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2. In Community law the origin of goods is (e) products of hunting or fishing carried determined by Article 23 of Council Regu- on therein;

1 — Original language: German. 2 — OJ 1992 L 302 p. 1.

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(f) products of sea-fishing and other prod- 4. On 'the basis of Regulation No 170/83 ucts taken from the sea outside a and subsequently on the basis of Regu- country's territorial sea by vessels reg- lation No 3760/92 the Council has laid istered or recorded in the country down limits on the total permitted catch of concerned and flying the flag of that certain fishery resources and has granted country; quotas to the individual Member States. For scallops however no total permitted catches were fixed.

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measures include amongst other things (ii) going beyond the minimum temporal restrictions on fishing. requirements laid down in the said legislation;

6. Article 46 of Regulation No 850/98 provides: provided that such measures apply solely to the fishermen of the Member State con- cerned, are compatible with Community law, and are in conformity with the com- '(1) Member States may take measures for mon fisheries policy. the conservation and management of stocks:

(a) in the case of strictly local stocks which (2) The Commission shall be informed, in are of interest solely to the fishermen of time for it to present its observations, of the Member State concerned; or any plans to introduce or amend national technical measures. If the Commission so requests within one month of such notifi- cation, the Member State concerned shall suspend the entry into force of the measures planned until three months have elapsed from the date of the said notification, so (b) in the form of conditions or detailed that the Commission can decide within that arrangements designed to limit catches period whether the measures in question by technical measures: comply with the provisions of paragraph 1.

(i) supplementing those laid down in the Community legislation on fisheries; Where the Commission finds, by a decision which it shall communicate to all Member States, that a planned measure does not comply with the provisions of paragraph 1, the Member State concerned may not bring it into force without making the necessary or amendments thereto.

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(2) Is the validity of the Order of 19 March tered in France and sailed under the French 1980, which prohibits the landing of flag is decisive in determining the origin of scallops during their close season, the scallops. In the oral proceedings the affected by the provisions of the Treaty French Government expanded its argument of Maastricht, which prohibit measures and contended that Article 23(2)(f) of the having an equivalent effect to quanti- Customs Code is to be interpreted in such a tative restrictions on imports?' way that the phrases Outside a country's territorial sea' and 'registered... in the country concerned' refer to one and the same country. In its view this provision cannot be understood as a delimitation of the territorial jurisdictions of the respective Member States as this would be in contra- diction to the internal market. IV — Arguments of the parties

( 1 ) The French Government

12. As regards the first question the French Government takes the view that the scal- lops which were landed are of French origin and therefore cannot be regarded as products imported into France.

15. According to that case-law the origin of fish is determined on the basis of the flag or place of registration of the vessel which catches them. 11 This applies wherever the fish are caught. 12

(2) The Netherlands Government

16. As regards the second question the French Government points out that accord- ing to settled case-law the Court lacks the competence in a reference for a preliminary ruling to determine the compatibility of a national provision with Community law. 18. In the oral proceedings the Netherlands The second question referred therefore Government supported the interpretation must be reformulated to ask whether the of the Customs Code advanced by the interpretation of Article 28 EC precludes a French Government. It, too, takes the view Member State from adopting a provision that according to Article 23(2)(f) of Regu- which prevents the landing of scallops lation No 2913/92 the origin of the goods is during their close season. to be determined on the basis of the flag State. This interpretation can not only be supported by the literal wording of the 10 — Regulation No 802/68 provided in Article 4: '(1) Goods wholly obtained or produced in one country provision but also by the consistent practice shall be considered as originating in that country. observed with regard to the administration (2) The expression "goods wholly obtained or produced in one country" means: of fishing quotas, which are also based on the flag State. Finally the Netherlands (f) products or sea-hshing and other products taken from the sea by vessels registered or recorded in that country Government points to the UN Law of the and flying its flag: Sea Convention whose provisions on natu- 11 — Case 100/84 Commission v United Kingdom [1985] ECR ral resources are similarly centred on the 1169, paragraph 18. flag State of the vessel which raises those 12 — Case C-280/S9 Commission v Ireland [1992] ECR I-6185, paragraph 14. resources.

(3) The Commission 23. As regards the second question the Commission argues that recourse to Article 30 EC must be excluded because Community law measures are already in place. Whilst no specific measures have 20. As regards the first question the Com- been taken with regard to the management mission takes the view that the scallops are of scallops stocks, nevertheless within the British and therefore imported products. It field of fisheries Community-law harmon- argues that the criteria for determining the isation has occurred to a sufficient extent. origin of fish catches are laid down in In particular, Article 46(1) of Regulation Article 23(2)(e) and (f) of the Customs No 850/98 lays down exhaustively the Code. Where fish are caught within a areas in which Member States retain com- country — this also includes the country's petence to take measures for the conser- territorial sea as provided by Article 23(3) vation and management of stocks. of the Customs Code — then their origin is within that country. Where however fish are caught outside the territorial sea, then their origin is determined according to the flag or place of registration of the vessel which catches them.

24. In any event, it argues, the principle of freedom of movement of goods precludes a national measure which — as the Minis- terial Order does in the present case — 21. In the present case the scallops were prohibits for certain months the landing of caught in the territorial sea of Jersey and scallops which have their origin in another therefore within a country. According to Member State. Such a prohibition must be the Commission, they are therefore of seen as a measure having an equivalent British origin and must be treated as effect to a quantitative restriction on imported products on their landing in imports within the meaning of Article 28 France. EC.

26. Furthermore, according to the Com- mission, the Ministerial Order is in itself inapplicable because of a formal defect. Whilst it was made before the Community provisions on the conservation and man- V — Appraisal agement of fishery resources came into force, Member States were nevertheless placed under a duty by Article 20(2) and (3) of Regulation No 171/83 13 to notify the Commission of any existing national meas- ures. Subsequently those provisions have been replaced by other provisions, all of (1) The first question which however have contained the same duty to notify. The Commission refers to Article 14 of Regulation No 3094/86, 14 Article 17 of Regulation No 894/97 15 and Article 46 of Regulation No 850/98. 16 France however has never notified the 28. The first question concerns the deter- mination of the origin of the scallops: Are they French scallops or those of the island of Jersey? 13 — Cited above, footnote 5. 14 — Cited above, footnote 6. 15 — Cited above, footnote 7. 16 — Cited above, footnote S. 17 — Cited above, footnote 4.

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30. According to Article 23(1) of the Cus- toms Code goods originating in a country 32. This interpretation which follows from are to be those wholly obtained or pro- the wording of paragraph 2 and its logical duced in that country. Article 23(2)(e) of interconnection with paragraph 3 of the the Customs Code provides that products provision is further supported by the spirit of fishing are wholly obtained in a country and purpose of the legislation. Article 23 is when carried out therein. Article 23(3) of to be found in the Customs Code, a legis- the Customs Code defines 'country' as lative instrument, the spirit and purpose of including that country's territorial sea. which is to raise income for the Commu- Outside the territorial sea of a country the nity in the form of customs duties. The origin of products of sea-fishing and other argument put forward by the French and products taken from the sea is determined Netherlands Governments, according to according to Article 23(2)(f) of the Cus- which the flag State is decisive, leads toms Code on the basis of the country of however to the result that fish which are registration and the flag flown by the vessel caught in the territorial waters of other making the catch.

19 — Commission v United Kingdom, paragraphs 18 to 21, and 18 — OJ 1972 L 73, p. 164. Commission v Ireland, paragraph 14.

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waters of Jersey by a French registered (b) Existence of a measure having equival- vessel under a fishing permit issued by the ent effect to a quantitative restriction on Jersey authorities are of British origin and imports are therefore to be regarded in France as imported products.

37. Article 28 EC prohibits quantitative restrictions on imports and all measures having equivalent effect between the (2) The second question Member States. According to settled case- law, a measure of equivalent effect to a quantitative restriction is any measure capable of hindering directly or indirectly, actually or potentially, intra-Community (a) Interpretation of the question referred trade. 21

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40. With regard to the landing of scallops, protection of the stocks of scallops, and however, it must be noted that the Minis- thus, in the terminology of Article 30 EC, terial Order in question does not differenti- for the protection of the health and life of ate between scallops of French origin and animals. those which are not of French origin. The Ministerial Order in question also applies to scallops caught within the territorial waters of Jersey, that is to say, scallops of British origin. In this respect the Ministerial Order regulates a cross-border situation. 43. The protection of the life of animals has been recognised in principle as an overriding requirement, by which an objec- tive which is in the general interest is pursued. In this respect protection of scal- lop stocks is in principle capable of justify- 41. According to the case-law of the Court ing restrictions of the free movement of prohibitions on the landing of fish originat- goods. ing in other Member States constitute barriers, incompatible with Article 28 EC, to the free movement of goods. 22 Con- sequently the French ministerial order in question here, to the extent that it contains a general prohibition on landing, consti- 44. In the present case it must however be tutes a measure which is capable of hin- observed that according to settled case-law dering intra-Community trade. To this recourse to Article 30 EC and the funda- extent it is incompatible with Article 28 mental requirements recognised therein is EC. no longer possible where a Community harmonisation measure exists, adopted to attain the specific objective intended to be attained by recourse to Article 30 EC. 2 3 In other words, a justification based on the protection of scallop stocks is excluded if (c) Justification of the measure there are Community measures which assure those stocks.

subsequently replaced by Regulation Enichem Base 25 and CIA Security Inter- No 3760/92. As the Commission itself national 26 the Commission takes the view concedes, there have not yet been any that the Ministerial Order is inapplicable, specific Community measures relating to since it has not been notified. the management of scallop stocks. Neither has an overall limit been set on the quantities which may be caught nor have any other measures been adopted to protect the stocks of scallops. In this respect the present case therefore differs from the case 47. Contemporaneously with the adoption of van den Burg referred to by the Com- of Regulation No 170/83 the Community mission in the oral proceedings, in which legislature adopted Regulation No 171/83 the directive in question provided exhaus- laying down certain technical measures for tive substantive regulation with regard to the conservation of fishery resources. Tem- the conservation of wild birds. 24 Therefore porary restrictions on the catches of fish are in this case recourse to Article 30 EC included among the technical measures appears at first sight not to be excluded. within the meaning of this regulation. This can be deduced from the first recital in the preamble to the regulation and from Title IV of the regulation entitled 'prohibition of fishing for certain species within certain areas and periods.' According to Article 20(2) of the regulation national technical measures are to be communicated to the Commission in accordance with Article 2(2) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying 46. The Commission nevertheless seeks to down a common structural policy for the prevent recourse to Article 30 by means of fishing industry.27 Currently this duty to the argument that a comprehensive system notify applies by virtue of Article 46 of for the management of fishery resources Regulation No 850/98. already exists. It argues that France only has the power to act within the framework created by Community law, in particular by Article 46 of Regulation No 850/98 and the regulations preceding it. In its view the Ministerial Order does not satisfy these 48. The Ministerial Order provides for a requirements, since it has not been notified temporary prohibition on landing in con- to the Commission. Since the adoption of junction with a temporary prohibition on Regulation No 171/83, however, the catches. It is therefore a technical measure Member States have been under a duty to within the meaning of Regulation communicate to the Commission those No 850/98. As such it is subject to the national measures which they consider duty to notify arising out of Article 46 of necessary for the management of fishery resources. On the basis of the judgments in 2 25— Case380/87 Enichen Base and Others [1989| ECR 2491, paragraph 2. 26 — Osc CM 94/94 [1996]ECR I-2201, paragraphs 48 and 49. 24 — Von den Burg, paragraph 9. 27— OJ 1976 L 20, p. 19.

the regulation. It is not in dispute that the 50. In contrast to this, in CIA Security Commission was nevertheless not notified International, also referred to by the Com- of the existence of the Ministerial Order. mission in its argument, the Court held that The question thus arises as to the con- the failure to comply with the duty to sequences of this breach of the duty to notify in accordance with Articles 8 and 9 notify, and in particular whether this of Council Directive 83/189 of 28 March breach leads to the inapplicability of the 1983 laying down a procedure for the Ministerial Order vis-à-vis individuals. provision of information in the field of technical standards and regulations 30 entailed the inapplicability of the relevant national provisions. It founded this con- clusion on the consideration that the obli- gation to notify was an important means for achieving preventive Community con- trol and served to achieve the aim of protecting the free movement of goods. It held that the effectiveness of Community 49. In its judgment in Enicbem Base, control would be that much greater if referred to by the Commission, the Court breach of the obligation to notify were did not however find that a breach of the regarded as constituting a substantial pro- duty to notify contained in Article 3(2) of cedural defect which could render the Council Directive 75/442/EEC of 15 July technical rules in question inapplicable to 1975 on waste 28 led to the inapplicability individuals. 31 In contrast to Directive of the national measure which had not been 75/442, the Court held, Directive 83/189 notified. It based this conclusion on the fact did not only pursue the aim of informing that the directive did not lay down any the Commission, but also the more general procedure for Community monitoring of aim of eliminating or restricting obstacles the draft rules which were to be notified to trade, informing other States of technical nor did it make implementation of the provisions envisaged by a State, giving the planned rules conditional upon agreement Commission and the other Member States by the Commission or its failure to object. the necessary time to react and to propose The duty to provide information was an amendment enabling restrictions on the intended merely to enable the Commission free movement of goods arising from the to verify whether Community harmonising envisaged measure to be lessened, and of legislation was called for and whether the affording the Commission the necessary draft rules submitted to it were compatible time to propose a harmonising directive. with Community law, and, if necessary, to Moreover, Articles 8 and 9 of Directive take the appropriate measures. It added 83/189 made the date of entry into force of that neither the wording nor the purpose of the measure subject to the Commission's the provision provided any support for the view that failure to observe the obligation to give prior notice to the Commission in itself renders unlawful the national rules adopted. 29

agreement or lack of opposition. 32 In the Article 46 of Regulation No 850/98 is in subsequent paragraphs of its judgment, the principle inapplicable vis-à-vis individuals. Court discussed whether there were any reasons specific to Directive 83/189 which would speak against the presumption of inapplicability in the case of non-notifi- cation of measures. In particular it dis- cussed the objection that this could lead to 52. There are no obvious reasons associ- a legislative vacuum in the national legal ated with Regulation No 850/98 itself system. However it rejected this conclusion which point against the presumption of by pointing to the existence of the urgent- inapplicability in the case of a national case procedure laid down in Article 9(3) of measure which has not been notified. In Directive 83/189." particular, Article 45(2) of the regulation permits a Member State in urgent cases to take where necessary non-discriminatory conservation measures. These measures can be put into force immediately and reduced time-limits apply for the Commission to raise any objections. In this respect too the legal position appears to be comparable 51. In the light of this case-law the notifi- with that which applies under Directive cation procedure laid down in Article 46 of 83/189, where the Court had pointed to the Regulation No 850/98 must be examined urgent-case procedure under Article 9(3). more closely. Firstly, it may be observed that just as in the case of Articles 8 and 9 of Directive 83/189, Article 46(2) of Regu- lation 850/98 also renders the date of entry into force of a national measure notified subject to the Commission's agreement or lack of opposition. Moreover, however, 53. My interim conclusion is therefore that entry into force is in any event dependent a national provision concerning a technical on the Commission's agreement. For, measure relating to fish catches which has according to the third subparagraph of not been notified in accordance with Article 46(2), where the Commission has Article 46 of Regulation No 850/98 is found that a measure does not comply with inapplicable to individuals. the provisions of Article 46(1) the Member State may not bring it into force unless it makes the necessary amendments. This possibility for the Commission to intervene goes far beyond the mere informing of the Commission. The national measures noti- 54. Nevertheless it must be noted that as fied are subject to the Commission's review regards the management specifically of as to their legality. This points to the scallop stocks no substantive Community conclusion that a national measure which law measures have been taken. It is only has not been notified in accordance with out of a formal failure to comply with Community law that the inapplicability of the national measure in this case arises. 32 — CM Security International, paragraph 50. Examination of the substantive or material 33 — CM Security International, paragraphs 51-53. compatibility of the Ministerial Order can

56. As is evident from Article 46 of Regu- lation No 850/98, the Member States are given the express power, in circumstances where there are no Community rules, to (d) Proportionality adopt rules relating to their territorial sea and their fishermen. Nevertheless those rules must be compatible with Community law, and thus also with the principle the free movement of goods. Furthermore, they must be notified to the Commission, so 59. Only secondarily, and in the event that that, if need be, it can block national the Court does not follow the line of provisions which are contrary to Commu- reasoning set out above and permits nity law. Thus even though no substantive recourse to Article 30 EC, is it necessary measures have been taken with regard to to discuss whether the justification of scallops, France is nevertheless bound to protecting the life of animals must in this observe the general provisions relating to case be excluded because the Ministerial the adoption of national technical meas- Order is disproportionate. It is settled

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63. That argument can be countered with the observation that this uncertainty can be met by carrying out stricter controls in the territorial sea. The difficulties which such controls of catches bring with them ought not to be any greater or of a different 61. A provision goes beyond what is nature for scallops than for other types of necessary if the objective pursued can be fish, whose catches are limited by quotas achieved as effectively by provisions which the observance of which must be ensured are less restrictive of intra-Community through appropriate controls. Moreover trade. The prohibition on landing affects difficulties encountered in the adminis- not only scallops caught in the French trative application of a measure do not in territorial sea but also those caught in the principle provide justification for measures territorial sea of other States. Compared to which hinder the free movement of this measure, a less restrictive provision goods. 35

34 — Case C-3/99 Ruwet |2000] ECR I-8749, paragraph 50; 35 — Case 124/85 Commission v Greece [1986] ECR 3935, Case C-313/94 Graffiane [1996] ECR I-6039, paragraph paragraph 12; Case C-128/89 Commission v Italy [1990] 17. ECR I-3239, paragraph 22.

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64. Therefore it is to be concluded that the movement of goods beyond the extent Ministerial Order is also contrary to Com- necessary for the protection of scallops in munity law in so far as it hinders the free French territorial waters.

VI — Conclusion