11.Taking the view that a correct interpretation of the provisions cited above is essential for resolving the dispute, the High Court has stayed proceedings and referred to the Court of Justice the following questions for a preliminary ruling:- (1)
- (a)whether the decision enables and/or authorizes the United Kingdom to adopt measures such as that contained in the Order; and
- (b)whether the decision excludes the possibility of using technical conservation measures in order to achieve the same objective;
- (2)whether the answer to Question 1 is affected by the fact that the United Kingdom did not reduce the capacity of its fishing fleet in accordance with the provisions of its second MAGP;
- (3)whether, in any event, measures of the kind adopted in the Order are contrary to the abovementioned provisions and principles of Community law;
- (4)whether the answers to the above questions are affected by
- (a)the nature of the stock fished for by United Kingdom fishing vessels, in particular whether or not the stock is subject to total allowable catches,
- (b)the extent to which the Order will affect the whole fisheries sector and
- (c)any derogations made in future by the competent minister for particular sectors.
During the proceedings, the United Kingdom unilaterally decided to suspend the implementation of the disputed measure pending a ruling from the Court.
<TI><P>Question 1</P></TI>12.The answer to the first part of the first question seems to me to be only too clear. As I have already pointed out, the decision approving the third MAGP expressly allows the United Kingdom to attain the objectives of the MAGP by means of measures to reduce the fleet's activity and gives as a specific example restrictions in time at sea (Article 3(3), cited above).Such measures are, therefore, undoubtedly authorized, provided that they are based on permanent laws and administrative provisions accepted by the Commission (Article 3(3)), and provided that at least 55% of the overall objective of the programme is achieved by means of reductions in capacity (Article 3(2)). According to the information contained in the documents before the Court, and in the absence of any contention to the contrary, both those conditions are satisfied in the present case.
13.In the second part of the first question, the national court asks whether the decision excludes the possibility of using technical measures (that is to say, essentially changes in the licensing system, incentives to lay up fishing vessels and other specific conservation measures) instead of restrictions in time at sea.Although it does not expressly refer to technical measures, the decision leaves the States free to choose the most suitable measures to reduce activity in order to achieve 45% of the overall objective, provided that they are accepted by the Commission. In this connection, the applicants maintain that adopting specified technical measures would make it possible to achieve the desired result at a financial cost far lower than that imposed upon them as a result of applying the Order.
14.It seems to me that the answer to the question is in any case irrelevant for the purposes of assessing whether the Order is compatible with the decision. Even on the assumption — which is plausible — that the decision permits the United Kingdom to adopt measures to reduce fishing activity other than restrictions in time at sea, the latter are none the less authorized (and, what is more, expressly so).Furthermore, it is not apparent from any official document that the Commission has approved the technical measures, as required by the decision. On the contrary, the correspondence between the United Kingdom and the Commission during 1994 (annexed to the pleadings at the applicants' request) would seem rather to reflect the misgivings of the Commissioner responsible for fisheries policy as to the ability of those measures at the time to bring about an actual reduction in the fishing effort of the United Kingdom fleet.See the letter of 15 July 1994 from Y. Paleokrassas to M. Jack, Minister of State for Agriculture, Fisheries and Food.
<TI><P>Question 2</P></TI>15.In its second question, the national court asks the Court to determine whether, and if so, to what extent, the answer to the first question is affected by the fact that the United Kingdom did not comply with the objectives laid down in the second MAGP for the period between 1987 and 1991. The applicants claim that the United Kingdom's failure to fulfil its obligations under the second MAGP to reduce the capacity of its fleet had unjustified and unlawful repercussions on the objectives of the third MAGP; if those obligations had instead been complied with, the financial cost and the consequences of the third MAGP would have been less onerous for the fishing sector than those it seems likely to involve in practice.The applicants' argument is based on the assumption, challenged by the United Kingdom and by the Commission, that the second MAGP contained legally binding obligations, in view of the fact that the objectives provided for therein had been approved and formally set out in Commission Decision 88/141/EEC, cited above.
16.I am not inclined to endorse that argument, which in my view is incompatible with a correct interpretation of the rules establishing MAGPs and their development.At least until Regulation No 3699/93 was adopted, the legislation merely gave each Member State the option of drawing up a MAGP and submitting it to the Commission. The latter's approval was necessary solely and exclusively for the purposes of obtaining financial aid. If the programme set out in the MAGP was approved, the Commission would make a formal decision fixing the terms and detailed conditions of that aid. Accordingly, such a decision would have contained obligations which were legally binding only for the purposes of the aid, in the sense that if the MAGP was not complied with, the Commission was authorized to suspend payment of the aid. That is exactly what happened to the United Kingdom in respect of its second MAGP.
17.It was not until after the material events occurred that the rules were amended, in particular by Regulation No 3699/93, according to which each Member State is henceforth absolutely bound by law to provide for structural action in the fisheries sector and thus to draw up a MAGP consistent with Community requirements, and to comply with the objectives specified therein. Council Decision 94/15/EC is an example of the implementation of those obligations in respect of the period 1993 to 1996.All that goes to show, should there be any need to do so, that the United Kingdom's breach of its undertakings in the second MAGP, which was governed by the previous system of rules, could not give rise to any consequence other than suspension of the financial assistance previously granted by the Commission.
In short, the fact that the United Kingdom failed to comply with the objectives set in its second MAGP is absolutely irrelevant in determining whether the third MAGP is compatible with the decision.
<TI><P>Question 3</P></TI>18.In its third question, the High Court is asking the Court to give a ruling on the interpretation of certain provisions and principles of Community law, in order to assess whether they preclude the application of national measures such as the one at issue.19.A point to note in passing is that if the applicants' allegations were well founded, and the Order in question were incompatible with Community law, doubts might arise concerning the validity of the decision itself since, as we have seen, it expressly authorized the United Kingdom to adopt the disputed measure.Let me say at once, however, that in my view the United Kingdom Order is compatible with all the Community provisions and principles relied on by the applicants.
20.The applicants claim, first of all, that because the Order at issue applies to United Kingdom fishermen only, it is in breach of the general prohibition of discrimination on grounds of nationality laid down in Article 6 of the EC Treaty and also of the right to equal conditions of access to and use of Community fishing grounds provided for in Article 2 of Council Regulation No 101/76.Council Reguladon (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19).
In that connection, to begin with, Article 10 of Regulation No 3760/92 expressly authorizes the Member States to take measures for the conservation and management of fish stocks which are more stringent than those provided for under the Community rules, provided that such measures apply solely to fishermen from the Member State concerned and are compatible with the objectives pursued under the system.
Furthermore, the Court has already expressly held, precisely with reference to fishing policy, that Article 7 of the EEC Treaty (now Article 6 of the EC Treaty) does not apply to any disparities in treatment or distortions which may result for persons and undertakings subject to the jurisdiction of the Community from the application by a Member State of measures that are stricter than those applied in the same sphere by other Member States.Judgment in Joined Cases C-251/90 and C-252/90 Wood and Cowie [1992] ECR I-2873, paragraph 19; but see the earlier judgment in Joined Cases 185/78 to 204/78 Van Dam [1979] ECR 2345, paragraph 10.
21.Article 2(1) of Regulation No 101/76 has, moreover, been correctly interpreted by the Court in the light of the national quota system as not precluding a Member State from applying, to vessels flying the flag of that State, national control measures stricter than those imposed by Community legislation, provided that such measures are intended to monitor fishing activity and prevent fraud and are not disproportionate to the objective pursued.Judgment in Wood and Cowie, cited above, paragraphs 16 to 18.
22.Still on the subject of equal treatment, the applicants claim, in addition, that the Order is contrary to Article 40(3) of the Treaty, which prohibits discrimination between producers and consumers within the Community in the fishing sector; in thenview, the Order applies to all fishing vessels over 10 metres in length and does not make special provision for those fishing for species not subject to catch quotas, nor does it distinguish between the various fishing methods used by each vessel.On this point, I can endorse the arguments of the Commission, which, when pointing out that the decision requires a minimum percentage reduction for certain segments of the fishing capacity, together with zero growth for all other segments, notes that the effect of the Order will be to freeze the activity of United Kingdom fishing vessels at the 1991 level. Measures have not, therefore, been imposed that bear more heavily on one segment than another; rather a single rate of zero growth has been ensured for each segment, with respect to the factual situation that prevailed in 1991. Zero growth in comparison with 1991 is in fact the minimum objective common to all segments to which the decision gives priority.
23.According to the applicants, the Order also constitutes a measure having equivalent effect to a quantitative restriction on exports, which is prohibited by Article 34 of the EC Treaty.That assertion seems to me to be devoid of substance, since it is settled case-law that Article 34 of the Treaty applies only to national measures which have as their specific object or effect the restriction of exports in such a way as to provide an advantage for national production or the domestic market.Judgment in Case 15/79 Groenveld v Produktschal voor Vee en Vlees [1979] ECR 3409, paragraph 7; but as regards fisheries see also the judgment in Case C-9/89 Spain v Council [1990] ECR I-1383, paragraph 21.
That is certainly not the case as regards the disputed measure which, on the contrary, applies to all fishing vessels alike without distinguishing those which sell their products on the domestic market from those which export theirs instead.
24.The applicants' next claim is that the Order is contrary both to the fundamental objectives of the common fisheries policy as laid down in Article 39 of the EC Treaty and in Council Regulation No 3760/92, and to the principles of the common organization of the market in fishery products set out in Council Regulation No 3759/92.In support of their argument, the applicants refer to a number of affidavits in which representatives of the sector have stated that implementation of the Order will lead to a series of deleterious consequences for fishing activity in the United Kingdom and in the entire Community market. The effects will be particularly marked on the financial stability of the fish market as a whole and the industry connected with it, on the prices of fish products, on the particular needs of those operating in the sector and of the regions most dependent on fishing, on the rational organization of fishing activity, on the development of fishing in areas furthest from ports, on the development of juvenile fish stocks, on the correct use of the fishing quotas allocated to the United Kingdom, on the ability of the producers' organizations to manage the quota scheme, on security of supplies and generally on the proper working of the Community system.
25.Even leaving aside any comment on the significance for legal purposes of evidence given outside the procedure prescribed by Article 47 et seq. of the Rules of Procedure, albeit under oath, and hence on the assumption that the contested Order is liable in the short term to cause damage to all operators in the Community fishing industry, it none the less seems to me that absolute priority has to be given to the need to safeguard the balance between exploitation and available resources. The fishing industry will be able to survive in the long term, and retain (or rather regain) its profitability, only if it progressively seeks to achieve such a balance, which is at present already seriously impaired.See the 1991 Commission Report to the Council and the European Parliament on the common fisheries policy (SEC(91)2288, of 18 December 1991). Particularly noteworthy are the dau on fish stock mortality and the fishing industry's excess capacity compared with available resources, as well as the observations on and proposals for revision of the system for a more rational use of resources.
26.Moreover, this reasoning constitutes the basis of the relevant Community case-law. First, the Court has stressed the wide powers of assessment conferred on the Community institutions in achieving, coordinating and harmonizing the objectives of the common agricultural policy (and therefore of fisheries as well), making it clear that it is lawful to allow one, rather than another, of those objectives the temporary priority required by economic conditions.Judgment in Case 5/73 Balkan-lmport-Export v Hauptzol-Umt Berlin-Packhof [1973] ECR 1091, paragraphs 24 and 27.
Secondly, in ruling on the validity of a regulation fixing the total allowable catches for 1985 for certain fish species, the Court held that it was compatible with Article 39 of the Treaty for the following reasons: By restricting in the short term the quantities of fish which may be caught, the fixing of fishing quotas enables certain species of fish to be conserved and thus contributes to the stabilization of the markets in the long term. Such a system also serves to ensure optimum utilization of the factors of production, which is another objective mentioned in Article 39 of the Treaty, since without any such system, certain resources of the sea would rapidly become exhausted and the optimum utilization of the factors of production would thus become impossible to achieve in the long term.Judgment in Case 46/86 Romkes v Officier van Justine [1987] ECR 2671, paragraph 22.
27.As regards the alleged infringement of the right to property and of the right to pursue a trade or profession, which form part of the fundamental rights the observance of which is ensured by the Court,Judgment in Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727.
it is sufficient here to note that the applicants themselves have acknowledged that it is settled case-law that those rights are not absolute, but may be restricted in conformity with objectives of general interest pursued by the Community, provided that such restrictions do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed.Judgment in Case 265/87 Schröder v Hauptzollamt Gronau [1989] ECR 2237.
In my view, it is clear that the Order at issue does not provide for disproportionate or intolerable interference, taking into consideration the importance of the aim pursued by it.28.Finally, I come to the alleged incompatibility of the Order with the general principle of proportionality. This complaint, the terms of which are not specified in the order for reference, may be viewed from two different angles.First, the complaint may be construed as being directed against the Commission, on the assumption that, by authorizing measures such as that in dispute, it infringed the obligation, when there is a choice between several possible measures, to have recourse to the least restrictive one.See, for example, the judgment in Case C-331/88 R v Minister for Agriculture, Fisheries and Food, ex parte Fedesa [1990] ECR I-4023, paragraph 13.
On this point, however, it will suffice to bear in mind that, as the Court has consistently held, in matters concerning the common fisheries policy the Community legislature has a discretionary power which corresponds to the responsibilities entrusted to it by Articles 39 and 40 of the Treaty, and the legality of a measure can be affected only if the measure is manifestly inappropriate having regard to its objective.Most recently, the judgment in Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR I-4863, paragraph 42.
29.If, on the other hand, the complaint were construed as being directed against the United Kingdom on the ground that the latter adopted the disputed measure instead of other measures which might have been permissible, the complaint must in any event be held to be unfounded without there being any need even for the usual proportionality test.In my view, it is clear that with regard to a national measure, the adoption of which has been expressly authorized in advance by the Commission exercising the specific powers it holds in the area of fishing policy, and the compatibility of which with other provisions of Community law has been fully demonstrated, any discussion of proportionality would be superfluous.
30.Ultimately, the conclusion must be drawn that all the arguments put forward by the applicants would appear to be based on the inappropriateness of the Order in the light of the possibility that other, less onerous measures could have been adopted, rather than on the actual incompatibility of the Order with the relevant provisions of Community law. However, any verification of that premise, like any consideration of the economic consequences of a national measure which is not incompatible with Community law, is plainly outside the jurisdiction of the Court and falls, where necessary, exclusively within the political responsibility of the national legislature.