According to the Commission, Article 6 of that regulation authorized with retroactive effect and for 10 years Member States to retain the arrangements defined in Article 100 of the 1972 Act of Accession and to generalize up to 12 nautical miles for all their waters the limit of six miles.

The Commission considers that the derogations from the principle of equal conditions of access after 1 January 1983 are compatible with the Community law applicable provided that:

(a)Article 6 of Regulation No 170/83 authorized those derogations retroactively;(b)Such a retroactive authorization is lawful; and(c)A measure such as the Sea Fish Order 1982 constitutes a proper exercise of the authorization.

As regards (a), the Commission considers that Article 6 is to be interpreted as having retroactive effect to 1 January 1983. That conclusion is based on the clear and unambiguous wording of the article in question which provides that the authorization applies as from 1 January 1983. The date of 1 January 1983 is consistent with the use of the word retain in Article 6 (1) which demonstrates the continuity in the arrangements defined under Article 100 of the 1972 Act of Accession. The date is also consistent with Article 103 of the 1972 Act of Accession which provides for arrangements following or succeeding those provided for up to 31 December 1982, as is made clear in the eighth recital of the preamble to that regulation.

The date is also consistent with the provisional TAC (total allowable catch) and quota arrangements for 1983 which are stated to apply as from 1 January 1983 (Regulation No 198/83, Article 2) and with the new system of control measures which was adopted on 29 June 1982 but which was to apply from a date not later than 1 January 1983 (Regulation No 2057/82, Article 16).

In the Commission's view, any other solution would have interrupted, for a short period of three weeks and for no good reason, the continuity of the management of Community fishery resources, at least as regards the preexisting access derogations.

The Commission then expresses the view that the retroactive effect of the regulation in question is justified and lawful in the circumstances.

According to the case-law of the Court, Community measures may exceptionally have retroactive effect where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (judgments of 25.1.1979 in Case 98/78 Racke [1979] ECR 69 and Case 99/78 Decker [1979] ECR 101).

As regards the objective pursued, the Commission considers that the abovementioned principle has been applied by the Court, in circumstances similar to those of this case, when it confirmed the validity of the retroactive effect for a period of three weeks of a Council regulation reestablishing a system introducing the European Currency Unit for the purposes of the common agricultural policy (judgment of 19.5.1982 in Case 84/81 Staple Dairy Products [1982] ECR 1763). Still more recently, the Court applied the principle in the isoglucose cases (judgments of 30.9.1982 in Case 108/81, Amylum, Case 110/81, Roquette, and Case 114/81, Tunnel Refineries, [1982] ECR 3107 et seq.). In those judgments, the Court confirmed the principles to be applied in examining the validity of retroactive Community measures and, in particular, clarified the first condition to be applied regarding the purpose or objective to be achieved. Clearly that objective must be pursued in the general interest or be an objective of public interest.

In the Commission's view, the general interest is protected by Article 6 of Regulation No 170/83 which gives effect to the second paragraph of Article 1 of the same regulation which provides that the Community system for the conservation and management of fishery resources will consist, in particular, of special provisions for coastal fishing. Coastal fishing preferences have thus been recognized by Community law (see also Article 4 of Regulation No 2141/70 and Anieles 100 and 101 of the 1972 Act of Accession) and by international law (see Article 11 of the 1964 London Fisheries Convention). They therefore represent a legitimate objective of a common policy for the management of fishery resources which is in the general interest.

The Commission considers, moreover, that, in the circumstances, that objective made it necessary for the measures adopted to ensure the orderly and uninterrupted conduct of fishing activities and at least indirectly the conservation of maritime resources to be given retroactive effect.

As regards legitimate expectations, the Commission maintains that the situation at the time gave the fishermen concerned no cause to expect that the 12-mile coastal preference zones would be abolished at the end of 1982. On the contrary, those zones set up under Articles 100 and 101 of the 1972 Act of Accession had become a well-established feature of the system of conservation and management which operated during the period up to 1983. The Commission's proposals for their extension and generalization had been before the Council since March 1981. Those proposals were widely publicized and had appeared in the Official Journal. Moreover Community fishermen would have been aware on 6 January 1983 of the Commission Decision of 5 January 1983, which had been given wide coverage by radio stations and from which it coud be concluded that the Commission was maintaining its proposals concerning access. The fishermen therefore had every reason to expect that, if the Council succeeded in reaching agreement at its next meeting the measures it adopted would have retroactive effect to 1 January.

The Commission's observations on the question whether the Sea Fish Order 1982 constitutes a proper exercise of the authorization granted under Article 6 of Regulation No 170/83 are set out below under B.l.

The Commission maintains that at the material time the Community provision governing the question of access was Article 6 (1) of Regulation No 170/83, which, by virtue of its retroactive effect, had continued without interruption the system of derogation from the principle of free access established by the 1972 Act of Accession.

In the alternative and should the Court not accept its argument, the Commission then considers the question in the absence of any Community rules.

It maintains that after the end of 1978 the power to adopt measures for the conservation and management of fishery resources belonged fully and definitively to the Community, pursuant to Regulation No 101/76 and Article 102 of the Act of Accession. Member States are therefore no longer entitled to exercise any power of their own in those matters. However, so long as the Community failed to exercise that exclusive competence, it was still possible for Member States to take measures of limited scope provided that they complied with certain rules of substance and procedure. If circumstances required, Member States were even under an obligation to take such measures.

As regards the substance, the measures must be nondiscriminatory and necessary for the purpose of conservation. The requirements as to procedure derive from the Member State's duty to cooperate and to facilitate the achievement of the Community's tasks.

Member States are therefore acting merely as trustees of the common interest and are under an obligation to undertake detailed consultations with the Commission and to seek its approval for their measures in good faith.

Moreover, Annex VII to the Hague Resolution of October 1976 made it clear that it was intended to restrict access to coastal waters. That intention was confirmed by the Council Declaration of 30 May 1980 (Official JournalC 158 of 27.6.1980).

The United Kingdom also maintains that control of access to inshore waters is linked to objectives pursued under the common fisheries policy such as: (a) the protection of coastal population dependent on fishing, and (b) the rational development of the fishing industry.

Measures such as the total allowable catch and the quota system are intended to protect the populations of coastal areas. Moreover the desire to ensure a fair standard of living for coastal fishermen was the underlying theme of the measures regulating access provided for in Articles 101 and 102 of the 1972 Act of Accession and in Articles 1 and 9 of Regulation No 101/76, and also the Commission proposals which led to Regulation No 170/83 and indeed the Hague Resolution of 1976 and the Council Declaration of 30 May 1980.

In the United Kingdom's opinion, control of access still contributes to the objective of the rational and orderly development of the fishing industry. That objective is reflected in the preamble to Regulation No 101/76 and Articles 1 and 9 thereof, in the Council Declaration of 30 May 1980 and in the Commission's proposals to the Council (Official Journal C 228 of 1.9.1982, p. 1) which were adopted by the latter in Regulation No 170/83.

The Community law applicable at that time consisted of the principle of nondiscrimination, on which the EEC Treaty is based, which was implemented by Article 2 of Regulation No 101/76 replacing the identical provision in Article 2 of Regulation No 2141/70. Although after 31 December 1982 that legal situation was different in formal terms, in substance it was absolutely the same as that which existed prior to the Act of Accession.

The Netherlands Government moreover rejects the argument that in view of the Council's failure to act Member States were under an obligation to take certain national measures in the interests of the Community and using a procedure whereby such measures were authorized

by the Commission. That argument has been accepted by the Coun on the conservation question but may not be applied to the question of access. The provisions of the Act of Accession are too clear for that. The duration of the derogations is limited and they expire on 31 December 1982. Moreover the task assigned to the Council by Article 103 of the Act of Accession is a fairly tentative one: the Council must examine the provisions which could follow the derogations. The fact that after 31 December 1982 the Council did not establish any new rules on access does not necessarily indicate remissness.

Article 103 of the Act of Accession provides that the Council shall examine the provisions which could follow the derogations in force until 31 December 1982. It follows from that text that:

No decision was taken as to whether the Council had any power at all to allow the exceptional arrangements to continue after that time or whether it might merely make other appropriate arrangements;

There can be no doubt that the foregoing means that the transitional period ended on 31 December 1982 after 10 years had elapsed and that thereafter the authority of the Member States to maintain or establish national coastal zones terminated unless the Council were to adopt measures allowing them to do so.

That is confirmed, in the view of the Danish Government, by the Court's judgment of 29 March 1979 in Case 231/78 Commission v United Kingdom ([1979] ECR 1447) in which it was held that the expiry of a transitional period laid down in the Act of Accession meant that a national organization of the market in potatoes which was already in existence was rendered inoperative when the Commission had submitted a proposal on the establishment of the common organization of the market in that product, although the Council had not acted on the proposal.

In this instance the United Kingdom Sea Fish Order 1982 must a fortiori be inapplicable in view of the following factors :

In contrast to Case 231/78, there is a common policy which has already been adopted, namely that under Article 2 (1) of Regulation No 101 /76 ;

The Danish Government therefore concludes that the adoption and the enforcement of the Sea Fish Order 1982 is contrary to Article 100 of the Act of Accession which expressly fixes a 10-year time-limit for exclusive coastal zones, and to Article 103 of the Act of Accession, which empowers the Concil to adopt the provisions which could follow the derogations in force until 31 December 1982.

Article 100 of the Act of Accession provided a specific derogation from the basic rule governing access contained in Article 2 of Regulation No 101/76, which authorized Member States to restrict access in waters under their jurisdiction until 31 December 1982. Without such a derogation there can be no doubt that the principles of full and equal access would have applied with full force after 1 January 1973 as they did before that date.

The position after the expiry of the derogation is considered in Article 103 which exhorts the Council to examine the provisions which could follow the derogations in force until 31 December 1982. In view of the fact that the Council adopted the common fisheries policy only oh 25 January 1983, the principle of freedom and equality of access reflected in Article 2 (1) of Regulation No 101/76 automatically reasserted itself during the period between 1 January 1983 and 25 January 1983.

In addition Mr Kirk maintains that the compatibility of the Sea Fish Order 1982 should not be examined solely in the context of the common fisheries policy. It should be examined in the light of the principles contained in Articles 52 and 59 of the Treaty requiring complete freedom of movement for self-employed people and others wishing to engage in an economic activity in the Community. It should also be examined from the point of view of ensuring that competition is not distorted. Mr Kirk cites the Court's judgment in Case 48/75 Royer ([1976] ECR 497) to show that the Sea Fish Order 1982 not only offended against the principles contained in Articles 52 and 59 but also distorted competition to the prejudice of Danish fishermen.

According to the Commission that was indeed the position having regard to the particular circumstances and the limited duration of the Sea Fish Order 1982. The fact that the order discriminated exclusively against Danish vessels would be unacceptable in normal circumstances but in this case was justified because, of the other Member States concerned, Denmark alone refused to give assurances that it would restrict the access of its own vessels to British waters or to express its intention of so doing. In those circumstances a more general measure was not necessary.

Subsequently the United Kingdom regularized the position from that point of view by adopting the Fishing Boats (European Economic Community) Designation Order 1983, which came into operation on 9 March 1983. That order defined comprehensively the right of vessels of other Member States to fish within the United Kingdom's twelve-mile limit.

In the alternative and in the event of the Court's holding that Article 6 (1) of Regulation No 170/83 cannot have retroactive effect, the Commission further maintains that the United Kingdom was entitled to adopt the order in question because it followed the prescribed procedure (see above p. 2697) inasmuch as it sought the Commission's authorization and because, in addition, the particular circumstances justify such a measure.

The Commission considers that in the absence of a definitive Community system, particular circumstances might justify a Member State's maintaining, on a temporary basis, the exclusion from its coastal waters of vessels from other Member States, in so far as the later have not restricted the access of their vessels to those waters and provided that there were no objections from the Commission.

The application of the Sea Fish Order 1982 on a provisional basis may therefore be regarded as a kind of emergency measure designed to avoid social problems.

Further, the Commission states that the case-law of the Court regarding the Member States' power to take conservation measures (Cases 32/79 and 804/79, cited above) is not directly in point in so far as a measure that restricts access may not be regarded as intended primarily for the conservation of resources. Nevertheless the underlying theme of that case-law may be applicable, namely the principle that in certain particular circumstances Member States may, in cooperation with the Commission, take measures that would normally lie outside the scope of their powers in order to safeguard the general interest of the Community and to ensure that it carries out its responsibilities. On that basis, the Commission provisionally authorized the Sea Fish Order 1982.

In the second place, the United Kingdom maintains that its action was not discriminatory, that it has met with the approval of the Commission and that its validity has been confirmed by Article 6 of Regulation No 170/83.

The Council's failure to act could not have meant that Member States were powerless to take action to control access to coastal zones, as moreover has been emphasized by the Court in Cases 61/77, 32/79 and 804/79 (cited above). Although that case-law is concerned with conservation, inasmuch as the objectives to be achieved are the same, there can be no justification for not applying it to the question of access. The aims of conservation and restricting access overlap. The abovementioned Case 287/81 is an illustration of the overlapping of the concepts of access and conservation. Access means access to fish stocks in coastal waters, which in turn implies fishing in competition with the coastal fishermen. In that respect, the question concerns the existence of stocks and that is a matter of conservation.

The United Kingdom created, after the expiry of the transitional period, conditions for access to certain waters which were more favourable to its own fishermen than to those from another Member State. There are no objective grounds capable of justifying a breach of the prohibition of discrimination provided for in the EEC Treaty and in Article 2 of Regulation No 101/76.

The imposition of the 12-mile zone accessible only to United Kingdom fishermen definitely cannot be regarded as a conservation measure. A measure may be said to be a conservation measure if, for example, on account of an evident biological need, a limit is imposed on catches or if a certain vulnerable area is closed or is opened only for a limited period of time. None of those kinds of situations existed. United Kingdom fishermen continued to have free access to the zone in question whilst those from another Member State were barred from it.

The fact that Denmark could not claim any historical fishing rights in the 12-mile zone which was to be imposed is not a ground of justification either. Article 2 of Regulation No 101/76 cannot be reconciled with unilateral restrictions based on historical rights. That would be to fly in the face of the principle of equal conditions of access to and use of the fishing grounds for all fishing vessels of the Community.

Finally the Council's failure to act can justify Member States adopting appropriate measures for the purpose of conservation only, as the Court has already stated. As regards access, in the light of the clarity of the wording of the 1972 Act of Accession, the Council's failure to act does not necessarily indicate that it has been remiss.

He notes that a distinction is to be drawn between access and conservation and that it is clear from the case-law and Community legislation that such a distinction was intended to be drawn.

Access is the right to gain entry to fishing grounds and subsequently fish there whereas conservation measures are either short-term or long-term measures taken to protect fish stocks.

Mr Kirk, then considers in detail the case-law of the Court, concentrating on the characteristics of conservation measures, since the majority of fishing cases decided by the Court deal with that matter. It follows from that case-law that measures which are intended to protect the biological resources of the sea must be urgent and necessary (Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279, the Advocate General's opinion; Case 61/77 Commission v /re/W[1978] ECR 417, the Advocate General's opinion) and further, there must be a compelling biological justification (judgment in Case 88/77 Schonenberg [1978] ECR 473). Examples of such measures are the fixing of total allowable catches and quotas (Case 287/81 Noble Kerr [1972] ECR 4053), regulation of the number of boats, authorized fishing zones, fishing periods, and methods and tackle so that nothing is likely to interfere with reproduction or feeding or to injure the marine ecosystem (Case 61/77, cited above, at p. 413).

It follows that access can be related to conservation but only in so far as such conservation measures may ultimately affect the individual fisherman's right to fish in certain places in a certain way. Such measures may affect access but they are not access measures.

In the light of those considerations, Mr Kirk maintains that the Sea Fish Order 1982 is plainly not a conservation measures. It is an access measure.

The 1972 Act of Accession also reflects the difference between conservation and access. The mandatory nature of Article 102 with the requirement that measures be taken to ensure conservation contrasts with the exhortative nature of Article 103. That contrast, emphasizes the different approach adopted. Therefore in the event of no measures being adopted by the Council, it is unthinkable that fishing stocks should remain unprotected. In such circumstances Member States can act but only as trustees of the Community interest and solely in respect of conservation measures, as the Court has held in Case 804/79 Commission v United Kingdom ([1981] ECR 1045) and Case 269/80 Tymen ([1981] ECR 3079).

As regards access, on the other hand, the Court emphasized in Case 804/79 (cited above, at paragraph 29 of the decision) that Community fishermen must have equal access to the fishery stocks coming within the jurisdiction of the Member States and that the Council alone has the power to determine the detailed conditions of such access in accordance with the procedures laid down in the third subparagraph of Article 43 (2) of the Treaty and Article 102 of the Act of Accession. That legal situation cannot be modified by measures adopted unilaterally by the Member States.

That is so, a fortiori, after the expiry of the derogation period on 31 December 1982. In Mr Kirk's view, there can be no doubt that any restriction upon rights of access allowed thereafter, other than by the Council, is incompatible with the regime of free and equal access which prevails in the absence of derogating measures provided for under a new common fisheries policy.

In consequence, the United Kingdom Government had no legislative competence to enact or to bring into force access measures for the period from 1 January 1983 until 25 January 1983, since between those dates a regime of free and equal access applied, in pursuance of Regulation No 101/76 and Article 7 of the EEC Treaty.

In the alternative, Mr Kirk submits that, even if the United Kingdom did have the power to legislate on and implement access measures as trustee of the Community interest, or even if the Sea Fish Order 1982 can be regarded as a conservation measure, the United Kingdom failed to act in accordance with that Community interest inasmuch as it adopted a measure which was discriminatory and excessively severe and therefore in breach of the principle of proportionality.

In the alternative, if the Court holds that there were no Community rules applicable at that time, the Commission submits that the Sea Fish Order 1982 was lawful on the grounds that in the particular circumstances of the case it was an emergency measure.

Those criteria were (a) the need to protect coastal States whose local populations were dependent on fishing and (b) the historical fishing activities of Member States.

As regards the first criterion the United Kingdom refers to its argument summarized above under A.2, on page 2698.

As regards the second criterion, the United Kingdom points out that Denmark was not entitled to fish in United Kingdom coastal waters under the London Fisheries Convention 1964. The importance of historical fishing activities is reflected in Article 100 (2) of the 1972 Act of Accession, in Annex VIII to the Hague Resolution, in the Council Declaration of 30 May 1980, and in the judgment of the Court in Case 287/81 (cited above). That judgment recognized the need to advance the objectives of the common fisheries policy even if that involved different treatment of vessels from different Member States.

The fact that Danish vessels were prohibited from fishing in United Kingdom waters after 31 December 1982 reflects Denmark's lack of historical fishing rights under the London Fisheries Convention 1964.

Moreover if the United Kingdom had failed to take measures in respect of vessels from Denmark, the only country which had not enacted measures restricting access to United Kingdom waters, it would have been discriminating against all the other Member States who had adopted measures restricting the access of their nationals to United Kingdom waters. The United Kingdom therefore adopted a protective measure which was both effective and workable, which conformed to the Commission's proposals and which pursued the objectives of the common fisheries policy.

Nor was the United Kingdom measure contrary to Article 2 of Regulation No 101/76, since that provision is only a particular aspect of Article 7 of the EEC Treaty. Furthermore, a wide interpretation of Article 2 as establishing a free-for-all is contrary to the aims of the common fisheries policy. Article 2 must be interpreted in accordance with Article 39 of the EEC Treaty, with the preamble to Regulation No 101/76 and with Articles 1 and 9 of that regulation. The latter articles envisage further measures for the establishment of a common structural policy for the fishing industry.

In view of the fact that such measures had still not been adopted on 31 December 1982, equal conditions of access must be interpreted in a way consistent with all the objectives of the common fisheries policy. The United Kingdom's action was consistent with those objectives. In the United Kingdom's view differences in treatment in relation to access are lawful if they are objectively justified.

The fact that that measures applied only to Danish fishermen makes no difference. Even if fishermen from other Member States, except the United Kingdom, were barred from fishing within the 12-mile limit the conclusion would be no different. The essential point is that after the expiry of the transitional period prescribed in the 1972 Act of Accession, the United Kingdom had created conditions for access to certain waters which were more favourable to its own fishermen than to those from another Member'State.

Moreover the fact that Denmark: is unable to claim any historical fishing rights cannot justify a unilateral re-:, striction, contrary to Article 2 of Regulation No 101/76. In addition, there are no other objective reasons capable of justifying a breach of the prohibition of discrimination.

In the opinion of the Danish Government the fact that the Sea Fish Order 1982 concerned fishing vessels exclusively from one Member State constitutes an aggravating circumstance.

The Court of Justice laid down in its judgment of 30 November 1982 in Case' 287/81 (cited above) that regard for the interestes of the coastal population constituted an element which might properly be taken into account in allocating a total allowable catch which was biologically necessary. Nevertheless that does not justify the view that such regard should permit exclusive coastal zones when they are clearly and unequivocally prohibited.

The fact that other Member States may also have enacted provisions concerning coastal zones does not justify the United Kingdom Order.

Even if all the other Member States, including Denmark, had denied their fishermen access to the coastal zones of other Member States the outcome would in any case simply have been the establishment of exclusive coastal zones contrary to Article 2 (1) of Regulation No 101/76, Article 7 of the EEC Treaty and to Articles 100 and 103 of the 1972 Act of Accession.

In the opinion of the Danish Government, it is clear from those provisions that the Member States had no power either acting individually or collectively to enact provisions contrary to the common policy adopted by the Council.

Even if it were to be accepted, contrary to the view of the Danish Government, that it was not contrary to Article 2 (1) of Regulation No 101/76 for a Member State itself to divest its citizens of rights which they otherwise enjoy in other Member States' fishing grounds, it does not follow that the United Kingdom is entitled to take such rights away from Danish nationals, in direct contravention of Article 2 (1) of Regulation No 101/76.

In the view of the Danish Government the fact that the Sea Fish Order 1982, unlike the Commission's proposal, applied exclusively to Danish fishing vessels constitutes an aggravating circumstances.

As a result, the nationals of a number of other Member States were free to fish within the United Kingdom's coastal zone on 6 January 1983 whilst only Danish, Irish and Netherlands fishermen were excluded.

A further consequence is that any penalties for failure to comply with that prohibition are not uniform, as they would have been under the Commission's proposal.

In addition, the Danish Government concedes that in the period between 1 January 1973 and 31 December 1982 there was no traditional fishing by Danish fishermen in what was then the United Kingdom's exclusive coastal zone.

However, that in no way supports the view that Danish fishermen could not exercise the right incontestably conferred upon them by Article 2 (1) of Regulation No 101/76 and Article 7 of the EEC Treaty which they have enjoyed throughout the 10 years which have elapsed, so far as the coastal zones of the United Kingdom are concerned, where, until 1 January 1983, there were only exclusive zones within a limit of six nautical miles, pursuant to Article 100 of the Act of Accession.

Article 100 (2) and (3) of the Act of Accession show clearly that the 10-year authorization to establish exclusive zones was precisely concerned — in derogation from the provisions of Regulation No 101/76 — to exclude nontraditional fishing since traditional fishing rights could be exercised throughout the whole of the 10-year period until 31 December 1982.

In particular, he maintains that the order is plainly discriminatory. It is a blatantly discriminatory measure aimed at treating nationals of some Member States, and in particular United Kingdom nationals, more favourably than Danish nationals.

To exclude Danish fishermen from all United Kingdom waters from 1 January 1983 amounts to dissimilar treatment of comparable situations and places Danish fishermen at a severe competitive disadvantage.

Nevertheless, differentiation can be justified and may be permissible when based on objective criteria, as the Court recognized in Case 11/74 Union des Minotiers de la Champagne ([1974] ECR 877).

The justifications which the United Kingdom sought to rely on in support of its action do not however satisfy that requirement.

It was submitted, in particular, before the national court that the differentiation was intended to protect coastal fishery, fishing communities and the local population dependent on fishing, objectives which are recognized in Articles 3 (d) and 39 of the EEC Treaty. Mr Kirk contests that submission and notes that the judgment of the Court in Case 287/81 (Noble Kerr, cited above) in which the contested measure was held to be valid on the ground that it was intended to protect the local population is of no binding authority in this instance for two reasons :

The Sea Fish Order 1982 is not a conservation or management measure; it is merely a measure relating to access;

Mr Kirk also disputes the argument advanced in the main proceedings, that since Denmark could not lay claim to historical fishing rights under the London Fishery Convention 1964, Danish vessels were precluded from fishing in the disputed area after 31 December 1982. That argument is not relevant and it in no way affects the principle of freedom and equality of access laid down by the EEC Treaty.

Moreover it was submitted on behalf of the prosecution that the Sea Fish Order 1982 had been adopted at a time of great uncertainty. In that respect Mr Kirk notes that an order made by a Member State spurred on by a sense of unease or uncertainty cannot legalize an otherwise illegal act; nor can it constitute a justification for adopting measures contrary to Article 7 of the EEC Treaty.

The United Kingdom Government is under an obligation to give priority to the interests of the Community by adopting a provisional measure, in accordance with the Commission's proposals and the principle of Article 7 of the EEC Treaty. The United Kingdom measure exceeded those proposals inasmuch as it discriminated against Danish vessels.

Finally, Mr Kirk submits that, inasmuch as it was more far-reaching than was required to do what it set out to do, the Sea Fish Order 1982 constitutes a breach of the principle of proportionality, a principle which has been recognized in the consistent case-law of the Court.

More specifically, Mr Kirk, draws attention to the following factors :

The extreme nature of the order and penalties which may be imposed under it;

He maintains that the desired objective could have been attained by other methods.

the impossibility in the short time available of deciding whether the measures were well founded or coordinated;

The Commission concedes that the legal basis for such an authorization is fragile. It derives from the Commission's supervisory duties under the EEC Treaty, particularly Article 155, and under Annex VI to the Hague Resolution of 3 November 1976, in conjunction with the general principles of law relating to the exercise of emergency powers by the executive and, in particular, the principle of continuity. That principle requires public authorities to ensure that the services for which they are responsible function properly and continuously. Where there are exceptional circumstances, interpreted strictly, the concept of continuity recognized in the case-law of several Member States has also been recognized, to a certain extent in the case-law of the Court of Justice, in particular in connection with Article 76 of the Euratom Treaty, in respect, of which the Court refused to adopt an interpretation which would have involved a break in continuity (judgment of the Court in Case 7/71 Commission w France [1974] ECR 1003). The principle of continuity is also implicit in the Court's conclusion that despite the total and definitive transfer to the Community of powers relating to the conservation of fishery resources, Member States may still amend existing conservation measures in case of need and where the Community has failed to act (judgments of the Court in Case 804/79, cited above, and Case 124/80 Van Dam [1981] ECR 1447).

Article 155 of the EEC Treaty, and in particular the first indent thereof, empowers the Commission to act in order to prevent undue disruption of the common fisheries policy as a result of an interruption in the system. That interpretation of Article 155 is supported by the two judgments of the Court in Case 804/79 and Case 124/80 (cited above).

However, the Commission notes that the Court has not yet given a clear decision on the validity of the exercise of such powers by the Commission. Nor will it be obliged to do so in the present case if it accepts the Commission's primary contention that the gap was filled retroactively by the adoption of Council Regulation No 170/83.

The Danish Government submits detailed observations concerning the Commission Decision approving, inter alia, the United Kingdom measure.

The Danish Government submits that the grounds on which the Commission's Decision is stated to be based are not relevant to the question of access to fishing waters. Since the Member States were not able, and in any event were not obliged, to adopt national measures contrary to Article 2 (1) of Regulation No 101/76 and to Article 7 of the EEC Treaty, they were under no obligation to enact legislation in accordance with the Commission's proposal concerning reserved areas within 12 miles of the coast. Accordingly there was no justification for instituting proceedings under Article 169 for failure to notify the United Kingdom measure concerning access to fishing areas.

In relation to reserved coastal areas, it is inconceivable that public order could be jeopardized by conflicts arising ... in the absence of any provision applying to fishing in Community waters. Such provisions are in fact contained in Article 2 (1) of Regulation No 101/76 and Article 7 of the EEC Treaty. The Council's failure to act could not therefore have given rise to legal uncertainty.

Consequently, in so far as the decision concerns exclusive coastal areas, the Danish Government considers that it is invalid because the statement of the reasons on which it is based is inadequate or incorrect.

As regards the operative part of the Decision, the Danish Government maintains that, as may be seen from the second recital of the preamble to the Decision and Article 2 thereof, the national measures were not assessed in relation to Community law. The object of the decision could only have been to inform the Member States that the Commission, for its part, did not object to national measures which were in accordance with its proposal. It was therefore of limited scope.

The Danish Government considers that in this case it is unnecessary to decide whether the Commission was empowered to grant temporary authorization for national measures without a separate examination as to the justification of such measures in the context of Community law.

It is sufficient to find that it must be completely excluded that the Commission, without carrying out such an inquiry, can have intended to permit national measures which might be contrary to Community law.

Furthermore, if the Commission had intended by its authorization to remedy the effects of a measure which was potentially incompatible with Community law, such an aim, which is quite extraordinary, should have been set out clearly in the decision, which is not the case. In such circumstances, the Commission would have cast its measure in the form of a regulation.

The Danish Government therefore considers the Commission's Decision irrelevant to the reply to be given to the question submitted by the Crown Court.

If, contrary to the Danish Government's interpretation, the object of the Commission's Decision was to legalize a national measure that is at variance with substantive provisions of Community law, the Danish Government claims that the Decision must be invalid on the grounds that it is ultra vires and substantively incompatible with the relevant provisions of Community law.

The Danish Government submits that the Sea Fish Order 1982 does not conform to the Commission's proposal and thus is certainly not covered by the Commission Decision of 5 January 1983, because the 1982 Order excluded only Danish fishermen from the United Kingdom coastal area and thereby discriminated against them.

Finally the Danish Government draws attention to the problem of legal certainty which would arise in relation to the legitimate expectation of persons subject to Community law in connection with applicable Community regulations and their primacy over national law if a fisherman might be convicted on the basis of a decision adopted by the Commission after he had left his home port and not published until a week after he had been arrested and convicted where the decision was published only in Part II of the L Series of the Official Journal, which contains acts whose publication is not obligatory.

It contained no legal assessment of the validity or the status of the measures adopted. That is made clear by the Decision itself in which it was stated that the merits of the national measures would be assessed in due course.

Mr Kirk points out that, in any event, in January 1983 Denmark complained to the Commission about the Sea Fish Order 1982 and that the Commission could not approve that measure without following the procedures laid down in Article 170 of the EEC Treaty.

Moreover, the Commission was not legally entitled to approve the measures. That was a matter for the Council.

In Mr Kirk's view the whole process was a redundant exercise since the Commission's action was not legally valid and since there was no uniform notification of national measures by the Member States.

In any event, such a decision cannot retroactively validate prior legislation, particularly legislation creating criminal offences, especially since the decision was adopted after Captain Kirk had left port and was not published in the Official Journal until well after he had been convicted.

Having regard to all the provisions of Community law, and in particular Article 6 of Council Regulation No 170/83, a Member State had the right, subject to the provision of Annex I to that regulation, after 31 December 1982 to bring into force a measure prohibiting fishing in a 12-mile zone around its coast by a vessel registered in another Member State.

Under Community law — in particular Article 7 of the EEC Treaty, Article 2 (1) of Regulation No 101/76 and Articles 100 and 103 of the Act of Accession — the United Kingdom was not entitled after 31 December 1982 to adopt or enforce national measures prohibiting only vessels registered in Denmark from fishing within 12 nautical miles from the baselines of the United Kingdom.