1.

To begin with the first question, in the view of the United Kingdom, the objections of the Commission were primarily directed against the date of the entry into force of the United Kingdom measure but not against its subsequent maintenance in force. The reservations expressed by the Commission accordingly related exclusively to the premature entry into force of the measure in question; the measure was, then, approved subject to the condition that it should not enter into force before 1 September 1979. It has to be said, however, that after that date the national measure and the proposal of the Commission coincide, with the result that in so far as the national measure has regard for the Community interest and national interests it may no longer be regarded as contrary to Community law. Finally the Court stated clearly in its judgment in Case 804/79 that the charge of failure to fulfil obligations under the Treaty related to the premature entry into force of the measure. Experience, however, indicates that national measures are often accorded the approval of the Commission, even ex post. If that view is not accepted the failure of the Commission to grant approval nevertheless constitutes misuse of the law. As the other parties to the proceedings point out these arguments are untenable for various reasons. As I have already stated, the judgment in Case 804/79 clearly establishes that the Member States, on the basis of the provisions of Community law, were obliged, after the expiry of the period laid down in Article 102 of the Act of Accession, in the event of a failure to act on the part of the Council, to undertake detailed consultations with the Commission before enacting conservation measures and to seek its approval in good faith. In addition they are also under a duty not to lay down national conservation measures in spite of objections, reservations or conditions which might be formulated by the Commission. National measures, the enactment of which was contrary to such positive and negative duties, are accordingly not compatible with Community law. On the basis of that state of the law the Court of Justice then found that the consultation carried out by the Government of the United Kingdom was unsatisfactory and was not in accordance with the requirements of the Council decisions. Furthermore the Commission put forward its reservations at the very beginning of the consultation procedure and renewed them expressly on 22 and 27 June after taking note of the wording of the measures and making known its intention not to approve them until a more thorough examination had made it possible to find an area of agreement. With regard to the question of the circumstances forming the basis for the Commission's complaints the Court gave a clear ruling in its judgment, emphasizing that: “the criticisms made by the Commission are based on the consideration that measures of this type cannot be effectively adopted except for the whole of the Community, that the Council would have been in a position to adopt them in the form intended by the Treaty if the United Kingdom had not itself blocked the decision-making process in the Council and that by unilaterally adopting the measures in question the United Kingdom has encroached upon the powers which belong in their entirety, as from 1 January 1979, to the Community.” However, it was only in the alternative that the Commission considered the substance of the various measures adopted in order to show that, even though they were genuine measures of conservation, their adoption infringed the principle of equality of treatment of all Community fishermen, either as regards the time at which they came into force or as regards the detailed methods of their application. These findings show clearly that the objections formulated by the Commission did not relate solely to the date of the entry into force of the United Kingdom measures. A further consequence of this, however, is that, although the content of the United Kingdom measures was in accordance with the conservation measures proposed by the Commission at the time when the accused was arrested, the main objection of the Commission at that time was not removed through the passage of time. In this connection it should also not be overlooked that the proposals of the Commission, which are addressed to the Council and not to the Member States, constitute the initiation of a specific Community procedure and accordingly they may not simply be regarded as constituting approval of a unilateral procedure of a Member State in a sphere where the powers of the Community take precedence. In particular it is necessary to insist, in the interests of legal certainty that, when the Commission has formulated express objections, reservations or conditions in relation to the enactment of a measure by a Member State, such objections, reservations or conditions may only be considered to have been withdrawn when the Commission subsequently intimates clearly that it no longer wishes to insist on its objections. Until now there has been nothing to indicate that this is the case. Quite to the contrary, the Commission stated on this point, in the communication relating to the publication of national fishery conservation measures (Official Journal C 133, p. 2 of 4 June 1980), under the date 3 August 1979, that its prior disapproval of that measure still subsisted in that, when it agreed to the designation of sea perch as a protected species it did so “without approving the order as such.” If the Commission had wished its objections to be regarded as withdrawn after 1 September 1979 it must also be assumed that it would have said as much in the proceedings against the United Kingdom for failure to fulfil an obligation under the Treaty which only terminated in May 1981. As the United Kingdom has properly remarked, I made it clear in my opinion of 12 February 1981 on that case that a national measure may be approved, even tacitly. Nevertheless there can, of course, be no such tacit approval when the Commission has put forward its reservations at the very beginning of the consultation procedure and expressly maintained its objections. In this connection the argument of the United Kingdom that in other cases the Commission has subsequently approved measures which had already been put into force by the Member States is of no avail since in these other cases the possibility of approval of the measure would not be ruled out. In any event, as the Court in fact emphasized in its judgment in Case 804/79, these cases are not comparable with the contested measures of the United Kingdom concerning which the Commission put forward its reservations at the very beginning of the consultation procedure and expressly renewed its objections to them. Finally, there is in addition a consideration based on legal policy which militates against the view that the measure objected to is subsequently justified because it coincides with the proposal of the Commission: the consequence of permitting such justification without fresh consultation with the Commission would be that whenever a proposal of the Commission was not accepted in the Council the Member States would be able to adopt corresponding national measures so that it would not always be possible to ensure the protection of the common interest, for example where the relevant biological and technological factors alter. The outcome of the foregoing is that, from the point of view of Community law, the contested measures would only have been unobjectionable if the United Kingdom had, before 1 September 1979, observing all the procedural requirements, referred the measure again to the Commission in order to enable it thoroughly to consider the measure. Since the United Kindom failed to do so the Commission is not to be criticized on the ground that its subsequent disapproval of the measure constitutes misuse of the law.