Keywords

Summary



Keywords

1 . FISHING - CONSERVATION OF MARITIME RESOURCES - POWERS OF THE EEC NOT EXERCISED - PROVISIONAL POWERS OF THE MEMBER STATES - DUTY OF CO-OPERATION

( ACT OF ACCESSION , ART . 102 ; EEC TREATY , ART . 5 )

2 . FISHING - CONSERVATION OF MARITIME RESOURCES - COMMUNITY CONSERVATION MEASURES NOT EXTENDED - EFFECTS THEREOF - FREEDOM TO ACT AT WILL NOT RESTORED TO THE MEMBER STATES - DUTY OF MEMBER STATES TO TAKE THE NECESSARY CONSERVATION MEASURES - RULES

3 . FISHING - CONSERVATION OF MARITIME RESOURCES - IMPOSSIBLE TO ADOPT NECESSARY MEASURES AT COMMUNITY LEVEL - DUTY OF MEMBER STATES TO ACT IN THE INTERESTS OF THE COMMUNITY

( ACT OF ACCESSION , ART . 102 ; COUNCIL REGULATION NO 101/76 , ART . 4 ; COUNCIL RESOLUTIONS OF 3 NOVEMBER 1976 , ANNEX VI ; COUNCIL DECLARATION OF 31 JANUARY 1978 )

4 . FISHING - CONSERVATION OF MARITIME RESOURCES - PROVISIONAL POWERS OF THE MEMBER STATES - CONDITIONS FOR THE EXERCISE THEREOF - DUTY OF CONSULTATION - SCOPE

( COUNCIL RESOLUTIONS OF 3 NOVEMBER 1976 , ANNEX VI )

5 . FISHING - CONSERVATION OF MARITIME RESOURCES - PROVISIONAL POWERS OF THE MEMBER STATES - CONDITIONS FOR THE EXERCISE THEREOF - DUTIES OF CONSULTATION AND NOTIFICATION - SCOPE - APPLICATION TO NATIONAL MEASURES ADOPTED IN IMPLEMENTATION OF A COMMUNITY REGULATION

( COUNCIL REGULATION NO 101/76 , ARTS 2 AND 3 ; COUNCIL RESOLUTIONS OF 3 NOVEMBER 1976 , ANNEX VI )

6 . FISHING - CONSERVATION OF MARITIME RESOURCES - COMMUNITY CONSERVATION AND MANAGEMENT MEASURES - NATIONAL IMPLEMENTING PROVISIONS - CONDITIONS FOR COMPATIBILITY WITH COMMUNITY LAW

( EEC TREATY , ART . 7 ; COUNCIL REGULATION NO 101/76 , ART . 2 )

Summary

1 . PURSUANT TO THE OBLIGATIONS ARISING BOTH FROM THE EEC TREATY AND FROM THE ACT OF ACCESSION , THE COMMUNITY HAS POWER TO INTRODUCE FISHERY CONSERVATION MEASURES IN THE WATERS WITHIN THE JURISDICTION OF THE MEMBER STATES . IN SO FAR AS THIS POWER HAS BEEN EXERCISED BY THE COMMUNITY , THE PROVISIONS ADOPTED BY IT PRECLUDE ANY CONFLICTING PROVISIONS BY THE MEMBER STATES . ON THE OTHER HAND , SO LONG AS THE TRANSITIONAL PERIOD LAID DOWN IN ARTICLE 102 OF THE ACT OF ACCESSION HAS NOT EXPIRED AND THE COMMUNITY HAS NOT YET FULLY EXERCISED ITS POWER IN THE MATTER , THE MEMBER STATES ARE ENTITLED , WITHIN THEIR OWN JURISDICTION , TO TAKE APPROPRIATE CONSERVATION MEASURES WITHOUT PREJUDICE , HOWEVER , TO THE OBLIGATION TO COOPERATE IMPOSED UPON THEM BY THE TREATY , IN PARTICULAR ARTICLE 5 THEREOF .

2 . THE EFFECT OF THE COUNCIL ' S INABILITY TO REACH A DECISION TO EXTEND THE FISHERY CONSERVATION MEASURES WHICH IT HAD PREVIOUSLY ADOPTED HAS NOT BEEN TO DEPRIVE THE COMMUNITY OF ITS POWERS IN THIS RESPECT AND THUS TO RESTORE TO THE MEMBER STATES FREEDOM TO ACT AT WILL IN THE FIELD IN QUESTION . IN SUCH A SITUATION , IT IS FOR THE MEMBER STATES , AS REGARDS THE MARITIME ZONES COMING WITHIN THEIR JURISDICTION , TO TAKE THE NECESSARY CONSERVATION MEASURES IN THE COMMON INTEREST AND IN ACCORDANCE WITH BOTH THE SUBSTANTIVE AND THE PROCEDURAL RULES ARISING FROM COMMUNITY LAW .

3 . BOTH ARTICLE 102 OF THE ACT OF ACCESSION AND COUNCIL REGULATION ( EEC ) NO 101/76 , LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY , IN PARTICULAR ARTICLE 4 THEREOF , IN THE SAME WAY AS ANNEX VI TO THE HAGUE RESOLUTION ADOPTED BY THE COUNCIL ON 3 NOVEMBER 1976 AND THE COUNCIL DECLARATION OF 31 JANUARY 1978 CONCERNING FISHERIES , ARE BASED ON THE TWOFOLD ASSUMPTION THAT MEASURES MUST BE ADOPTED IN THE MARITIME WATERS FOR WHICH THE COMMUNITY IS RESPONSIBLE SO AS TO MEET ESTABLISHED CONSERVATION NEEDS AND THAT IF THOSE MEASURES CANNOT BE INTRODUCED IN GOOD TIME ON A COMMUNITY BASIS THE MEMBER STATES NOT ONLY HAVE THE RIGHT BUT ARE ALSO UNDER A DUTY TO ACT IN THE INTERESTS OF THE COMMUNITY . ALTHOUGH THE RESOLUTIONS AND THE DECLARATION MENTIONED ABOVE EMPHASIZE ABOVE ALL THE REQUIREMENT THAT NATIONAL CONSERVATION MEASURES SHOULD NOT GO BEYOND WHAT IS STRICTLY NECESSARY , AT THE SAME TIME THEY IMPLY RECOGNITION OF THE NEED FOR AND THE LAWFULNESS OF CONSERVATION MEASURES JUSTIFIED FROM THE BIOLOGICAL POINT OF VIEW AND DESIGNED SO AS TO BE NOT ONLY TO THE PARTICULAR ADVANTAGE FOR THE MEMBER STATE CONCERNED BUT IN THE COLLECTIVE INTERESTS OF THE COMMUNITY .

4 . THE FACT THAT A DRAFT CONSERVATION MEASURE IS SUBMITTED TO THE COMMISSION AT A DAY ' S NOTICE AFTER A LONG PERIOD DURING WHICH A MEMBER STATE HAS FAILED TO ACT CANNOT BE CONSIDERED AS BEING IN ACCORDANCE WITH THE DUTIES LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION WHICH REQUIRES THAT THE COMMISSION SHOULD BE CONSULTED AT ALL STAGES OF THE DRAWING-UP OF PROPOSED MEASURES , ALLOWING FOR THE NECESSARY TIME TO STUDY THOSE MEASURES AND TO GIVE ITS OPINION IN GOOD TIME .

5 . THE DUTY TO CONSULT THE COMMISSION AND TO SEEK ITS APPROVAL , FLOWING FROM ANNEX VI TO THE HAGUE RESOLUTION , IS GENERAL AND APPLIES TO ANY MEASURES OF CONSERVATION EMANATING FROM THE MEMBER STATES AND NOT FROM THE COMMUNITY AUTHORITIES . CONSEQUENTLY , THE MEASURES ADOPTED BY A MEMBER STATE IN IMPLEMENTATION OF A COMMUNITY REGULATION ARE NOT EXEMPTED FROM THAT DUTY OR FROM THE DUTY OF NOTIFICATION LAID DOWN IN ARTICLES 2 AND 3 OF REGULATION NO 101/76 .

6 . IN ORDER TO SAFEGUARD THE RIGHTS AND INTERESTS PROTECTED BY COMMUNITY LAW FOR OTHER MEMBER STATES AND THEIR NATIONALS IT IS NECESSARY TO LAY DOWN AND PUBLISH , IN A FORM BINDING UPON THE MEMBER STATE CONCERNED , ALL THE DETAILED RULES OF THE SYSTEM CHOSEN BY THE AUTHORITIES OF THAT MEMBER STATE FOR THE IMPLEMENTATION OF A COMMUNITY REGULATION LAYING DOWN MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERIES , SO AS TO ENABLE ALL OTHER MEMBER STATES AND ALL PERSONS CONCERNED , IN THE SAME WAY AS THE COMMUNITY AUTHORITIES , TO SEE WHETHER THE SYSTEM PUT INTO OPERATION FULFILS BOTH THE PARTICULAR OBLIGATIONS OF THE MEMBER STATE IN QUESTION UNDER THE RELEVANT REGULATION AND THE GENERAL REQUIREMENTS OF NON-DISCRIMINATION AND EQUALITY AS REGARDS THE CONDITIONS OF ACCESS TO THE FISHING GROUNDS ENSHRINED IN ARTICLE 2 OF REGULATION NO 101/76 AND ARTICLE 7 OF THE EEC TREATY . THIS OBLIGATION TO INTRODUCE IMPLEMENTING MEASURES WHICH ARE EFFECTIVE IN LAW AND WITH WHICH THOSE CONCERNED MAY READILY ACQUAINT THEMSELVES IS PARTICULARLY NECESSARY WHERE SEA FISHERIES ARE CONCERNED , WHICH MUST BE PLANNED AND ORGANIZED IN ADVANCE ; THE REQUIREMENT OF LEGAL CLARITY IS INDEED IMPERATIVE IN A SECTOR IN WHICH ANY UNCERTAINTY MAY WELL LEAD TO INCIDENTS AND THE APPLICATION OF PARTICULARLY SERIOUS SANCTIONS .