61976C0003
OPINION OF MR ADVOCATE-GENERAL TRABUCCHI
DELIVERED ON 22 JUNE 1976 (
1
)
Mr President,
Members of the Court,
1.
In the questions referred to the Court for a preliminary ruling in the present cases, the two Netherlands courts are seeking guidance which will enable them to determine whether the national provisions adopted in the Netherlands in implementation of the recommendations issued in November 1974 by the Commission under the terms of the North-East Atlantic Fisheries Convention (NEAFC) are compatible with Community law, in particular with the provisions of the Treaty concerning agriculture ant the prohibition of quantitative restrictions; with Regulation No 2141/70 and Regulation No 2142/70 of the Council on a common structural policy for the fishing industry and the common organization of the market in fishery products respectively; and with Article 102 of the Act of Accession, which provides that the Council shall determine conditions for fishing with a view to ensuring, inter alia, conservation of the biological resources of the sea.
For the purpose of conserving the fishery resources in that area of the sea, the above-mentioned recommendations lay down, for 1975, maximum total quotas for fishing in the North Sea, with special reference to sole and plaice, these quotas being subdivided into separate quotas for each of the individual States concerned. The recommendations also prohibit fishing in coastal waters by craft which exceed certain limits of size or power. The Netherlands authorities gave effect to the recommendations in a series of measures limiting catches, and persons who failed to comply with the obligations airsing thereunder are liable to penalties under criminal law.
The Netherlands courts making the reference ask whether, in view of the above-mentioned Community provisions, the Member States are still empowered to conclude international agreements for the conservation of fishery resources and whether, in any case, the States are, under Community law, empowered to adopt measures laying down fishing quotas. These questions involve on the one hand the powers of the Member States, in the light of Community rules for the fishing industry, to take unilateral action at international level in that industry and on the other the effect of Community law, in particular the common rules of the market and the provisions of the Treaty prohibiting measures having an effect equivalent to quantitative restrictions in connexion with the restrictive measures of the kind adopted by national authorities in order to carry out international obligations.
The first task, therefore, is to establish whether the power to conclude international agreements for the conservation of fishery resources is now the exclusive responsibility of the Community or whether, on the other hand, the States are in this respect still able to act on their own account. If the answer is that the States have no such power, there will be no need to answer the other questions. If the answer is that they have this power, the question to be settled is whether, in the light of the Community rules for the fishing industry, the Member States can legitimately pursue the aforesaid objective by laying down restrictions on fishing and, in particular, imposing quotas. In this connexion, it may also be necessary to have regard to Articles 30 et seq. of the Treaty which prohibit restrictions equivalent to quotas. In this latter context, the question arises regardless of whether the restrictions concerned are the outcome of an agreement or of unilateral action.
2.
Let us first consider the problems relating to the definition of the external powers of the Community and of the Member States in the field with which we are concerned.
As the Court will be aware, the Convention in question (NEAFC) was concluded on 24 January 1959 and, as far as all the signatory States, including seven Member States, are concerned, came into force on 27 June 1963. Its purpose is the conservation of fish stocks in the North-East Atlantic Ocean, including territorial and coastal waters. A special Commission composed of a delegation from each contracting party is responsible for applying the Convention.
The questions submitted in this case by the two Netherlands courts are not concerned with the general issue whether the Member States of the EEC are still able to be parties on their own account to a Convention of this kind but only with the issue whether, acting on their own account, certain Member States can legally adopt measures restricting fishing in discharge of obligations arising under a new provision adopted under Article 7 (g) and (h) of the said Convention, by which all the parties to the said agreement extended the powers of the Commission concerned, empowering it to lay down aggregate fishing quotas and to divide them up amongst the States. This change was the subject of decision in 1971 and came into force in 1974, that is to say at a date subsequent to the Community legislation governing the organization of the fishing industry.
As far as the international aspect of the States' conduct is concerned, these references for a preliminary ruling therefore involve the question of compatibility with Community law only as regards participation by the Member States in the adoption of the said amendment of the NEAFC.
In its judgment in Case 22/70 (Commission v Council) on the subject of the European Agreement concerning the work of crews of vehicles engaged in international road transport (AETR) the Court declared that ‘Each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules. As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system. With regard to the implementation of the provisions of the Treaty the system of internal Community measures may not therefore be separated from that of external relations’ ([1971] ECR 274, Grounds of judgment 17, 18 and 19).
Accordingly, to enable a national court to decide whether the national provisions adopted to carry out the recommendations provided for under the North-East Atlantic Fisheries Convention are compatible with Community law, the first thing to be done is to establish, in the light of the principles laid down in the judgment relating to the AETR, whether the Member States were, after the entry into force of the Community legislation governing the fishing industry, able lawfully to continue to take independent action at international level, under the Convention, and to undertake new obligations: could the States, in 1971, lawfully pledge themselves internationally to permit limits to be set to the exercise of commercial activity in a sector which was now the subject of a common organization of the market?
It must be borne in mind that, whereas the NEAFC is also concerned with fishing on the high seas, the Community rules which specifically govern the fishing industry, while providing for a system of trade with third countries, are principally concerned with acts and situations which develop in a field subject to the sovereignty or jurisdiction of the Member States. This is quite understandable, since it is difficult to imagine unilateral rules, even if enforced by the Community, for questions relating to fishing on the high seas which, by their nature, are best tackled and resolved only under agreements concluded by all the public parties involved including, in the present case, the third States whose fishing fleets operate in the area of sea concerned. This does not of course apply to any measures, even unilateral ones, which may still be adopted, especially in implementation of the requirement of Article 1 of Regulation No 2141/70 and of Article 102 of the Act of Accession in order to encourage rational exploitation of the biological resources of the sea by regulating the conditions for fishing.
In my opinion, the principle embodied in the AETR judgment that the exercise, in any specific field, of the Community's internal legislative powers implies that the Community is alone vested with the powers, hitherto possessed by its Member States, to enter into international commitments in that particular field, holds good regardless of whether the international commitments are intended to apply exclusively on territory subject to the sovereignty of the Member States or, as in fact applies in the case of the International Convention under consideration, also outside that geographical area.
An essential condition for recognition of the exclusively Community nature of external powers is the existence of a functional relationship between activity taking place outside the Community's geographical area properly so-called, which is the subject of international rules, and the common rules governing activity arising within that area. Indeed, the automatic extension of internal Community powers to the external field has its raison d'être and legal justification in the functional relationship which exists between the exercise of the external powers and the exercise of the internal powers in the same field. When, accordingly, external powers, even though used to regulate activity in a geographical area which extends beyond that directly subject to the legislative authority of the Community, directly affect a sector which, in the Community, is already governed by common legislation and can, therefore, affect the functioning of the common machinery and rules laid down by the Community for that sphere of activity, it is essential to establish that functional relationship between internal powers and external powers which requires the Community also to assume the latter powers in conjunction with the actual exercise of its internal legislative powers in the sector concerned.
3.
It would be as well, again as a preliminary observation, for me to make clear that, for the purposes of identifying the powers conferred by the system on the Community, no regard whatever has to be paid to any difficulties which certain third States may place in the way of the Community's participation in the abovementioned International Convention. While such an eventuality might play some part in the appraisal of the attitude displayed meanwhile by the Member States, it could certainly have no importance whatever either in the assertion of the Community's powers in the matter or in defining it in relation to the position of the Member States. In other words, if such difficulties as are inherent in the attitude, motivated by political considerations, of certain third States were encountered, this could in no way affect the rule of law which, in the Community legal order, marks the relationship between the Community and its Member States. Though the interpretation of Community law leads me to the conclusion that, even on an international level, provision can be made for conservation of fish stocks only by the Community, the resistance which some third States might offer against full and direct participation by the Community in the negotiations involved and in the functioning of the NEAFC could not avail to deprive the Community of its powers and to transfer them back to the Member States. At most, in the event of these difficulties proving insurmountable, the Community could authorize its Member States to act on its behalf, sticking strictly to the guidelines which it laid down for them.
There is another danger which must be avoided. The fact that the aim pursued by the States in accepting restrictions of various kinds on freedom to fish is sound and, I should add, necessary must not obscure the fact that the ecological aspect of the questions, although of major importance, is not the only one involved in the international regulation of fishing. There is an important economic and commercial aspect which, consequently, has a bearing on the Community's own powers and actions and which is, indeed, of very great importance for all parties to the agreement. It is accordingly necessary to ensure that concern for the ecological aim being pursued does not lead to indiscriminate acceptance of whatsoever ways and means may be employed.
Finally, we must bear in mind what we learned during the present proceedings, namely how ineffective, in practice, has been the prior consultation at Community level which it was sought to establish between the Member States in connexion with the negotiations under NEAFC. While these events impel me to recall the requirement of prior consultation which is the basis of Article 116 of the EEC Treaty, they leave one somewhat unconvinced about the effectiveness of that procedure.
4.
I come now to the substance of the question whether, having regard to their actual tenor and the aims which they endeavour to attain, the Community's rules for the fishing industry are such as to prevent the States as far as powers are concerned from undertaking international commitments of the kind entered into through the above-mentioned amendment of Article 7 of the Supplementary Convention on fishing in the North-East Atlantic. Before doing so it is worth recalling the main features of the Community legislation.
Regulation (EEC) No 2141/70 laying down a common structural policy for the fishing industry, establishes common rules for fishing in maritime waters and provides for the co-ordination of structural policies of Member States for the fishing industry. These common rules are underwritten by the principle of equality of treatment which each Member State must apply to all who fish in the maritime waters coming under its sovereignty or within its jurisdiction.
Article 5 of the regulation provides that, where there is a risk of over-fishing of certain stocks in the maritime waters coming under the sovereignty or within the jurisdiction of a Member State, the Council may adopt the necessary conservation measures.
There is also provision for appropriate action which will contribute to the improvement of productivity and of production and marketing conditions and an appropriate standing committee is set up under the auspices of the Commission to promote the co-ordination of national structural policies.
Regulation (EEC) No 2142/70 on the common organization of the market in fishery products provides for the establishment of producers' organizations, a price system and a system of trade with third countries. The regulation also covers the grant of aids by the States to the producers' organizations and makes provision for the establishment of common marketing standards covering in particular classification by quality, size or weight, packing etc.
The price arrangements are based on the fixing of a guide price and, as necessary, an intervention price. Producers' organizations may fix a withdrawal price below which they will not sell products supplied by their members. It is for the producers' organizations to determine the disposal of products thus withdrawn from the market. To finance these withdrawal measures, those organizations must create intervention funds fed by its members' contributions.
A cardinal feature of the arrangements for trade with third countries is the prohibition of any charge having an effect equivalent to a customs duty and of any quantitative restriction whatsoever. To maintain the stability of the internal market of the Community, provision is made for the fixing, each year, of reference prices and the levying on imports from third countries of a countervailing charge equal to the difference between the reference price and the entry price in cases, of course, where the latter is lower than the reference price. This charge is the same for all Member States. Community protective measures are also provided for where there is a threat of disturbance by reason of imports or exports.
In view of the existence of this elaborate legislation governing the fishing industry within the confines of the Community, the question arises whether the Member States can continue on their own account to enter into international agreements in the same field.
On this issue, the settlement of which requires the aim of the international agreement in question to be viewed in the light of the aim of the common market rules, the effect of the judgment referred to above in the AETR case is not to deny to the States the right to undertake, on their own account, appropriate international commitments for the conservation of fishery resources, even when those commitments are not restricted to the high seas, but, as in the present case, apply also to fishing carried out in territorial waters, that is to say, within a field already subject to specific Community legislation, but in different contexts.
In fact, in the AETR case the tenor of the international agreement which the Member States were entering into was substantially the same as the Community rules which already applied to the specific sector concerned. Accordingly the Community provisions and the international agreement concerned had, palpably, one and the same purpose.
On the other hand, in the present case, Article 5 of Regulation No 2141/70 does no more than provide that the Council may, in respect of fishing in the maritime waters within the jurisdiction of the Member States, adopt the necessary conservation measures. This therefore involves not an existing substantive set of rules but merely the vesting of the Community with a power to act which has not so far been exercised. It must be made clear at once that, in addition to this provision which, since its application is confined to maritime areas coming under the sovereignty or the jurisdiction of the States, confers on the Community the power to take unilateral action, Article 1 of the regulation in question vests the Community with wider authority in respect of the rational use of the biological resources of the sea, subject to no geographical limits. The same observation can be made concerning Article 102 of the Act of Accession to the Community of the three new Member States, which provides as follows: ‘From the sixth year after accession at the latest, the Council, acting on a proposal from the Commission shall determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea’. No geographical limit is placed on the powers conferred on the Community by this provision either. Its application may in this case involve a system of Community quotas. Neither has this provision so far been followed by implementing measures.
In view of the subject-matter involved and of the need for action common to a number of States which the two provisions quoted above will require, there can be no doubt that action by the Community at international level will be necessary before they can be fully effective. In fact only through international agreements can steps be effectively taken to conserve the stocks of fish. There can be no doubt that the Community has been vested with authority to deal itself with this aspect of fishing control on the high seas as well. This is evident from the mere fact that there is of necessity a connexion and, I would add, an interdependence between the working of the common market organization, the promotion of a common structural policy for the fishing industry and the restrictions on fishing on the high seas which may be justified on ecological and economic grounds. For this reason, therefore, the vesting of the Community with legislative powers must be interpreted as constituting at the same time recognition that it has a corresponding capacity to negotiate internationally. I will go further and say that even if it were not possible to infer the existence of that capacity directly from the provisions of the EEC Treaty concerning agriculture (and this point does not call for decision here), it would suffice that Regulation No 2141/70 is formally based on Article 235 of the Treaty.
According to the precedent laid down in the AETR case, the mere existence of Community legislative powers in a particular field does not suffice to deprive the States of power to negotiate internationally in that field. On the other hand, as I have already stated, there must have been an exercise of this power and to this end Community rules must have been actually applied in this field: only in this way can the international jurisdiction of the States be fully replaced by that of the Community. Furthermore, it must be borne in mind that where a sector has been in general terms the subject of Community legislation, this does not suffice to deprive the States automatically of any right of action whatever in the sector concerned. The incompatibility of a State's power in a particular field must not be determined in theory but by actual comparison with the Community legislation. If, as is clear from the case-law of the Court (for example, the judgments in Case 2/73, Geddo [1973] ECR 865; Case 51/74, Van der Hulst [1975] ECR 79; and Case 65/75, Tasca of 26 February 1976), this is true of the States' powers to adopt domestic legislation, it must, by the same token, also apply to the external powers of the States.
Once it is established that, although there is common legislation for the fishing industry, it does not yet cover a particular facet of it, such as the conservation of stocks of fish, with which this case is concerned, can the conclusion be drawn that the States still have authority to enter into international commitments in this field?
It must be borne in mind that when international rules are being laid down for fishing on ecological grounds, it is, inter alia, necessary to ensure that the economic burdens arising under the protective measures are shared by all the public parties involved in fishing in the areas concerned. Thus the establishment of those rules directly affects not only the internal working of the market organizations but also the conduct of the common trading policy.
Moreover, the subject-matter in various respects affects the interests and powers of the Community. On a basis similar to that followed by the Court in its decision in Case 1/75 on the common trading policy, one way, and perhaps the best, of establishing a firm definition of the common policy in this industry consists in the conclusion of international agreements with third States no longer merely by the Member States but by the Community which is alone in a position to pursue a policy for the protection of genuinely common interests.
This cannot fail to affect the Member States' freedom of action, even before the Community embodies its powers in specific measures, not necessarily by depriving the States of concurrent powers but at least by limiting them. Nevertheless, pending specific Community action and in view of the urgency of the situation, the States may still be able, acting on their own account and within the limits of their own powers, to adopt the necessary measures for the pursuit of objectives the importance of which the Community system has itself recognized, subject always to the restriction that the means chosen for those ends do not conflict with provisions of the Treaty. The States must furthermore bear in mind that measures which they take unilaterally will be merely transitional in character and must not therefore be liable to impede the full effectiveness not only of the Community rules in force but also of the measures which the Community will have to adopt in the same sector in pursuit of its objectives in implementation of a common policy. Accordingly, the general obligations imposed by Article 5 of the the Treaty and the above-mentioned provision in Article 116 lead inevitably to the conclusion that there is, at this transitional stage, a specific obligation on the States to reach prior agreement on a Community basis in order to avoid individual decisions in the international field which may impede the definition and execution of common action on the part of the Community.
5.
Granted, then, that the States have, at least on a transitional basis, limited residual authority to enter into international commitments in connexion with the conservation of stocks of fish, the question now to be settled is whether, in view of their specific tenor and scope, the international obligations undertaken by seven of the nine Member States in 1971 by the adoption of paragraphs (g) and (h) of Article 7 of the Convention do or do not seriously conflict with the common market rules for fishing or with provisions of the EEC Treaty. Under these obligations the special Commission which functions under the terms of the agreement is vested with power to send recommendations to the contracting States for the adoption of measures designed to regulate the amount of fishing, the amount of total catch, and its distribution between the States within a period to be determined.
It must be borne in mind that, although the recommendations of this international body are mandatory if adopted by a two-thirds majority, any State to which the recommendations are made may nevertheless legally exempt itself from giving effect to them merely by making a declaration within 90 days. Accordingly, while it must be recognized that measures recommended by the aforesaid Commission under paragraphs (g) and (h) of Article 7 may be found to conflict with the common rules for the fishing industry in force in the Community, the right which each party to the said Convention is recognized as having to extricate itself in time from carrying out the recommendations makes it possible to conclude that acceptance of the said amendment of Article 7 on the part of the Member States who are parties to the Convention itself is not of itself such as to place those States in a position which is incompatible with their Community obligations.
The object of the aforementioned new provisions of Article 7 is to restrict fishing and not trade in fish. This alone makes it impossible to state, with certainty, that, in theory, measures which may be adopted under those provisions are incompatible with Community rules which, as has already been stated, are mainly concerned with the stage of marketing of the product and do not directly apply to the stage of fishing or, as it is often incorrectly expressed, with the ‘production’ of fish.
6.
A question which presents greater difficulty and which I must deal with at this juncture is whether State measures of the same kind as those referred to by the national court and which were adopted in implementation of the recommendation adopted in November 1974 by the Commission provided for under the North-East Atlantic Fisheries Convention as valid for the whole of 1975 are, in fact, compatible with Community law.
The Netherlands regulations, the compatibility of which with Community law is the subject of doubt on the part of the courts making the reference, comprises three groups of measures. The main instrument is an order of the Ministry of Agriculture of 25 February 1975 which places restrictions of various kinds on the fishing of sole and plaice, namely, a comprehensive and absolute prohibition of fishing in certain areas, a prohibition on fishing in coastal waters by vessels exceeding certain limits of size and power and, finally, a limit on the amount of total catch by national fishermen within the jurisdiction in the North Sea and the Irish Sea.
Pursuant to this Ministerial order, the appropriate Netherlands authority (Produktschap voor Vis en Visprodukten) made an order which prohibits the landing of sole and plaice fished in the areas subject to absolute prohibition of fishing or caught in the territorial waters by fishing vessels with a tonnage or power greater than that laid down in the Ministerial Order. It further provides for the adoption of implementing measures for the distribution of the quotas of fish allowed to Netherlands fishermen as a whole. These implementing provisions were then adopted by the President of the aforesaid authority and were subject to a large number of changes during 1975. At an early date, a limit was imposed on the number of trips by each fishing vessel in the North Sea, then a quantitative restriction was imposed on weekly landings of sole by each fishing vessel regardless of the number of trips. Subsequently, these rules were replaced by a system of quotas laid down for every vessel on the basis of its engine power and finally, with effect from 27 November 1975, there was an absolute prohibition of any landing of sole from the North Sea. On the other hand, as far as plaice was concerned, the only step taken for 1975 was to require fishermen to report the size of their catches and where they came from.
Should regulations of this kind be regarded, at the present stage, as incompatible with the Community rules for fishing or, more generally, with directly applicable provisions of the EEC Treaty?
From what I have said it is clear that the national legislation adopted with a view to ensuring observance of the quota allotted to the Netherlands comprises two different types of prohibition or restriction: the first type is directly applicable to fishing in order to maintain the total catch of Netherlands fishermen within the limits of the quota allotted to the Netherlands; the second type consists of restrictions of various kinds (on the number of trips, limitation of the quantity of fish which each trawler is allowed to land etc.) which are not directly concerned with fishing operations but rather with the use to which the result of these operations is put and have as their purpose the division of the aggregate national quota among individual Netherlands fishermen.
While, therefore, the first type of restriction has a direct bearing on the stage preceding the marketing of the product, restrictions in the second category, or at least some of them, particularly the quantitative restrictions and the absolute prohibition on landing certain types of fish, appear to come more into play at the beginning of the marketing stage by restricting marketing in terms of quantity or even stopping it altogether so far as the product fished in the North Sea is concerned. Measures of the second type, however, are also adopted solely for the purpose of restricting fishing.
On the other hand, it is clear that even when the prohibition applies directly at the earlier stage, namely to actual fishing activity, it is obviously liable to affect trade in the product by limiting from the beginning the quantities which can be offered on the market by the national fishermen as a whole, and this applies not only in the case of the national market but to that of any other country, since the quota allotted to any State is applied regardless of the place where the catch of the national fishing fleet is landed or at least offered for sale.
The question arises whether such restrictions have to be regarded as measures having an effect equivalent to quantitative restrictions which, as such, would fall under the prohibition laid down by Article 31 of the Treaty, the direct applicability of which the Court has already recognized (judgment in Case 13/68, Salgoil [1968] ECR 453).
As we have seen, all the restrictions with which we are concerned, even though of different types and applicable at different stages of industrial activity, were imposed exclusively for the purpose of restricting the amount of fishing. The restriction of trade as such has nothing whatever to do with the objectives porsued either by the international body for the implementation of the NEAFC or by the Member State with which we are concerned.
The case-law of the Court has evolved a wide concept of restrictions having an effect equivalent to quantitative restrictions which applies to any trading rules ‘which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade’ (judgment in Case 8/74, Dassonville [1974] ECR 852) so that they also embrace measures directly applicable only at the stage of production. In the judgment in Case
Van Haaster ([1974] ECR 1134), national legislation having the purpose of quantitatively restricting the cultivation of a floral product falling within a common organization of the market was held to be a measure having equivalent effect. Nevertheless, it cannot be concluded from the grounds of judgment that the conclusion reached in that case amounts to acceptance of a general rule applicable in every case to all products falling within a common organization of the market, since that judgment was based on the peculiar features of the particular market organization concerned.
In that case, the Court did in fact place major emphasis on the existence of rules laying down common standards of quality, which in themselves had a restrictive effect on production.
The Community regulations on fishing also provide for measures calculated to improve the quality of the products and to adapt the volume of supply to the requirements of the market (Article 5 of Regulation No 2142/70). But although regulations of this kind are calculated to prevent overproduction they certainly do not suffice to prevent impoverishment of natural resources.
The salient feature of the present case is the fact that in contrast to the hyacinths which were the subject of the legislation under review in Van Haaster, the product cannot be reproduced in potentially unlimited quantities as man sees fit. Reproduction depends entirely on natural factors and environmental conditions which man can certainly worsen, as was demonstrated for us by the recent experience of the most highly industrialized countries, and for the conservation of which the States are, in fact, endeavouring to take common or at least co-ordinated action of which the restrictive measures in question form part.
On the subject of reproduction of fish one of the hard facts at the present time is the threatened danger of depopulation of the seas due amongst other things to more sophisticated techniques and the improved effectiveness of fishing methods. In a situation of this kind, which involves serious risks not only as regards ecological balance but also as regards the economics of supply, can it be accepted that State measures designed to place reasonable restrictions on fishing, based on scientific data (that is to say, which impose restrictions which are necessary and proportionate to their aim), for the purpose of ensuring that there are sound prospects of fishing in the future and also therefore of trade in fish, escape the prohibition in Articles 30 et seq. of the EEC Treaty?
Consideration of the immediate effect of these measures, which is a predictable reduction in trade in fish between the Member States, of necessity means that it falls within the Community prohibitions. On the other hand, on a wider view of the problem which pays regard to the foreseeable longer-term effects of the measures in question, which cannot be other than favourable for fishing operations and trade, could supply arguments justifying a different conclusion.
To treat such measures as falling outside the terms of Articles 30 and 31 of the Treaty implies acceptance of a somewhat pragmatic and perhaps indeed flexible view of the concept of measures having equivalent effect, a concept which ought to be capable of adaptation in accordance with an assessment of the importance of any effects on trade, without limitation to the short term.
The inclusion, in the concept of measures having equivalent effect, of a consideration of the objects pursued and of the effects, even long term, may complicate and obscure the concept and possibly also make the prohibition less effective. This makes me hesitate to recommend its acceptance. Moreover, I believe that the ecological objectives can be successfully pursued without running the risk of weakening the prohibition of measures having an effect equivalent to quantitative restrictions; indeed, they can perhaps be pursued more effectively by avoiding the introduction into the Community system of national escape clauses which could, in practice, also endanger the effective exercise of Community powers in the sector concerned.
Although, therefore, in order to avoid this danger, I prefer to adopt a stricter concept, which would mean treating the class of measures under consideration as falling under the prohibition in Article 31 of the Treaty, consideration must at once be given to the question whether the effect of the exception embodied in Article 36 does not exempt from the prohibition State measures restricting fishing for the justifiable purpose of conserving stocks of fish. Article 36 authorizes exceptions from the prohibitions of quantitative restrictions and measures having equivalent effect for the protection, inter alia, of animal and plant life. In the absence of any Community initiative designed for this purpose of preserving the natural environment, the question arises whether this omission suffices to exclude from the prohibition the unilateral action of States acting on purely conservationist grounds in so far, of course, as the restrictions imposed are necessary and appropriate.
Article 36 permits direct quantitative restrictions on trade between Member States. It must a fortiori permit indirect restrictions such as the restrictions, for a double purpose, on fishing, which are indirect first because they apply to ‘production’ and further because they do not apply directly to imports or exports. In fact, to the extent, also, to which the restrictions imposed on national fishermen are directly applicable to the quantities of fish permitted to be landed in the Netherlands, trade between States is not directly involved because, under Community law, fish is considered as a product originating in the country where the vessel is registered or recorded and whose flag it flies (see Article 4 (2) (f) of Regulation No 802/68/EEC of the Council).
In view of the underlying purposes of the international regulations on fishing, of which the national provisions under consideration are merely implementing measures, there can be no possibility whatever that the restrictions in question constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Even though the objectives pursued have substantial economic repercussions, they are nevertheless innocent of any discriminatory or protectionist effect. Their main purpose is conservation of the environment. From this point of view, too, the conditions under which Article 36 may apply are satisfied.
At the same time it may be that a factor concerning the essential spirit and purpose of this exempting clause is lacking: that is to say, the restrictive measures do not have the genuinely unilateral character, confined to a particular State, which results from the fact that the interest for which Article 36 provides protection is essentially national and internal to the State. As I have already pointed out, the measures in question achieve their purpose only if, as is the case here, they form part of joint action by all the States who operate in the wide area of sea with which we are concerned. This makes it clear that in the present case there is no question of the particular interests of one State conflicting with the interests of the other States but that, in fact, the measures in question further interests which are, by their nature, common to all those States and which are indeed also those of the Community, which must itself safeguard them in substitution for the individual Member States.
The established need, for the purpose of protecting factory resources, of common actions constitutes further evidence of the Community's predominant right to act in this sector in accordance with the above-mentioned provisions of Regulation No 2141/70 and of the Act of Accession.
Perhaps I may also refer to the comment I made in my opinion in the Dassonville case: that the provision for exemption in Article 36 entitles each Member State to restrict the freedom of movement of goods in terms of the production of rights and interests falling within its own sphere of interest. Can the same thing apply to restriction of fishing on the high seas, namely in an area situated outside the territorial waters which are subject neither to the sovereignty nor to the juridiction of the individual State?
But is this precise definition of Article 36 and of its essential purpose, which is to protect an individual State from more general Community principles concerning free movement, sufficient to rule out reliance upon it in the present case?
We have seen that there is a lacuna in Community legislation on fishing since there are still no rules for the protection of fishery resources. In exercising the power conferred on it in this field, the Community will probably have to impose restrictions of the kind which are the subject of the national measures with which we are concerned. Pending action on the part of the Community, the action of each State toward this end may be regarded as designed as a safeguard necessary for the protection of one of its assets and which has a counterpart in the interests of other States, too. Notwithstanding the cogent formal objections set out above, this consideration, which is one of substance, might perhaps make it possible to rely, even if only for a limited period, on the provision in Article 36, the essential purpose of which is to protect the basic assets of each individual State even although this does not involve conflict between the State's own interests and the common interests but the protection of its own interests pending their protection in the wider field of the Community.
7.
There is, however, another possibility, more satisfactory within the framework of the Community system, which is to fall back, in support of the action carried out by all Member States concerned to conserve the fishery resources of the North-East Atlantic (which means of course all the Member States with the exception of Luxembourg and Italy neither of which has direct access to such resources), on a general principle of law which, exceptionally, allows any party to act on behalf of another party, even without authority, when undertaking measures of conservation. In national public law this principle applies, for example, to acts of the so-called ‘de facto official’.
In the present case, the fact that the State's restrictive measures constituted an exception to a fundamental principle of the Common Market would present difficulty. In this connexion the comment has for some time been made by learned authors that even unilateral State action which creates exceptions to the fundamental rules of the Common Market may, exceptionally, be validated in the Community legal order provided that it involves measures of conservation which, on an objective view, reflect a common interest protected under the Treaty and provided that there were valid reasons for deciding not to make use of a Community procedure. In such circumstances the State may be regarded as having acted as an agency of the Community and its action, reflecting the common interest, could be adopted by the Community, possibly through formal ratification by the authority which, under the Treaty, was itself empowered to adopt restrictive measures in the same field or to authorize their adoption on the part of the States (see Gori P., ‘Les clauses de sauvegarde des Traités CECA et CEE’, Heule, 1967, p. 274).
The difficulties, of which I gave an indication at the beginning, that the Community has encountered in the past in persuading certain Member States to accept the Community's full participation in NEAFC, the fact that no Community policy has been laid down and, therefore, that there are no specific guidelines on this subject and, finally, the urgent need for international action to protect the biological resources of the area of sea in question, can be regarded as valid grounds justifying approval by the Community, subject if need be to reservation, of the action carried out by the Member States at international level and of the resultant national implementing measures since that action reflects a specific Community interest.
On 6 April 1976 the Council, having regard to the proposal from the Commission, adopted a suitable provision in the form of a regulation to avoid any doubts as to the legality for the time being within the Community legal order of the undertakings contracted unilaterally by the States in the fisheries sector. To this end the provision expressly authorizes the Member States to retain for the time being, until 31 December 1976, the measures limiting catches of their fishing fleets in accordance with international undertakings contracted or to be contracted.
I regard it as unnecessary, in these proceedings, to refer to that part of the regulation which concerns the possibility that individual States may contract new international undertakings. Doubts may well arise concerning the propriety of a carte blanche authorization, unaccompanied even by any statement of general guidelines for any future action by the States intended for application in a sphere which impinges so directly on the Community's powers and on the subjects governed by the common agricultural legislation.
As regards the execution of the undertakings contracted which are alone of importance here, the regulation can, if necessary, serve as ratification of the actions of the States.
The regulation expressly recognizes the need, in countering a serious ecological threat, for the adoption, in the special circumstances, by the States of suitable measures to control fishing and it implies positive affirmation by the Council and by the Commission that the action undertaken jointly by all the Member States interested in fishing in the area of sea concerned is very much in the Community interest.
It is against this background that, in view of a state of urgency and having regard to the continuing lacuna in the Community rules in this sector, the ‘regulation’ of the Council authorizes, exceptionally and for a limited time, the action in question taken by the State.
This is sufficient to enable that action to be validated in the Community legal order and accordingly to justify the State measures already adopted to limit fishing.
Even though, in relations with third States, it does not necessarily follow from the above that the Community is automatically substituted for the Member States who are parties to the Convention in question, it could at least amount, as far as relations between the Community and its States are concerned, to endorsement on a transitional basis of the validity of the national measures pending direct action by the Community which, in the field of external relations as elsewhere, formally replaces that of the Member States.
And that is the answer which, finally, I regard as according best with the Community system.
8.
The foregoing conclusion makes it unnecessary to go into the questions of interpretation concerning the effect of the common rules in the fisheries sector on national measures of the kind with which we are concerned.
On this point I shall make only one or two brief comments.
The Commission states that the immediate result of imposing quantitative restrictions on the activity of the fishing fleets of the Community is to affect the normal evolution of the price of fish and thereby to interfere with the normal working of the common system of prices laid down by Regulation No 2142/70. On the other hand, the Community's decision-making procedure on the subject of prices will become one of extreme difficulty and delicacy if the total amount of fishing is fixed by decisions adopted outside the Community. Quantitative restriction may also create the possibility of an increase in imports from third-States. Even from this point of view, therefore, the system of quotas has an effect on the Community's commercial policy. A system of national quotas negotiated individually by every Member State would have a direct effect, in the internal market of the Community, on intra-Community trade. The result would be to change the conditions in which trade ought to take place within the Community in accordance with the common policy on fishing, which is based on the principle of freedom of trade in conditions of fair competition between products of the highest quality.
The Commission also points out that any national provision designed to protect fishery resources is necessarily involved with the common structural policy.
There can be no denying these impingements, and it is also true that the Community, in negotiating international agreements for the conservation of the biological resources of the sea, is in a better position than individual States to appreciate both the conditions required for the functioning of the common rules on fishing and the requirements and interests of the common trading policy. This is another reason for hoping that the Community will soon take appropriate action which can replace the action so far taken by the States. But, in the meantime, such action, for the reasons already given, must be treated as valid for the time being, despite the restrictions which it imposes directly or indirectly, actually or potentially, on the normal functioning of Community rules in the fisheries sector.
9.
In conclusion I recommend that in its reply to the questions submitted by the two courts in the Netherlands the Court should rule that the Community is empowered to enter into international agreements regulating fishing, including those for conserving the biological resources of the high seas but that, in so far as it has not actually exercised its powers, the Member States continue to have power themselves to contract international undertakings to the same end, without prejudice to the question whether these are compatible with the substantive provisions of Community law governing the working of the Common Market, especially in the fisheries sector.
National measures restricting freedom to fish, in particular by fixing quotas, are liable to impede the normal functioning of Community rules in the fisheries sector laid down by Regulations Nos 2141/70 and 2142/70 of the Council, and, in principle, conflict with the prohibition of measures having an effect equivalent to quantitative restrictions on intra-Community trade laid down under Articles 30 and 31 of the EEC Treaty.
Nevertheless, pending the preparation of appropriate Community rules for the pursuit of the objectives and the execution of the tasks assigned to the Community by Articles 1 and 5 of Regulation No 2141/70 of the Council and by Article 102 of the Act of Accession, if the adoption of measures of this kind is urgent and necessary for the attainment of an objective of common interest, as in the case of those for the protection of fishery resources which are threatened with exhaustion, and which contain restrictions which are not disproportionate to the end in view, they must be considered valid and can, therefore, have full effect, even if only on a temporary basis.
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1
)	Translated from the Italian.