5.

It is submitted on behalf of the defendants in the main proceedings concerning Cases 50 to 58/82 that the Community regulations applicable to Spanish fishermen are also invalid for a breach of certain fundamental rights : the right to equal treatment, the right to a hearing, the right to work and carry on a trade or profession and a right not to be subjected to retroactive penalties. In order to dismiss these alleged grounds of invalidity it would be sufficient to observe that they are entirely irrelevant to the question formulated by the French courts which concerns exclusively the compatibility of the relevant Community rules with prior international obligations. Nevertheless I feel that I should comment briefly on the complaints which have been made in order to show they are not well founded. A — The principle of equality is relied upon in connection with the argument to the effect that the Community regulations in question discriminate between Spanish fishermen and fishermen of Member States of the European Community in so far as only the former are required to hold a fishing licence. For the purpose of refuting that argument it was observed that the fishing licence constitutes the only means of ensuring that the system of fishing quotas is complied with. The system is also applied to Community fishermen although in their case the means of ensuring that it is complied with is the check on the catches carried out in the ports where they are landed. Nevertheless a more serious criticism is that the catalogue of human rights discloses no principle which obliges the Community to ensure that Spanish nationals enjoy the same rights as nationals of the Member States of the Community with regard to the exploitation of the economic zone adjacent to the coasts of the Member States. Both the provisions of Article 14 of the European Convention on Human Rights and the corresponding provisions of the two universal covenants on human rights (Article 2 (1) of the Covenant on Civil and Political Rights and Article 2 (2) of the Covenant on Economic, Social and Cultural Rights) require nondiscrimination in the enjoyment of the rights recognized by each of these international legal instruments. But no right to fish in the economic zone of any country is recognized by the European Convention or by the covenants. With regard to the principle that all persons are equal before the law and to the right to the equal protection of the law (Article 26 of the Universal Covenant on Civil and Political Rights) it is indeed the case that they guarantee the formal equality of persons with regard to each legal order considered as a whole but only in order to preclude the legislature from introducing arbitrary discrimination or differences in treatment without any objective justification whatever. In particular, the prohibition of all discrimination based on national origin does not in any way prevent legislation from creating a large number of differences in the treatment of nationals and foreigners, above all in the field of public law provided that the basis of rules of that nature is reasonable (as is unquestionably the case as regards the requirement of fishing licences within the framework of the measures for the conservation of the resources of the sea and of the related system of fishing quotas). B — The alleged breach of the right to a hearing is said to consist in the fact that the administrative penalties applied by the Commission to Spanish fishermen (withdrawal of the licence and suspension for a specified period of the issue of a new licence) are imposed without providing them with an opportunity of presenting their point of view in advance. That is said to be contrary to Article 6 of the European Convention on Human Rights according to which, as the Court is aware, everyone charged with a criminal offence has the right to defend himself in person or through legal assistance of his own choosing (paragraph (3) (c)). Mention should also be made in this connection of the Court's judgment of 27 October 1977 in Case 121/76 Moli C [1977] ECR 1971) which states “the general principle that when any administrative body adopts a measure which is liable gravely to prejudice the interests of an individual it is bound to put him in a position to express his point of view” (paragraph 20 of the decision). That complaint is unfounded. In the first place it should be made clear that Article 6 of the European Convention does not apply to procedures other than proceedings before a court or tribunal. The Commission of Human Rights made that point in its Report of 25 January 1976 in the case of Ireland against the United Kingdom. Secondly, the individuals upon whom the Commission has imposed penalties are always entitled to challenge the decisions in question under the second paragraph of Article 173 of the EEC Treaty. The resultant adversary proceedings ensure that the persons concerned are able to present their defence. The adversary proceedings in question are only contingent because it remains for the persons concerned to institute them and they are subsequent in so far as they take place after the adoption of the measure adversely affecting those persons, but this is justified by the need for the Commission to act swiftly in order to avoid more serious injury to Community interests. Furthermore, as the Court knows, various forms of administrative action (and indeed judicial action) take place in the absence of any hearing of the other party so that the adversary proceedings, and thus the presentation of the defence, are postponed to a second stage of the procedure. Finally, the reference to the Moli case is in my opinion inappropriate in so far as in that case the Court upheld a principle which is valid in relationships between an administration and its officials but which may not be transposed automatically to any relationship between the administration and individuals. C — It appears to me that the right to work and the freedom to engage in economic activity, upon which reliance also has been placed, are irrelevant in the context of these cases. The former is of very general scope, consisting as it does in the “right of everyone to the opportunity to gain his living by work which he freely chooses or accepts ...” (Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights). It is clear that the numerous limitations or conditions — factual or legal — which circumscribe that opportunity cannot be understood as so many breaches of the principle! In particular, even though the Community rules restrict fishing by Spanish fishermen in certain zones of the sea, the existence of their right to earn their living by fishing is not called in question. Similar reasoning applies to the freedom to engage in economic activity which, as I had occasion to state in part 10 of my Opinion in the Hauer case (Case 44/79 [1979] ECR 3764), “is not guaranteed with regard to a particular sphere of activity”. The regulations with which we are concerned affect the right to exploit the fishery resources of specific zones of the sea but the Spanish fishing undertakings remain free to fish in these zones, subject to the conditions laid down by the said regulations, or elsewhere. D — The complaint of infringement of Article 7 of the European Convention for the Protection of Human Rights was put forward on behalf of the defendants in the cases referred to the Court by the Tribunal de Grande Instance, Bayonne, because Regulation No 1569/81 of 1 June 1981 retroactively increases the penalties which the Commission may impose on those who fail to comply with the Community measures on fishing. The penalties provided for in Article 13 of that regulation are more severe than those laid down by previous regulations (withdrawal of the licence to fish and postponement of the issue of new licences; both penalties may be extended to other vessels of the same owner) and the article has retroactive effect because the whole regulation applies with effect from 1 January 1981 whilst the previous regulation, Regulation No 554/81, which was in force until 31 May, was expressly repealed. Nevertheless although these aspects of the Community measures are deplorable they cannot be considered contrary to the abovementioned rules of the European Convention for the simple reason that it is solely concerned with sanctions of criminal law. It is sufficient to read the second sentence of Article 7 (1) (“... Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”) to realize that the principle may not be extended to sanctions of an administrative nature. A statement to that effect was made by the European Commission of Human Rights in the decisions on Applications Nos 4274/69 and 4519/70 (Yearbook of the European Convention on Human Rights, Volume 13, p. 888 et seq., in particular p. 890; and Volume 14, p. 616 et seq., in particular p. 622).