61983CJ0063_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 63/83
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CROWN COURT AT NEWCASTLE-UPON-TYNE FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
REGINA
AND
KENT KIRK
Subject of the case
ON THE RIGHT OF A MEMBER STATE AFTER 31 DECEMBER 1982 TO BRING INTO FORCE A MEASURE PROHIBITING VESSELS REGISTERED IN ANOTHER MEMBER STATE FROM FISHING WITHIN ITS 12-MILE COASTAL ZONE,
Grounds
1 BY ORDER OF 9 MARCH 1983, RECEIVED AT THE COURT ON 20 APRIL 1983, THE NEWCASTLE-UPON-TYNE CROWN COURT REFERRED A QUESTION TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF THE COMMUNITY LAW ON FISHERIES IN ORDER TO ENABLE IT TO DETERMINE WHETHER A MEASURE ADOPTED BY THE UNITED KINGDOM PROHIBITING VESSELS REGISTERED IN DENMARK FROM FISHING WITHIN ITS 12-MILE COASTAL ZONE WAS COMPATIBLE WITH THAT LAW .
2 BY THE SEA FISH ( SPECIFIED UNITED KINGDOM WATERS ) ( PROHIBITION OF FISHING ) ORDER 1982 ( HEREINAFTER REFERRED TO AS ' ' THE SEA FISH ORDER 1982 ' ' ) THE UNITED KINGDOM PROHIBITED ' ' FISHING WITHIN SUCH PART OF BRITISH FISHERY LIMITS AS LIES WITHIN 12 MILES FROM THE BASELINES ADJACENT TO THE UNITED KINGDOM BY ANY FISHING BOAT REGISTERED IN DENMARK . . . ' ' . KENT KIRK, THE MASTER OF A DANISH FISHING VESSEL, WAS INTERCEPTED IN THAT VESSEL ON 6 JANUARY 1983 BY A SHIP OF THE ROYAL NAVY WHILST HE WAS ENGAGED IN FISHING WITHIN THE COASTAL ZONE AND WAS FINED UKL 30 000 BY NORTH SHIELDS MAGISTRATES COURT . HE APPEALED TO THE NEWCASTLE-UPON-TYNE CROWN COURT WHERE HE CLAIMED THAT THE UNITED KINGDOM WAS NOT ENTITLED TO BRING INTO FORCE THE SEA FISH ORDER 1982 AND THAT, CONSEQUENTLY, NO OFFENCE HAD BEEN COMMITTED .
3 THE NEWCASTLE-UPON-TYNE CROWN COURT TOOK THE VIEW THAT IN ORDER TO ENABLE IT TO DETERMINE WHETHER THE SEA FISH ORDER 1982 WAS COMPATIBLE WITH COMMUNITY LAW A PRELIMINARY RULING FROM THE COURT OF JUSTICE WAS NECESSARY . IT THEREFORE STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT :
' ' HAVING REGARD TO ALL THE RELEVANT PROVISIONS OF COMMUNITY LAW DID THE UNITED KINGDOM HAVE THE RIGHT AFTER 31 DECEMBER 1982 TO BRING INTO FORCE THE SEA FISH ( SPECIFIED UNITED KINGDOM WATERS ) ( PROHIBITION OF FISHING ) ORDER 1982 TO THE EXTENT THAT THE ORDER PROHIBITS ONLY VESSELS REGISTERED IN DENMARK FROM FISHING AS SPECIFIED IN THAT ORDER?
' '
4 THE PURPOSE OF THAT QUESTION IS ESSENTIALLY TO ESTABLISH WHETHER AT THE TIME WHEN THE SEA FISH ORDER 1982 WAS ADOPTED, IT WAS PERMISSIBLE FOR A MEMBER STATE, UNDER COMMUNITY LAW IN THE MATTER OF FISHING, TO PROHIBIT VESSELS REGISTERED IN ANOTHER NAMED MEMBER STATE FROM FISHING WITHIN A COASTAL ZONE SPECIFIED BY THAT ORDER .
5 MR KIRK TAKES THE VIEW, AND IS SUPPORTED IN THAT RESPECT BY THE GOVERNMENTS OF DENMARK AND THE NETHERLANDS, THAT THE RULES WHICH APPLIED PRIOR TO THE 1972 ACT OF ACCESSION BECAME FULLY APPLICABLE ON THE EXPIRY OF THE DEROGATIONS PERMITTED DURING THE TRANSITIONAL PERIOD, WHICH ENDED ON 31 DECEMBER 1982 . THOSE RULES, CODIFIED IN COUNCIL REGULATION ( EEC ) NO 101/76 ( OFFICIAL JOURNAL L 20 OF 28 . 1 . 1976, P . 19 ), INCLUDE THE PRINCIPLE OF NON-DISCRIMINATION AND THEREFORE THE EXCLUSION OF DANISH VESSELS UNDER THE SEA FISH ORDER 1982 IS CONTRARY TO COMMUNITY LAW .
6 IT SHOULD BE BORNE IN MIND, IN THIS RESPECT, THAT ARTICLE 7 OF THE EEC TREATY PROVIDES THAT WITHIN THE SCOPE OF APPLICATION OF THE TREATY, AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN, ANY DISCRIMINATION ON GROUNDS OF NATIONALITY IS PROHIBITED .
7 COUNCIL REGULATION ( EEC ) NO 101/76 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY, WHICH REPLACED REGULATION ( EEC ) NO 2141/70 OF THE COUNCIL OF 20 OCTOBER 1970 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1970 ( III ), P . 703 ), PROVIDES, IN ARTICLE 2 ( 1 ), WHICH IS IDENTICAL TO ARTICLE 2 ( 1 ) OF REGULATION NO 2141/70, THAT RULES APPLIED BY
EACH MEMBER STATE IN RESPECT OF FISHING IN THE MARITIME WATERS COMING UNDER ITS SOVEREIGNTY OR WITHIN ITS JURISDICTION MUST NOT LEAD TO DIFFERENCES IN TREATMENT OF OTHER MEMBER STATES . MEMBER STATES MUST ENSURE IN PARTICULAR EQUAL CONDITIONS OF ACCESS TO AND USE OF THE FISHING GROUNDS SITUATED IN THE WATERS REFERRED TO FOR ALL FISHING VESSELS FLYING THE FLAG OF A MEMBER STATE AND REGISTERED IN COMMUNITY TERRITORY .
8 ARTICLE 100 ( 1 ) OF THE 1972 ACT OF ACCESSION AUTHORIZED A DEROGATION FROM THOSE PRINCIPLES FOR A PERIOD EXPIRING ON 31 DECEMBER 1982, SO THAT THE MEMBER STATES COULD RESTRICT FISHING BY NATIONALS OF OTHER MEMBER STATES IN WATERS UNDER THEIR SOVEREIGNTY OR JURISDICTION, SITUATED WITHIN A LIMIT WHICH WAS FIXED IN PRINCIPLE AT 6 NAUTICAL MILES .
9 UNDER ARTICLE 103 OF THE 1972 ACT OF ACCESSION, BEFORE 31 DECEMBER 1982 THE COUNCIL, ACTING ON A PROPOSAL FROM THE COMMISSION, WAS TO EXAMINE THE PROVISIONS WHICH COULD FOLLOW THE DEROGATIONS IN FORCE UNTIL 31 DECEMBER 1982 .
10 THE MODIFIED PROPOSAL FOR A COUNCIL REGULATION ESTABLISHING A COMMUNITY SYSTEM FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES, SUBMITTED BY THE COMMISSION TO THE COUNCIL ON 11 JUNE 1982 ( OFFICIAL JOURNAL C 228 OF 1 . 9 . 1982, P . 1 ) PROPOSED THAT THE ZONE COVERED BY THE DEROGATION DEFINED IN ARTICLE 100 OF THE 1972 ACT OF ACCESSION SHOULD BE EXTENDED TO 12 NAUTICAL MILES AND SHOULD REMAIN IN FORCE FOR A PERIOD EXPIRING ON 31 DECEMBER 1992 .
11 FOLLOWING THE COUNCIL ' S FAILURE TO ADOPT THE PROPOSED PROVISIONS AT ITS MEETING ON 21 DECEMBER 1982, THE COMMISSION THAT SAME DAY MADE A DECLARATION ( OFFICIAL JOURNAL C 343 OF 31 . 12 . 1982, P . 2 ), IN WHICH IT POINTED OUT THAT THE CONSERVATION OF FISHERY RESOURCES HAD BEEN THE EXCLUSIVE RESPONSIBILITY OF THE COMMUNITY SINCE 1 JANUARY 1979 BUT THAT THE COMMUNITY HAD STILL NOT SUCCEEDED IN ADOPTING A COMPREHENSIVE CONSERVATION SYSTEM . IT FURTHER STATED THAT MEMBER STATES NOT ONLY HAD THE RIGHT TO ADOPT THE NECESSARY MEASURES BUT ALSO HAD THE DUTY TO TAKE THOSE MEASURES IN THE COLLECTIVE INTEREST . THE COMMISSION THEREFORE :
CALLED UPON ALL MEMBER STATES TO NOTIFY IT WITHOUT DELAY OF THE NATIONAL MEASURES OF CONSERVATION THEY PLANNED TO ADOPT, SUBJECT TO APPROVAL BY THE COMMISSION ;
REQUESTED MEMBER STATES '
COOPERATION IN ORDER TO ENSURE THAT THE DIFFERENT NATIONAL MEASURES OF CONSERVATION WERE COORDINATED AND THAT THEY CONSTITUTED A TEMPORARY SYSTEM THAT WAS AT ONCE PRACTICABLE, EFFECTIVE AND NON-DISCRIMINATORY .
12 ON 22 DECEMBER 1982 THE UNITED KINGDOM NOTIFIED THE SEA FISH ORDER 1982 TO THE COMMISSION, WHICH APPROVED IT BY DECISION OF 5 JANUARY 1983 ( OFFICIAL JOURNAL L 12 OF 14 . 1 . 1983, P . 50 ). IN THAT DECISION THE COMMISSION STATED THAT THE AUTHORIZATION WAS ONLY PROVISIONAL UNTIL 26 JANUARY 1983, SUBJECT TO A SUBSEQUENT ASSESSMENT OF THE SUBSTANCE OF THE MEASURE . IN THE PREAMBLE, THE COMMISSION REFERRED TO THE FACT THAT ' ' WHEREAS CERTAIN MEMBER STATES HAVE NOTIFIED TO THE COMMISSION NATIONAL MEASURES . . . BELGIUM, DENMARK AND GREECE HAVE NOT NOTIFIED ANY SUCH MEASURES . . . ' '
AND EMPHASIZED THAT THE DECISION HAD BEEN ADOPTED ' ' FOR REASONS OF PUBLIC ORDER TO AVOID CONFLICTS ARISING DURING THIS PERIOD IN THE ABSENCE OF ANY PROVISION APPLYING TO FISHING IN COMMUNITY WATERS . ' '
13 ON 25 JANUARY 1983 THE COUNCIL ADOPTED REGULATION ( EEC ) NO 170/83 ESTABLISHING A COMMUNITY SYSTEM FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES ( OFFICIAL JOURNAL L 24 OF 27 . 1 . 1983, P . 1 ), ARTICLE 6 ( 1 ) OF WHICH AUTHORIZES RETROACTIVELY, AS FROM 1 JANUARY 1983, THE RETENTION OF THE DEROGATION REGIME DEFINED IN ARTICLE 100 OF THE 1972 ACT OF ACCESSION FOR A FURTHER 10 YEARS, AND EXTENDS THE COASTAL ZONES FROM SIX TO 12 NAUTICAL MILES . THE EVENTS AT ISSUE IN THE MAIN PROCEEDINGS OCCURRED IN THE INTERVENING PERIOD BETWEEN 1 JANUARY AND 25 JANUARY 1983 .
14 IT FOLLOWS FROM THE ABOVEMENTIONED PROVISIONS OF ARTICLES 100 AND 103 OF THE 1972 ACT OF ACCESSION THAT THE MEASURES DEROGATING FROM A FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW, NAMELY NON-DISCRIMINATION, WERE LIMITED TO THE TRANSITIONAL PERIOD AND THAT THE POWER TO BRING INTO FORCE ANY PROVISIONS THEREAFTER WAS ENTRUSTED TO THE COMMUNITY AUTHORITIES, IN PARTICULAR TO THE COUNCIL .
15 IT CANNOT BE CONCLUDED FROM THE FACT THAT THE COUNCIL FAILED TO ADOPT SUCH PROVISIONS WITHIN THE PERIOD PROVIDED FOR IN ARTICLE 103 THAT THE MEMBER STATES HAD THE POWER TO ACT IN THE PLACE OF THE COUNCIL, IN PARTICULAR BY EXTENDING THE DEROGATION BEYOND THE PRESCRIBED TIME-LIMITS .
16 IT FOLLOWS THAT AT THE TIME OF THE EVENTS AT ISSUE BEFORE THE NATIONAL COURT, ARTICLE 2 ( 1 ) OF REGULATION NO 101/76, WHICH PROVIDED FOR EQUAL CONDITIONS OF ACCESS TO WATERS COMING WITHIN THE JURISDICTION OF MEMBER STATES AND, IN CONSEQUENCE, THE ABOLITION OF ALL DISCRIMINATION BASED ON NATIONALITY AGAINST NATIONALS OF MEMBER STATES, WAS FULLY APPLICABLE .
17 THE UNITED KINGDOM AND THE COMMISSION CLAIM THAT THE FACT THAT AFTER THE END OF THE TRANSITIONAL PERIOD THE MEASURES PRESCRIBED BY ARTICLE 103 OF THE 1972 ACT OF ACCESSION WERE NOT ADOPTED CREATED A LEGAL VACUUM WHICH THE MEMBER STATES WERE ENTITLED TO FILL AS ' ' TRUSTEES ' '
OF THE COMMON INTEREST BY MEASURES APPROVED BY THE COMMISSION, AS WAS RECOGNIZED BY THE COURT IN ITS JUDGMENT OF 5 MAY 1981 ( CASE 804/79 COMMISSION V UNITED KINGDOM ( 1981 ) ECR 1045 ).
18 IN THE SAID JUDGMENT OF 5 MAY 1981 THE COURT STATED THAT IN THE ABSENCE OF COMMUNITY RULES, MEMBER STATES HAD THE POWER TO TAKE TEMPORARY MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES IN ORDER TO AVOID IRREPARABLE DAMAGE CONTRARY TO THE OBJECTIVES OF THE COMMON CONSERVATION POLICY .
19 ALTHOUGH, AS THE UNITED KINGDOM POINTS OUT, RULES RELATING TO ACCESS MAY IN CERTAIN CASES CONSTITUTE A RESPONSE TO A CONCERN TO CONSERVE FISHERY RESOURCES, IT IS CLEAR THAT IN THIS INSTANCE THE DISPUTED MEASURE WAS NOT INTENDED TO ACHIEVE SUCH AN OBJECTIVE . NATIONAL RULES WHICH PROHIBIT ACCESS TO NATIONAL WATERS AND WHICH ARE NOT INTENDED TO ACHIEVE AN OBJECTIVE OF CONSERVATION CAN NOT BE COVERED BY THE POWER OF MEMBER STATES, RECOGNIZED IN THE AFOREMENTIONED JUDGMENT OF 5 MAY 1981, TO TAKE TEMPORARY CONSERVATION MEASURES .
20 THE COMMISSION NEVERTHELESS CONTENDS THAT THE MEMBER STATES WERE EMPOWERED TO ADOPT MEASURES SUCH AS THE SEA FISH ORDER 1982 BY ARTICLE 6 ( 1 ) OF REGULATION NO 170/83 OF 25 JANUARY 1983 WHICH AUTHORIZE RETROACTIVELY, AS FROM 1 JANUARY 1983, THE RETENTION OF THE DEROGATION REGIME DEFINED IN ARTICLE 100 OF THE 1972 ACT OF ACCESSION FOR A FURTHER 10 YEARS, AND WHICH EXTENDS THE COASTAL ZONES FROM SIX TO 12 NAUTICAL MILES . IN THE COMMISSION ' S VIEW, THE SEA FISH ORDER 1982 CONSTITUTED A PROPER EXERCISE OF THE AUTHORIZATION UNDER REGULATION NO 170/83 IN VIEW OF THE PARTICULAR CIRCUMSTANCES PREVAILING AT THAT TIME .
21 WITHOUT EMBARKING UPON AN EXAMINATION OF THE GENERAL LEGALITY OF THE RETROACTIVITY OF ARTICLE 6 ( 1 ) OF THAT REGULATION, IT IS SUFFICIENT TO POINT OUT THAT SUCH RETROACTIVITY MAY NOT, IN ANY EVENT, HAVE THE EFFECT OF VALIDATING EX POST FACTO NATIONAL MEASURES OF A PENAL NATURE WHICH IMPOSE PENALTIES FOR AN ACT WHICH, IN FACT, WAS NOT PUNISHABLE AT THE TIME AT WHICH IT WAS COMMITTED . THAT WOULD BE THE CASE WHERE AT THE TIME OF THE ACT ENTAILING A CRIMINAL PENALTY, THE NATIONAL MEASURE WAS INVALID BECAUSE IT WAS INCOMPATIBLE WITH COMMUNITY LAW .
22 THE PRINCIPLE THAT PENAL PROVISIONS MAY NOT HAVE RETROACTIVE EFFECT IS ONE WHICH IS COMMON TO ALL THE LEGAL ORDERS OF THE MEMBER STATES AND IS ENSHRINED IN ARTICLE 7 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS AS A FUNDAMENTAL RIGHT ; IT TAKES ITS PLACE AMONG THE GENERAL PRINCIPLES OF LAW WHOSE OBSERVANCE IS ENSURED BY THE COURT OF JUSTICE .
23 CONSEQUENTLY THE RETROACTIVITY PROVIDED FOR IN ARTICLE 6 ( 1 ) OF REGULATION NO 170/83 CANNOT BE REGARDED AS VALIDATING EX POST FACTO NATIONAL MEASURES WHICH IMPOSED CRIMINAL PENALTIES, AT THE TIME OF THE CONDUCT AT ISSUE, IF THOSE MEASURES WERE NOT VALID .
24 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT COMMUNITY LAW REGARDING FISHING DID NOT AUTHORIZE A MEMBER STATE, AT THE TIME OF THE ADOPTION OF THE SEA FISH ORDER 1982, TO PROHIBIT VESSELS REGISTERED IN ANOTHER NAMED MEMBER STATE FROM FISHING WITHIN A COASTAL ZONE SPECIFIED BY THAT ORDER AND NOT COVERED BY CONSERVATION MEASURES .
Decision on costs
COSTS
25 THE COSTS INCURRED BY THE GOVERNMENTS OF DENMARK AND THE NETHERLANDS, BY THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT,
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE NEWCASTLE-UPON-TYNE CROWN COURT, BY ORDER OF 9 MARCH 1983, HEREBY RULES :
COMMUNITY LAW REGARDING FISHING DID NOT AUTHORIZE A MEMBER STATE, AT THE TIME OF THE ADOPTION OF THE SEA FISH ( SPECIFIED UNITED KINGDOM WATERS ) ( PROHIBITION OF FISHING ) ORDER 1982, TO PROHIBIT VESSELS REGISTERED IN ANOTHER NAMED MEMBER STATE FROM FISHING WITHIN A COASTAL ZONE, SPECIFIED BY THAT ORDER AND NOT COVERED BY CONSERVATION MEASURES .