61978CJ0141_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 141/78
FRENCH REPUBLIC, REPRESENTED BY GUY LADREIT DE LACHARRIERE, DIRECTOR OF LEGAL AFFAIRS AT THE MINISTRY FOR FOREIGN AFFAIRS, ACTING AS AGENT, AND PIERRE PERE, SECRETARY OF THE MINISTRY FOR FOREIGN AFFAIRS, ACTING AS ASSISTANT AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY,
APPLICANT,
SUPPORTED BY
THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOHN TEMPLE LANG, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
INTERVENER,
V
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, REPRESENTED BY W . H . GODWIN, UNDER-SECRETARY ( LEGAL ), TREASURY SOLICITOR ' S OFFICE ACTING AS AGENT, ASSISTED BY T . H . BINGHAM, QUEEN ' S COUNSEL, AND P . J . LANGDON-DAVIES, BARRISTER, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE UNITED KINGDOM,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT BY ADOPTING ON 9 MARCH 1977 AND BY BRINGING INTO FORCE ON 1 APRIL 1977 THE FISHING NETS ( NORTH-EAST ATLANTIC ) ORDER 1977, THE UNITED KINGDOM HAS FAILED, IN THE SEA FISHERIES SECTOR, TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,
Grounds
1 BY AN APPLICATION OF 14 JUNE 1978 THE FRENCH REPUBLIC, IN PURSUANCE OF ARTICLE 170 OF THE EEC TREATY, ASKED THE COURT TO DECLARE THAT BY ADOPTING ON 9 MARCH 1977 THE FISHING NETS ( NORTH-EAST ATLANTIC ) ORDER 1977, THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .
2 THE ACTION BROUGHT BY THE FRENCH REPUBLIC ORIGINATES IN AN INCIDENT AT SEA WHICH OCCURRED ON 1 OCTOBER 1977 WHEN THE FRENCH TRAWLER ' ' CAP CAVAL ' '
WHICH WAS FISHING FOR PRAWNS WITHIN UNITED KINGDOM FISHERY LIMITS, WAS BOARDED BY BRITISH FISHERY PROTECTION OFFICERS . THE MASTER OF THE TRAWLER WAS SUMMONED BEFORE THE PEMBROKE MAGISTRATES '
COURT AND CONVICTED ON 4 OCTOBER 1977 OF INFRINGING THE ORDER IN DISPUTE, IN PARTICULAR FOR HAVING USED NETS OF A MESH SMALLER THAN THE MINIMUM AUTHORIZED BY THE ORDER . FOLLOWING THAT INCIDENT THE FRENCH GOVERNMENT COMMENCED THE PROCEDURE UNDER ARTICLE 170, FIRST BRINGING THE MATTER BEFORE THE COMMISSION IN ACCORDANCE WITH THE SECOND PARAGRAPH OF THAT ARTICLE . ON 22 MARCH 1978 THE COMMISSION DELIVERED ITS REASONED OPINION IN ACCORDANCE WITH THE THIRD
PARAGRAPH OF THAT ARTICLE . IN THAT OPINION THE COMMISSION FOUND THAT BY BRINGING THE DISPUTED ORDER INTO FORCE THE UNITED KINGDOM WAS IN BREACH OF ITS OBLIGATIONS UNDER THE TREATY . AS THE UNITED KINGDOM DID NOT COMPLY WITH THAT OPINION THE FRENCH GOVERNMENT BROUGHT THE MATTER BEFORE THE COURT ON 14 JUNE 1978 .
3 THE FRENCH REPUBLIC CLAIMS IN PARTICULAR THAT THE DISPUTED ORDER, WHICH WAS ADOPTED IN A MATTER RESERVED FOR THE COMPETENCE OF THE COMMUNITY, WAS BROUGHT INTO FORCE IN DISREGARD OF THE REQUIREMENTS SET OUT IN ANNEX VI TO THE RESOLUTION ADOPTED BY THE COUNCIL AT THE HAGUE AT ITS MEETINGS ON 30 OCTOBER AND 3 NOVEMBER 1976, UNDER WHICH, PENDING THE IMPLEMENTATION OF THE APPROPRIATE COMMUNITY MEASURES, MEMBER STATES, MIGHT, AS AN INTERIM MEASURE, ADOPT UNILATERAL MEASURES TO ENSURE THE PROTECTION OF FISHERY RESOURCES ON CONDITION THAT THEY HAD FIRST CONSULTED THE COMMISSION AND SOUGHT ITS APPROVAL . AS THESE REQUIREMENTS WERE NOT OBSERVED BY THE GOVERNMENT OF THE UNITED KINGDOM THE MEASURE ADOPTED IS CONTRARY TO COMMUNITY LAW . IN THE ALTERNATIVE THE FRENCH GOVERNMENT ALSO CLAIMS THAT THE DISPUTED ORDER IS, WITH REGARD TO THE MEASURES ADOPTED, EXCESSIVE AND THUS DOES NOT CONSTITUTE A REASONABLE MEASURE OF PROTECTION .
4 THE FRENCH GOVERNMENT ' S POSITION WAS SUPPORTED BY THE COMMISSION WHICH INTERVENED IN THE ACTION . IN THE ARGUMENTS PRESENTED TO THE COURT THE COMMISSION STATED THAT THE GOVERNMENT OF THE UNITED KINGDOM HAD ALSO FAILED TO OBSERVE ARTICLE 3 OF COUNCIL REGULATION NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY, UNDER WHICH MEMBER STATES ARE REQUIRED TO GIVE PRIOR NOTIFICATION OF ANY ALTERATIONS TO FISHERY RULES . FURTHERMORE, THE COMMISSION EMPHASIZED PARTICULARLY THAT ANNEX VI TO THE HAGUE RESOLUTION IS A SPECIFIC EXPRESSION OF THE DUTY OF CO-OPERATION EXPRESSED IN GENERAL TERMS BY ARTICLE 5 OF THE EEC TREATY . FINALLY, THE COMMISSION CLAIMS THAT THE BRITISH MEASURES ARE EXCESSIVE INASMUCH AS THEY INVOLVE CERTAIN SPECIFIC CONDITIONS, IN PARTICULAR RELATIVE TO THE RESTRICTIONS ON BY-CATCHES, WHICH ARE DEFINED MORE STRICTLY THAN IN THE PROPOSALS PUT FORWARD BY THE COMMISSION FOR DETERMINING COMMON RULES IN THE MATTER .
5 THE GOVERNMENT OF THE UNITED KINGDOM, WITHOUT CHALLENGING THE BINDING NATURE OF ANNEX VI TO THE HAGUE RESOLUTION, CLAIMS THAT THE ORDER IN QUESTION CANNOT BE DESCRIBED AS A ' ' UNILATERAL ' '
MEASURE WITHIN THE MEANING OF THAT RESOLUTION SINCE IT WAS ADOPTED IN ORDER TO SECURE IN THE UNITED KINGDOM THE IMPLEMENTATION OF THE RECOMMENDATIONS OF THE COMMISSION ESTABLISHED UNDER THE NORTH-EAST ATLANTIC FISHERIES CONVENTION SIGNED IN LONDON ON 24 JANUARY 1959 ( UNITED NATIONS TREATY SERIES, VOLUME 486, 1964, P . 159 ) AND, MORE PARTICULARLY, OF ARTICLE 13 OF THAT CONVENTION UNDER WHICH ' ' EACH CONTRACTING STATE SHALL TAKE IN ITS TERRITORIES AND IN REGARD TO ITS OWN NATIONALS AND ITS OWN VESSELS APPROPRIATE MEASURES TO ENSURE THE APPLICATION OF THE PROVISIONS OF THIS CONVENTION AND OF THE RECOMMENDATIONS OF THE COMMISSION WHICH HAVE BECOME BINDING ON THAT CONTRACTING STATE AND THE PUNISHMENT OF INFRACTIONS OF THE SAID PROVISIONS AND RECOMMENDATIONS ' ' . ACCORDING TO THE BRITISH GOVERNMENT THE DISPUTED ORDER WAS ADOPTED SO AS TO ENSURE THE IMPLEMENTATION OF THE RECOMMENDATIONS OF THE CONVENTION AS A WHOLE AND, MORE PARTICULARLY, OF RECOMMENDATION NO ( 2 ) RELATING TO THE SIZE OF THE MESH OF NETS HAVING REGARD TO RECOMMENDATION NO ( 5 ) RELATING TO THE PROPORTION OF BY-CATCHES IN INDUSTRIAL FISHERY . FOR THIS REASON THE ORDER IN QUESTION THUS DID NOT NEED TO BE SUBJECTED TO THE CONSULTATION PROCEDURE LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION . WITH REGARD TO THE SUBSTANCE OF THE MEASURES INSTITUTED BY THE SAID ORDER THE GOVERNMENT OF THE UNITED KINGDOM EXPLAINED AT LENGTH THE JUSTIFICATION FOR RESTRICTIVE MEASURES AS REGARDS BOTH THE MESH OF NETS AND THE RESTRICTION ON BY-CATCHES, THE USE OF SMALL-MESH NETS BEING PARTICULARLY HARMFUL TO THE CONSERVATION OF FISH STOCKS .
6 AS THE FRENCH GOVERNMENT HAS CORRECTLY STATED, THE ORDER IN DISPUTE WAS ADOPTED IN A FIELD WHICH COMES WITHIN THE POWERS OF THE COMMUNITY . THOSE POWERS COVER ALL QUESTIONS RELATING TO THE PROTECTION OF THE FISHING GROUNDS AND THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA BOTH IN THE COMMUNITY ' S INTERNAL RELATIONS AND IN ITS RELATIONS WITH NON-MEMBER STATES . THOSE POWERS ARE BASED ON ARTICLE 3 ( D ) OF THE TREATY IN CONJUNCTION WITH ARTICLE 38 ET SEQ . RELATING TO AGRICULTURE, INCLUDING ANNEX II TO THE TREATY WHICH INCLUDES FISHERIES WITHIN THE SPHERE OF THE COMMON AGRICULTURAL POLICY . SUBSEQUENTLY, THE FACT THAT CONSERVATION MEASURES WERE INCLUDED IN THE COMMUNITY ' S POWERS WAS SPECIFICALLY CONFIRMED BY ARTICLE 102 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES . THE FOUNDATIONS OF A COMMON POLICY IN FISHERIES MATTERS WERE LAID BY REGULATIONS NO 2141/70 OF THE COUNCIL OF 20 OCTOBER 1970 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY AND NO 2142/70 OF THE
COUNCIL OF THE SAME DATE ON THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1970 ( III ), PAGES 703 AND 707 RESPECTIVELY ); FOLLOWING THE ENLARGEMENT OF THE COMMUNITY THOSE REGULATIONS WERE REPLACED BY REGULATIONS NOS 100 AND 101/76 OF 19 JANUARY 1976 ( OFFICIAL JOURNAL L 20, PAGES 1 AND 19 ). THE COURT, FOR ITS PART, HAS HAD OCCASION TO EMPHASIZE THE SCOPE OF THESE PROVISIONS IN ITS JUDGMENTS OF 14 JULY 1976 ( JOINED CASES 3, 4 AND 6/76, KRAMER AND OTHERS, ( 1976 ) ECR 1279 ), OF 16 FEBRUARY 1978 ( CASE 61/77, COMMISSION V IRELAND ( 1978 ) ECR 417 ) AND OF 3 JULY 1979 ( JOINED CASES 185 TO 204/78, VAN DAM AND OTHERS ).
7 IT FOLLOWS FROM THE FOREGOING THAT THE BRINGING INTO FORCE OF THE ORDER IN QUESTION, INASMUCH AS IT WAS ADOPTED IN A FIELD COMING UNDER THE POWERS OF THE COMMUNITY, WAS SUBJECT TO ALL THE RELEVANT PROVISIONS OF COMMUNITY LAW . IN THIS RESPECT REFERENCE SHOULD BE MADE MORE PARTICULARLY, ON THE ONE HAND, TO THE PROVISIONS OF ARTICLES 2 AND 3 OF REGULATION NO 101/76, UNDER WHICH ALL LAWS AND ADMINISTRATIVE RULES AND REGULATIONS DETERMINING THE RULES APPLIED BY EACH MEMBER STATE IN RESPECT OF FISHING IN THE MARITIME WATERS COMING UNDER ITS SOVEREIGNTY OR WITHIN ITS JURISDICTION MUST BE NOTIFIED TO THE OTHER MEMBER STATES AND THE COMMISSION, TOGETHER WITH ANY ALTERATIONS WHICH IT IS INTENDED TO MAKE IN THE FISHERY RULES SO LAID DOWN . SECONDLY IT IS NECESSARY TO BEAR IN MIND THE TERMS OF ANNEX VI TO THE HAGUE RESOLUTION, WHICH IS WORDED AS FOLLOWS :
' ' PENDING THE IMPLEMENTATION OF THE COMMUNITY MEASURES AT PRESENT IN PREPARATION RELATING TO THE CONSERVATION OF RESOURCES, THE MEMBER STATES WILL NOT TAKE ANY UNILATERAL MEASURES IN RESPECT OF THE CONSERVATION OF RESOURCES .
HOWEVER, IF NO AGREEMENT IS REACHED FOR 1977 WITHIN THE INTERNATIONAL FISHERIES COMMISSION AND IF SUBSEQUENTLY NO AUTONOMOUS COMMUNITY MEASURES COULD BE ADOPTED IMMEDIATELY, THE MEMBER STATES COULD THEN ADOPT, AS AN INTERIM MEASURE AND IN A FORM WHICH AVOIDS DISCRIMINATION, APPROPRIATE MEASURES TO ENSURE THE PROTECTION OF RESOURCES SITUATED IN THE FISHING ZONES OFF THEIR COASTS .
BEFORE ADOPTING SUCH MEASURES, THE MEMBER STATE CONCERNED WILL SEEK THE APPROVAL OF THE COMMISSION, WHICH MUST BE CONSULTED AT ALL STAGES OF THE PROCEDURES .
ANY SUCH MEASURES SHALL NOT PREJUDICE THE GUIDELINES TO BE ADOPTED FOR THE IMPLEMENTATION OF COMMUNITY PROVISIONS ON THE CONSERVATION OF RESOURCES . ' '
8 THE COMMISSION HAS RIGHTLY CLAIMED THAT THAT RESOLUTION, IN THE PARTICULAR FIELD TO WHICH IT APPLIES, MAKES SPECIFIC THE DUTIES OF CO-OPERATION WHICH THE MEMBER STATES ASSUMED UNDER ARTICLE 5 OF THE EEC TREATY WHEN THEY ACCEDED TO THE COMMUNITY . PERFORMANCE OF THESE DUTIES IS PARTICULARLY NECESSARY IN A SITUATION IN WHICH IT HAS APPEARED IMPOSSIBLE, BY REASON OF DIVERGENCES OF INTEREST WHICH IT HAS NOT YET BEEN POSSIBLE TO RESOLVE, TO ESTABLISH A COMMON POLICY AND IN A FIELD SUCH AS THAT OF THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA IN WHICH WORTHWHILE RESULTS CAN ONLY BE ATTAINED THANKS TO THE CO-OPERATION OF ALL THE MEMBER STATES .
9 IT FOLLOWS FROM THE FOREGOING THAT THE INSTITUTION OF MEASURES OF CONSERVATION BY A MEMBER STATE MUST FIRST BE NOTIFIED TO THE OTHER MEMBER STATES AND TO THE COMMISSION AND THAT SUCH MEASURES ARE IN PARTICULAR SUBJECT TO THE REQUIREMENTS LAID DOWN BY ANNEX VI TO THE HAGUE RESOLUTION . IN OTHER WORDS, A MEMBER STATE PROPOSING TO BRING SUCH MEASURES INTO FORCE IS REQUIRED TO SEEK THE APPROVAL OF THE COMMISSION, WHICH MUST BE CONSULTED AT ALL STAGES OF THE PROCEDURE .
10 IT IS COMMON GROUND THAT THESE REQUIREMENTS HAVE NOT BEEN SATISFIED IN THIS CASE . THE GOVERNMENT OF THE UNITED KINGDOM, HOWEVER, CLAIMS THAT IT WAS NOT REQUIRED TO FOLLOW THAT PROCEDURE SINCE IT APPLIES EXCLUSIVELY IN THE CASE OF ' ' UNILATERAL MEASURES ' '
OF CONSERVATION OF RESOURCES ADOPTED BY A MEMBER STATE AND THAT THE MEASURES WHICH ARE THE SUBJECT OF THE DISPUTED ORDER ARE NOT ' ' UNILATERAL ' '
MEASURES, INASMUCH AS THEY WERE ADOPTED IN ORDER TO ENSURE, WITHIN THE JURISDICTION OF THE UNITED KINGDOM, THE UNDERTAKINGS ARISING FOR THE UNITED KINGDOM FROM THE NORTH-EAST ATLANTIC FISHERIES CONVENTION AND THE RESOLUTIONS ADOPTED THEREUNDER .
11 ANNEX VI TO THE HAGUE RESOLUTION IN THE WORDS OF WHICH ' ' THE MEMBER STATES WILL NOT TAKE ANY UNILATERAL MEASURES IN RESPECT OF THE CONSERVATION OF RESOURCES ' ', EXCEPT IN CERTAIN CIRCUMSTANCES AND WITH DUE OBSERVANCE OF THE REQUIREMENTS SET OUT ABOVE, MUST BE UNDERSTOOD AS REFERRING TO ANY MEASURES OF CONSERVATION EMANATING FROM THE MEMBER STATES AND NOT FROM THE COMMUNITY AUTHORITIES . THE DUTY OF CONSULTATION ARISING UNDER THAT RESOLUTION THUS COVERS ALSO MEASURES ADOPTED BY A MEMBER STATE TO COMPLY WITH ONE OF ITS INTERNATIONAL OBLIGATIONS IN THIS MATTER . SUCH CONSULTATION WAS ALL THE MORE NECESSARY IN THIS CASE SINCE IT IS COMMON GROUND, AS HAS BEEN
EMPHASIZED BY THE FRENCH GOVERNMENT AND THE COMMISSION AND ACCEPTED BY THE GOVERNMENT OF THE UNITED KINGDOM ITSELF, THAT THE ORDER IN QUESTION, ALTHOUGH CARRYING OUT CERTAIN RECOMMENDATIONS OF THE NORTH-EAST ATLANTIC FISHERIES CONVENTION, NEVERTHELESS IN SOME RESPECTS GOES BEYOND THE REQUIREMENTS FLOWING FROM THOSE RECOMMENDATIONS .
12 IT FOLLOWS FROM THE FOREGOING THAT, BY NOT PREVIOUSLY NOTIFYING THE OTHER MEMBER STATES AND THE COMMISSION OF THE MEASURE ADOPTED AND SEEKING THE APPROVAL OF THE COMMISSION, THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 5 OF THE EEC TREATY, ANNEX VI TO THE HAGUE RESOLUTION AND ARTICLES 2 AND 3 OF REGULATION NO 101/76 .
13 HAVING REGARD TO THIS FINDING IT DOES NOT APPEAR NECESSARY TO CONSIDER THE ALTERNATIVE SUBMISSION MADE BY THE FRENCH GOVERNMENT REGARDING THE EXCESSIVE NATURE OF THE MEASURES WHICH ARE THE SUBJECT OF THE ACTION .
Decision on costs
COSTS
14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE UNITED KINGDOM HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES THAT, BY BRINGING INTO FORCE ON 1 APRIL 1977 THE FISHING NETS ( NORTH-EAST ATLANTIC ) ORDER 1977, THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY ;
2 . ORDERS THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND TO PAY THE COSTS .