C-44/94

O P I N I O N O F MR T E S A U R O — CASE C-44/94

OPINION OF ADVOCATE GENERAL TESAURO delivered on 10 May 1995 *

1. The questions referred to the Court for a icy, 3 Articles 6, 34, 39 and 40(3) of the EC preliminary ruling in these proceedings con- Treaty and some of the general principles of cern the compatibility with Community law Community law. 4 of the Sea Fish Licensing (Time at Sea) (Prin- ciples) Order 1993 (hereinafter 'the O r d e r ' ) , J which regulates the number of days a year that United Kingdom fishing vessels over 10 metres in length can spend at sea. As is apparent from the order for refer- Framework of Community and national ence, for the period from 1 January 1993 to law 31 December 1996, the number of days a year that those vessels are authorized in accordance with the Order to spend at sea is limited to the number of days they spent at sea in 1991. 2. It is appropriate to give a brief summary of the provisions of both national and Com- munity law which form the background to the questions, and also the specific objectives pursued by the ample body of Community legislation in the fisheries sector.

The applicants in the main proceedings, who represent almost all United Kingdom opera- tors in the sea-fishing sector (hereinafter 'the applicants'), challenged the Order in the High Court of Justice, claiming that it was The chief objective of Community policy incompatible with certain provisions of with regard to fisheries is the protection and Community law. In particular, the applicants development of the many economic activities asserted that the Order infringed Commis- connected therewith. That object must, how- sion Decision 92/593/EEC of 21 December ever, constantly be modified by the equally 1992 2 (hereinafter 'the decision'), the regula- imperative need for proper protection of the tions establishing the common fisheries pol-

marine environment and thus for rational aquaculture sector. 7 It is in fact the frame- management of fish stocks. That is why, ever work regulation, in force when the national since a separate Community policy was cre- measure at issue was adopted, establishing a ated for fisheries as distinct from agricul- system of Community financial aid to Mem- ture, 5 the relevant Community legislation ber States to facilitate structural change in has been developed in the knowledge that the fisheries sector. In accordance with that there is an imbalance between fishing capac- regulation, the States wishing to receive the ity and available resources. While on the one aid are required to forward to the Commis- hand the common organization of the mar- sion a 'multiannual guidance programme' ket in fish products was established, with the (hereinafter 'MAGP'), indicating the specific narrower aim of ensuring the free movement measures which they propose to adopt. and marketing of products in that sector, on the other a body of laws intended to pre- serve all available resources was gradually introduced and developed. 6 The object was not only to protect the environment but also to ensure the survival of fishing as a produc- tive economic sector. That is still, therefore, the point of view from which the relevant Community provisions should be inter- preted, especially those governing the present case.

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the conditions laid down in the regulation measures by which to restrict fishing effort and may, therefore, constitute a framework to bring it in line with a balanced exploita- for Community (and national) financial tion of fishery resources', specifying that the assistance to the sector in question. Aid is measures referred to are to combine a reduc- then granted in accordance with Articles tion in the capacity of the fleets and an 40 to 48 of the regulation. The decision con- adjustment of their activity. stitutes the measure whereby the Commis- sion approved the United Kingdom's third M A G P for the period 1993-1996.

6. Finally, for the sake of completeness, Article l(l)(d) of the regulation, as amended, mention must be made of Council Regu- provides therefore that Community financial lation N o 3699/93 10 which came into force aid may be granted inter alia in respect of on 1 January 1994 and is therefore not appli- measures for 'the adjustment of fishing effort cable to the facts of the case. That regulation, by the temporary or permanent withdrawal which made considerable changes to the of certain vessels from fishing activities'. rules previously in force, expressly requires Consistently with that approach, Article l a provides that 'The Member States shall adopt 9 — See above, footnote 3. 10 — Council Regulation (EC) No 3699/93 of 21 December 1993 laying down the criteria and arrangements regarding 8 — Council Regulation (EEC) No 3946/92 of 19 December Community structural assistance in the fisheries and aquac- 1992 amending for the third time Regulation (EEC) No ulture sector and the processing and marketing of its prod- 4028/86 (OJ 1992 L 401, p. 1). ucts (OJ 1993 L 346, p. 1).

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8. The ninth recital in the preamble to the decision, the annex to which contains a list detailing the objectives of the third MAGP, stresses the fundamental need for 'significant 7. To date the United Kingdom has submit- reductions' in fishing effort 'in particular ted three MAGPs; the first was in essence segments of that fleet where an imbalance

11 — Council Decision 94/15/EC of 20 December 1993 relating to the objectives and detailed rules for restructuring the 12 — OJ 1988 L 67, p. 22. Community fisheries sector over the period 1 January 13 — Initially the third MAGP covered the year 1992 as well, but 1994 to 31 December 1996 with a view to achieving a last- because the information required for approval was not sup- ing balance between the resources and their exploitation plied, the Commission fixed a transitional programme con- (OJ 1994 L 10, p. 20). tained in Decision 92/363/EEC (OJ 1992 L 193, p. 25).

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(between effort and resources) is most appar- laws and administrative provisions accepted ent (...)'. Article 2 then imposes overall by the Commission and techniques approved reductions in fishing effort for the various by the Commission'. 1 4 groups of fish species in the following per- centages:

9. The Order in dispute was adopted in pur- — 2 0 % for segments practising bottom suance of the overall objective set by the trawling in teams or using an otter trawl third MAGP and approved by the Commis- and fishing for demersal stocks, sion. As I have mentioned, the Order pro- vides that the grant or renewal of fishing licences for United Kingdom fishing vessels is to be subject to the condition that the holder of the licence should, in each of the years 1993 to 1996, spend the same number of days at sea as in 1991 (in exceptional cases, — 15% for dredgers and beam trawlers for as in 1988). The Order provides that the benthic stocks, number of days allocated may be increased on account of exceptional circumstances (fishing of species not subject to quotas, non-fishing activity, investments made in good faith and others).

(a) the nature of the stock fished for by United Kingdom fishing vessels, in particular whether or not the stock is (l)(a) whether the decision enables and/or subject to total allowable catches, authorizes the United Kingdom to adopt measures such as that contained in the Order; and

(b) the extent to which the Order will affect the whole fisheries sector and (b) whether the decision excludes the possibility of using technical conser- vation measures in order to achieve the same objective;

(c) any derogations made in future by the competent minister for particular sec- tors. (2) whether the answer to Question 1 is affected by the fact that the United King- dom did not reduce the capacity of its fishing fleet in accordance with the provi- sions of its second MAGP;

During the proceedings, the United King- dom unilaterally decided to suspend the (3) whether, in any event, measures of the implementation of the disputed measure kind adopted in the Order are contrary to pending a ruling from the Court.

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Furthermore, it is not apparent from any 13. In the second part of the first question, official document that the Commission has the national court asks whether the decision approved the technical measures, as required excludes the possibility of using technical by the decision. O n the contrary, the corre- measures (that is to say, essentially changes spondence between the United Kingdom and

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R v MINISTER OF AGRICULTURE, FISHERIES AND FOOD, EX PARTE FISHERMEN'S ORGANIZATIONS AND OTHERS

the Commission during 1994 (annexed to the The applicants' argument is based on the pleadings at the applicants' request) would assumption, challenged by the United King- seem rather to reflect the misgivings of the dom and by the Commission, that the sec- Commissioner responsible for fisheries pol- ond MAGP contained legally binding obli- icy as to the ability of those measures at the gations, in view of the fact that the objectives time to bring about an actual reduction in provided for therein had been approved and the fishing effort of the United Kingdom formally set out in Commission Decision fleet. 15 88/141/EEC, cited above.

16. I am not inclined to endorse that argu- Question 2 ment, which in my view is incompatible with a correct interpretation of the rules establish- ing MAGPs and their development.

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17. It was not until after the material events Question 3 occurred that the rules were amended, in particular by Regulation N o 3699/93, according to which each Member State is henceforth absolutely bound by law to pro- vide for structural action in the fisheries sec- tor and thus to draw up a M A G P consistent with Community requirements, and to com- 18. In its third question, the High Court is ply with the objectives specified therein. asking the Court to give a ruling on the Council Decision 94/15/EC is an example of interpretation of certain provisions and prin- the implementation of those obligations in ciples of Community law, in order to assess respect of the period 1993 to 1996. whether they preclude the application of national measures such as the one at issue.

19. A point to note in passing is that if the applicants' allegations were well founded, and the Order in question were incompatible with Community law, doubts might arise concerning the validity of the decision itself All that goes to show, should there be any since, as we have seen, it expressly autho- need to do so, that the United Kingdom's rized the United Kingdom to adopt the dis- breach of its undertakings in the second puted measure. MAGP, which was governed by the previous system of rules, could not give rise to any consequence other than suspension of the financial assistance previously granted by the Commission.

Let me say at once, however, that in my view the United Kingdom Order is compatible with all the Community provisions and prin- ciples relied on by the applicants.

In that connection, to begin with, Article 10 of Regulation N o 3760/92 expressly authorizes the Member States to take mea- sures for the conservation and management of fish stocks which are more stringent than those provided for under the Community rules, provided that such measures apply solely to fishermen from the Member State concerned and are compatible with the 22. Still on the subject of equal treatment, objectives pursued under the system. the applicants claim, in addition, that the Order is contrary to Article 40(3) of the Treaty, which prohibits discrimination between producers and consumers within the Community in the fishing sector; in then- view, the Order applies to all fishing vessels over 10 metres in length and does not make special provision for those fishing for species not subject to catch quotas, nor does it dis- Furthermore, the Court has already tinguish between the various fishing methods expressly held, precisely with reference to used by each vessel. fishing policy, that Article 7 of the EEC Treaty (now Article 6 of the EC Treaty) 'does not apply to any disparities in treat- ment or distortions which may result for persons and undertakings subject to the jurisdiction of the Community from the application by a Member State of measures that are stricter than those applied in the same sphere by other Member States'. 17 O n this point, I can endorse the arguments of the Commission, which, when pointing 16 — Council Reguladon (EEC) No 101/76 of 19 January out that the decision requires a minimum 1976 laying down a common structural policy for the fish- ing industry (OJ 1976 L 20, p. 19). 17 — Judgment in Joined Cases C-251/90 and C-252/90 Wood andCowie [1992] ECR 1-2873, paragraph 19; but see the earlier judgment in Joined Cases 185/78 to 204/78 Van 18 — Judgment in Wood and Cowie, cited above, paragraphs Dam [1979] ECR 2345, paragraph 10. 16 to 18.

23. According to the applicants, the Order also constitutes a measure having equivalent effect to a quantitative restriction on exports, which is prohibited by Article 34 of the E C Treaty. In support of their argument, the applicants refer to a number of affidavits in which rep- resentatives of the sector have stated that implementation of the Order will lead to a series of deleterious consequences for fishing activity in the United Kingdom and in the That assertion seems to me to be devoid of entire Community market. The effects will substance, since it is settled case-law that be particularly marked on the financial sta- Article 34 of the Treaty applies only to bility of the fish market as a whole and the national measures which have as their spe- industry connected with it, on the prices of cific object or effect the restriction of exports fish products, on the particular needs of in such a way as to provide an advantage for those operating in the sector and of the national production or the domestic mar- regions most dependent on fishing, on the ket. 19 That is certainly not the case as rational organization of fishing activity, on regards the disputed measure which, on the the development of fishing in areas furthest contrary, applies to all fishing vessels alike from ports, on the development of juvenile without distinguishing those which sell their fish stocks, on the correct use of the fishing quotas allocated to the United Kingdom, on the ability of the producers' organizations to manage the quota scheme, on security of 19 — Judgment in Case 15/79 Groenveld v Produktschal voor Vee en Vlees [1979] ECR 3409, paragraph 7; but as regards supplies and generally on the proper work- fisheries see also the judgment in Case C-9/89 Spain v ing of the Community system. Council [1990] ECR 1-1383, paragraph 21.

27. As regards the alleged infringement of the right to property and of the right to pur- 26. Moreover, this reasoning constitutes the sue a trade or profession, which form part of basis of the relevant Community case-law. the fundamental rights the observance of First, the Court has stressed the wide powers which is ensured by the Court, 23 it is suffi- of assessment conferred on the Community cient here to note that the applicants them- institutions in achieving, coordinating and selves have acknowledged that it is settled harmonizing the objectives of the common case-law that those rights are not absolute, agricultural policy (and therefore of fisheries but may be restricted in conformity with as well), making it clear that it is lawful to objectives of general interest pursued by the allow one, rather than another, of those Community, provided that such restrictions objectives the temporary priority required do not constitute 'a disproportionate and by economic conditions. 21 intolerable' interference which infringes upon the very substance of the rights guar- anteed. 24 In my view, it is clear that the 20 — See the 1991 Commission Report to the Council and the European Parliament on the common fisheries policy (SEC(91)2288, of 18 December 1991). Particularly notewor- thy are the dau on fish stock mortality and the fishing industry's excess capacity compared with available 22 — Judgment in Case 46/86 Romkes v Officier van Justine resources, as well as the observations on and proposals for [1987] ECR 2671, paragraph 22. revision of the system for a more rational use of resources. 23 — Judgment in Case 44/79 Hauer v Land Rheinland-Pfalz 21 — Judgment in Case 5/73 Balkan-lmport-Export v Hauptzol- [1979] ECR 3727. Umt Berlin-Packhof [1973] ECR 1091, paragraphs 24 and 24 — Judgment in Case 265/87 Schröder v Hauptzollamt Gronau 27. [1989] ECR 2237.

O n this point, however, it will suffice to bear 30. Ultimately, the conclusion must be in mind that, as the Court has consistently drawn that all the arguments put forward by held, in matters concerning the common the applicants would appear to be based on fisheries policy the Community legislature the inappropriateness of the Order in the has a discretionary power which corresponds light of the possibility that other, less oner- to the responsibilities entrusted to it by Arti- ous measures could have been adopted, cles 39 and 40 of the Treaty, and the legality rather than on the actual incompatibility of of a measure can be affected only if the the Order with the relevant provisions of measure is 'manifestly inappropriate' having Community law. However, any verification regard to its objective. 2b of that premise, like any consideration of the economic consequences of a national meas- ure which is not incompatible with Commu- 25 — See, for example, the judgment in Case C-331/88 R v Min- nity law, is plainly outside the jurisdiction of ister for Agriculture, Fisheries and Food, ex parte Fedesa the Court and falls, where necessary, exclus- [1990] ECR 1-4023, paragraph 13. 26 — Most recently, the judgment in Joined Cases C-133/93, ively within the political responsibility of the C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR national legislature. 1-4863, paragraph 42.

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(1) C o m m i s s i o n D e c i s i o n 9 2 / 5 9 3 / E E C of 21 D e c e m b e r 1992 o n a m u l t i a n n u a l guidance p r o g r a m m e for the fishing fleet of the U n i t e d K i n g d o m for t h e p e r i o d 1993 t o 1996 p u r s u a n t t o C o u n c i l Regulation ( E E C ) N o 4 0 2 8 / 8 6 m u s t b e interpreted as m e a n i n g that, w i t h o u t excluding the possibility of a d o p t i n g o t h e r measures, it a u t h o r i z e s the U n i t e d K i n g d o m t o i n t r o d u c e m e a s u r e s t h e effect of w h i c h is t o Umit t h e n u m b e r of days a y e a r t h a t U n i t e d K i n g d o m fishing vessels s p e n d at sea t o t h e n u m b e r of d a y s t h e y spent at sea in 1991, regardless of t h e fact t h a t t h e U n i t e d K i n g d o m m i g h t n o t have fulfilled its obligations u n d e r the m u l t i a n n u a l guidance p r o g r a m m e for t h e p e r i o d 1987 t o 1991.

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(2) Articles 6, 34, 39 and 40(3) of the EC Treaty, Article 2 of Council Regulation (EEC) N o 101/76, Council Regulations (EEC) N o 3760/92 and N o 3759/92, the right to property, the right to pursue a trade or profession and the princi- ple of proportionality must be interpreted as not precluding the application of a measure adopted by a Member State the effect of which is to limit the num- ber of days a year which the vessels of that State's fishing fleet spend at sea to the number of days they spent at sea in 1991.

(3) (a) The nature of the stock fished for by each fishing vessel,