C-251/90

2. The United Kingdom legislation provides that fishing licences issued for species subject to quotas may have attached to them certain 3. In the main proceedings, the accused con­ conditions, failure to comply with which tend that the condition at issue is unlawful in constitutes an offence. In particular, as from two respects. March 1989, licences granted to British fish­ ing vessels have included the obligation to contact the relevant ministry by radio when they cross the line of longitude 4° west First, the obligation to make reports involves which separates ICES area IV (North Sea) discrimination based on nationality, in so far from ICES area VI (West of Scotland). as it affects only United Kingdom fishing vessels. That obligation therefore breaches both Article 7 of the Treaty and Article 2 of Original language: Italian. Regulation N o 101/76, the first paragraph of 1 — OJ 1984 L 20, p.19. which specifically provides:

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OPINION OF MR TESAURO — JOINED CASES C-251/90 AND C-252/90

' 1 . Rules applied by each Member State in The second question, on the other hand, respect of fishing in the maritime waters relates to the procedural rule in Article 3 of coming under its sovereignty or within its Regulation N o 101/76. The Court wishes to jurisdiction shall not lead to differences in know whether, pursuant to that provision, treatment of other Member States. the United Kingdom authorities were required to give notice of their intention to incorporate the contested condition in fish- ing licences.

Member States shall ensure in particular equal conditions of access to and use of the fishing grounds situated in the waters 5. In that regard, it should also be noted referred to in the preceding subparagraph for that, after the date of the offence with which all fishing vessels flying the flag of a Member the accused are charged in the main proceed- State and registered in Community territory.' ings, the United Kingdom notified the con- tested measures to the Commission and the Commission, in response, stated that it had no objections thereto.

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WOOD AND OOWIE

N o 101/76, established a Community system the TAC system operates properly, introduce for the conservation and management of a system of fishing licences, which also fishery resources, which imposes a limitation impose on the fisherman concerned the obli- on fishing activity. Article 3 of that regula- gation to comply with certain conditions. tion provides for a total allowable catch (TAC) available to the Community to be fixed each year for each stock or group of stocks where it becomes necessary to limit the catch in the case of a species or group of Such a system of national licences, widely related species. used and partly regulated at Community level (see Council Regulation N o 3483/88 of 7 November 1988 3 ), has been upheld by the Court of Justice, which, in its judgment in Pursuant to Article 4(1) of that regulation, Case 9/89 {Spain v Council [1990] the volume of the catches available to the ECR 1383), stated that 'a licensing system Community is then to be distributed introduced by the Member State of registra- between the Member States, on the basis of tion represents ... one of the methods avail- national quotas, in a manner which assures able to Member States to ensure compliance each Member State relative stability of fish- with catch limitations imposed under the ing activities for each of the stocks consid- Community ... system' for the conservation ered. of fishery resources.

As part of this system of distribution of fish- ery resources on a national basis, Article 5(2) 7. The conditions which may be incorpo- of Regulation N o 170/83 provides that it is rated in fishing licences without any doubt for the Member States to determine, in include control measures, such as the report- accordance with the applicable Community ing obligation to which the present dispute provisions, the detailed rules for utilization relates. Such measures form an integral part of the quotas allocated to them. of the licensing system, in so far as they ensure that it is effective and enforce obser- vance of the quotas allocated.

toring measures which go beyond the scope obligations and that some obligations may of the minimum requirements laid down in prove to be more rigorous than others. the regulation. And it is significant that, in the present proceedings, the parties agree that the reporting obligation at issue is prop- erly described as a monitoring measure within the meaning of Article 15 of Regula- However, such a difference of situations cer- tion N o 2241/87. tainly does not constitute discrimination prohibited by Community law. Indeed, the Court has consistently held that the principle of equal treatment laid down in Article 7 of the Treaty does not apply to possible dispar- 8. It goes without saying that national con- ities of treatment and distortions affecting trol measures that are incorporated in fishing persons and undertakings subject to Com- licences in order to ensure the proper man- munity law as a result of divergences agement of national quotas apply only to between the Uws of the various Member national fishing vessels. States (see the judgments in Case 14/68 Wil- helm [1969] ECR 1, Case 185 to 204/78 Van Dam [1979] ECR 2345, and Pesca Valentia, supra). As the Court pointed out in its judgments in Case 3/87 Agegate [1989] ECR 4459 and Case 216/87 Jaderow [1989] ECR 4509, the Community legislature attaches the national quotas to the fishing vessels flying the flag It should also be observed that possible dif- of, or registered in, a Member State, only ferences between national control measures those vessels being entitled to fish against its likewise do not seem capable of giving rise to quotas. distortion of the conditions applicable to the exercise of fishing activities. Such measures are in fact additional to the Community monitoring system provided for in Regula- It is therefore natural, and in harmony with tion N o 2241/87 and subsequent provisions the logic underlying the system, that each supplementing it. Whilst it is true, therefore, Member State, within the scope of the pow- that certain Member States may adopt ers conferred on it by the relevant Commu- (national) control measures which are stricter nity legislation, should introduce, for the than those laid down by other Member management of its quotas, control measures States, it is also true that all the Member which take the form of specific conditions States are in any event required to apply the included in the fishing licences and which, Community monitoring system within their consequently, apply only to national fishing own territories and in the sea areas subject to vessels. their jurisdiction.

In view of the foregoing considerations, I am of the opinion that no discrimination incom- patible with Community law can be identi- fied in the present case. Whilst Article 2 provides for notification (to the Commission and the Member States) of the national measures already in existence upon entry into force of the regulation, Arti- cle 3 specifically governs the case where, 10. The other questions submitted by the after the entry into force of the regulation, national court relate to three points: the Member States wish to introduce new measures and, for such cases, it states that the Member States are to notify the measures before they are adopted. (a) whether the contested control measure should be notified in advance to the Commission and the other Member States, pursuant to Article 3 of Regulation The logic of Article 3 is clear. It is intended N o 101/76; to allow the Commission (and likewise the other Member States) to check whether the national measures are in conformity with Community law and, if necessary, to take (b) if so, whether failure to notify renders the action before such measures have come into measure in question invalid and inappli- force. In other words, Article 3 envisages a cable; system of prior verification which, in har- mony with the principle of cooperation between the Member States and the Com- munity, is designed to ensure that the Com- mission is not faced with a fait accompli, in (c) and, finally, whether such invalidity can other words with unilateral initiatives be rectified ex post facto by notification already in operation whose disrupting conse- after the measure has entered into force. quences may have already come about and have become irreversible.

ures must be notified in accordance with The national measures introduced on the Article 2(2) of Regulation N o 101/76, with- basis of Regulation N o 2241/87 are only a out referring also to Article 3 of that regula- version of the measures introduced under tion, mean that, as far as that specific cat- Regulation N o 101/76: in both cases, Com- egory of measures is concerned, the munity control pursues exacdy the same Community legislature did not wish to objectives and there is no reason for such require prior notification, thus making it control not to be carried out in accordance possible, by way of derogation from the gen- with the same procedures. eral terms of Article 3 of Regulation N o 101/76, for the Member States to inform the Commission of the measures adopted in that field even after their entry into force? In order to ensure that the system is consis- tent and that Article 15 is fully effective, it is necessary, in my opinion, to go beyond the text of that provision — which, without doubt, is subject to lacunae. It should be read in conjunction not only with Article 12. The United Kingdom contends that that 2 but also with Article 3 of Regulation N o question must be answered in the affirmative. 101/76. This means that the Member States In its opinion, by not referring expressly to are required to notify the measures that they Article 3 of Regulation N o 101/76, Article intend to adopt in advance. 15 of Regulation N o 2241/87 in fact intended to exclude its application.

14. That having been said, I must add, with In those circumstances and having regard to regard to point (b), that both Article 15 of the case-law of the Court (judgments in Case Regulation N o 2241/87 and Article 3 of Reg- 174/84 Bulk Oil [1986] ECR 559, paragraph ulation N o 101/76 merely impose an obliga- 62, and in Case 380/87 Etlichem Base [1989] tion of notification on the Member States. ECR 2491, paragraphs 20 to 23), it is my But those provisions do not impose an view that a failure to comply with the obli- express standstill obligation on Member gation as to notification, although theoreti- States (like that provided for in Article 93(3) cally capable of constituting an infringement of the Treaty, for example) or provide that amenable to proceedings under Article 169, the Commission is to intervene, in the exer- cannot in itself be relied on by the persons cise of specific decision-making powers, concerned to support their contention that either to authorize the measure in question measures not notified in due time are not or to suspend its operation or to declare it applicable to them. The measures in question unlawful (as required by Article 93 of the must be regarded as legally valid and appli- Treaty and by Community regulations cable to the persons to whom they are including, in particular, in the sector with addressed. which we are concerned here, Regulation N o 3094/86 5 referred to by the Commission in The negative answer given to point (b) its observations). makes it unnecessary to consider point (c).

15. In the light of t h e foregoing observations, I propose t h a t the following answer be given t o the national court: