6.

In the course of these proceedings there was also discussed the question of the validity of the rules of Community law previously described from the viewpoint of their possible incompatibility with the London Fisheries Convention of 9 March 1964. In fact, such a question has not been put forward by the court making the reference and that would lead one not to consider it. However, on the other hand, it is undeniable that that court is minded to decide the significance and role of the London Convention as regards the Irish rules which are in accordance with Community rules and which prohibit unauthorized fishing in the 200-mile zone. To that end it would appear useful to explore the topic of the relationship between the London Convention and Community law from all angles. In order to declare Regulation No 373/77, and the two regulations which successively extended it invalid, it would be necessary that one or other of the following propositions be correct: either that those regulations conflict with the rules of the London Convention and those rules are regarded as binding upon the Community, or that in promulgating them the Council breached the duty which, as has been seen, flows from the first paragraph of Article 234, not to obstruct the performance of Member States' obligations towards non-member countries which result from prior agreements. In regard to the first of those propositions it is convenient to recall the decisions of this Court concerned with the relationship between the rules of secondary Community law and international obligations of the Communities, in particular, the judgments of 12 December 1972 in Joined Cases 21 to 24/72 International Fruit Co v Produktschap voor Groenten en Fruit [1972] ECR 1219 and of 24 October 1973 in Case 9/73 Schlüter v Hauptzollamt Lörrach [1973] ECR 1135. In the operative part of the first of those two decisions and in the grounds of judgment of the second (paragraph 27) the Court pronounced to the effect that the validity of acts of the institutions, within the meaning of Article 177 of the EEC Treaty, cannot be tested against a rule of international law unless that rule is binding on the Community and capable of creating rights of which interested parties may avail themselves in a court of law. Therefore, in this case it would be necessary to establish — even before establishing the existence of a conflict between the London Convention and the said regulations — that that Convention is binding on the Community and produces direct effects for individuals. Is it possible to take the view that by the fact of its having assumed the powers of the Member States in regard to the management of the resources in their fishing zones the Community is successor to them in the rights and obligations flowing from the London Convention? In order to resolve this question it is necessary to consider carefully the tests accepted in the above-mentioned decisions and in particular in the judgment of 12 December 1972 in the International Fruit case. The Court there came to the conclusion that the Community had succeeded the Member States in the GATT obligations not on the basis only of finding that it had assumed powers held by those States in regard to the subject-matter governed by the General Agreement but by taking account of at least four other decisive matters: the facts that the Member States were already bound by GATT when they concluded the EEC Treaty; the desire of those States to bind the Community by the obligations under the Agreement, which coincided with the “adherence of the Community to the same aims as those sought by the General Agreement”, which follows from Article 110 of the Treaty of Rome; the action actually taken by the Community institutions in the context of that agreement and the recognition by the other Contracting Parties of the transfer of power from the Member States to the Community (see paragraphs 10 to 18 of the grounds of judgment). But none of those factors is to be encountered in the present case. The London Fisheries Convention, although prior in date to the accession of the United Kingdom, Ireland and Denmark is subsequent to the creation of the EEC; no intention to have the obligations under the said Convention assumed by the EEC has been expressed by either the Member States or the Community; no action which may be regarded as being in implementation of the Convention has been taken by the Community; no acknowledgment that the Community has its own role in the context of the Convention has been made by the other contracting countries. It is true that a comparison between action taken in the context of GATT and that referable to implementation of the Convention is hard to draw given the dynamic nature of the General Agreement which represents a kind of permanent framework for negotiations and fresh agreements between the parties. That, however, does not alter the fact that at least one of the factors indicated is, in my opinion, essential to any hypothesis of succession by the Community to the Member States in the obligations under an agreement. I refer to the intention of the former and the latter. In this case one may speak, on the contrary, of a clear lack of intention by the EEC to be bound by the London Convention. It is to be noted in that regard that at the time of the European Conference on Fishing which took place in London between December 1963 and March 1964 the EEC did not yet have its own policy in this sphere and the Commission was represented at the Conference only in the capacity of a mere observer. When, in the subsequent decade, the Community began to formulate its own line of approach to fishing matters profound changes had already taken place in the legal position in relation to which the London Convention had been drawn up. The latter was based on the criterion of a maximum extension of the fishing rights of States to a belt 12 miles from their respective coast lines. The exclusive right of the coastal State to fish (and to have exclusive jurisdiction in matters of fisheries) was therefore recognized in a belt of 6 miles measured from the baseline of its territorial sea (Article 2) whilst in the zone between 6 and 12 miles the right to fish, in addition to being conferred on the coastal State, was also conferred on other contracting States the vessels of which had habitually fished in that zone between 1 January 1953 and 31 December 1962 (Article 3). In the course of the 1970s, however, under the pressure of the economic demands of developing countries, a general international rule authorizing States to extend their exclusive fishery zones to 200 miles took shape and was rapidly consolidated. Hence the Community began its positive action in this sector (as I recalled earlier) by itself providing in 1976 that a system of protection for fishing should be provisionally laid down for the 200-mile zone pending the conclusion of agreements with interested non-member countries, which are intended to be based on this new criterion. In that manner the Community set its own action in motion completely superseding the London Convention which proved to be no longer capable of providing a satisfactory body of rules for the new-subject-matter of the international law of the sea. In those circumstances there can be no question of the London Convention's having become binding on the Community. That renders superfluous an examination of whether that Convention has direct effect for individuals or whether Community fishery rules are compatible with the Convention. The proposition that those rules are invalid through being in conflict with international law binding on the Community may be rejected without further consideration.