4.

With regard to the question of the validity of the regulations on fishing in the light of earlier international obligations, it is necessary to ask first of all in what circumstances and on the basis of what criteria might the breach of international obligations entail the invalidity of legislative measures adopted by the Community. It seems to me that the answer is as follows: either the enactment of such measures would have to conflict with the Community institutions' obligation not to obstruct the implementation of the commitments of the Member States under agreements entered into before the Treaty, in accordance with Article 234, or the supposed breach would have to relate to international commitments of the Community itself under an agreement which gives individuals who are nationals of a Member State the right to enforce observance thereof by legal proceedings. In fact the Court has recognized, in its judgment of 14 October 1980 in the Burgoa case, that Article 234 imposes the negative obligation described above on the Community institutions; and the Court had previously made it clear that the validity of the acts of the Community institutions for the purposes of Article 177 of the EEC Treaty, may be affected by a provision of international law only where that provision is binding on the Community and has direct effect in relation to individuals (judgments of 12 December 1972 in Joined Cases 21 to 24/72 International Fruit [1972] ECR 1219 and of 24 October 1973 in Case 9/73 Schlüter [1973] ECR 1135). Accordingly, it is essential to ascertain whether the international obligations which are to be used as a basis for testing the validity of the regulations relating to fishing were assumed before or after the entry into force of the EEC Treaty and whether or not they are binding on the Community. It has been seen that in the criminal proceedings against Mr Crujeiras Tomé counsel for the defence sought to rely in the first place on the Geneva Convention of 29 April 1958 on Fishing and Conservation of the Living Resources of the High Seas, Article 7 of which, whilst authorizing coastal States to adopt measures to conserve marine resources in all parts of the high seas adjacent to their territorial waters, imposed the condition that negotiations had to have been conducted with the other interested States for at least six months without success, and also prescribed that the conservation measures should not discriminate against foreign fishermen. But that Convention was ratified by France in 1970 and by Spain in 1971; therefore, as between those two States, it was concluded after the entry into force of the EEC Treaty with the result that Article 234 is not applicable. In the second place, only five Member States are parties to that Convention (the United Kingdom, Denmark, Belgium, the Netherlands and France); thus the view that the Community has been subrogated to the obligations undertaken by the Member States must in any event be rejected. It is established that, according to the criteria accepted in the abovementioned judgment of 12 December 1972 in the International Fruit case, the Community's subrogation, so to speak, to the obligations of the Member States under an earlier agreement may be admitted only if four requirements are met: that the Member States were all already parties to the agreement when the EEC Treaty was concluded; that it was the wish of those States to pledge the Community to observe the agreement, its aims being shared by the Community; that action should actually have been taken by the Community institutions within the framework of the agreement; and that the other contracting parties should have recognized that powers had effectively been transferred to the Community with respect to the subject-matter of the agreement. In this regard, I would refer the Court to the considerations set out in my opinion of 10 July 1980 in Case 812/79 Burgoa. It is clear that none of the conditions referred to above is fulfilled in the case of the Geneva Convention of 29 April 1958. It has been said, with regard to the applicability of Article 234, that in the case of conventions on matters over which the Community did not start to exercise its powers for some time after the entry into force of the Treaty, the institutions' obligation not to obstruct observance of the commitments entered into by one or more Member States towards one or more nonmember States should extend also to the commitments entered into before such powers were exercised. But that view manifestly conflicts with the wording of the first paragraph of Article 234 and with the interpretation accorded thereto in the Burgoa judgment; it therefore seems to me to be unacceptable, particularly since the provision in question is one of an exceptional nature, in so far as it ensures on a temporary basis the observance of obligations towards nonmember States which are incompatible with Community law. It is true that in the judgment of 14 July 1976 in the Kramer case ([1976] ECR 1279) the Court recognized that until the Community had exercised its functions in the matter of conservation of the biological resources of the sea, the Member States had the power to assume international obligations in that field (paragraph 39 of the decision); however, in the same judgment it was stated that the Member States were under a duty to refrain from entering into commitments which might hinder the Community in the subsequent execution of the tasks entrusted to it (paragraph 44 of the decision); and, in any case, no reference was made to Article 234 which is the only article relevant to these proceedings. It has also been said that the Geneva Convention of 1958, being a codifying convention, is binding on the Community regardless of the criteria laid down in the International Fruit judgment of 12 December 1972. I doubt, however, that Article 7 of that Convention reflected and codified the then existing customary law. Moreover, I reiterate the conviction, already expressed in the opinion in the Burgoa case, that recent developments in general international maritime law have caused the earlier incompatible provisions, both general and particular, to be abrogated; and it seems to me that provisions such as Article 7 of the Geneva Convention, which deal with the question of conservation of biological resources on the basis of the traditional division between territorial waters and the high seas, can no longer be regarded as being in force now that that division has been rendered extremely uncertain by recognition of the “exclusive economic zone”. The Geneva Convention of 1958 cannot therefore be used as a basis for testing the validity of the Community regulations on fisheries. An examination of the London Fisheries Convention of 9 March 1964 and the General Agreement on Fishing between France and Spain of 20 March 1967 leads to the same conclusion. It should be borne in mind that the latter was concluded within the framework of the London Convention, Article 9 (2) of which provided for the possibility of supplementary agreements between neighbouring States; it is therefore an instrument implementing that Convention. In any case, the important point is that Article 234 cannot be regarded as applicable to either of those agreements, since both were concluded after the Treaty of Rome (the position was different in the Burgoa case since Ireland acceded to the EEC after ratifying the London Convention). Moreover, it cannot be conceded that the Community has been subrogated to the rights and obligations of the contracting Member States, since the conditions inferred from the aforementioned International Fruit judgment are not fulfilled. In that regard, I again refer to the reasoning set forth in my opinion in the Burgoa case. One point in particular on which I have already had occasion to express a view deserves to be emphasized. In the 1960s, no Community fisheries policy yet existed and therefore there could be neither any desire on the part of the EEC to regard itself as bound by the London Convention nor any kind of action on the part of the Community institutions within the framework of that Convention. In the 1970s, three new phenomena emerged: the rapid creation of a general international rule permitting extension of a State's exclusive fishing zone to 200 miles from the coast, the decision of the Member States of the Community effectively to extend their respective fishing zones to that distance (at least in the Atlantic and the North Sea) and, at the same time, the opening of negotiations on fisheries between the EEC and the nonmember countries concerned, one of which was Spain. I have already said that the Council resolutions on a common fisheries policy were adopted on 3 November 1976; I should emphasize that negotiations with Spain started on 3 December of the same year (the agreement was initialled on 22 September 1978). Thus the interim Community provisions on quotas granted under licence to Spanish fishermen for catches inside the 200 mile limit were adopted and applied at the same time as work was proceeding on the preparation of a new agreement governing relations between the EEC and Spain; and those interim provisions were applied with the cooperation of the Spanish authorities (paragraph 23 of the decision in the Burgoa judgment cited above). On the basis of that combination of circumstances, the Court stated that those provisions fall “within the framework of the relations established between the Community and Spain in order to resolve the problem inherent in conservation measures and the extension of exclusive fishery limits and in order to ensure reciprocal access by fishermen to the waters subject to such measures. Those relations were superimposed on the regime which previously applied in those zones in order to take account of the general development of international law in the field of fishing on the high seas”(Burgoa judgment, paragraph 24 of the decision). As a result, the Court held that there was no factor of such a kind as to affect the validity of Regulation No 1376/78. In view of the circumstances, exactly the same conclusion is justified with respect to all the interim measures to which the national courts have referred in the present cases, particularly since in the preamble to Regulation No 1744/78, which is relevant to the Crujeiras case, the same reference was made to the envisaged fisheries agreement with Spain as had already been made in the preamble to Regulation No 1376/78, whilst the preamble to Regulation No 1719/80, which is relevant to the Yurrita case, made direct reference to the agreement signed on 15 April 1980. It is hardly necessary to add that the arguments relied on with regard to the London Convention are also valid with regard to the supplementary Franco-Spanish Agreement on Fishing; neither should be regarded as effective with respect to the Community and in any case both were superseded at the beginning of 1977, that is to say when negotiations were initiated between the EEC and Spain, and Spain tacitly recognized the 200 mile exclusive economic zone adopted by the Member States and the interim fisheries regime put into effect by the Community institutions.