/89

We extended its fishing limits in certain areas to are now faced with the question whether 12 nautical miles, Article 100(3) provided the C o u r t can in fact uphold the that the existing fishing activities within 12 Commission's application and declare that nautical miles had to be so pursued that by applying in certain areas, for the there was no retrograde change by purposes of the fisheries arrangements fixed comparison with the situation on 31 January for the coastal waters of the United 1971.

7. Article 6(2), however, also provides that Community. If this is accepted, albeit to (in addition to the activities pursued under some extent at the price of maintaining existing neighbourhood relations between existing fishing rights, then there is certainly Member States) the fishing activities under no possibility that the latter can be given a the arrangements established in paragraph restrictive interpretation according to which (1) of that article are to be pursued in adverse changes brought about by the accordance with the arrangements shifting of baselines have to be accepted. contained in Annex I to the regulation, The Commission also stresses that, when the which fixes for each Member State the derogation was continued in Regulation N o

10. If we consider what is to be made of the opposing arguments put forward by the defendant, we arrive at the following indi- vidual conclusions. 13. A distinctive feature of the provisions concerned in the present case, however, is that they establish for certain waters a special regime (consisting of exclusive fishing rights for fishermen from the coastal 11. 1. First of all, it must be State and special fishery rights for a number acknowledged — the Commission also of other Member States). If the baselines accepts this — that, in view of the multi- could be altered, leading to the shifting of plicity of Community regulations involving fishing zones, discriminatory effects would bands of coastal waters of various widths certainly be conceivable, precisely because (three, four, six, 12-mile zones), it must be fishing areas accessible to certain Member assumed that the baselines which determine States prior to an alteration in baselines those zones are in fact ambulatory lines and would thereafter become the exclusive that any alteration to them also has conse- reserve of fishermen from the coastal State. quences for Community law. This is Bearing this in mind (and let us not forget particularly true in the case of Council that the Commission took up this issue Regulation No 3094/86 laying down certain because interested parties in a number of technical measures for the conservation of Member States having special fishing rights fishery resources, 4 on which the defendant in British coastal waters claimed that they placed particular emphasis because it is had incurred serious damage), it is indeed based on Regulation No 170/83 (see Article conceivable to construe relevant provisions 9 of Regulation No 3094/86 which relating to coastal zones extending from prohibits certain fishing methods in the baselines differently than would appear 12-mile zone or the three-mile zone of a appropriate in the case of many other number of Member States). provisions in which baselines also play a part, even where there is no express 4 — OJ 1986 L 288, p. 1. provision.

18. 3. As the Court is aware, the defendant attaches particular significance to a number of considerations based on public inter- 16. Another point which might also be national law. regarded as evident is that, as regards the quite different problem of demarcating the zones with special fishing rights, which stretch like a belt around Great Britain, considerable difficulties would have arisen 19. Its starting point is the connection in demarcating precisely according to between Article 6 of Regulation N o 170/83 latitude and longitude the relevant areas for and Article 100 et seq. of the Act of 22 the various Member States. O n e glance at January 1972 concerning the Conditions of the sea chart submitted to the Court with Accession. It points out that in Article 100 the statement of defence (Annex XVI) of that Act the terms 'waters makes this clear. This is probably why in under . . . sovereignty' and 'baselines' are Annex I (apan from precise lateral limi- used, and that both are determined by

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COMMISSION v UNITED KINGDOM

20. I believe, however, that it can be shown the one hand, and Article 100 of the Act of without great difficulty that those Accession and Regulation No 170/83, on arguments do not shake the Commission's the other, that in such a situation it may not view and that there are indeed a number of be automatically assumed that public inter- weighty considerations which bear out its national law has simply been incorporated correctness and which so far have not been into Community law. Rather, the question

5 — Judgment of 5 February 1963 in Case 26/62 Van Gend en £oe»[1963] ECR 1. 6 — judgment of 8 December 1981 in Joined Cases 180 and 266/80 José Crujeiraí Tome v Procureur de la République 22. While it is certainly desirable that the and Procureur de la République v Anton Yurrita (Fisheries — Rights of non-member countries) [1981] legislature should express its intent as ECR 2997.

24. Viewed in this light, it is indeed 26. It is noteworthy that Article 100(1) of significant (apart from the fact that Article the Act of Accession refers to fishing in the 10 of the London Convention also ¡deludes six-mile zone by vessels 'which . . . tra- a proviso in favour of Community law) that ditionally ... operate from ports in that the relevant Community law in the present geographical coastal area', whereas the case and the rules of public international London Convention (in Article 2) refers to law are governed by quite separate prin- the coastal State's exclusive right to fish in ciples. While the normal position under the the six-mile zone. London Convention is that the coastal States have exclusive fishing rights within a 12-mile zone and fishing rights of other Contracting States in that area are regarded rather as exceptional, the distinguishing feature of Community law in this area is the 27 Furthermore, it may be pointed out that principle that all Member States have equal in the relations between the former Member access to fishing waters and the right of States pursuant to Regulation No 2141/70 coastal States to reserve fishing rights to the principle of equal access to fishing themselves in specific zones (which, waters applied from 1 February 1971 incidentally, first occurred in the Act of onwards and only after its repeal by Article Accession, since the derogation provided for 100 of the Act of Accession were the rules by Article 4 of Regulation N o 2141/70 in force up to 31 January 1971 continued. never came into operation for want of implementing provisions) can be regarded as nothing more than a temporary derogation. This, of course, is of considerable importance for the interpretation of the rules concerned, in the sense that anything 28. It is also worth noting that Article 100 which restricts access to coastal zones, of the Act of Accession refers not only to which must in principle be equal for all fishing rights but also, in paragraph (3), to (including, therefore, special fishing rights 'fishing activities' and that Regulation N o which other Member States already have 170/83 refers only to fishing activities in there), must receive particularly close specified zones without any reference to the scrutiny with reference to Community law, position on 31 January 1971, which was and, conversely, anything which militates in governed by the London Convention. favour of preserving such special rights carries special weight.

33. (cc) I also consider significant the abovementioned rule contained in Article 100(3) of the Act of Accession (even though 31. (aa) Article 100(2) of the Act of it is clear that it is not applicable to the Accession (the provisions of which were in a British measure of 1987 with which we are way to be continued in Regulation No here concerned). Since it was directed that, 170/83, so that it may be assumed that the in the event of a Member State extending its regulation should not at least fall short of fishing limits to 12 nautical miles, existing the standard set by the Act of Accession) fishing activities had to be so pursued 'that refers to special fishing rights which might there [was] no retrograde change by have been enjoyed on 31 January 1971. If comparison with the situation on 31 January that date alone suggests the fixing of a 1971', this can only be understood as strict situation with which ambulatory baselines adherence to the position existing at that and shifting fishing zones are irreconcilable, time. Given that rule, one is bound to agree then it is also clear that if such shifts are that, had those who drafted the Act of permitted, fishing rights may be eroded or Accession considered at the outset that even reduced to rights devoid of substance. ambulatory baselines based on principles of The representative of the French public international law were of funda- Government pointed this out very clearly at mental relevance, they would have the hearing when he referred to the wide considered appropriate a similar standstill variety of fish in various maritime waters provision, such as that contained in Article and to the very different traffic situations in 100(3), for the event that such baselines the different fishing areas (which naturally might be updated (and fishing areas thereby have an effect on fishing activities) and shifted). reminded the Court that in areas situated further from the coast fishing activities are, at least in the case of smaller vessels, influenced by weather conditions and by the distance from safe ports. 34. (dd) In accordance with the dictum that Community legislation must be interpreted in the light of its legal context as well as its subject-matter and purpose (see the judgment of the Court in Case 61/77 Commission v Ireland 7 ), I also consider important the fact that Regulation No 170/83 does not simply refer to the 32. (bb) The same point may be made with situation existing on 31 January 1971, that regard to the term 'fishing activity used in is to say, it does not merely reproduce the Regulation No 170/83, which refers to rules contained in Article 100 of the Act of specific areas with specific resources. This Accession: it specifies the protected fishing activity can in fact easily become relative or activities exactly (according to areas, total inactivity if the fishing areas in question shift as a result of changes to the 7 — Judgment of 16 February 1978 in Case 61/77 Commission baselines and those entitled to fish are of the European Communities v Ireland [1978] ECR 417.

37. 4. If, then, the considerations examined thus far lead us to the conclusion that the interpretation of Regulation N o 170/83 that 35. Thus, the idea of ambulatory baselines the Commission considers correct is to be is indeed difficult to reconcile with the preferred to the defendant's position and, consequence that in places considerable that, therefore, for the purposes of Article changes in fishing activities occur. It would 6(2) regard should be had to the baselines amount to disregard of the principle, existing at the time when the regulation expressed in Article 4 of the regulation, of entered into force, it can also be demon- guaranteeing relative stability of fishing acti- strated that a number of other consider- vities in the Member States and would also ations put forward by the defendant do not entail a danger for the common conser- alter this conclusion. vation policy, because it may be assumed that fishermen from other Member States who lose their traditional fishing areas will switch to other areas (which are generally accessible anyway) and will there risk over- fishing. 38. (a) This is true of the contention that if invariable baselines were accepted with regard to Regulation N o 170/83 whilst ambulatory baselines are permitted in other areas of Community law, that is to say, if two different 12-mile zones wctt accepted, 36. (ee) Finally, some useful guidance on this would confuse the authorities whose interpretation can also be gleaned from the task it is to apply the Community rules and declaration on Annex I to Regulation No might also create practical difficulties in the 170/83 made by the Council and the making of maritime charts. Commission, which states that, so long as the system defined in Article 6(1) remains in force, Annex I may be amended by way of a regulation of the Council, acting on a proposal from the Commission, following a joint application by the Member States 39. I find it difficult to imagine how the existence of different geographical areas of 8 — See lhe eighth recital in the preamble to Regulation No application in relation to different regimes 170/83 and Article 8 thereof. could overstrain the administrative auth-

orities and individuals concerned. Special most important factor, but solely what is charts can be produced for different types required by the meaning and the objectives of purposes without inordinate problems of the Community rules. Besides, it may be and, moreover, it is difficult to see how the assumed that the fact that there were no absence of special Council provisions with Community reactions in the past to the regard to the relationships existing between redrawing of baselines may be explained by such different regimes should create the fact that changes in baselines due solely insoluble difficulties. After all, the to natural changes in low-tide elevations Commission referred in this connection to had no, or at least no appreciable, effects on the Belgian Decree of 28 January 1988, fishing activities. Now, however, evidently which is based upon the Commission's as a result of the extension of territorial position, and this reference cannot simply be waters from three miles to 12 miles, a dismissed on the ground that the decree has change of such magnitude has occurred that little practical effect in view of the charac- complaints have been made to the teristics of the Belgian coast and the Commission about persistent interference negligible alterations made to Belgian with fishing activities and it has therefore maritime charts during the last 10 years. On been decided to examine the problem thor- the contrary, if there is a question of oughly. practical difficulties, then ambulatory baselines would in fact contribute to them, because they would create uncertainties for fishermen, who would be forced to abandon familiar fishing grounds. 42. (c) In so far as the defendant further contends that the view taken by the Commission entails a disadvantage for it (whereas the position today would certainly correspond to its viewpoint had it extended the limit of its territorial waters to 12 miles 40. (b) Nor can any decisive weight be in 1971), this contention likewise cannot attached to the defendant's argument that it lead to a different conclusion, nor the point has made numerous alterations to the that with ambulatory baselines a balancing baseline over many years without of interests could be expected in the long encountering any objections and that since term (because baselines may, of course, shift 1971 fishing zones have also shifted in other in a landward direction). Member States (including France) owing to shifts in baselines.

baselines can have quite a different effect on Member States were contracting parties, but fishing areas. Furthermore, it is difficult to this result was dictated by the fact that the accept that a landward shift of fishing areas Community regulation in question due to natural occurrences (the disap- reproduced the provisions of the pearance of sandbanks) would be the same Convention almost word for word. The in extent as the shift which occurred in the difference in the present case, however, is opposite direction following the extension that the rules of public international law of territorial waters in 1987 and which the governing fishing rights (laid down in the defendant believes to be proper. London Convention and in bilateral agreements) were based on a different principle than the Community law rules and that the straightforward adoption of the conclusions indicated by the agreements drawn up under public international law 44. (d) I also fail to see how the defendant's would not therefore be appropriate. references to the judgments of the Court in Cases 61/77 Commission v Ireland, and 38/77 Enka,10 can be relevant in any way to the present case.

47. (e) Finally, as regards the argument that natural factors (erosion) led to an inward displacement of the baseline and that on 45. In the first of those two judgments, the grounds of public international law this Court did indeed rule that the extension of cannot be without significance for the fishing waters by national measures also demarcation of areas with special fishing affected the scope of Regulation N o rights (because an equal shift in the outer 101/76. But it must be remembered that that limits of the fishing waters is absolutely regulation lays down a common structural necessary), I find this an equally uncon- policy and joint conservation measures, in vincing argument for recognizing ambu- other words, rules on fishing activities latory baselines in the area now concerned. which apply without distinction to all those concerned and under which problems such as those now before us did not arise.

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