In Joined Cases 3/76, 4/76 and 6/76
Reference to the Court under Article 177 of the EEC Treaty by the Arrondissementsrechtsbanken (District Courts) of Zwolle (Cases 3/76 and 4/76) and Alkmaar (Case 6/76) respectively for a preliminary ruling in the criminal proceedings pending before these courts against
CORNELIUS KRAMER (Case 3/76)
HENDRIK VAN DEN BERG (Case 4/76)
VENNOOTSCHAP ONDER FIRMA (a partnership) KRAMER EN BAIS (Case 6/76)
on the interpretation of Articles 30, 31, 34, 38 to 47 of the said Treaty, of Article 102 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties and, finally, Regulation (EEC) No 2141/70 of
THE COURT
composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, J. Mertens de Wilmars, P. Pescatore, M. Sørensen and F. Capotorti, Judges,
Advocate-General: A. Trabucchi
Registrar: A. Van Houtte
gives the following
The facts of this case, the judgments making the orders for reference, the proceedure and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:
Criminal proceedings have been instituted before the Arrondissementsrechtsbanken of Zwolle and Alkmaar against certain Netherlands fishermen who are accused of having infringed the rules enacted by the Netherlands with a view to limiting the catches of sole and plaice. These rules had been adopted on the basis of the provisions of the North-East Atlantic Fisheries Convention which is hereinafter called
The measures relating to the objectives and purposes of this Convention which the Commission — the North-East Atlantic Fisheries Commission established under Article 3 of the NEAFC hereinafter referred to as
Pursuant to subparagraphs (g) and (h) of Article 7 (1) the Fisheries Commission adopted various recommendations in November 1974 including the following recommendation which applies to fishing for sole and plaice that
it should fix the total quotas of fish and it should subdivide these quotas into individual quotas for Belgium, Denmark, France, the Federal Republic of Germany, the Netherlands, the United Kingdom respectively and one single quota for the it should define the areas to which these rules apply and which cover not only the territorial waters of the States which are Parties to the Convention but also a large area of the high seas; it should prevent ships of more than 50 tonnes burden and developing more than 300 hp from trawling in the it defines the expression
As provided for in Article 2 of the
However the first paragraph of Article 3 of the BV provides an exception in that in the North Sea Netherlands fishermen are allowed to catch
On the basis of the BV the
The President made use of this authorization by adopting on
…
Regulation No 2141/70 adopted pursuant to Articles 7, 42, 43 and 235 of the Treaty:
recites states that provides that except in the case of Where provides that Member States shall send to the Commission sets up a
Regulation No 2142/70 adopted on the basis of Articles 42 and 43 of the Treaty:
recites lays down a price system (Articles 1 and 7 to 16); prohibits in trade with third countries provides that
Article 102 provides that
It entered in the minutes of this meeting the following sentence:
After the Commission had submitted the beforementioned proposal the Council adopted on
provides that Member States are hereby authorized to limit the catches of their fishing fleets in accordance with international undertakings contracted or to be contracted (Article 1).
Case 3/76: On or about Case 4/76: On or about Case 6/76: On or about
Written observations were submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC:
In Cases 3 and 4/76 by the Officier van Justitie at the Arrondissementsrechtbank, Zwolle, and the accused in the main proceedings; in Case 6/76 by the accused in the main proceedings and the Italian Government; in Case 3, 4 and 6/76 by the British, Danish and Netherlands Governments and by the Council and the Commission.
By order of
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided to open the oral procedure without any preparatory inquiry.
In these circumstances it is appropriate to consider whether those systems are incompatible with the aim and principles of the Community rules. For this purpose reference must be made to Regulation No 2141/70 which like the NEAFC aims at conserving fishing grounds, rather than to Regulation No 2142/70. Moreover the subdivision in the chapter in the Act of Accession dealing with fisheries provides some support for this view.
The Court has ruled that
All the accused reproduce the text of a number of provisions of the BV, the VB and UB and call attention to the successive amendments of some of them during 1975.
Sole and plaice are flat fish and are for the Netherlands the most important species of deep-sea fish, an expression which must be understood as contrasted with the pelagic species of fish, that is to say, fish which swim at a certain distance from the sea-bed. Deep-sea fishing is carried out mainly by undertakings engaged in coastal fishing with trawlers which are specially built for this purpose and cannot fish profitably for the pelagic species of fish. The disadvantage of fixing quotas for particular species of deep-sea fish is that, when the quota has been exhausted, deep-sea fishing must stop since it is impossible to avoid catching fish belonging to the said species as well. There is no point in throwing back into the sea the excess fish caught, because only about 15 % of them have any chance of surviving.
The accused produce figures relating
the abovementioned fleet is especially dependent on fishing for flat fish and in particular for sole; 90 % of the sole and plaice caught are exported, mainly to other Member States; the quotas fixed for 1975 amounted to a reduction in the case of sole and plaice of 47 % and 9 % respectively compared with the average catches from 1971 to 1973; because of these disastrous consequences the public authorities had to take remedial measures which, however, proved to be inadequate; if fishermen had kept within the limits of the said quotas many of them would have become bankrupt and this explains why in 1975 the Minister initiated criminal proceedings in approximately 600 cases.
Belgian and German fishermen have derived a considerable advantage from the fact that the closing of the area covered by the 12-mile limit to large vessels was announced much later in Belgium and the Federal Republic of Germany than in the Netherlands. Furthermore, the system of quotas brings about an unfair restriction of Netherlands production compared with that of the other Member States; as the quotas were fixed on the basis of the catches in the sixties this allocation does not take into account the fact that the capacity to catch fish increased in the Netherlands at the beginning of the seventies. The fact that the closure applies to large vessels places Netherlands fishermen at a further disadvantage, because the other Member States have trawlers of a lower tonnage and engine rating. Finally the fact that each Member State may place an absolute embargo on unloading encourages importation from other Member States; this is why the Netherlands recently imported large quantities of sole from Belgium, although traditionally the trade flows in the opposite direction.
This question has been dealt with in a now well-established line of decisions of the Court from which the rule emerges that Member States must avoid any measures likely to derogate from or affect adversely the organization in question; such an adverse effect may also result from a conflict with the aims and objectives of the regulation establishing this organization. In the present proceedings it is well to bear in mind that Regulation No 2141/70 constitutes a supplement to Regulation No 2142/70. The quotas fixed by the Netherlands authorities are incompatible with these regulations. With regard to coastal (sic) waters this jurisdiction is conferred by Article 5 of Regulation No 2141/70. With regard to fishing on the high seas, it is well to bear in mind that although Articles 2 to 5 of this regulation transfer to the Community some of the sovereign powers of Member States over maritime waters, such a transfer is unnecessary in order to succeed in establishing a common system for fishing on the high seas. The Community therefore has by Article 1 of the regulation; by Regulation No 802/68 of the Council of That national quotas can seriously disturb price trends is shown by the prices curve recorded in the Netherlands in 1975 for the various species of fish for which quotas had been fixed. The disputed measures are particularly disturbing since they can affect the conditions of production enjoyed by fishermen of other Member States. The objection cannot be raised that, since quotas come within the structural policy, they play no part in the organization of the market but owe their existence to biological considerations. There is a close link between structural policy and the organization of the markets. Taking into account the fact that fishing is very important to the Netherlands and that most of the fishery products are exported a structural policy applied unilaterally has a great influence on the common market. This argument is confirmed by Opinion Member States could and should have authorized the Commission to negotiate within the framework of the NEAFC in order to obtain Community quotas. On the other hand it is difficult to defend a solution which consists of the Council's authorizing each Member State to negotiate quotas individually and to apply them independently. It is true that these judgments simply found that provisions which prohibit measures having an effect equivalent to quantitative restrictions and which are contained in Community regulations, are directly applicable. But there is no doubt that this finding must also apply to Article 30 of the Treaty. In the present proceedings the prohibition stems directly from this Article, Regulations Nos 2141/70 and 2142/70 being silent on this point. This silence is due to the fact that these regulations were adopted after the end of the transitional period, whereas the regulations at issue in the
The
Under international law there is a solemn duty to conserve fish stocks:
In accordance with the first Article of the Geneva Convention on Fishing and the Conservation of the Living Resources of the High Seas (1958) and to which the United Kingdom and other Member States are parties, the right to fish the high seas is subject to the duty to adopt measures necessary for conservation.
The purpose of the NEAFC is also the conservation of fish stocks.
The Community institutions must have regard to these obligations, just as Article 11 of Regulation No 2141/70 does to a certain extent. Article 234 of the Treaty and Article 5 of the Act of Accession protect the obligations entered into by each Member State before the date when the Treaty entered into force for that State. As far as the United Kingdom is concerned this principle applies to the NEAFC.
The Netherlands legislation which is at issue and the similar provisions adopted by other Member States, including the United Kingdom, gives effect to Articles 7 and 8 of the NEAFC. The quotas fixed pursuant to NEAFC are generally for a period of one year; those with which these cases are concerned remain in force until the end of 1976.
Before and after the meetings of the Fisheries Commission the Member States and the Commission of the EEC conferred together with a view to adopting a common line.
It emerges from the case-law of the Court that, where Community rules cover a particular subject-matter only partially, Member States retain the power to regulate the remaining area, provided that they do not impair Community rules.
This is the position in these proceedings. As the first and second recitals of Regulation No 2142/70 indicate the provisions of that regulation apply to the marketing of landed fish but do not regulate fisheries as such. Although the penultimate recital of this regulation refers the need to preserve fishing grounds, none of its provisions however with the possible exception of Article 32 takes up this idea let alone regulates catch levels. On the other hand although Regulation No 2141/70 refers more specifically to the conservation of resources, Article 5 thereof does not establish a concrete system for this purpose and does not apply to the high seas; furthermore the Council has not so far adopted the implementing measures provided for this Article or those referred to in Article 102 of the Act of Accession. At the present time Member States therefore enjoy full power to take autonomous action, as Articles 2, 11 and 13 of Regulation No 2141/70 in particular acknowledge. It is not now possible to anticipate from the general terms of Articles 38 to 47 of the Treaty and of Regulations Nos 2141/70 and 2142/70, the action which the Council may take in the future, especially as these provisions do not apply to sea areas other than those under the sovereignty or the jurisdiction of the Member States.
All things considered, this question must be answered in the affirmative.
The Court's judgment in the AETR case gives rise to difficulties of interpretation particularly with regard to ground 17 of the judgment which states that when the Community
The arguments developed by the Court in Opinion 1/75 also do not apply. This opinion refers to the rules relating to the common commercial policy, which
This question must therefore be answered in the negative.
It follows from the submissions put forward in connexion with the first two questions that this question must be answered in the affirmative.
Articles 38 to 47 of the Treaty and Regulations Nos 2141/70 and 2142/70 must be read in the light of Article 102 of the Act of Accession. Articles 30, 31 and 34 of the Treaty of Rome cannot be interpreted as applying to national regulation of catch levels. Article 2 of Regulation No 2141/70 does not make it obligatory for Member States to ensure free access. The obligation imposed under international law upon Member States to conserve fish stocks cannot be avoided by claiming that the Community has competence beyond that which presently exists.
Although in the Court's judgment in the
Having regard to the arguments put forward earlier it is unnecessary to answer this question.
The
It is not true that all the principles applicable in the agricultural sector properly so-called also apply to the fishing sector, as there are fundamental differences between each of them. In particular the
As emerges from the recitals and Article 5 of Regulation No 2142/70 this regulation provides for a genuine regulation of production in that it aims at adjusting the supply to market requirements. Such an objective is fundamentally different from the aim of conserving resources.
There is no Community provision precluding Member States from fixing quotas for catches:
Under Article 39 of the Treaty the objectives of the common agricultural policy are
This regulation does not contain any provisions relating to the said measures whereas the recitals and Articles 2 and 5 of Regulation No 2141/70 assume that such measures can be taken at a national as well as a Community level. The power which Member States have stems also from Article 100 (1) of the Treaty of Accession.
The grounds of judgment in the
Article 102 of the Act of Accession and Regulation No 2141/70 only relate to a sea area which at the present time covers at most twelve nautical miles. However, the quotas fixed under the NEAFC are mainly concerned with catches on the high seas. Even if the said Article 102 also refers to measures which apply outside the twelve-mile limit, the fact remains that, as this provision has not been implemented by the Community, the Members had to adopt conservation measures.
The situation would be entirely different if the abovementioned twelve-mile limit were extended to 200 miles, as there are grounds for expecting will happen. If this does happen the territorial scope of the Community provisions under consideration would include the greater part of the North Sea; the Community would then find that it could and had to take effective conservation measures. In the meantime, however, the grounds of the Court's judgment in the AETR case do not apply in the absence of a real basis for any such intervention by the Community. Be that as it may, at the present time political difficulties preclude the amendment of the NEAFC so that the Community, which is not a State, can be a party thereto.
To sum up, the first and third questions should be answered in the affirmative and the second question in the negative.
The
The problem raised by the first question of the possible inconsistency between the national and the Community regulations is not one of lack of competence but of incompatibility. The Court has repeatedly held that Member States have retained the power to intervene in sectors governed by common organizations of the market, provided that they do not adversely affect attainment of the objectives or the operation of these organizations. The first question should therefore be answered in the affirmative.
With regard to the third question the system of quotas which is in dispute does not contravene the provisions governing the free movement of goods because it restricts production and not marketing. On the other hand, having regard to the Court's reasoning in the
The
The question referred by the national courts should be understood above all in the light of the judgment of the Court in the
The fixing of these kinds of quotas is in harmony with the objectives of Regulation No 2142/70 (cf. the twenty-fourth recital). But is must above all be considered in the context of the structural policy, which differs from the market and pricing policy in that the Member States have a greater responsibility. Thus Article 2 of Regulation No 2141/70 takes as its point of departure the provisions existing in this field in the Member States. It appears from Article 5 thereof that the Community institutions are not obliged to enact measures for the conservation of resources and that, until they do so, Member States retain responsibility in this field. This view is confirmed by Article 102 of the Act of Accession, which, taking into account the time-limit which it lays down for the adoption of implementing measures, has more finality than the other transitional measures provided for by this Act.
Article 30
It follows
The
As soon as the Fisheries Commission recommended that the catch should be determined by quotas the Community took an interest in the work of this Commission which took the form, not of joining the NEAFC but of coordinating the positions taken up by Member States before and during the meetings of the said Commission.
In order to consider the question whether the system of quotas adopted under the NEAFC is compatible with Community law it is well to have in mind the nature of the special features of the exploitation of the sea. Maritime resources differ from all other natural resources and particularly from agricultural products properly so-called because they
The NEAFC system is not concerned with marketing but is designed to secure the supply of fishery products.
With regard to the prohibitions specified in Article 30
With regard to the prohibitions in the basic agricultural regulations the same reasoning must be applied. The Court's judgment in the
To sum up, a system of quotas such as the one which is at issue is not incompatible with Articles 30 to 34 of the Treaty or with Regulation No 2142/70.
It may be asked whether fixing a maximum quota for each Member State which is a party to the NEAFC and also the prohibition on using large-sized vessels are measures which could be said to disregard the prohibition of discrimination between producers within the Community contained in Article 40 (3) of the Treaty. The answer is, however, in the negative. The quotas were fixed on a scientific basis (cf. Article 11 of the NEAFC) — that is to say, taking into account the maximum number of fish which can be caught without exhausting stocks — and with reference to the previous catches of the States concerned. The said prohibition is a measure which could constitute one of the
Only Articles 2 and 5 of this regulation are relevant to these proceedings.
The geographical areas to which the NEAFC and Regulation No 2141/70 apply are so very different that for this reason alone they cannot be incompatible with each other. The NEAFC applies mainly to the high seas and its application to coastal waters and inland maritime water is only of ancillary importance. On the other hand Regulation No 2140/70 only applies to coastal waters, or to put it more precisely, to the maritime waters
The NEAFC is concerned with a policy of conservation and national exploitation. On the other hand the main purpose of Regulation No 2141/70 is to ensure that there is no discrimination between fishermen of the Member States (cf. Article 2 thereof) and the prevention of overfishing in coastal waters (cf. Article 5) is only a subsidiary objective at least at the present time. However, this latter provision is at present only of minor importance: since it only applies de facto within a twelve-mile limit, it cannot form the basis of a real conservation policy. This situation could change if Member States had one day to extend their territorial waters to 200 miles.
Nevertheless it may be asked whether the recommendation of the Fisheries Commission is not incompatible with the rule of non-discrimination in Article 2 of Regulation No 2141/70 in that it prohibits the use of large-sized vessels in a sea area to which the regulation also applies. The answer to this question is, however, in the negative since this prohibition applies no matter what flag under which the fisherman sails. Moreover, Article 5 of this regulation itself makes it possible to adopt such restrictive measures.
The NEAFC system cannot be incompatible with this article because it has not yet been implemented.
It is true that the NEAFC was signed after the entry into force of the Treaty, but this was at a time when the Community had not yet adopted any measures in the fisheries sector. Although this was no longer the situation when subparagraphs (g) and (h) of Article 7 (1) of the NEAFC entered into force, the fact remains that at that time the Council did not always make use of the power conferred upon it by Article 5 of Regulation No 2141/70.
According to Article 15 (4) of the NEAFC only States can be parties to it. Therefore an application by the Community to become a party to the NEAFC could only have been granted with the unanimous agreement of all the signatory States. However it is doubtful whether the States of the East would have been willing to agree.
Furthermore, in connexion with the same point, it is well to stress the fact that until now the Community has only exercised jurisdiction over the fishing industry within the twelve-mile limit, an area to which the authors of the NEAFC, as has been shown, only attached secondary importance.
Assuming that this is what the NEAFC has done the view can certainly be taken that the Community institutions are called upon to adopt general provisions prescribing the conditions of the
This is both a delicate and topical question. It is delicate because it can be anticipated that the future Law of the Sea will deal more extensively with restrictions on catches, a problem which the Conference on the Law of the Sea is studying. It is topical because, as these proceedings show, the fishermen from the Member States are more and more inclined to challenge the right of the latter to lay down such restrictions.
In order to
In short the Council submits that:
Questions 1 and 3 should be answered in the affirmative and question 2 in the negative; No answer should be given to the fourth question since it has no purpose if the first three questions are answered as indicated above.
The
These two questions must be considered together since the legal analysis required is substantially the same both as regards whether Member States have power to fix catch quotas and as regards whether fixing such quotas is substantively compatible with Community law.
In general there are grounds for the view that, although determining a fixed quota for a specific fishing area amounts to a conservation measure, allocating this quota among the contracting States is however an economic and political measure.
A policy which aims at conserving fish stocks falls within the objectives set out in Article 39 of the Treaty and, in particular, in subparagraphs (a) and (d) of paragraph (1) thereof. Consequently the common agricultural policy may and, where appropriate, must contain a system of measures for this purpose and the Community institutions must undertake the administration of such a system.
Notwithstanding the rules relating to the power to enter into agreements in this field (cf. below with reference to the second question) Member States retain the power to take measures in the agricultural sector so long as the Community has taken no initiative. Consequently whether these States are empowered or not to adopt rules in a specific sector does not depend upon the wording of Article 37
The judgment of the Court in the
The Commission analyses in detail the regulations referred to above which established an even more comprehensive common organization than the one set up by Regulation No 234/68 which was at issue in the
contain a price system and trade arrangements with third countries;
provide for the adoption of quality standards which the Court held to be decisive in the abovementioned case;
lay down rules relating to producers' organizations;
state that Articles 92 to 94 of the Treaty shall apply;
include a structural policy, one of the objectives whereof is to safeguard resources and which is centred on common rules for fishing in maritime waters, on certain specific measures and on the coordination of the structural policies of the Member States;
do not, it is true, contain any provisions expressly prohibiting obstacles to intra-Community trade, although this fact is not important, since the regulations were adopted after the end of the transitional period, from which date the prohibition relating to the Treaty applies automatically (cf. the twentieth recital of Regulation No 2142/70);
in all these circumstances constitute integral parts of the common policy in the sector in question.
The jurisdiction of the Community is not automatically limited to the territories, including the territorial waters, of the Member States and this is due to the fact that, for the purpose of defining the field of application of the Treaty
It would be impossible to pursue the objectives laid down for the common structural policy for the fishing industry if this policy cannot be applied outside the maritime waters of the Member States. The fact that Articles 2 and 5 of Regulation No 2141/70 refer specifically only to those waters does not invalidate this argument:
The discrimination prohibited by Article 2 is inconceivable outside the waters coming under the sovereignty or within the jurisdiction of the Member States.
Although Article 5 authorizes the Council to adopt the necessary measures for the conservation of stocks in the maritime waters of Member States, it cannot, however, be interpreted as meaning that the Community has no power to take conservation measures which apply outside this area. In particular such an interpretation would prevent the effective attainment of the objective set out in Article 1,
In particular, for the reasons given in detail hereafter by the Commission, a system of quotas such as the one at issue in the present proceedings could impede, actually or potentially the functioning, of the common organization of the market in the fishery products sector and is also incompatible with the principles of the common policy enshrined in Regulation No 2141/70, so that it is unnecessary to know whether the said system is reasonable (cf. the judgment of the Court of
Such a system has an effect on the normal formation of prices. There is a large increase in prices when the quotas have been exhausted; on the other hand if certain kinds of fish are in short supply the normal price differentials between the different qualities of the same species tend to narrow.
A shortage on the domestic market is manifested in an increase of imports from third countries.
A decrease in the catches by the fishing fleet of a Member State cannot fail to have an effect on the volume of intra-Communiry trade.
Although it is true that, leaving aside Article 100 (1) of the Act of Accession, the provision which preserves the
Regulation No 2142/70 does not contain any provision specifically authorizing Member States to adopt measures aimed at limiting catches or the amount of fishing (cf. the
Having said that, the Commission does not fail to recognize the need for a dynamic conservation policy or the fact that the introduction of catch quotas can further the attainment of this objective. For this reason as far back as 1971 the Commission recommended participation in the NEAFC to the Council with the result that the quotas negotiated under that convention and affecting the Member States would be allocated and administered by the Community.
The disputed quotas restrict production and not trade. There is no doubt that they also produce effects at the marketing stage since they are likely to cause imports to increase and exports to decrease. However that does not mean that they are measures having an effect equivalent to a quantitative restriction. There are a number of systems which, in spite of their restrictive effect on trade, are compatible with Articles 30 et seq. of the Treaty because they come within the measures which, under the Treaty, can be adopted by Member States. As the Commission indicated in its Directive No 70/50 of
The restrictions on production might even have a stimulating effect on imports. On the other hand they are likely to reduce exports, but, although the system of quotas does not distinguish between sales on the domestic market and those made outside it, there is no ground for claiming that it has a specifically restrictive effect on exports.
In its judgment in the
Article 43 empowers the Community to take any measures necessary for the conservation of fish stocks. This power includes entering into international agreements relating to such measures.
The Community does not have to adopt its own rules on conservation before opening negotiations with third countries. If the Community were to take such a line it could be blamed for impeding international cooperation which is essential in this particular field. In addition it would run the risk of being put in the wrong by third countries and its own Member States. The Commission refers again to Opinion 1/75 of the Court according to which the common commercial policy can be worked out by means of unilateral regulations and also with the help of international agreements without either of them taking precedence over the other.
Nevertheless, so long as the Community has not exercised the power to enter into agreements with third countries relating to the conservation of fish stocks, Member States are themselves competent to enter into such agreements. When doing so, having regard to the obligation imposed upon them by Article 5 of the Treaty, they must however:
make way for the Community to negotiate and enter into such agreements;
if that proves to be impossible, include in the agreements in question provisions enabling the Community to accede to the agreements in place of or in addition to Member States and making it possible for the latter to fulfil at any time their obligations to the Community and in particular to be able to give reasonable notice of the agreements, in so far as the Community does not wish to or cannot take them over.
In the field of commercial policy such obligations have been specified by a certain number of the Council's decisions. The
Since
It is well to consider in addition the question whether this exclusive power also extends to other measures designed to protect the resources of the fishing industry, although the national courts have not raised this question. The answer is in the affirmative as the Community has used the power conferred upon it by Article 43 of the Treaty to take protective measures in this field (cf. Articles 1 and 5 of Regulation No 2141/70 and Article 102 of the Act of Accession).
It is true that the transitional provision in the second paragraph of Article 100 (1) of the Act. of Accession provides an exception to this exclusive power by granting Member States on a provisional basis the right to adopt measures restricting fishing in a limited area of the waters under their sovereignty or within their jurisdiction. Furthermore some people take the view, wrongly according to the Commission, that Articles 2 to 5 of Regulation No 2141/70 and Article 102 of the Act of Accession authorize Member States to take further conservation measures. But however that may be, Member States are not entitled to adopt rules restricting the size of catches or the amount of fishing, since such restrictions are incompatible with the common organization of the market.
Furthermore it does not follow from the provisions which have been quoted that Member States have retained the freedom to negotiate and enter into agreements with third countries for protecting the resources of the fishing industry.
There is no doubt that Member States cannot be required simply to abolish the measures which they have taken while waiting for rules and regulations to be drawn up by the Community. But when they apply or possibly modify them they must take care not to impede the implementation of a set of Community rules and endanger the interest which the Community has in the conservation and rational use of the resources of the fishing industry (cf. the judgment of the Court of
Articles 113 (3) and 114 provide that only the Community is entitled, after the end of the transitional period, to negotiate and conclude agreements with third countries dealing with matters which come within the scope of the common commercial policy.
The measures for the conservation of the resources of the fishing industry provided for by subparagraphs (g) and (h) of Article 7 (1) of the NEAFC are included among these matters. They directly determine the Community's share in the total production and in the entire demand for and supply of the species of fish referred to on the world market and consequently have an effect on trade between third countries and the Community. They also affect the amount of the Community fishing fleets' participation in all the operations of the fishing industry in the sea area covered by the NEAFC. In this connexion the fact that the catch quotas also further biological objectives has little relevance once it is shown that they also have an economic and commercial aspect, particularly as regards the allocation of the global quotas among the States concerned. Having regard to all these considerations the Commission based the recommendation, which it sent to the Council on
Having regard to all these circumstances the second question should be answered in the affirmative. It should also be said that this reply must not be limited to measures such as those provided for in Article 7 (1) (g) and (h) of the NEAFC but can be given in respect of all measures which aim at the conservation and rational use of the resources of the fishing industry.
Nevertheless the question must be asked whether this reply is sufficient to settle the dispute. The question raised by the national courts implies another one namely whether, having regard to the binding nature of the disputed Netherlands rules, the fact that they were adopted for the purpose of implementing the provisions of the NEAFC can be regarded as determinative.
The Community is not bound by the NEAFC to which it has not yet acceded. On
So far as relations between the Community and the NEAFC is concerned the only results which have been obtained so far are that the Community has acquired the status of an observer at the Fisheries Commission and that it has been agreed that the Commission and the Member States shall coordinate beforehand and on the spot the line to be taken during the negotiations within the Fisheries Commission, with a view to agreeing a common approach and that as a general rule the Commission is the Community spokesman on questions falling within the competence of the Community which were the subject of a common approach. This last arrangement, however, largely remained a dead letter since on several occasions it either proved impossible to agree on a common approach on the matters which in the opinion of the Commission were the responsibility of the Community or the common approach which had previously been agreed was abandoned during the discussions.
The NEAFC was concluded after the entry into force of the Treaty and consequently does not fall within Article 234. Nevertheless the Member States did not contravene the provisions of Article 5 of the Treaty when they ratified the Convention, which they did before 1970. It is true that the Convention does not contain an EEC clause or a provision permitting the Community to accede to it but it can be terminated after the expiration of a period of one year. Furthermore any State may object to any binding recommendation of the Fisheries Commission. The Community, applying Article 234 by analogy, must give Member States a reasonable period of time to adapt their obligations under the Convention to those arising under the Treaty.
The situation is different as regards the fact that all the Member States which are parties to the NEAFC accepted the proposal made by the Fisheries Commission that subparagraphs (g) and (h) be added to Article 7 of the Convention.
This proposal, in the working out of which the Member States collaborated in the course of the same period during which they discussed within the Council the implementation of the common fisheries policy, was accepted by them in accordance with the procedures prescribed by their constitutions, although in the meantime Regulations Nos 2141/70 and 2142/70 entered into force. Before accepting this proposal these Member States had to make certain that the modification of their obligations was compatible with Community law. If it was not they had to cooperate with the Community institutions with the object of finding an acceptable solution. In addition to the accession of the Community to the NEAFC such a solution had also to allow negotiations within the Community to take place concerning the administration of the quotas allocated to different Member States as the Commission had already recommended on
From 1974 onwards the Member States took part, within the Fisheries Commission, in negotiations relating to the fixing and allocation of the national catch quotas under the new powers conferred on this Commission. Further they adopted without any modification the recommendations drawn up in this connexion without even adding to them the reservation that Member States' national quotas would be administered by the Community. By doing so they exceeded their powers and were in breach of their Community obligations. They cannot rely on the said recommendations for the purposes of adopting provisions contravening the rules of the common fisheries policy. The courts of the Member States must hold that such provisions are not binding and applicable. These considerations must be borne in mind independently of the validity under international law of the obligations which the Member States intended to fulfil by means of the said provisions.
The Community is not legally bound by these obligations either in relation to the third countries concerned or the Member States concerned.
The Member States cannot invoke the attitude of the Community institutions in order to justify the legality of their rules relating to quotas. The illegality of the disputed national rules and the rights which individuals can derive from this situation do not cease to exist by reason of the default or actual conduct of Community institutions. They can only disappear if the national or the Community provisions are amended. The Commission has always upheld the view put forward in its submissions in this case. The fact that in the absence of any decision by the Council on the proposals concerning the accession of the Community to the NEAFC the Commission has endeavoured, in accordance moreover with the wish expressed by the Council, to coordinate as far as possible the views of Member States cannot make up for the Member States' lack of competence.
The Commission's view has not been supported by the Council. The very cool reception given by the Council to the Commission's recommendations in 1971 and 1973 caused the Commission to behave with some restraint. The case-law of the Court (the
The Council however approved in principle the Commission's argument at the meeting on
Of the provisions which have been quoted Article 31 no longer applies as the transitional period is over. The prohibition in Article 31 on new quantitative restrictions and measures having equivalent effect has been replaced by the absolute prohibition in Article 30.
Article 30 — which is not in issue in the present proceedings (cf. in the case of the first and third questions the last section above) — and Article 34 are directly applicable. Although the Court has not yet directly ruled on this point its case-law declaring that other provisions of the Treaty are directly applicable may be transposed to the said articles.
To sum up the Commission submits that the following answers be given to the national courts:
The provisions of Regulations Nos 2141/70 and 2142/70 preclude any rules designed to limit quantitatively catches or fishing by the fishing fleets of Member States
The Community has exclusive power to conduct negotiations and conclude agreements in connexion with measures intended to conserve the resources of the fishing industry and designed to limit quantitatively the catches or fishing.
Articles 30, 31 and 34 of the Treaty are directly applicable — from the end of the transitional period, at the latest from the expiry of the period for giving notice laid down in the second paragraph of Article 31, and from the end of the first stage of the transitional period respectively — and they create, for the benefit of individuals, in the case of all quantitative restrictions and measures having equivalent effect, rights which national courts must protect.
During the oral proceedings which took place on
The Advocate-General delivered his opinion at the hearing on
either landing more than a certain maximum amount of sole using vessels bearing certain registration numbers; or fishing for sole or plaice in the abovementioned twelve-mile area, using vessels over a certain tonnage and a certain engine rating.
on the international level, whether the Community alone has authority to enter into commitments such as have just been described; on the internal Community level, whether national measures such as those adopted by the Netherlands, which measures will hereinafter be referred to as
Next, under its Regulation No 811/76, adopted after the questions had been referred to the Court, the Council has expressly authorized the Member States
On those grounds,
THE COURT
in answer to the questions referred to it by the Arrondissementsrechtbanken of Zwolle and of Alkmaar by judgments of
Lecourt
Kutscher
O'Keeffe
Mertens de Wilmars
Pescatore
Sørensen
Capotorti
Delivered in open court in Luxembourg on
A. Van Houtte
Registrar
R. Lecourt
President