OPINION OF ADVOCATE GENERAL

GULMANN

delivered on 28 September 1993 ( *1 )

Mr President,

Members of the Court,

1. In the present case, the Tribunal dc Commerce, La Roche-sur-Yon, France, has put to the Court 15 questions concerning the validity of a provision of Council Regulation (EEC) No 345 of 27 January 1992 amending for the 11th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. ( 1 ) That provision contains a general prohibition on fishing with driftncts whose individual or total length is more than 2.5 km and provides a derogation for fishing with driftnets whose total length does not exceed 5 km, valid until 31 December 1993 and applicable to vessels that have fished for tuna with driftnets in the North-East Atlantic for at least two years. Questions have been raised as to the validity of the prohibition and also of the derogation, in so far as it is subject to the limits just mentioned. ( 2 )

2. The prohibition on using the driftnets at issue was adopted inter alia in the light of a resolution on large-scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas (Resolution 44/225), adopted on 22 December 1989 by the General Assembly of the United Nations, which invited the members of the international community — inter alia — to impose ‘moratoria ... on all large-scale pelagic driftnet fishing’ ( 3 ) by 30 June 1992 and recommended that ‘further expansion of large-scale pelagic driftnet fishing on the high seas of the North Pacific and all the other high seas outside the Pacific Ocean should cease immediately’. These recommendations were adopted having regard to the following considerations inter alia: ‘Noting that many countries are disturbed by the increase in the use of large-scale pelagic driftnets, which can reach or exceed 30 miles (48 kilometres) in total length, to catch living marine resources on the high seas of the world's oceans and seas, Mindful that large-scale pelagic driftnet fishing, a method of fishing with a net or a combination of nets intended to be held in a more or less vertical position by floats and weights, the purpose of which is to enmesh fish by drifting on the surface of or in the water, can be a highly indiscriminate and wasteful fishing method that is widely considered to threaten the effective conservation of living marine resources, such as highly migratory and anadromous species of fish, birds and marine mammals.’

3. The resolution, which also affirmed that, under the United Nations Convention on the Law of the Sea, all members of the international community have a duty ‘to cooperate globally and regionally in the conservation and management of living resources on the high seas, and a duty to take, or to cooperate with others in taking, such measures for their nationals as may be necessary for the conservation of those resources’, ( 4 ) was supported by resolutions adopted by a number of international institutions.

4. The prohibition adopted by the Council affects, among others, a group of French fishermen who started fishing for tuna with driftnets in the Atlantic ocean in 1987. ( 5 ) This group falls within the temporary derogation from the prohibition. ( 6 ) The defendant in the main proceedings is a member of this group.

5. The defendant in the main proceedings claims inter alia that the provision at issue is unlawful because the Council has no competence to extend its application to fishing on the high seas, because it was adopted without an appropriate legal basis, because the statement of grounds is defective and because it is vitiated by errors of substance. These objections to the validity of the provision are reflected in the questions referred by the national court, which I shall consider in a slightly different order from that adopted by the court. Reference is made to the Report for the Hearing for the precise wording of the questions.

6. The provision at issue was adopted on the basis of Council Regulation No 170/83 (EEC) of 25 January 1983 establishing a Community system for the conservation and management of fishery resources ( 7 ) (hereinafter ‘the basic regulation’). According to the combined provisions of Article 2(1) and Article 1 of the basic regulation, the conservation measures adopted on the basis of the regulation must be designed to ensure the protection of fishing grounds, the conservation of the biological resources of the sea and their balanced exploitation on a lasting basis and in appropriate economic and social conditions. Article 2(2) provides that the conservation measures may include, in particular, the setting of standards as regards fishing gear and, in this connection, Article 11 provides that the measures referred to in Article 2 must be adopted by the Council acting by a qualified majority on a proposal from the Commission. On the basis of that authority, the Council adopted Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources, ( 8 ) which was replaced by Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources. ( 9 ) The regulation lays down the rules on mesh sizes, fish sizes and the limitation of fishing for certain species within certain areas and periods, with certain vessels and types of gear. Regulation No 345/92 amends the regulation for the 11th time. The provision at issue in the present case, namely Article 1(8) of Regulation No 345/92, under which a new Article 9a was inserted into Regulation No 3094/86, reads as follows: ‘1. No vessel may keep on board, or use for fishing, one or more driftnets whose individual or total length is more than 2.5 kilometres. 2. A derogation shall be granted until 31 December 1993 to vessels that have fished for long-finned albacore tuna with driftnets in the North-East Atlantic during at least the two years immediately preceding the entry into force of this regulation. These vessels shall be entered in a Community register and may use driftnets whose length may attain 2.5 kilometres, but whose total resulting length may not exceed five kilometres. The headline shall be submerged at a minimum depth of two metres. This derogation shall expire on the abovementioned date, unless the Council, acting by a qualified majority on a proposal from the Commission, decides to extend it in the light of scientific evidence showing the absence of any ecological risk linked thereto. 3. ... 4. Notwithstanding Article 1(1), this article shall apply in all waters, with the exception of the Baltic Sea, the Belts and the Sound, under the sovereignty or jurisdiction of the Member States and, outside those waters, to all fishing vessels flying the flag of a Member State or registered in a Member State.’

Does the Community have competence to regulate the conservation of the biological resources of the high seas? (Questions 1.1. and 1.2.)

7. It is expressly stated in paragraph 4 of the provision at issue that the prohibition on the use of large-scale driftnets applies not only to fishing in maritime waters under the sovereignty or jurisdiction of the Member States but also to fishing on the high seas by fishing vessels flying the flag of a Member State or registered in a Member State. In putting its first two questions, the national court seeks to ascertain whether the Community has competence to legislate in this way for the high seas.

8. There is nothing in general international law to prevent States regulating fishing on the high seas for their own vessels, nor are there any special rules of international law limiting the general rulemaking authority of States in the area at issue in the present case. ( 10 )

9. The Court has consistently held that the Community has competence to legislate for the high seas in so far as the Member States have similar competence under public international law. ( 11 )

10. The principal argument adduced by the defendant in the main proceedings is that the prohibition at issue was adopted under cover of the basic regulation and that that regulation does not confer on the Council the power to limit free access to fishing grounds on the high seas. Unlike the combined provisions of Articles 43 and 38 of the EEC Treaty, the basic regulation enables the Council to adopt rules without consulting the European Parliament. That view must be rejected. There is nothing in the basic regulation to support the view that the Community's authority to take technical conservation measures based on the regulation is limited to maritime waters under the sovereignty or jurisdiction of the Member States. ( 12 ) Nor can such a limitation be inferred from Council Regulations Nos 101/76 and 171/83. ( 13 ) The fact that those regulations initially lay down rules applying only to maritime waters under the sovereignty or jurisdiction of the Member States does not preclude the possibility of laying down rules applying to vessels of Member States fishing outside those waters, should it be felt necessary to do so. ( 14 ) To lay down rules on fishing on the high seas, for its own vessels, is a natural and even, in some cases, necessary corollary of the Community's powers in the fisheries sector and the enabling provision contained in Article 11 of the basic regulation cannot be held to imply any limitation on the Council's authority to lay down such rules, when there is no such restriction in public international law. ( 15 )

11. As the second question put by the national court concerning the prohibition on having driftnets on board presupposes a negative answer to the first question, there is no need to examine it in detail.

Was the regulation adopted on a correct legal basis? (Questions 4.1. and 4.2.)

12. The national court has asked whether the provision at issue could validly be founded on the basic regulation, which is concerned with the conservation and management of fishery resources. The order for reference states that various facts show that the provision at issue is based not on the conservation of resources but primarily on ecological considerations and it should therefore have referred to the rules of the Treaty relating to the environment. ( 16 )

13. The defendant in the main proceedings claims that — the provision at issue was not adopted in order to preserve resources, since stocks of Atlantic tuna are renewed faster than they are reduced by fishing, but for ecological reasons, in that the regulation is primarily and essentially designed to protect dolphins, ( 17 ) and — in the light of the Court's judgment in Case C-300/89 Commission v Counal (titanium dioxide waste), ( 18 ) the provision ought to have been adopted on the basis of Articles 130r and 130s, not the basic regulation, and unanimously, not by a qualified majority.

14. That view must be rejected. It is true that an important objective of the provision at issue is to prevent by-catches of dolphins and, that being so, it seems to me reasonable to admit that the provision serves an ecological purpose. But it does not necessarily follow that the provision cannot be adopted on the basis of the provisions of the Treaty and the secondary legislation relating to conservation of fishery resources.

15. In the first place, the direct purpose of the provision at issue is to regulate the use of a certain fishing method and, in my opinion, such a regulation falls most naturally within the ambit of the common fisheries policy. I understand the argument of the defendant in the main proceedings that a regulation on tuna fishing methods could be founded on the basic regulation only if it was necessary for the purposes of conserving the stock of tuna and that it would not be covered by the enabling provision of the basic regulation if it could be shown that it was adopted, first and foremost, in order to preserve dolphins. The fact that the measure is intended to protect a species other than that caught by the fishing method at issue cannot, in itself, be decisive, since technical measures for the conservation of fishery resources must undoubtedly include measures against indiscriminate fishing methods, in order to avoid by-catches. ( 19 ) Nor do I consider it decisive that the concern may sometimes be to protect dolphins. It may well be the case that dolphins do not, as such, figure among the fishery resources that the basic regulation is directly designed to conserve ( 20 ) and that the arguments of the defendant in the main proceedings are implicitly concerned with this problem. However, it has not been expressly addressed in the written or oral observations, nor is there any need to address it. In my view, it is clearly permissible, within a Community system for the conservation and management of fishery resources, to conduct a comprehensive policy for the conservation of all the biological resources of the sea, see Article 1 of the basic regulation, provided that such a policy is expressed in measures that relate to the conditions in which fishermen exercise their activities. It would not be appropriate or practicable to draw a distinction between measures regulating the use of fishing methods and attaching overriding importance to avoiding by-catches of species that form an integral part of the fishery resources exploited by the fishing industry and measures of the same kind that are primarily concerned to avoid by-catches of other species. The 18th recital in the preamble to the regulation at issue simply states that ‘the uncontrolled expansion and growth of driftnetting may entail serious disadvantages in terms of increased fishing effort and increased by-catches of species other than the target species’ and it should be added that the information provided in this case shows that it was not the sole purpose of the regulation to protect dolphins.

16. In the second place, it follows both from Article 130r of the Treaty and from the case-law of the Court that environmental protection requirements arc an important component of the Community's policy in other areas. ( 21 ) Ecological concerns must, in my view, be an integral part of any measure adopted under a common fisheries policy that purports to have the objective of conserving the biological resources of the sea.

17. Even if the protection of dolphins may be an important underlying objective of the provision at issue and even if that provision may consequently relate largely to a matter of ecological concern, it can in my opinion be validly adopted under cover of the basic regulation.

Was the prohibition adopted on a suffiaent saentific basis? (Questions 2.1., 2.2., 2.3., 7.1. and 7.2.)

18. The national court has put to the Court a number of questions designed essentially to ascertain whether the validity of the provision at issue can be challenged on the ground that it was not adopted on a sufficient scientific basis.

19. The national court points out, first, that — Article 2(1) of the basic regulation provides that ‘the conservation measures necessary to achieve the aims set out in Article 1 shall be formulated in the light of the available scientific advice and, in particular, of the report prepared by the Scientific and Technical Committee for Fisheries provided for in Article 12’, ( 22 ) and — Article 119 of the United Nations Convention on the Law of the Sea requires States, when taking conservation measures for the high seas, to take measures ‘which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations ...’. The national court adds that the first recital in the preamble to the regulation at issue refers to the Community's obligation to formulate conservation measures in the light of the available scientific advice but that the regulation does not refer to any saentific data or to any saentific report and that it is clear from the text of the regulation that it was not adopted on the basis of scientific advice, since it states that scientific analyses would have to be made. ( 23 )

20. The national court points out, in the second place, that the provision at issue is not consistent with the only scientific advice available, namely — a report drawn up at the Commission's request by IFREMER and IEO, the French and Spanish maritime research institutes, based on the 1989 fishing year and entitled: ‘Interaction of different fishing appliances used for surface fishing for long-finned albacore tuna in the North-East Atlantic’, according to which there is no problem in relation to resources of albacore tuna in the North-East Atlantic, the driftnet is the most selective appliance for tuna fishing as it does not catch any small tuna, by-catches are minimal when driftnets are used and catches of dolphins may be described as occasional, and — a report of the Standing Committee for Research and Statistics (SCRS) of the International Commission for the Conservation of Atlantic Tunas (ICCAT), dated November 1991, according to which the available evidence suggests that the stock of North Atlantic long-finned albacore tuna is only exploited to a moderate degree and no management measure is proposed.

21. The national court considers, in the third place, that the regulation was not adopted on a sufficient scientific basis to establish that it is justified on the grounds stated in the regulation and that, on the contrary, there is reason to think that the regulation was adopted solely for symbolic reasons. In this connection, it refers in particular to an interview with the responsible member of the Commission. ( 24 )

22. The defendant in the main proceedings agrees with the points made by the national court. However, it appears from the oral observations submitted by the undertaking, in particular, that it considers the question of the scientific basis of the regulation to be closely bound up with the question of the correct legal basis for a prohibition on driftnets. It considers that a prohibition on driftnets adopted under cover of the basic regulation could be so adopted only in order to conserve the stock of Atlantic tuna and not for ecological reasons to do with the protection of dolphins, and that the regulation consequently lacks the necessary scientific basis, if only because there is no reason to suppose that the stock of Atlantic tuna is threatened. ( 25 ) It adds that if the Council had wanted to take conservation measures as a precaution, it could have done so by setting a total allowable catch (TAC) rather than prohibiting fishing altogether, which is what the prohibition on driftnets amounts to since other forms of fishing are not cost-effective in the long term.

23. The Council and the Commission consider that the phrase ‘formulated in the light of the available scientific advice’ (our emphasis) means that the conservation measures adopted need not necessarily be completely consistent with such advice and, furthermore, the absence of such advice or the fact that it is inconclusive cannot prevent the Community legislature from taking such measures as it deems necessary to achieve the objectives laid down in Article 1 of the basic regulation. The two institutions justify this view on the ground that the Community legislature has not delegated any powers to scientific bodies and the balance between the institutions would be altered if it were to be assumed that the Community legislature must seek and follow the advice of scientific bodies.

24. The Council adds that there are in fact scientific data confirming the harmful effects, for the conservation of the resources of the sea, of using large-scale driftnets. It observes that the prohibition was adopted in the light of scientific considerations that had led many countries and international organizations to prohibit such nets or to recommend that they be prohibited. It refers in particular, in this connection, to United Nations Resolution 44/225 and the resolutions subsequently adopted by the North-West Atlantic Fisheries Organization, the International Whaling Commission, the International Commission for the Conservation of Atlantic Tunas (ICCAT) ( 26 ) and the International Union for the Conservation of Nature.

25. To decide these questions, it is necessary to refer to the case-law of the Court, according to which judicial review of measures taken by the Council must, having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy — see Articles 38 and 43 of the Treaty —, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion. ( 27 ) The Council must be recognized as having a wide area of discretion in evaluating the overall need for a given conservation measure ‘in order to ensure the protection of fishing grounds, the conservation of the biological resources of the sea and their balanced exploitation on a lasting basis and in appropriate economic and social conditions ...’, see Article 1 of the basic regulation. ( 28 )

26. In the first place, the Council certainly cannot be required, in the exercise of its discretion, to follow the particular scientific advice of any particular scientific body. As the Council and the Commission point out, there is nothing to suggest that the Community legislature intended to confer on scientific bodies any binding power over the Council in the exercise of its discretion. ( 29 )

27. In the second place, it should perhaps be said that the abovementioned scientific reports arc not of such essential importance to the question we arc considering as the national court and the defendant in the main proceedings suggest. The report of the Standing Committee for Research and Statistics (SCRS), a body set up under ICCAT, merely considers whether the stock of Atlantic tuna is under threat and does not address the question of by-catches, and it should be noted that that report was followed by the ICCAT resolution, already mentioned, which recommends action to comply with United Nations Resolution 44/225. The IFREMER/IEO report is essentially concerned with the interaction of different fishing appliances and by-catches of marine mammals arc a secondary consideration. The Scientific and Technical Committee's working document produced by the Council does not, in my opinion, support the case against a prohibition on driftnets, since almost all that can be learned from it is that the committee has not got the necessary scientific data to determine whether a prohibition is needed. ( 30 )

28. In the third place, I think it can be assumed that the Council had enough information to decide, in accordance with Article 2(1) of the basic regulation, that the provision in question was necessary to achieve the aims set out in Article 1 of the regulation. In view of the information that was available, the discretion exercised by the Council cannot be attacked on the ground that it did not have the scientific information it needed to decide with absolute certainty whether the measure was necessary. As the Commission has said, it is sometimes necessary to adopt measures as a precaution. ( 31 ) In other words, the lawfulness of the contested provision of Regulation No 345/92 cannot be affected by the remarks made in the regulation about the need for further scientific analyses to determine the ecological impact of driftnetting. The fact that Article 2(1) of the basic regulation provides that the measures in question must be formulated in the light of the available scientific advice cannot, in my opinion, be interpreted as meaning that the Council must itself always be in possession of scientific data and expressly state a view on those data. On the contrary, I consider that the Council must clearly be deemed to have acted within the limits of its discretion when taking technical conservation measures, in that it referred to a resolution adopted by the United Nations which recommends that measures be taken against driftnet fishing in the Atlantic ocean inter alia and which was followed by resolutions adopted by a number of other international organizations. ( 32 )

29. The fact that the Council chose to act in accordance with a widely held international opinion cannot of course justify the view that the Council was really acting for symbolic reasons. As I understand it, the question put by the national court in this connection is seeking to ascertain whether the Council must be deemed to have misused its powers, in other words, whether its aims in adopting the regulation were not as stated. However, the reference to resolutions adopted by the United Nations and other international organizations, and to the views held by ecological organizations and many fishermen, among others, is intended precisely to establish the existence of facts which justify the prohibition, namely, in the words of the 18th recital in the preamble to the regulation, that ‘the uncontrolled expansion and growth of driftnetting may entail serious disadvantages in terms of increased fishing effort and increased by-catches of species other than the target species’.

30. The national court has also asked whether the prohibition can be adopted on the basis of a reference to United Nations Resolution 44/225, since that resolution relates to large-scale pelagic driftnets whose length can exceed 50 km, whereas on the contrary — according to the national court — French fishermen were entitled to use only driftnets having a maximum length of five nautical miles (9.6 km), ( 33 ) and in fact, for practical reasons, used only nets no more than seven km long (Question 7.1.).

31. That cannot affect the validity of the provision at issue. The resolution in question contains no definition of the concept of large-scale driftnets and the fact that it refers to large-scale pelagic driftnets whose length can exceed 50 km cannot justify the view that driftnets that are 2.5 km long are not covered by that concept and consequently do not come within the ambit of the resolution. Moreover, the Scientific and Technical Committee for Fisheries' working document states, by way of introduction, that there is no specific definition of ‘large-scale net’ but, for practical reasons, it had been decided to regard as such any nets whose total length, when joined together, exceeded approximately 1 km. It should perhaps also be mentioned that, in an explanation of its vote on a subsequent United Nations resolution on the same subject, the Community informed the United Nations that it had adopted the prohibition at issue pursuant to Resolution 44/225 and that the Convention on the Prohibition of Driftnet Fishing in the South Pacific, concluded at Wellington on 24 November 1989, applies to driftnets exceeding 2.5 km in length. In the light of these facts, I do not consider that there is any reason to contest the Council's view that in any case driftnets that are 2.5 km long must be described as large-scale driftnets falling within the ambit of Resolution 44/225.

32. Lastly, the scientific basis of the regulation is challenged in the question from the national court which seeks to ascertain whether the regulation can be justified by reference to the Berne Convention ( 34 ) (Question 7.2.). The national court points out that the convention seems to prohibit solely deliberate capture or the use of nets where they are used to capture or kill, massively or non-selectively, certain protected species, which — it appears (according to the national court) from the IFREMER/IEO report — is not the case when driftnets are used.

33. Under Article 6 of the Berne Convention, the Contracting Parties are required to prohibit inter alia‘all forms of deliberate capture and keeping and deliberate killing’ of certain mammals. Article 8 provides that, in cases where exceptions are made to that prohibition, the participating States ‘shall prohibit the use of all indiscriminate means of capture and killing and the use of all means capable of causing local disappearance of, or serious disturbance to, populations of a species’. In the light of the considerations expressed above concerning the latitude accorded to the Council to bear in mind a widely held international opinion that the driftnet is an indiscriminate fishing appliance, leading to by-catches of dolphins inter alia, I do not consider that there is any reason to contest the Council's view that it was appropriate to refer to the Berne Convention.

Can the derogation from the prohibition be validly limited in the manner indicated in the regulation? (Questions 2.4., 2.5., 3. and 7.3.)

34. The national court has put to the Court a number of questions concerning the derogation, contained in the provision at issue, from the general prohibition on large-scale driftnet fishing, which call for a ruling on the following point: — May the regulation validly limit to five km until 31 December 1993 the derogation from the prohibition? This leads to two further questions: — Are these limitations compatible with the principle of relative stability and the objectives of the common fisheries policy, and — Are these limitations proportionate, having regard to the fact that, according to the preamble to the regulation, it is necessary only to avoid ‘uncontrolled expansion and growth’, and on the following point: — May the regulation validly provide that the provision will be extended only ‘in the light of scientific evidence showing the absence of any ecological risk linked thereto’, which results in a reversal of the burden of proof?

35. As the Council and the Commission point out, the Community legislature has authority to adopt transitional measures, should it be deemed necessary. This applies in the case of the derogation at issue, since its objective, in accordance with the 20th recital in the preamble to the regulation, is to provide for phases of adjustment for fishermen who are economically dependent on the use of driftnets. A transitional measure must of necessity be subject to a time limit. As regards the gradual adjustment, the Council and the Commission explained that a first step was to reduce the length of driftnets from five nautical miles — the limit decided by the French fishermen themselves — to five km — the limit authorized under the derogation —; and that a second step would be taken with the entry into force of the definitive prohibition of driftnets more than 2.5 km long. The question seeks to ascertain whether the documents in the case reveal anything to suggest that, in adopting such a transitional measure, the Council has manifestly exceeded the limits of its discretion or misused its powers. ( 35 )

36. The principle of relative stability is defined in Article 4(1) of the basic regulation, which states that ‘the volume of the catches available to the Community ... shall be distributed between the Member States in a manner which assures each Member State relative stability of fishing activities for each of the stocks considered’. The volume of the catches available is distributed between the Member States by means of national quotas and, as the Court has held, most recently in Cases C-70/90, C-71/90 and C-73/90 Spain v Coimai, ( 36 ) the principle of relative stability must be understood as meaning that ‘in that distribution each Member State is to retain a fixed percentage’. In the light of the principle of relative stability as thus defined, a technical measure which limits the possibility for certain fishermen of using the fishing method they had used hitherto but does not limit their right of access to the stock in question, cannot be contrary to that principle.

37. As regards the other objectives of the common fisheries policy, the national court mentions certain objectives of the common agricultural policy referred to in Article 39 of the Treaty, which also apply to fisheries under the terms of Article 38 of the Treaty. Suffice it to say, on this point, that the Court has held that in pursuing the objectives set out in Article 39, the Community institutions ‘must secure the permanent harmonization made necessary by any conflicts between these objectives taken individually and, where necessary, allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions are made’. ( 37 )

38. The derogation applies to fishermen who have fished with driftnets for at least two years. The national court observes that, as a result, the limits placed on the derogation entail a reduction in such fishing activities and wonders whether this is compatible with the statement in the 18th recital in the preamble to the regulation that it is necessary only to avoid the disadvantages associated with ‘the uncontrolled expansion and growth of driftnetting’. The Council and the Commission contend that a rule under which only newcomers were prohibited from fishing with driftnets would cause permanent discrimination. In my opinion, the Council was manifestly acting within the limits of its discretion in deciding that such a legal position would be undesirable.

39. Finally, as to whether the regulation can validly provide that the derogation will be extended only in the light of scientific evidence showing the absence of any ecological risk linked thereto, I should like to point out that the legislature is in any case free to amend its legislation at any time, even without express authorization. The fact that the Council made provision for such express authorization and stated, in that connection, that the derogation would be extended only if it was recognized, in the light of further scientific investigations, that there was no reason for the limitations, cannot therefore be regarded as evidence that it exceeded the limits of its discretion.

40. In my opinion, it must therefore be concluded that no evidence has been produced to support the view that the Council exceeded the limits of its discretion or misused its powers in limiting the derogation in the manner described.

The problems of cohabitation in fishing areas (Question 5.)

41. The national court points out that, under their national legislation, Spanish fishermen may not use driftnets, that they therefore fish using the old methods of rod and line, and that the use of different fishing gear in the same area at the same time has caused a number of problems, since ‘the Spanish fishermen do not intend to allow the other Community fishermen to fish with driftnets when they are not allowed to do so’. The national court considers that the provision at issue was prompted by that situation, since the 19th recital in the preamble to the regulation refers to ‘the concern expressed by ... many fishermen, including those of the Community’, and that there is reason to question the validity of the provision in that it gives Spanish fishermen an arbitrary advantage, despite the fact that they have, from the outset, caught far more tuna than French fishermen have.

42. The defendant in the main proceedings claimed in the course of the oral procedure that these facts were evidence of discrimination on grounds of nationality.

43. The fact that Spanish fishermen may have a certain interest in seeing the prohibition on the use of driftnets, to which they are subject under Spanish law, extended to French vessels fishing for tuna in the same areas, that they informed the Community legislature of their views on driftnetting, and that the Community legislature took those views into account, certainly cannot, in my opinion, raise doubts as to the validity of the provision at issue.

Does the provision at issue constitute discrimination between fishermen? (Question 6.)

44. With reference to paragraph 4 of the provision at issue, which states that the prohibition on driftnets will not apply to the Baltic Sea, the Belts and the Sound, the national court asks whether the regulation does not constitute discrimination between fishermen, in view of the fact that the prohibition applies in the Atlantic, which is within the jurisdiction of the International Commission for the Conservation of Atlantic Tunas, but not in the Baltic Sea, the Belts and the Sound, which are within the jurisdiction of the International Baltic Sea Fishery Commission. The national court considers that these are comparable situations which have to be dealt with in an identical manner.

45. The defendant in the main proceedings adds that the discrimination, as described, is particularly serious because the fishermen in the Baltic Sea, the Belts and the Sound are allowed, under Council Regulation (EEC) No 1866/86 of 12 June 1986, ( 38 ) to use driftnets up to 21 km long.

46. The Council and the Commission explain that the regulation does not apply to the Baltic Sea inter alia because the International Baltic Sea Fishery Commission has jurisdiction over all species occurring in that sea, as a result of the Community's accession to the Baltic Convention; ( 39 ) sec, in this connection, the 22nd recital in the preamble to the regulation. The Council adds that the Community has suggested that similar measures should be adopted to cover driftnets used in those waters. On the other hand, the Community is not yet a party to the Convention for the Conservation of Atlantic Tunas, but has observer status only. ( 40 ) The Council and the Commission therefore consider that the situations are not comparable.

47. In the light of the explanations provided by the Council and the Commission, I consider that there is no reason to suppose that the regulation constitutes any discrimination between fishermen in this respect.

Conclusion

48. In the light of the foregoing considerations, I propose that the Court's reply to the questions referred to it should be that consideration of the questions raised has disclosed no factors of such a kind as to affect the validity of Article 1(8) of Council Regulation (EEC) No 345/92 of 27 January 1992 amending for the 11th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources.

( *1 ) Original language: Danish.

( 1 ) OJ 1992 L 42, p 15.

( 2 ) The case before the national court concerns a dispute between Établissements Armand Mondici, a French manu facturer of driftncts, and Armement Islais, a French shipowner fishing for tuna with driftncts, arising from the fact that, following the adoption of the abovementioned prohibition by the Council, Armement Islais cancelled an order for 200 driftncts which it had placed with MondicL The national court has staled, and this docs not appear to be contested by the parties, that the regulation may constitute fail da prince (an act of a public authority), which in French law has the characteristics oí force majeure and would release Armement Islais from its obligations unless the regulation is unlawful.

( 3 ) I lowcvcr, according to the resolution, such a measure will not be imposed or can be lifted ‘should effective conservation and management measures be taken based upon statistically sound analysis to be jointly made by concerned parties of the international community with an interest in the fishery resources of the region, to prevent unacceptable impact of such fishing practices on that region and to ensure the conservation of the living marine resources of that region’.

( 4 ) Sec Articles 117 and 118 of the Convention, which has been signed, but not ratified, by the European Community and has not yet entered into force. There is no need, for present purposes, to consider whether the provision in question may fiossibly embody the current state of international customary aw.

( 5 ) The Commission has observed that the prohibition also affected, among others, an Italian fishing fleet of 700 vessels that fished with driftnets and did not fall within the derogation.

( 6 ) 33 undertakings belonging to this group brought before the Court an action against the Council for the annulment of the derogation at issue (Case C-131/92). The Court, by Order of 24 May 1993, dismissed their application as inadmissible.

( 7 ) OJ 1983 L 24, p. 1.

( 8 ) OJ 1983 L 24. p. 14.

( 9 ) OJ 1986 L 288. p. 1.

( 10 ) As I have already pointed out, Article 117 of the United Nations Convention on the Law of the Sea imposes a duty on States to take such measures for their respective nationals as may be necessary for the conservation of the fishery resources of the high seas. See also, in this connection, the Court's judgment in Case C-286/90 Poulsen [1990] ECR I-6019, paragraph 22, which assumes that Member States arc entitled to regulate fishing on the high seas by their own vessels.

( 11 ) See Joined Cases 3/76, 4/76 and 6/76 Kramer [1976] ECR 1279, paragraph 31. The Community's authority to adopt measures for the conservation of fishery resources on the high seas, applicable to vessels of the Member States, was last confirmed in Case C-258/89 Commission v Spain [1991] ECR I-3977, paragraph 9, in which the Court rejected the Spanish Government's argument that the only authority the Community has, outside waters falling under the sovereignty or within the jurisdiction of the Member States, is to negotiate and implement international agreements. The Court observed that the Community ‘has the power to take conservation measures both independently and in the form of contractual commitments with nonmember countries or under the auspices of international organizations’.

( 12 ) The defendant in the main proceedings claims that the basic regulation does not confer on the Community the authority to limit free access to fishing grounds on the high seas but is on the contrary explicitly concerned with the 200-mile fishing zones and the extension of territorial waters to 12 miles. It is true that the basic regulation was adopted after the extension of those waters. But that cannot in itself justify the view that the regulation can provide a basis only for measures relating to those waters.

( 13 ) The defendant in the main proceedings observes that Council Regulation (EEC) No 101/76 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19) — which the basic regulation purports to supplement — refers expressly to ‘maritime waters coming under the sovereignty or within the jurisdiction of Member States’ and thai Regulation No 171/83, adopted on the same day as the basic regulation and replaced by Regulation No 3094/86, stated that it applied to ‘... the taking and landing of biological resources occurring in all maritime waters under the sovereignty or jurisdiction of the Member States ...’. It will be noted that Article 1(1) of Regulation No 171/83 corresponds to Article 1(1) of Regulation No 3094/86 and that that provision merely states a general rule (sec note 14).

( 14 ) In its initial version, Regulation No 3094/86 also included a rule of this kind, sec Article 6(l)(b), which prohibits fishing for salmon and sea trout outside the waters under the sovereignty or jurisdiction of the Member States. That provision was the subject of the questions submitted for a preliminary ruling in Poulsen, sec note 10. It is highly relevant that the question of the Council's competence to adopt the contested prohibition on salmon fishing on the high seas, in so far as it applied to fishing by vessels registered in one of the Member States, was not raised in that case.

( 15 ) It follows indirectly from the Court's judgment in Case C-258/89 (sec note II) that the basic regulation confers that authority on the Community. In that judgment, the Court ruled that, by failing to apply the control measures laid down by Council Regulation (EEC) No 2057/82 (OJ 1982 L 220, p. 1) and by Council Regulation (EEC) No 2241/87 (OJ 1987 L 207, p. 1), which consolidates and replaces Regulation No 2057/82, to catches made outside the Community fishing zone, the Kingdom of Spain had failed to fulfil its obligations under Community law. Regulation No 2241/87 was expressly adopted under the basic regulation. The Court rejected the Spanish Government's contention that the measures did not apply to fishing on the high seas, and held that the rules had been adopted in the exercise of the independent power of the Community. Sec also the Court's judgment in Joined Cases 6/88 and 7/88 Spam and france v Commission [1989] ECR 3639.

( 16 ) Question 4.2. really seeks to ascertain both whether the prohibition on driftnets under the basic regulation can validly be adopted on the basis of ecological considerations and also whether there is a sufficient scientific basis for considering the prohibition to be necessary for the purposes of those ecological considerations. I shall deal only with the first problem under this point, as the question of the scientific foundation will be addressed later.

( 17 ) In support of its claim that the regulation was actually adopted on the basis of ecological considerations to do with protection of dolphins, the undertaking has pointed out that the preamble to the regulation is concerned primarily with the environment, in that it refers to United Nations Resolution 44/225, the Berne Convention and the United Nations Convention on the Law of the Sea and only subsequently mentions that the uncontrolled expansion and growth of driftnetting may entail serious disadvantages in terms of increased fishing effort, the 19th recital in the preamble to the regulation refers to the concern expressed by ecological organizations, the derogation clause at issue provides for the derogation to be extended if there is scientific evidence showing the absence of any ‘ecological’ risk — thus not ‘for the biological resources of the sea’, and various circumstances connected with the drafting of the regulation show that its real aim was to protect dolphins. Thus, a working document submitted by the Council and issued by the Scientific and Technical Committee for Fisheries accorded overriding importance to the question of dolphins. Moreover, the responsible member of the Commission stated in an interview given to the magazine France-Ecopêche in September 1991 that the problem of driftnets had become symbolic and it was no longer important whether one was right or wrong about the effects of French tuna fishing on the mortality of marine mammals, since a general feeling had taken hold in public opinion and the Community would have to bow to it.

( 18 ) [1991] ECR I-2867.

( 19 ) Sec in this connection the 10th recital in the preamble to Regulation No 345/92, according to which ‘discards cur rcntly account for unacceptable wastage on a large scale; ... a ban on fishing using insufficiently selective teenniqucs ... [constitutes] a first step towards the final elimination of practices which arc incompatible with conservation and the proper use of resources; ... it is necessary to introduce a coherent system of management and exploitation which reduces discards to a minimum’.

( 20 ) There arc two possible reasons for this. On the one band, it may be considered that the concept of fishery resources applies only to species that can be exploited by the fishing industry, sec inter aha, the first recital in the preamble to the basic regulation and the third recital in the preamble to Regulation No 345/92, which refers to the need for conservation measures in order to safeguard the economic sector which depends on fishery resources. According to the information provided in the present case, dolphins were hunted with harpoons in the 50's and 60's with a view to exploiting them and it is estimated that some 5 to 15000 dolphins a year were caught during that period. Ī Iowcvcr, as wc know, it became necessary to prohibit the deliberate catching of dolphins and there is therefore some doubt as to whether it could be said that the fishing sector depends on that activity. On the other hand, dolphins arc mammals and it could therefore be considered that, for that reason alone, the concept of fishery resources docs not apply to them.

( 21 ) Case C-62/88 Greece v Council [1990] ECR I-1527, in which the Court ruled in paragraph 19 of the judgment that ‘Articles 130r and 130s arc intended to confer powers on the Community to undertake specific action on environmental matters. However, those articles leave intact the powers held by the Community under other provisions of the Treaty, even if the measures to be taken under the latter provisions pursue at the same time any of the objectives of environmental protection’. Sec also, in this connection, the Court's judgment of 17 March 1993 in Case C-155/91 Commission v Council (‘Directive on waste’) ([1993] ECR I-939).

( 22 ) Sec Article 12 of the basic regulation, which reads as follows: ‘The Commission shall set up under its auspices a Scientific and Technical Committee for Fisheries. The Committee shall be consulted at regular intervals and shall draw up an annual report on the situation with regard to fishery resources, on the ways and means of conserving fishing grounds and stocks and on the scientific and technical facilities available within the Community’.

( 23 ) The national court points out in this connection that the verb ‘may’ is used in the 18th recital in the preamble to the regulation (‘the uncontrolled expansion and growth of driftnetting may entail serious disadvantages ...’), that the 20th recital in the preamble states that provision should be made for analysing the ecological impact of corresponding fishing, and that the provision at issue provides that the derogation may be extended ‘in the light of scientific evidence showing the absence of any ecological risk linked thereto’.

( 24 ) Sec noie 17 above.

( 25 ) The undertaking points out thai the minutes of a meeting on 12 November 1992, produced by the Council and including inter aim the statement that ‘the SCRS considered that the slock of North Atlantic long finned albacore tuna was close to a situation of high exploitation’, appeared after the adoption of Regulation No 345/92 and that u docs nol mean that the stock of tuna is noi being renewed faster than it is reduced by fishing.

( 26 ) The Council notes that ICCAT invited all its Member States, including France, to support United Nations Resolution 44/225.

( 27 ) See inter alia the judgment in Case C-331/88 Fedesa [1990] ECR I-4023, paragraph 8, in which the Court upheld that principle, despite the fact that it had been argued during the proceedings that the directive at issue lacked any scientific basis justifying the public health considerations and consumer anxiety which underlay its adoption.

( 28 ) Sec, in this connection, Advocate General Mischo's review of the case-law in his Opinion in Case C-331/88.

( 29 ) The fact that the Commission itself commissioned the IFREMER/IEO report and that Article 2(1) of the basic regulation makes a particular point of mentioning the Scientific and Technical Committee for Fisheries, set up by the Commission, docs not prove that the Council must, in the exercise of its discretionary power, abide by the scientific recommendations of those bodies.

( 30 ) This working document is dated 11 December 1990 and point 12 of the document gives the latest information on the use of large-scale driftnets and the various measures adopted by certain States or recommended by international organizations.

( 31 ) The Commission has pointed out in this connection that when the total allowable catch (TAC) is fixed each year, pursuant to Article 3 of the basic regulation, a TAC is fixed as a precaution in certain cases for stocks of fish where it is necessary to limit and monitor the total catch in the interest of conservation but where there arc not yet sufficient scientific data to decide on a final TAC.

( 32 ) This view is confirmed by the judgment in Case C-331/88 fedem [1990] ECK. I-4023. In paragraph 9 of that judgment, the Court rejected the claim based on the existence of scientific evidence demonstrating the safety of the five hormones in question in that case on the ground that the Council had remained within the limits of its discretionary power in deciding to adopt the solution of prohibiting the hormones in question, and responding in that way to the concerns expressed by the European Parliament, the Economic and Social Committee and by several consumer organizations. The Court continued as follows, in paragraph 10: ‘Nor did the directive frustrate the legitimate expectations of traders affected by the prohibition of the use of the hormones in question. It is true that Council Directive 8Î/602/EEC ... refers to the fact that the harmless or harmful effects of the substances in question have yet to be examined in detail (fourth recital), and requires the Commission to take account of scientific developments (Article 8). However, that directive does not preempt the conclusions which may be drawn therefrom by the Council in the exercise of its discretion. Moreover, in view of the divergent appraisals which had been made, traders were not entitled to expect that a prohibition on administering the substances in question to animals could be based on scientific data alone.’

( 33 ) According to the information supplied to the Court, the Comité Interprofessionnel dit Thon Blanc Germon, a French body responsible for laying down rules on tuna, decided on 2 May 1990 to limit to five nautical miles the length of driftnets that may be used.

( 34 ) Sec Council Decision 82/72/EEC concerning the conclusion of the Convention on the conservation of European wildlife and natural habitats (OJ 1982 L 38, p 1).

( 35 ) See the Court's judgment in Case C-331/88 Vedem [1990] ECR I-4023, paragraph 8.

( 36 ) Sec paragraph 15 of the judgments in Cases C-70/90 and C-71/90 [1992] ECR I-5153 and I-5175, and paragraph 16 of the judgment in Case C-73/90 [1992) ECR I-5151.

( 37 ) Case 29/77 Roqitellc [1977] ECR 1835. paragraph 30.

( 38 ) Council Regulation laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound (Ol 1986 L. 162. p. 1). The regulation was adopted in accordance with the recommendations of the International Baltic Sea Fishery Commission.

( 39 ) Sec Information on the entry into force, for the European Economic Community, of the Convention on fishing and conservation of the living resources in the Baltic Sea and the Belts (OJ 1984 L 96. p 42).

( 40 ) The Council decided on the Community's accession to the Convention on 9 June 1986 (OJ 1986 L 162. p. 33).