4.

Nevertheless I feel it necessary to express my point of view regarding the alleged freedom to fish during the period when the issue of licences was impossible because there were no Community regulations in force. The advocates defending the fishermen charged before the court in the main proceedings properly recalled that in the same period the Agreement on Fisheries between the European Economic Community and Spain of 15 April 1980 was already provisionally applicable and that Article 4 of the Agreement provides that: “each party may require that in the fishing zone falling under its jurisdiction fishing by vessels of the other party shall be subject to licence”. The fact that, in this way, the introduction of the system of licences is thus at the option of each party shows, according to the defence, that in the absence of rules providing for the grant of licences Spanish fishermen were free to fish in Community waters. That argument will not withstand critical examination. First, it is clear that every clause in an agreement must be placed within the context of that agreement. In particular, Article 4, cited above, must be read in the light of the articles which immediately precede it. Article 2 provides that access to the fishing zone falling under the jurisdiction of each party is to be granted to the fishing vessels of the other party “under the conditions laid down by the following articles”. Article 3 (1) provides that each party is to determine each year, for the fishing zone falling under its jurisdiction, (a) “the total allowable catch for individual stocks or complexes of stocks ”; (b) “after appropriate reciprocal consultations, the catch allotted to the fishing vessels of the other party and the zones in which these catches may be made”. It is accordingly clear that there is no freedom of access for the fishing vessels of each party to the fishing zone of the other; such access is made available through a “concession” which, even before it is expressed by the issue of the licence, presupposes that the catches which the fishing vessels of the other party may make have been determined. The optional nature of the system of licences is thus explained: the essential point is that the limit of the catches allotted to the fishing vessels of the other party should be fixed and there is nothing to prevent the use of methods involving the fixing of quotas or different forms of control of licences. However, the fishermen of each party are in any event obliged to postpone their fishing until the other party has completed the annual determination of limits provided for in Article 3 (1) and until there is a positive outcome of the “appropriate reciprocal consultations” referred to in subparagraph (b) of that article. It is furthermore sufficient to read the preamble to Regulation No 554/81 of 27 February 1981 to realize that it was precisely the delay in these negotiations which was the cause of the interruption of the fishing by Spanish nationals in Community waters from 1 February 1981. The third recital in the preamble to the regulation in fact states that “the Community and Spain held consultations, in accordance with the procedure provided for in the Agreement, concerning the conditions of fishing by vessels of either party in the fishing zone of the other party during the year 1981” and that “these consultations were not concluded until 17 February 1981”. Further on it is stated that “at the conclusion of these consultations, the Community delegation undertook to recommend to its authorities that certain measures should be adopted, for the said period, authorizing fishing by Spanish vessels in the fishing zones of Member States which are subject to Community fisheries regulations”. The final measures for 1981 were introduced later by the Regulation No 1569/81 of 1 June 1981 which accordingly determined all catches by Spanish vessels authorized in the course of the year, excluding only the period of interruption, from 1 February to 3 March (Article 10 (3)). Regulation No 554/81, for its part, was adopted as an interim measure, as its title indicates, within the scheme of the conjunctural policy mentioned in Article 103 of the EEC Treaty in order to avoid prolonging the interruption beyond 3 March (cf. the sixth recital in the preamble); the same had been done in the case of Regulation No 3305/81, by extending the validity of the licences from 31 December 1980 to 30 January 1981. The situation which I have described — delay in the consultations and thus in fixing the final system for the licences, the late adoption of an interim measure and subsequent regularization through another regulation — has been repeated this year. On 15 February 1982, since the Council found that the consultations between the Community and Spain had not been concluded until 26 January, it adopted Regulation No 379/82 “in order to permit an early resumption of fishing by Spanish vessels” (third recital in the preamble) and authorized catches by Spanish vessels in the Community fisheries zone from 15 February until30 April 1982, which meant that from 1 January to 15 February 1982 the activities of those fishing vessels in the waters of the Community had remained paralysed. Then, on 29 April, the Council fulfilled, by Regulation No 1041/82, the undertakings which it had given in the course of the consultations with Spain by authorizing fishing by Spanish vessels (but still subject to the system of licences) for the year 1982. However, the year was reduced by the first forty-five days since the authorization for catches refers to the period from 5 February to 31 December 1982 (Article 1). Furthermore, regard is had to the fact that the vessels concerned “will only be engaged in fishing during part of 1982” (third recital in the preamble) and accordingly the number of licences remained proportionate to an entire solar year. These recent rules thus confirm that in the period during which Community provisions on the conservation and management of fishery resources were not in force Spanish vessels were not authorized to fish in the waters of the EEC.