Judgment of the Court (First Chamber) of 28 October 1982. - Directeur des Affaires Maritimes du Littoral du Sud-Ouest and Procureur de la République v Javier Marticorena-Otazo and Manuel Prego Parada. - References for a preliminary ruling: Tribunal de grande instance de Bayonne - France. - Fisheries: Rights of non-member countries. - Joined cases 138 and 139/81.



European Court reports 1982 Page 03819

Spanish special edition Page 01149



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - COMMUNITY RULES APPLICABLE TO SPANISH VESSELS LAID DOWN BEFORE THE ENTRY INTO FORCE OF THE AGREEMENT BETWEEN THE EEC AND SPAIN - SUBSTITUTION FOR PRIOR INTERNATIONAL COMMITMENTS BETWEEN CERTAIN MEMBER STATES AND SPAIN - EFFECTS - ENFORCEABILITY AGAINST SPANISH FISHERMEN OF THE INTERIM COMMUNITY REGIME

( COUNCIL REGULATIONS NOS 1719/80 , 3305/80 AND 554/81 ; AGREEMENT BETWEEN THE EEC AND SPAIN OF 15 APRIL 1980 )

2 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - COMMUNITY RULES APPLICABLE TO SPANISH VESSELS LAID DOWN BEFORE THE ENTRY INTO FORCE OF THE AGREEMENT BETWEEN THE EEC AND SPAIN - SUBSTITUTION FOR PRIOR INTERNATIONAL COMMITMENTS BETWEEN CERTAIN MEMBER STATES AND SPAIN - ABSENCE OF COMMUNITY REGULATIONS CONCERNING LICENCES DURING THE TIME BETWEEN THE PERIODS COVERED BY REGULATIONS NOS 3305/80 AND 554/81 - EFFECT ON CRIMINAL PROCEEDINGS INSTITUTED AGAINST FISHERMEN NOT HOLDING A LICENCE - APPRAISAL - JURISDICTION OF THE NATIONAL COURTS

( EEC TREATY , ART . 177 ; COUNCIL REGULATIONS NOS 3305/80 AND 554/81 )

Summary

1 . THE INTERIM FISHERIES REGIME ESTABLISHED BY THE COMMUNITY PENDING THE ENTRY INTO FORCE OF THE AGREEMENT ON FISHERIES BETWEEN THE EEC AND SPAIN FALLS WITHIN THE FRAMEWORK OF THE RELATIONS ESTABLISHED BETWEEN THE COMMUNITY AND SPAIN IN ORDER TO RESOLVE THE PROBLEMS INHERENT IN THE CONSERVATION MEASURES AND THE EXTENSION OF FISHERY ZONES 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 OF 1980 , REPLACED THE PRIOR INTERNATIONAL OBLIGATIONS EXISTING BETWEEN CERTAIN MEMBER STATES AND SPAIN 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 . ACCORDINGLY , SPANISH FISHERMEN MAY NOT RELY ON PRIOR INTERNATIONAL COMMITMENTS AS 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 .

2 . WITHIN THE FRAMEWORK OF CRIMINAL PROCEEDINGS AGAINST SPANISH FISHERMEN CHARGED WITH FISHING IN FRENCH TERRITORIAL WATERS WITHOUT BEING IN POSSESSION OF A FISHING LICENCE IT IS FOR THE NATIONAL COURT TO CONSIDER THE CONSEQUENCES OF THE ABSENCE OF ANY COMMUNITY REGULATIONS CONCERNING FISHING LICENCES APPLICABLE TO SPANISH FISHING VESSELS DURING THE TIME BETWEEN THE PERIODS WHEN REGULATIONS NOS 3305/80 AND 554/81 WERE IN FORCE .

Parties

IN JOINED CASES 138 AND 139/81

REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), BAYONNE , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

DIRECTEUR DES AFFAIRES MARITIMES DU LITTORAL DU SUD-OUEST ( DIRECTOR OF MARITIME AFFAIRS FOR THE SOUTH-WESTERN SEABOARD ), BAYONNE , PROSECUTOR ,

AND

PROCUREUR DE LA REPUBLIQUE ( PUBLIC PROSECUTOR ), INTERVENING ,

AND

JAVIER MARTICORENA-OTAZO , SAN SEBASTIAN , SPAIN ( CASE 138/81 )

AND

MANUEL PREGO PARADA , PASAJES DE SAN PEDRO , SPAIN ( CASE 139/81 )

Subject of the case

ON THE VALIDITY OF REGULATIONS OF THE COUNCIL LAYING DOWN CERTAIN TEMPORARY MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ,

Grounds

1 BY JUDGMENTS OF 23 APRIL 1981 , WHICH WERE RECEIVED AT THE COURT ON 5 JUNE 1981 , THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), BAYONNE , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION AS TO WHETHER , HAVING REGARD TO PRIOR INTERNATIONAL OBLIGATIONS , REGULATIONS OF THE COMMUNITIES LAYING DOWN CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ARE VALID , IN SO FAR AS THEY LAY DOWN NEW DETAILED RULES FOR FISHING OPERATIONS CARRIED OUT BY SPANISH VESSELS IN THE RESERVED FISHING ZONE FROM 6 TO 12 NAUTICAL MILES , AND WHETHER , IF VALID , THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH NATIONALS .

2 THE QUESTION WAS RAISED IN CRIMINAL PROCEEDINGS AGAINST THE MASTERS OF TWO FISHING VESSELS REGISTERED IN SPAIN , WHO WERE CHARGED WITH FISHING IN FRENCH TERRITORIAL WATERS WITHOUT BEING IN POSSESSION OF A FISHING LICENCE AND WITH NETS WHOSE MESH-SIZE DID NOT COMPLY WITH THE REGULATIONS .

3 THE TWO DEFENDANTS IN THE MAIN PROCEEDINGS WERE DISCOVERED FISHING ON 2 AND 9 FEBRUARY 1981 RESPECTIVELY OFF BAYONNE IN THE WATERS IN THE AREA BETWEEN 6 AND 12 MILES FROM THE BASELINES , SOME 10 MILES FROM THE FRENCH COAST .

4 THE NATIONAL COURT CONSIDERED THAT THE DEFENDANTS WERE UNABLE TO PRODUCE THE LICENCE REQUIRED BY COUNCIL REGULATIONS NO 1719/80 , NO 3305/80 AND NO 554/81 AND THAT IN THOSE CIRCUMSTANCES THE FISHING IN WHICH THE DEFENDANTS HAD ENGAGED CONSTITUTED AN OFFENCE CREATED AND PUNISHED BY FRENCH CRIMINAL LEGISLATION . IT WAS ALSO CONSIDERED THAT THE DEFENDATS HAD COMMITTED AN OFFENCE CREATED AND PUNISHED BY THAT LEGISLATION BY FISHING WITH NETS WHOSE MESH-SIZE DID NOT COMPLY WITH THE REQUIREMENTS OF COUNCIL REGULATIONS NO 2527/80 AND NO 272/81 .

5 IN BOTH CASES THE DEFENDANTS IN THE MAIN PROCEEDINGS MAINTAIN THAT THE COMMUNITY REGULATIONS ARE INVALID OR IN ANY EVENT INAPPLICABLE AS AGAINST THEM , BEING INCOMPATIBLE WITH THE RIGHTS UPON WHICH THEY MAY RELY IN CONSEQUENCE OF INTERNATIONAL COMMITMENTS PREVIOUSLY ENTERED INTO BETWEEN FRANCE AND SPAIN . FOR THAT PURPOSE THEY RELY IN PARTICULAR UPON THE LONDON FISHERIES CONVENTION OF 9 MARCH 1964 ( UNITED NATIONS TREATY SERIES , VOL . 581 , NO 8432 ) AND UPON THE AGREEMENT ON FISHERIES BETWEEN FRANCE AND SPAIN OF 1967 ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 4 AUGUST 1967 , P . 7807 ).

6 COUNCIL REGULATION ( EEC ) NO 1719/80 OF 30 JUNE 1980 LAYING DOWN FOR 1980 CERTAIN MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL L 168 , P . 27 ) WAS , ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 12 THEREOF , APPLICABLE FROM 1 JANUARY TO 31 DECEMBER 1980 . COUNCIL REGULATION ( EEC ) NO 3305/80 OF 17 DECEMBER 1980 EXTENDING THE PERIOD OF VALIDITY OF FISHING LICENCES FOR VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL L 344 , P . 33 ) PROVIDES THAT FISHING LICENCES VALID ON 31 DECEMBER 1980 IN ACCORDANCE WITH REGULATION NO 1719/80 REMAIN VALID UNTIL 31 JANUARY 1981 . COUNCIL REGULATION ( EEC ) NO 554/81 OF 27 FEBRUARY 1981 FIXING CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERIES RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL L 57 , P . 1 ), WHICH ENTERED INTO FORCE ON 4 MARCH 1981 , PROVIDES IN THE SECOND PARAGRAPH OF ARTICLE 11 THEREOF , THAT IT IS APPLICABLE UNTIL 31 MAY 1981 .

7 THE THREE REGULATIONS CITED ABOVE FORM PART OF A SERIES OF COUNCIL REGULATIONS WHICH , PENDING THE ENTRY INTO FORCE OF THE AGREEMENT ON FISHERIES BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND THE GOVERNMENT OF SPAIN OF 15 APRIL 1980 ( OFFICIAL JOURNAL L 263 , P . 1 ), ESTABLISHED FOR SHORT PERIODS INTERIM PROVISIONS PRESCRIBING CATCH QUOTAS FOR SPANISH FISHERMEN .

8 THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 8 DECEMBER 1981 ( ARBELAIZ-EMAZABEL ) CASE 181/80 , ( 1981 ) ECR 2961 ) THAT THE INTERIM REGIME ESTABLISHED BY THE COMMUNITY FALLS WITHIN THE FRAMEWORK OF THE RELATIONS ESTABLISHED BETWEEN THE COMMUNITY AND SPAIN IN ORDER TO RESOLVE THE PROBLEMS INHERENT IN THE CONSERVATION MEASURES AND THE EXTENSION OF FISHERY ZONES AND IN ORDER TO ENSURE RECIPROCAL ACCESS BY FISHERMEN TO THE WATERS SUBJECT TO SUCH MEASURES AND THAT THOSE RELATIONS , WHICH WERE CONFIRMED BY THE AGREEMENT ON FISHERIES OF 1980 , REPLACED THE PRIOR INTERNATIONAL OBLIGATIONS EXISTING BETWEEN CERTAIN MEMBER STATES AND SPAIN 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 .

9 ACCORDINGLY , SPANISH FISHERMEN MAY NOT RELY ON PRIOR INTERNATIONAL COMMITMENTS AS 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 .

10 CONSIDERATION OF THE QUESTION RAISED HAS THUS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATIONS NO 1719/80 , NO 3305/80 AND NO 554/81 . THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH NATIONALS .

11 THE DEFENDANTS IN THE MAIN PROCEEDINGS , THE FRENCH GOVERNMENT , THE COUNCIL AND THE COMMISSION HAVE DRAWN THE ATTENTION OF THE COURT TO THE FACT THAT AT THE MATERIAL TIMES IN THE TWO CASES NAMELY 2 AND 9 FEBRUARY 1981 , NO COMMUNITY REGULATION CONCERNING THE SYSTEM OF LICENCES WAS APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN . THE RECITALS IN THE PREAMBLE TO REGULATION NO 554/81 STATE IN THIS CONNECTION THAT THE CONSULTATIONS BETWEEN THE COMMUNITY AND SPAIN WHICH ARE PROVIDED FOR BY THE AGREEMENT ON FISHERIES OF 1980 , WHICH WAS PROVISIONALLY APPLIED FROM THE DATE OF SIGNATURE , WERE NOT CONCLUDED UNTIL 17 FEBRUARY 1981 , THAT FISHING BY SPANISH VESSELS IN THE FISHING ZONES OF MEMBER STATES WHICH WERE SUBJECT TO COMMUNITY FISHERIES REGULATIONS WAS AUTHORIZED DURING THE PERIOD FROM 1 TO 31 JANUARY 1981 BY REGULATION NO 3305/80 AND THAT SUCH FISHING HAD BEEN INTERRUPTED SINCE 1 FEBRUARY 1981 .

12 THE DEFENDANTS IN THE MAIN PROCEEDINGS HAVE CLAIMED THAT UNDER THE AGREEMENT ON FISHERIES SPANISH FISHERMEN WERE ENTITLED TO FISH IN THE FISHING ZONES IN QUESTION DURING THE PERIODS WHEN NO COMMUNITY REGULATION ESTABLISHED A SYSTEM OF LICENCES FOR THEM .

13 IT IS NEVERTHELESS FOR THE NATIONAL COURT TO CONSIDER THE CONSEQUENCES OF THE ABSENCE OF ANY COMMUNITY REGULATIONS CONCERNING FISHING LICENCES APPLICABLE TO SPANISH FISHING VESSELS DURING THE PERIOD FROM 1 FEBRUARY 1981 TO 4 MARCH 1981 .

14 THE COMMUNITY RULES ON THE MESH-SIZE OF NETS ARE THE SUBJECT-MATTER OF COUNCIL REGULATION ( EEC ) NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES ( OFFICIAL JOURNAL L 258 , P . 1 ) THE APPLICATION OF WHICH WAS EXTENDED UNTIL 28 FEBRUARY 1981 BY COUNCIL REGULATION ( EEC ) NO 272/81 27 JANUARY 1981 ( OFFICIAL JOURNAL L 27 P . 72 ).

15 THE VALIDITY OF THOSE REGULATIONS , WHICH APPLY WITHOUT DISTINCTION TO ALL PERSONS FISHING IN CERTAIN MARITIME WATERS UNDER THE SOVEREIGNTY OR JURISDICTION OF THE MEMBER STATES , HAS NOT BEEN CONTESTED BY THE PARTIES TO THE PROCEEDINGS AND THE COURT HAS NOT FOUND ANY FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF THOSE REGULATIONS .

Decision on costs

COSTS

16 THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH 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 ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE TRIBUNAL DE GRANDE INSTANCE , BAYONNE , BY JUDGMENTS OF 23 APRIL 1981 , HEREBY RULES :

CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COUNCIL REGULATIONS NO 1719/80 OF 30 JUNE 1980 ( OFFICIAL JOURNAL L 168 , P . 27 ), NO 2527/80 OF 30 SEPTEMBER 1980 ( OFFICIAL JOURNAL L 258 , P . 1 ) NO 3305/80 OF 17 DECEMBER 1980 ( OFFICIAL JOURNAL L 344 , P . 33 ), NO 272/81 OF 27 JANUARY 1981 ( OFFICIAL JOURNAL L 27 , P . 72 ) AND NO 554/81 OF 27 FEBRUARY 1981 ( OFFICIAL JOURNAL L 57 , P . 1 ). THE PROVISIONS OF THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH NATIONALS .