Court of Justice 12-02-1981 ECLI:EU:C:1981:41

Opinion of Mr Advocate General Reischl

delivered on 12 February 1981 ^(*)

Mr President,

Members of the Court,

As in the proceedings for failure on the part of a State to fulfil its obligations under the EEC Treaty, in Commission v United Kingdom (Case 804/79), on which I also delivered an opinion, this reference for a preliminary ruling centres round the question whether the Member States have power to issue provisions on the conservation of the biological resources of the sea after the expiry of the transitional period laid down in Article 102 of the Act of Accession, and if so, under what conditions. In the criminal proceedings, from which this reference for a preliminary ruling stems, Firma van Dam en Zonen, as in Joined Cases 185 to 204/78 (Firma J. van Dam en Zonen and Others, judgment of 3 July 1979, [1979] ECR 2345), is charged with the infringement in the North Sea of limitations on fishing which the Netherlands authorities laid down, in this case after the expiry of the aforesaid transitional period.

That limitation on catches is contained in the decision of the Netherlands Minister of Agriculture and Fisheries of 28 December 1978 laying down for 1979 interim measures on the limitation of catches of sea fish other than sole and plaice (Beschikking voorlopige Regeling Vangstbeperking andere Zeevissoorten dan Tong en Schol 1979, No J 4569, Staatscourant [Netherlands Official Journal] 1978, 253). Article 2, as amended by the decision of 27 June 1979 (Staatscourant 1979, 124) laid down a general limitation on the kinds of fish mentioned in the annex, including cod, for specified sea zones, subject to the Minister's power of derogation mentioned in Article 3 of the decision. The Netherlands Minister of Agriculture and Fisheries exercised that power of derogation and granted permission, in accordance with the proposals of the Commission, for 10 165 tonnes of cod to be caught in the North Sea.

When the Minister considered that that quota had been exhausted he repealed that derogation with effect from 3 September 1979 by means of the decision of 27 August 1979, No J 3247 of 28 August 1979 (Staatscourant 1979, 167) and imposed a penalty for the catching of cod by Netherlands fishermen in the North Sea.

In October 1979 one of Firma van Dam's fishing-boats contravened the said provisions by fishing cod in the North Sea and landed its catches in the Dutch harbour of Goedereede.

When Firma Van Dam was charged before the Economische Politierechter [Magistrate dealing with commercial offences] of the Arrondissementsrechtbank [District Court], Rotterdam, it claimed that the measures enacted by the Netherlands Government were contrary to Community law. The said court, by an interlocutory judgment of 4 March 1980, stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling in accordance with Article 177:

“Are the measures adopted for 1979 by the Netherlands authorities, such as the regulations referred to in the summons, namely the decision laying down for 1979 interim measures on the limitation of catches of sea fish other than sole and plaice (Nederlandse Staatscourant 1979-124) and the decision of 27 August 1979 under No J 3247 (Nederlandse Staatscourant No 167 of 28 August 1979) based on Community law?”

My opinion on this question is as follows :

The accused in the main proceedings, Firma van Dam en Zonen, and the French Government consider, albeit for different reasons, that the limitation on catches imposed in the said Netherlands measures did not come within the powers of the Member States at the time in question and were accordingly unlawful. They both accept that after the expiry of the transitional period laid down in Article 102 of the Act of Accession, that is after 1 January 1979, the Member States no longer had power to take conservation measures regarding sea fisheries and that only the Council had such power.

In the view of the accused in the main proceedings a legal vacuum occurred since the Council did not take any conservation measures after that date in spite of the adoption of the interim decisions of the Council for the year 1979 which have already formed the subject-matter of Case 804/79 {Commission v United Kingdom). Furthermore, the procedure followed in adopting the said decisions did not comply with that laid down in Article 4 of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (Official Journal of 28 January 1976, L 20, p. 19) which, through a reference to Artiele 43(2)of the EEC Treaty, requires that the Assembly be consulted.

On the other hand the French Government, confirming its attitude which has already been expressed in the earlier proceedings, Case 804/79, is of the view that the Netherlands Government would only have been entitled to issue catch quotas if it were considered that the decision in question constituted a partial restoration to the Member States of the power of the Community to fix catch quotas. Such a restoration of power is however not permissible since the fixing of national catch quotas affects one of the basic principles of the common fisheries policy, the free access of all fishermen of the common market to all the waters under the sovereignty of the Member States. Furthermore, such a delegation of powers would have had to be expressly authorized. The provisions of paragraph 1 of the interim decisions, which are relevant to the fixing of catch quotas, merely state that “Member States shall conduct their fisheries in such a way that the catches of their vessels during the interim period shall take into account TACs [total allowable catches] submitted by the Commission to the Council in its communication of 23 November 1978 and the part of the TACs made available to third countries under agreements or arrangements made with them by the Community”. This does not refer to the general catch quotas laid down for the individual Member States. The Commission indeed made proposals for the years 1978 and 1979 for the total allowable catches, the proposal for 1979, unlike that for 1978, containing no alocation of the total allowable catches amongst the individual Member States. Furthermore, such proposals have no legal effect whatever.

On the other hand the view is taken by the Government of the United Kingdom, proceeding on the basis of the view of the law previously advanced by it in Case 804/79, together with the Council and the Commission, that the measures in question of the Netherlands Government are in accordance with Community law.

In my view, on the grounds which I set out in detail in my opinion in Case 804/79 and which I accordingly only wish to summarize and consider individually, that is the conclusion which must be reached.

Thus, I took the view, contrary to that of the United Kingdom Government but in agreement with all the other parties in that case, that after the expiry of the time-limit laid down in Article 102 of the Act of Accession the Community alone has power to take fishery measures in the waters coming under the sovereignty of the Member States.

As I further showed with reference to the case-law of the Court the circumstance that the Council which in principle is competent to take conservation measures after the expiry of the transitional period was unable to arrive at any decision, did not, as the defendant in the main proceedings considered, lead to a legal vacuum. In that case the Member States are instead obliged, under Article 5 of the EEC Treaty, to take the necessary conservation measures in the general interest and having regard to the substantive and formal requirements of Community law. As the Council and the Commission properly emphasized the interim decisions of the Council, which were adopted with reference to the time after the expiry of the transitional period, are merely to be considered as specifying the duty of cooperation of the Member States in accordance with Article 5 of the EEC Treaty in the particular field to which they apply. As the Council in particular pointed out they must at least ensure the maintenance after the expiry of the transitional period of the advances made up to that time in the field of the conservation of the biological resources of the sea. Accordingly in paragraph 1 of the interim decisions on the protection of the interest of the Community the requirement is confirmed that Member States should conduct their fishery during that interim period so that the total allowable catches (TACs) notified to the Council by the Commission are not exceeded.

It is a necessary consequence of the particular feature of the common fisheries policy, which, as the Court is aware, is that all fishing vessels flying the flag of a Member State and registered in Community territory shall have equal access to all fishing grounds under the jurisdiction of the Member States and furthermore that fish stocks move freely within those waters and the waters of third countries — this point must be made in relation to the argument of the French Government — that it is possible to guarantee compliance with the total allowable catches only by the introduction of catch quotas for the individual Member States. In order to ensure that such measures are coordinated and that the interests of third countries are taken into consideration the approval of the Community authorities is necessary, as is clear from an interpretation of the decisions in question in accordance with the Treaty, in particular with regard to Article 102 of the Act of Accession. However, as I showed in my opinion in Case 804/79, if the Council fails to act the Commission is competent to grant that approval regardless of whether the decisions in question are considered a restoration of powers to the Member States or, on a more correct view, a specification of their obligations under Article 5 of the EEC Treaty.

As the Court is aware, the Commission expressly approved of the decision of the Netherlands Minister of Agriculture and Fisheries of 28 December 1978 laying down for 1979 interim measures on the limitation of catches of sea fish other than sole and plaice, which entered into force on 1 January 1979, the extension of which was expressly authorized on 25 July 1979 (cf. in this connexion the Communication from the Commission relating to the publication of national fishery conservation measures, Official Journal of 4 June 1980, C 133, p. 2). The previous attitude of the Commission furthermore indicates that it concurs in the measures relating to that decision. This guarantees that the arrangements on the catch quotas introduced by the Netherlands Government on the basis of the interim decisions of the Council are in line with the interests of the Community, that is to say to the procedural and substantive requirements of Community law, the observance of which the interim decisions are intended to ensure.

Since, as we have seen, these decisions, by retaining in force Annex VI to The Hague Resolution after the expiry of the transitional period laid down in Article 102 of the Act of Accession, merely render specific the Member States' duty of cooperation, which they undertook in accordance with Article 5 of the EEC Treaty by their accession to the Community, the decisions accordingly do not create any new legal situation for the purposes of Article 189 of the EEC Treaty. Thus, as the Council and the Commission properly pointed out, the legislative procedure laid down in the Treaty establishing the European Economic Community was in fact unnecessary for the adoption of these decisions.

It is a further consequence of what I have said that, contrary to the argument of the defendant in the main proceedings, the Council was not required to adopt Article 4 of Council Regulation No 101/76 of 19 January 1976 as the basis for the interim decisions whereby it was intended to ensure that the measures taken by the Member States were in accordance with Community law. That provision, which must be regarded as a supplement to Article 2 of the said regulation which states that “rules applied by each Member State in respect of fishing in the maritime waters, under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States” provides, as the Court is aware, that, where there is a risk of over-fishing of certain stocks in the maritime waters referred to in Article 2 of one or other Member State, the Council, acting in accordance with the procedure provided for in Article 43 (2) of the Treaty on a proposal from the Commission, may adopt the necessary conservation measures. Quite apart from the question whether after expiry of the transitional period that provision constitutes authority for the issue of catch quotas for the various Member States, a question which need not be further considered, it nevertheless assumes the enactment of legislation at the discretion of the Council. No such legislation was, however, enacted.

I am accordingly of the opinion that the question which was submitted should receive the following answer:

The decision laying down for 1979 interim measures on the limitation of catches of sea fish other than sole and plaice (Nederlandse Staatscourant 1979, 253), and the provisions extending and implementing that decision which were issued by the Nederlands authorities with the approval of the Commission are not contrary to Community law.