4.

The crucial question in this dispute — to which L shall now turn my attention — is clearly to decide what duties arise for the Contracting States under Annex VI to the Hague Resolution. Even the British Government has no difficulty in agreeing that it created legal obligations. According to the submissions we have heard up to now, what remains to be decided is whether the procedure set out in the Hague Resolution, which the British Government, as it agrees, did not observe, had also to be followed when national measures were adopted in execution of obligations under the North-East Atlantic Fisheries Convention. A preliminary point to be decided is whether the United Kingdom is entitled to rely on this Convention at all. The French Government doubts whether it is, on the ground that the United Kingdom at that time no longer applied the Convention without reserve, but had partially denounced it. It refers to a British Note dated 27 January 1977, in which it was stated that the recommendation on measures of control — which provides that infringements of the Convention shall be notified to the relevant home-country, which will then prosecute its own nationals — would no longer be applied owing to the extension of territorial waters to 200 nautical miles; the United Kingdom would thenceforth take direct action against French ships which failed to comply with the rules of the Convention. I believe, however, that we do not need to consider this question further, and that we can leave open the question of the interpretation of Article 13 of the Convention — which refers to the fact that ‘each Contracting State shall take in its territories and in regard to its own nationals and its own vessels appropriate measures…’ and of the Revised Scheme of Joint Enforcement of the North-East Atlantic Fisheries Commission, concerning international controls outside territorial waters. It may be assumed — and here I am anticipating the results of my consideration — that even if the United Kingdom were still in a position to rely on its obligations under the Fisheries Convention — because it had faithfully carried out all the other recommendations, a fact which might well be decisive — it was certainly not thereby dispensed from following the procedural requirements laid down in the Hague Resolution. Consequently there is no need either in this case to consider the position with regard to obligations under the Hague Resolution when recommendations of the Commission set up under the Fisheries Convention are simply adopted into the body of national laws, in which case there is no national exercise of discretion and no national evaluation; however, permit me to say — restricting myself to this comment — that the Commission has submitted sound reasons for being consulted even in those cases, so as to ensure, for instance, that no essential point has been passed over, or that no inadmissible additional elements find their way into the national legislation. The fact is that we are clearly not concerned here with the type of case where recommendations on fishery matters are merely enacted into domestic law. That is clear from the British Government's statement of defence. As the Court knows, the defendant relies principally on the Fisheries Commission's Recommendations No .2 and No 5. However, it is clear that Recommendation No 2 contains only provisions concerning the mesh size of nets for catching certain types of fish, but nothing concerning by-catch limits. In order to support this conclusion, therefore, the British Government had to rely on the duty imposed by Article 13 of the Convention to see that it is put into effect; according to this, each Contracting State is to take appropriate measures to ensure the application of the provisions in question. The British Government is of the opinion that the rule it has made — exclusion of the defence that the small-mesh nets were being carried solely for the purpose of catching certain kinds of fish where more than 20 % of the catch is fish for which larger nets are prescribed — is clearly to be considered as a measure to facilitate the application of Recommendation No 2. As far as Recommendation No 5 is concerned, it does of course contain provisions concerning the amount of the by-catch allowed; but they refer exclusively to fishing for industrial purposes, as does Regulation No 350/77, which reduced the percentage prescribed in Recommendation No 5 to 20 %. To get past this clear distinction the British Government had to fall back on the spirit and purpose of the recommendation, claiming that its application to catches of fish destined for human consumption was equally logical. But one cannot ignore the fact that the threat posed by the by-catches takes on quite a different aspect where fishing for human consumption is concerned, and the French Government has supplied figures concerning the relevant by catches. In the light of this, and the fact that the British Government has again had to rely on what it considers to be the meaning and spirit of all the recommendations on fishing — even those which are not relevant here — to support its interpretation, this is certainly not mere adoption by national legislation of provisions from the Fisheries Convention, but rather applying them on the basis of a latitude of appreciation and approach which other Member States might use in quite a different way. And it is clear that the practice of British courts in this respect prior to the making of the disputed order varied considerably from case to case. Once this is accepted I think there can be no doubt that Annex VI to the Hague Resolution also catches measures such as these, and not just purely national measures which are adopted without any reference whatsoever to international obligations. Several considerations support this strict interpretation of the Hague Resolution in fact. There are, for instance, the decisions made by the Court, which I have already mentioned, clearly enunciating the principle that Member States must act in accordance with the interests of the Community, and stressing that in cases of doubt regard must be had to the interests of the Community whenever appropriate. The Commission has made it clear that this must be so in the case of measures for the conservation of fish stocks, when it pointed out that in many cases stocks of fish, which move from place to place, belong as it were to several Member States together, and that it is therefore advisable, in order to ensure the effectiveness of protective measures, for any action to be, as far as possible, Community-based or at least coordinated, and for the Community organs which do in any case always consult the other Member States when applying the Hague Resolution, to participate. It should also be noted that Annex VI to the Hague Resolution starts with the principle that unilateral measures are prohibited. So one cannot but accept that in the event of an exceptional breach the relevant rules of law and those serving the protection of Community interests must be given a generous interpretation. They should be applied whenever even a small necessity for them appears, and that is undoubtedly the case when international obligations are being fulfilled subject to a margin of discretion, because any divergent application would entail the risk that it will become more difficult to elaborate common rules and that the necessary negotiations with non-member countries will be prejudiced. Lastly, some weight should also be given to the circumstance that in November 1976 there were no less than 23 recommendations under the Fisheries Convention, but no word is said of them in Annex VI. This is certainly enough to justify the conclusion that within the meaning of that Annex anything other than a Community measure must be held to be a ‘unilateral measure’. In my opinion it is obvious that no other conclusion can be drawn from the preamble to Regulation No 350/77 either. Admittedly the point being discussed here is that the conservation measures being applied by the Member States in the fishing zones off their North Sea and North Atlantic coasts depend in particular on international commitments. It is also striking that the same statement of grounds contains a reference to the procedure set out in Annex VI to the Hague Resolution. That means, in my opinion, that all that can be decided concerning the British order now in question is that its adoption infringed Community law, if only because the Commission was not concerned in its adoption — there was no consultation and no effort was made to obtain the Commission's approval — and that therefore the complaint that the United Kingdom has failed to fulfil its obligations under the Treaty is justified. As to what precisely the procedure should be according to Annex VI and, in particular, whether this obligation is nothing more or less than a specific expression of the obligations which arise under Article 5 of the EEC Treaty, this does not in fact need to be considered further. However, I should just like to make the following points briefly, since they were discussed at length in the proceedings: It is clear that the duty entails more than merely informing the Commission in order to enable it, where necessary, to institute proceedings for failure to fulfil obligations under the Treaty. Since the sense and purpose of Annex VI are obviously to ensure a minimum of coordination between national measures, or in certain circumstances between a multitude of national measures, and in doing so to take into account both the future elaboration of a common policy and relationships with non-member countries, this rule — as the case-law has already demonstrated — requires collaboration with the Commission, including a genuine readiness to seek out solutions which are acceptable to the Community. The country which is consulting the Commission must be prepared, then, to accept modifications to the measures it intends to take, and is certainly prevented from putting them into effect directly after a first draft has been rejected by the Commission. Even if Annex VI does not expressly mention the necessity for the commission's approval or a thoroughgoing right of veto the French Government is correct in saying that the text of the provision comes extremely close to such legal definitions. That is a question which may be examined more closely one day in a case in which it is really decisive.