Judgment of the Court of 8 December 1981. - Procureur général près la Cour d'Appel de Pau and others v José Arbelaiz-Emazabel. - Reference for a preliminary ruling: Cour de cassation - France. - Fisheries - Rights of non-member countries. - Case 181/80.



European Court reports 1981 Page 02961

Spanish special edition Page 00781



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . INTERNATIONAL AGREEMENTS - AGREEMENTS ENTERED INTO BY MEMBER STATES - 1964 LONDON FISHERIES CONVENTION - POWERS OF THE COMMUNITY REGARDING CONSERVATION OF THE RESOURCES OF THE SEA - ENFORCEABILITY AGAINST OTHER PARTIES TO THE CONVENTION

( LONDON FISHERIES CONVENTION OF 9 MARCH 1964 , ARTS 5 AND 10 )

2 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - COMMUNITY PROVISIONS APPLICABLE TO SPANISH VESSELS - LICENSING SYSTEM - DISCRIMINATION AGAINST SPANISH FISHERMEN - NONE

( COUNCIL REGULATIONS NO 373/77 AND NO 746/77 )

3 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - COMMUNITY PROVISIONS APPLICABLE TO SPANISH VESSELS - INTERIM REGIME FALLING WITHIN THE FRAMEWORK OF RELATIONS BETWEEN THE COMMUNITY AND SPAIN - SUPERSEDES PRIOR INTERNATIONAL OBLIGATIONS BETWEEN CERTAIN MEMBER STATES AND SPAIN - EFFECTS

( COUNCIL REGULATIONS NO 373/77 , NO 746/77 AND NO 2160/77 ; AGREEMENT BETWEEN EEC AND SPAIN OF 15 APRIL 1980 )

Summary

1 . IT IS CLEAR FROM ARTICLES 5 AND 10 OF THE LONDON FISHERIES CONVENTION OF 9 MARCH 1964 THAT THE PARTIES THERETO WERE AWARE OF THE EXISTENCE OF MUTUAL COMMITMENTS WITH REGARD TO FISHERIES ASSUMED WITHIN THE FRAMEWORK OF THE COMMUNITY BY ITS MEMBER STATES AND THAT THEY HAD APPROVED THE PRINCIPLE OF CONSERVATION MEASURES AND RECOGNIZED THE NEED TO ADOPT APPROPRIATE RULES TO ENFORCE THEM IN THE ZONE REFERRED TO IN THE CONVENTION . CONSEQUENTLY THE PARTIES MUST HAVE KNOWN THAT AS FROM A PARTICULAR TIME THE POWER TO ADOPT CONSERVATION MEASURES UNDER ARTICLE 5 OF THE CONVENTION WOULD , AS FAR AS THE MEMBER STATES OF THE COMMUNITY WERE CONCERNED , BE EXERCISED BY THE COMMUNITY INSTITUTIONS .

2 . A LICENSING SYSTEM OF THE KIND INTRODUCED WITH REGARD TO SPANISH FISHERMEN BY REGULATION NO 746/77 IS MERELY A NECESSARY MEANS OF ENSURING THE EFFECTIVENESS OF THE SYSTEM OF CATCH QUOTAS INTRODUCED BY THE COMMUNITY BY REGULATION NO 373/77 , IT BEING CLEAR THAT THE CATCHES TAKEN BY FISHING VESSELS OF NON-MEMBER COUNTRIES CANNOT BE CHECKED IN THE NEIGHBOURING COASTAL PORTS SINCE THE VESSELS NORMALLY RETURN TO THEIR PORTS OF ORIGIN TO LAND THEIR CATCHES . THEREFORE THE INTRODUCTION OF SUCH A LICENSING SYSTEM WAS NOT PER SE LIKELY TO ACCORD LESS FAVOURABLE TREATMENT TO SPANISH FISHERMEN THAN TO THE FISHERMEN OF COMMUNITY COUNTRIES , TO WHOM THE CATCH QUOTAS ALSO APPLIED .

3 . THE INTERIM REGIME WHICH THE COMMUNITY SET UP UNDER ITS OWN RULES FALLS WITHIN THE FRAMEWORK OF THE RELATIONS ESTABLISHED BETWEEN THE COMMUNITY AND SPAIN IN ORDER TO RESOLVE THE PROBLEMS INHERENT IN CONSERVATION MEASURES AND THE EXTENSION OF FISHERY LIMITS AND IN ORDER TO ENSURE RECIPROCAL ACCESS BY FISHERMEN TO THE WATERS SUBJECT TO SUCH MEASURES . THOSE RELATIONS , WHICH WERE CONFIRMED BY THE AGREEMENT ON FISHERIES CONCLUDED BETWEEN THE COMMUNITY AND SPAIN AND WERE PROGRESSIVELY DEVELOPED WITH THE CONCURRENCE OF THE SPANISH AUTHORITIES FOLLOWING THE DECISIONS WHICH THE COMMUNITY AND THE MEMBER STATES THEREOF ADOPTED IN 1976 IN ORDER TO DEAL WITH THE INCREASINGLY URGENT NEED TO CONSERVE THE LIVING RESOURCES OF THE SEA AND TO TAKE INTO ACCOUNT THE GENERAL EVOLUTION OF INTERNATIONAL LAW IN THE FIELD OF SEA FISHING , REPLACED THE PRIOR INTERNATIONAL OBLIGATIONS EXISTING BETWEEN CERTAIN MEMBER STATES , SUCH AS FRANCE , AND SPAIN .

ACCORDINGLY , SPANISH FISHERMEN MAY NOT RELY ON PRIOR INTERNATIONAL AGREEMENTS BETWEEN FRANCE AND SPAIN IN ORDER TO PREVENT THE APPLICATION OF THE INTERIM REGULATIONS ADOPTED BY THE COMMUNITY IN THE EVENT OF ANY INCOMPATIBILITY BETWEEN THE TWO CATEGORIES OF PROVISIONS .

Parties

IN CASE 181/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FRENCH COUR DE CASSATION ( COURT OF CASSATION ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

PROCUREUR GENERAL PRES LA COUR D ' APPEL DE PAU ( PUBLIC PROSECUTOR AT THE COURT OF APPEAL , PAU ),

ADMINISTRATEUR DES AFFAIRES MARITIMES DU QUARTIER DE BAYONNE , INTERVENER ,

SYNDICAT DES MARINS DE SAINT-JEAN-DE-LUZ , CIVIL PARTY CLAIMING DAMAGES IN CRIMINAL PROCEEDINGS ,

AND

JOSE ARBELAIZ-EMAZABEL ,

Subject of the case

ON THE VALIDITY OF COUNCIL REGULATIONS LAYING DOWN CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF CERTAIN NON-MEMBER COUNTRIES , IN PARTICULAR SPAIN ,

Grounds

1 BY JUDGMENT OF 7 JULY 1980 , RECEIVED AT THE COURT ON 25 AUGUST 1980 , THE FRENCH COURT DE CASSATION ( COURT OF CASSATION ) REFERRED A QUESTION TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY CONCERNING THE VALIDITY , AND THE ENFORCEABILITY AGAINST SPANISH NATIONALS , OF CERTAIN COUNCIL REGULATIONS , IN PARTICULAR COUNCIL REGULATION ( EEC ) NO 2160/77 OF 30 SEPTEMBER 1977 LAYING DOWN CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL 1977 L 250 , P . 17 ).

2 THE QUESTION WAS RAISED IN CRIMINAL PROCEEDINGS AGAINST THE MASTER OF A FISHING VESSEL FLYING THE FLAG OF SPAIN , WHO WAS CHARGED WITH FISHING ON 3 NOVEMBER 1977 IN FRENCH TERRITORIAL WATERS OFF BAYONNE IN THE AREA BETWEEN 6 AND 12 NAUTICAL MILES FROM THE COAST , WITHOUT BEING IN POSSESSION OF THE FISHING LICENCE REQUIRED BY ARTICLE 3 OF REGULATION NO 2160/77 .

3 THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), BAYONNE , ACQUITTED THE ACCUSED AND ITS JUDGMENT WAS UPHELD BY THE COUR D ' APPEL ( COURT OF APPEAL ), PAU . THE LATTER FOUND THAT THE ACCUSED HAD INDEED BEEN DISCOVERED FISHING WITHOUT A LICENCE IN THE 6 TO 12 MILE-ZONE , BUT CONSIDERED THAT HE WAS AUTHORIZED TO FISH THERE BY THE GENERAL AGREEMENT ON FISHING CONCLUDED BETWEEN FRANCE AND SPAIN BY AN EXCHANGE OF NOTES ON 20 MARCH 1967 ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 4 AUGUST 1967 , P . 7807 ), WHICH WAS STILL IN FORCE AT THE MATERIAL TIME .

4 UNDER THAT AGREEMENT SPANISH NATIONALS ' ' ENJOY A PERMANENT RIGHT TO FISH ' ' FOR ALL SPECIES IN THE AREA BETWEEN 6 AND 12 MILES OFF THE ATLANTIC COAST OF FRANCE , FROM THE MOUTH OF THE BIDASSOA TO THE PARALLEL WHICH PASSES THROUGH THE NORTHERNMOST PART OF BELLE-ILE . PARAGRAPH V OF THE AGREEMENT STATES THAT IT WAS CONCLUDED WITHIN THE FRAMEWORK OF THE VOISINAGE ARRANGEMENTS PROVIDED FOR IN THE LONDON FISHERIES CONVENTION OF 9 MARCH 1964 ( UNITED NATIONS TREATY SERIES , VOL . 581 , NO 8432 ), TO WHICH FRANCE AND SPAIN ARE PARTIES .

5 THE COUR D ' APPEL REJECTED THE ARGUMENT THAT REGULATION NO 2160/77 WAS NOT CONTRARY TO THE FRANCO-SPANISH AGREEMENT INASMUCH AS IT DID NOT PROHIBIT FISHING BY SPANISH VESSELS BUT MERELY REGULATED IT . THE COUR D ' APPEL HELD THAT , CONTRARY TO THE PROVISIONS OF THE LONDON CONVENTION , NOTICE HAD NOT BEEN GIVEN TO SPAIN OF THE ABOVE REGULATION BEFORE IT WAS ADOPTED , AND THAT IT VERY SEVERELY RESTRICTED SPANISH VESSELS ' FISHING RIGHTS AND DISCRIMINATED AGAINST THEM SINCE VESSELS OF COMMUNITY COUNTRIES WERE NOT REQUIRED TO HOLD A LICENCE .

6 IN HIS APPLICATION TO THE COURT DE CASSATION , THE PROCUREUR GENERAL ( PUBLIC PROSECUTOR ) AT THE COUR D ' APPEL , PAU , CONTENDED THAT UNDER THE PROVISIONS OF THE LONDON CONVENTION AND THE FRANCO-SPANISH AGREEMENT FRANCE WAS ENTITLED TO REGULATE FISHING BY SPANISH VESSELS IN THE 6 TO 12-MILE ZONE AND THAT PROVISIONS FOR THAT PURPOSE HAD BEEN ADOPTED BY THE FRENCH DECREE OF 23 FEBRUARY 1968 ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 3 MARCH 1968 , P . 2327 ). ACCORDING TO THE PROCUREUR GENERAL , THAT DECREE , WHICH IMPOSED NO LIMIT ON CATCHES , HAD BEEN REPEALED BY IMPLICATION BY THE COMMUNITY REGULATIONS CONCERNING THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO SPANISH VESSELS . THOSE REGULATIONS , WHICH HAD BEEN INCORPORATED INTO THE LAW OF THE MEMBER STATES , ESTABLISHED NEW PROVISIONS GOVERNING FISHING , WHICH RESTRICTED , BUT DID NOT ABOLISH , THE RIGHTS OF SPANISH FISHING VESSELS , BY FIXING QUOTAS AND REQUIRING LICENCES TO BE OBTAINED .

7 THE COUR DE CASSATION CONSIDERED THAT THERE WAS A SERIOUS DIFFERENCE OF VIEWS AS TO WHETHER , HAVING REGARD TO THE ABOVE-MENTIONED PRIOR INTERNATIONAL COMMITMENTS , THE COMMUNITY REGULATIONS WERE VALID AND WHETHER , IF VALID , THEY WERE ENFORCEABLE AGAINST SPANISH NATIONALS , IN SO FAR AS THEY LAID DOWN NEW DETAILED RULES FOR FISHING OPERATIONS BY SPANISH VESSELS IN THE FISHING ZONE BETWEEN 6 AND 12 NAUTICAL MILES . IT ASKED THE COURT TO GIVE A PRELIMINARY RULING ON THAT QUESTION .

8 IT SHOULD FIRST BE OBSERVED THAT , AS THE COURT HAS ALREADY STATED IN EARLIER CASES , FOR EXAMPLE IN ITS JUDGMENT OF 14 JULY 1976 ( JOINED CASES 3 , 4 AND 6/76 KRAMER ( 1976 ) ECR 1279 ), IT IS CLEAR FROM THE CORPUS OF COMMUNITY LAW APPLICABLE TO FISHING THAT THE COMMUNITY HAS , AT INTERNAL LEVEL , THE POWER TO TAKE ANY MEASURES FOR THE CONSERVATION OF THE LIVING RESOURCES OF THE SEA , INCLUDING MEASURES FIXING CATCH QUOTAS , AND THAT , ACCORDINGLY , IT IS ALSO COMPETENT TO ENTER INTO INTERNATIONAL COMMITMENTS PURSUING THAT OBJECTIVE .

9 HOWEVER , IN THE ABOVE-MENTIONED JUDGMENT THE COURT ADDED THAT , IN THE PERIOD BEFORE THE COMMUNITY FULLY EXERCISED ITS FUNCTIONS IN THIS FIELD , THE MEMBER STATES HAD THE POWER TO ASSUME CERTAIN INTERNATIONAL COMMITMENTS RELATING TO THE CONSERVATION OF THE LIVING RESOURCES OF THE SEA AND THAT THEY WERE ENTITLED TO ENSURE FULFILMENT OF THOSE COMMITMENTS WITHIN THE AREA OF THEIR JURISDICTION . IN THE SAME JUDGMENT THE COURT MADE CLEAR THAT THE MEMBER STATES ' POWERS IN THAT RESPECT WERE PURELY TRANSITIONAL IN CHARACTER AND LAPSED UPON EXPIRY OF THE PERIOD OF 6 YEARS STIPULATED IN ARTICLE 102 OF THE ACT OF ACCESSION OF 1972 , THAT IS TO SAY ON 31 DECEMBER 1978 . DURING THAT PERIOD , THE COMMUNITY INSTITUTIONS HAD IN FACT TO DETERMINE THE CONDITIONS SUBJECT TO WHICH FISHING MIGHT BE CARRIED ON WITH A VIEW TO ENSURING PROTECTION OF STOCKS AND CONSERVATION OF THE LIVING RESOURCES OF THE SEA .

10 THE LONDON CONVENTION WAS RATIFIED BY FRANCE ON 5 JULY 1965 , THAT IS TO SAY AT A TIME WHEN THE COMMUNITY HAD NOT YET ADOPTED ANY REGULATIONS ON SEA FISHING . THEREFORE , FROM THE POINT OF VIEW OF COMMUNITY LAW , FRANCE COULD VALIDLY SIGN THAT CONVENTION AND ALSO THE BILATERAL AGREEMENT OF 1967 WITH SPAIN WHICH , ACCORDING TO PARAGRAPH V THEREOF AND ACCORDING TO THE FRENCH GOVERNMENT , WAS CONCLUDED IN IMPLEMENTATION OF THE CONVENTION .

11 IN THAT CONTEXT , THE QUESTION RAISED BY THE NATIONAL COURT SEEKS THEREFORE TO DETERMINE WHETHER THE INTERNATIONAL COMMITMENTS THUS ASSUMED BY FRANCE AFFECT THE VALIDITY , AND ENFORCEABILITY AGAINST SPANISH NATIONALS , OF THE COMMUNITY REGULATIONS WHICH LAID DOWN INTERIM MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES AS FROM FEBRUARY 1977 AND WHICH AMENDED THE DETAILED RULES GOVERNING FISHING OPERATIONS CARRIED ON BY SPANISH VESSELS IN THE 6 TO 12-MILE ZONE .

12 IT SHOULD BE OBSERVED IN THE FIRST PLACE THAT ARTICLE 10 OF THE LONDON CONVENTION PRESCRIBES THAT NO PROVISION THEREOF IS TO PREVENT THE ESTABLISHMENT OF A SPECIAL REGIME IN MATTERS OF FISHERIES AS BETWEEN MEMBER STATES OF THE COMMUNITY , WHILST ARTICLE 5 ALLOWS COASTAL STATES , IN CERTAIN CIRCUMSTANCES , TO ENFORCE CONSERVATION MEASURES WITHIN THE 6 TO 12-MILE ZONE .

13 IT THUS APPEARS THAT THE PARTIES TO THE LONDON CONVENTION WERE AWARE OF THE EXISTENCE OF MUTUAL COMMITMENTS WITH REGARD TO FISHERIES ASSUMED WITHIN THE FRAMEWORK OF THE COMMUNITY BY ITS MEMBER STATES AND THAT THEY HAD APPROVED THE PRINCIPLE OF CONSERVATION MEASURES AND RECOGNIZED THE NEED TO ADOPT APPROPRIATE RULES TO ENFORCE THEM IN THE ZONE REFERRED TO IN THE CONVENTION . CONSEQUENTLY THE PARTIES MUST HAVE KNOWN THAT AS FROM A PARTICULAR TIME THE POWER TO ADOPT CONSERVATION MEASURES UNDER ARTICLE 5 OF THE CONVENTION WOULD , AS FAR AS THE MEMBER STATES OF THE COMMUNITY WERE CONCERNED , BE EXERCISED BY THE COMMUNITY INSTITUTIONS .

14 IT IS APPROPRIATE NEXT TO CONSIDER IN WHAT CIRCUMSTANCES THE COMMUNITY WAS INDUCED TO ADOPT MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES AND TO ENVISAGE THE CONSEQUENCES OF SUCH MEASURES FOR SPANISH FISHERMEN .

15 THE SCHEME FOR THE CONSERVATION OF THE RESOURCES OF THE SEA WAS ESTABLISHED BY THE COMMUNITY AT A TIME WHEN INTERNATIONAL LAW IN RELATION TO FISHING WAS UNDERGOING PROFOUND CHANGES . IT WAS IN ORDER TO TAKE INTO ACCOUNT THE GENERAL DEVELOPMENT OF INTERNATIONAL LAW AT THAT TIME THAT THE MEMBER STATES DECIDED , BY CONCERTED ACTION AGREED UPON WITHIN THE COUNCIL , TO EXTEND THEIR FISHING LIMITS TO 200 MILES FROM THE BASELINES . BY A RESOLUTION OF 3 NOVEMBER 1976 ON CERTAIN EXTERNAL ASPECTS OF THE CREATION OF A 200-MILE FISHING ZONE IN THE COMMUNITY WITH EFFECT FROM 1 JANUARY 1977 ( PUBLISHED IN OFFICIAL JOURNAL 1981 C 105 , P . 1 ), THE COUNCIL , HAVING STRESSED THE NEED FOR IMMEDIATE ACTION BY THE COMMUNITY TO PROTECT ITS LEGITIMATE INTERESTS IN THE SEA AREAS MOST THREATENED AS A RESULT OF THE EXTENSION OF FISHING LIMITS BY NON-MEMBER COUNTRIES , DECIDED THAT AS FROM 1 JANUARY 1977 THE EXPLOITATION OF FISHERY RESOURCES IN THOSE AREAS BY FISHING VESSELS OF NON-MEMBER COUNTRIES WAS TO BE GOVERNED BY AGREEMENTS BETWEEN THE COMMUNITY AND THE NON-MEMBER COUNTRIES CONCERNED .

16 IN THE SAME RESOLUTION , THE COUNCIL INSTRUCTED THE COMMISSION TO START NEGOTIATIONS IMMEDIATELY WITH THE NON-MEMBER COUNTRIES AFFECTED BY THE COMMUNITY CONSERVATION MEASURES , WITH A VIEW TO RECONCILING THE NEEDS OF CONSERVATION WITH THE INTERESTS OF FISHERMEN TRADITIONALLY OPERATING IN THE WATERS IN QUESTION . NEGOTIATIONS BETWEEN THE COMMISSION AND SPAIN WERE COMMENCED ON 3 DECEMBER 1976 . THEY LED TO THE AGREEMENT ON FISHERIES BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND THE GOVERNMENT OF SPAIN , WHICH WAS INITIALLED ON 23 SEPTEMBER 1978 AND SIGNED ON 15 APRIL 1980 ( OFFICIAL JOURNAL 1980 C 263 , P . 1 ).

17 PENDING THE OUTCOME OF THOSE NEGOTIATIONS , AND TO MEET AN URGENT NEED , THE COMMUNITY , AS SOON AS IT HAD DEFINED ITS CONSERVATION POLICY , ADOPTED A NUMBER OF INTERIM PROVISIONS , APPLICABLE FOR SHORT PERIODS , EXTENDING THE COMMUNITY SYSTEM OF CATCH QUOTAS TO ALL FISHERMEN OF NON-MEMBER COUNTRIES , INCLUDING THE SPANISH .

18 THE INFORMATION PROVIDED BY THE COMMISSION SHOWS THAT DURING THE NEGOTIATIONS WHICH LED TO THE AGREEMENT THE SPANISH GOVERNMENT INITIALLY CLAIMED THAT THE RIGHTS OF ITS FISHING VESSELS IN THE 6 TO 12-MILE ZONE SHOULD BE MAINTAINED , BUT ABANDONED THAT POSITION DURING THE NEGOTIATIONS ; WHEN THE AGREEMENT WAS INITIALLED , IT DECLARED THAT ' ' THE PROVISIONS OF THE AGREEMENT ARE TO BE SUBSTITUTED FOR THE PROVISIONS OF THE AGREEMENTS CONCERNING RELATIONS IN RESPECT OF FISHERIES TO WHICH THE MEMBER STATES OF THE EEC AND SPAIN ARE PARTIES ' ' .

19 PURSUANT TO ARTICLE 228 OF THE EEC TREATY , THE AGREEMENT WAS APPROVED ON BEHALF OF THE COMMUNITY BY THE ADOPTION OF COUNCIL REGULATION ( EEC ) NO 3062/80 OF 25 NOVEMBER 1980 ( OFFICIAL JOURNAL 1980 L 322 , P . 3 ). THE AGREEMENT ENTERED INTO FORCE ON 22 MAY 1981 ( OFFICIAL JOURNAL 1981 L 204 , P . 34 ); IT WAS APPLIED PROVISIONALLY , PURSUANT TO ARTICLE 12 THEREOF , BY THE COMMUNITY AND SPAIN AS FROM THE DATE OF SIGNATURE .

20 ACCORDING TO ARTICLE 1 ( 1 ) OF THE AGREEMENT , ITS PURPOSE IS TO ESTABLISH THE PRINCIPLES AND RULES WHICH WILL GOVERN , IN ALL RESPECTS , THE FISHING ACTIVITIES OF VESSELS OF EITHER PARTY ' ' WITHIN THE FISHING ZONES FALLING UNDER THE JURISDICTION OF THE OTHER PARTY ' ' . THE ONLY EXCEPTION TO THAT DEFINITION OF THE TERRITORIAL SCOPE OF THE AGREEMENT IS TO BE FOUND IN ARTICLE 1 ( 2 ), WHICH PROVIDES THAT THE AGREEMENT IS NOT TO AFFECT THE RECIPROCAL FISHING ARRANGEMENTS OF FISHERMEN ' ' IN THE BIDASSOA WATERS AND IN THE BAY OF FIGUER ' ' AS DEFINED BY THE AGREEMENT OF 14 JULY 1959 BETWEEN SPAIN AND FRANCE .

21 THE AGREEMENT ALLOWS EACH OF THE PARTIES TO ADOPT , WITHIN THE FISHING ZONES FALLING UNDER ITS JURISDICTION , THE MEASURES NECESSARY TO ENSURE RATIONAL MANAGEMENT OF THE LIVING RESOURCES OF THE SEA , INCLUDING MEASURES FIXING CATCH QUOTAS AND REQUIRING THAT FISHING BE SUBJECT TO LICENCE .

22 ALL THE EVENTS WHICH OCCURRED AFTER THE ADOPTION OF THE COUNCIL RESOLUTION OF 3 NOVEMBER 1976 , PENDING THE DEFINITIVE ENTRY INTO FORCE OF THE AGREEMENT , MUST BE TAKEN INTO ACCOUNT IN ANY ASSESSMENT OF THE LEGAL SITUATION EXISTING DURING THAT PERIOD , IN PARTICULAR IN AN ASSESSMENT OF THE VALIDITY OF THE VARIOUS COMMUNITY REGULATIONS AFFECTING THE OPERATIONS OF SPANISH VESSELS IN THE FISHING ZONES OF THE MEMBER STATES .

23 IT SHOULD BE EMPHASIZED IN THIS REGARD THAT THE FIRST OF THOSE REGULATIONS , COUNCIL REGULATION ( EEC ) NO 373/77 OF 24 FEBRUARY 1977 LAYING DOWN CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF CERTAIN NON-MEMBER COUNTRIES ( OFFICIAL JOURNAL 1977 L 53 , P . 1 ), WAS ADOPTED , AS INDICATED IN THE SIXTH RECITAL IN THE PREAMBLE THERETO , ' ' PENDING THE CONCLUSION OF THE FISHING AGREEMENTS CURRENTLY BEING NEGOTIATED WITH THESE COUNTRIES ' ' .

24 THAT REGULATION WAS CONFINED TO THE FIXING OF QUOTAS AND THE LICENSING SYSTEM WAS NOT INTRODUCED UNTIL THE ADOPTION OF COUNCIL REGULATION ( EEC ) NO 746/77 OF 5 APRIL 1977 EXTENDING THE APPLICATION FOR SPAIN , FINLAND AND PORTUGAL OF CERTAIN PROVISIONS OF REGULATION ( EEC ) NO 373/77 ( OFFICIAL JOURNAL 1977 L 90 , P . 8 ). THAT OCCURRED SEVERAL MONTHS AFTER THE COMMENCEMENT OF NEGOTIATIONS BETWEEN THE COMMUNITY AND SPAIN ON THE SAME MATTER .

25 IT SHOULD BE EMPHASIZED THAT A LICENSING SYSTEM OF THIS KIND IS MERELY A NECESSARY MEANS OF ENSURING THE EFFECTIVENESS OF THE SYSTEM OF CATCH QUOTAS INTRODUCED BY THE COMMUNITY , IT BEING CLEAR THAT THE CATCHES TAKEN BY FISHING VESSELS OF NON-MEMBER COUNTRIES CANNOT BE CHECKED IN THE NEIGHBOURING COASTAL PORTS SINCE THE VESSELS NORMALLY RETURN TO THEIR PORTS OF ORIGIN TO LAND THEIR CATCHES . THEREFORE THE INTRODUCTION OF A LICENSING SYSTEM BY REGULATION NO 746/77 WAS NOT PER SE LIKELY TO ACCORD LESS FAVOURABLE TREATMENT TO SPANISH FISHERMEN THAN TO THE FISHERMEN OF COMMUNITY COUNTRIES , TO WHOM THE CATCH QUOTAS ALSO APPLIED .

26 THE SUBSEQUENT REGULATIONS CONCERNING INTERIM CONSERVATION MEASURES APPLICABLE TO SPANISH VESSELS , INCLUDING REGULATION NO 2160/77 WHICH WAS APPLICABLE AT THE MATERIAL TIME , MAINTAINED , APART FROM CERTAIN DIFFERENCES OF DETAIL , THE SYSTEM OF CATCH QUOTAS IN CONJUNCTION WITH THE LICENSING SYSTEM THROUGHOUT THE PERIOD OF NEGOTIATIONS LEADING TO THE AGREEMENT ON FISHERIES BETWEEN THE COMMUNITY AND SPAIN AND EVEN DURING THE PERIOD FROM 15 APRIL 1980 WHEN THAT AGREEMENT WAS APPLIED PROVISIONALLY .

27 THROUGHOUT THE PERIOD DURING WHICH THE INTERIM MEASURES ADOPTED BY THE COMMUNITY WERE APPLIED , THE SPANISH AUTHORITIES COLLABORATED IN THEIR IMPLEMENTATION . THEY WERE INVOLVED IN THE ISSUE OF THE COMMUNITY LICENCES - GRANTED FOR GEOGRAPHICAL ZONES DETERMINED WITHOUT DISTINCTION AS BETWEEN THE 6 TO 12-MILE ZONE AND THE 12 TO 200-MILE ZONE - AND TOOK PART IN DISCUSSIONS ON THE PROCEDURES FOR THE APPLICATION OF THE INTERIM MEASURES , INCLUDING RULES GOVERNING THE SUBSTITUTION OF VESSELS AND THE EQUIVALENCE OF LICENCES .

28 AS REGARDS THE APPLICATION OF REGULATION NO 2160/77 , IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE SPANISH MISSION TO THE EUROPEAN COMMUNITIES PASSED THE LIST OF LICENCE APPLICATIONS TO THE COMMISSION AND THAT THE LICENCES GRANTED WERE DISTRIBUTED BY THE SPANISH AUTHORITIES .

29 FROM THE FOREGOING CONSIDERATIONS IT FOLLOWS THAT THE INTERIM REGIME WHICH THE COMMUNITY SET UP UNDER ITS OWN RULES FALLS WITHIN THE FRAMEWORK OF THE RELATIONS ESTABLISHED BETWEEN THE COMMUNITY AND SPAIN IN ORDER TO RESOLVE THE PROBLEMS INHERENT IN CONSERVATION MEASURES AND THE EXTENSION OF FISHERY LIMITS AND IN ORDER TO ENSURE RECIPROCAL ACCESS BY FISHERMEN TO THE WATERS SUBJECT TO SUCH MEASURES .

30 THOSE RELATIONS , WHICH WERE CONFIRMED BY THE AGREEMENT ON FISHERIES CONCLUDED BETWEEN THE COMMUNITY AND SPAIN AND WERE PROGRESSIVELY DEVELOPED WITH THE CONCURRENCE OF THE SPANISH AUTHORITIES FOLLOWING THE DECISIONS WHICH THE COMMUNITY AND THE MEMBER STATES THEREOF ADOPTED IN 1976 IN ORDER TO DEAL WITH THE INCREASINGLY URGENT NEED TO CONSERVE THE LIVING RESOURCES OF THE SEA AND TO TAKE INTO ACCOUNT THE GENERAL EVOLUTION OF INTERNATIONAL LAW IN THE FIELD OF SEA FISHING , REPLACED THE PRIOR INTERNATIONAL OBLIGATIONS EXISTING BETWEEN CERTAIN MEMBER STATES , SUCH AS FRANCE , AND SPAIN .

31 ACCORDINGLY , SPANISH FISHERMEN MAY NOT RELY ON PRIOR INTERNATIONAL AGREEMENTS BETWEEN FRANCE AND SPAIN IN ORDER TO PREVENT THE APPLICATION OF THE INTERIM REGULATIONS ADOPTED BY THE COMMUNITY IN THE EVENT OF ANY INCOMPATIBILITY BETWEEN THE TWO CATEGORIES OF PROVISIONS .

32 IT FOLLOWS FROM THE FOREGOING THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 2160/77 AND THAT THE PROVISIONS OF THAT REGULATION ARE ENFORCEABLE AGAINST SPANISH NATIONALS .

Decision on costs

33 THE COSTS INCURRED BY THE FRENCH AND BRITISH GOVERNMENTS AND BY THE COUNCIL AND 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 , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FRENCH COUR DE CASSATION , BY JUDGMENT OF 7 JULY 1980 , HEREBY RULES :

CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COUNCIL REGULATION ( EEC ) NO 2160/77 OF 30 SEPTEMBER 1977 LAYING DOWN CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL 1977 L 250 , P . 17 ). THE PROVISIONS OF THAT REGULATION ARE ENFORCEABLE AGAINST SPANISH NATIONALS .