Opinion of Mr Advocate General Darmon delivered on 29 May 1991. - Commission of the European Communities v Kingdom of Spain. - Control measures - Catches outside the Community fishing zone of fish stocks subject to a TAC or quota. - Case C-258/89.



European Court reports 1991 Page I-03977



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. In the present application, the Commission seeks from the Court a declaration that, by failing to apply the control measures laid down by Regulation (EEC) No 2057/82, (1) and in particular Articles 1, 6 to 9 and 10 thereof, and by Regulation (EEC) No 2241/87, (2) and in particular Articles 1, 5 to 9 and 11 thereof, to catches made outside the Community fishing zone of stocks or groups of stocks subject to a total allowable catch (TAC) or quota, the Kingdom of Spain has failed to fulfil its obligations under the EEC Treaty.

2. The facts of the case are not disputed by the parties and may be briefly summarized. In 1986 and 1987 the Commission' s inspectors found that during those two years the Spanish authorities had not recorded catches of species subject to a TAC or quota made in ICES (International Council for the Exploration of the Sea) sub-zones VI, VII and VIII outside the 200-mile limit of the Community fishing zone. The Spanish authorities took no penal or administrative action in respect of those landings.

3. The regulations allegedly infringed establish a control system with regard to fishing activities carried on by the vessels of Member States, in order to ensure compliance with the restrictions on fishing laid down by the annual regulations fixing the TAC by stock or group of stocks, and the allocation between the Member States of the volume of catches available for the Community. The measures for monitoring catches may be summarized as follows. Article 1 of those regulations requires, in particular, the competent authorities of a Member State to take penal or administrative action in order to curb any infringement of the rules in force concerning conservation and control measures. Moreover, Member States are required to ensure that all landings by fishing vessels flying the flag of a Member State of stocks or groups of stocks subject to a TAC or quota are recorded, and to notify the Commission of the information received. (3) Each Member State is required provisionally to prohibit vessels flying its flag from fishing for the species of a given stock, with effect from a date fixed by it, so as to ensure that the quota applicable to the species in question is not exceeded. (4) In addition, the skippers of fishing vessels are to submit to the State where the catch is landed and to the flag State a declaration concerning landings and transhipments or quantities retained on board of stocks subject to a TAC or quota and to keep, in respect of those stocks, a logbook indicating the quantities of each species caught and kept on board and the date and location of such catches by reference to the smallest zone for which a TAC or quota has been fixed and administered. (5)

4. Clearly, although those provisions are intended to ensure that compliance with the limits on fishing activities imposed by TACs and quotas is monitored, they do not determine the TACs and quotas which are fixed each year in accordance with Regulation (EEC) No 170/83. (6)

5. For the two years in question, 1986 and 1987, the quotas allocated to Spain were fixed by two regulations. (7)

6. In order to define the zones in which TACs and quotas may be applied, those regulations retain the ICES delimitation of sub-zones and various statistics on fisheries in the North East Atlantic, and the delimitation of zones fixed by the Fishery Committee for the Eastern Central Atlantic (FCECA).

7. It should be borne in mind, therefore, that it is those regulations that fix the quotas for each species, specifying the zone or zones in which they may be applied. It is precisely this last point which lies at the heart of the present application.

8. The Kingdom of Spain' s defence consists exclusively in contending that the Community does not have authority to adopt measures independently for monitoring catches made outside the waters falling under the sovereignty or within the jurisdiction of the Member States.

9. According to the Commission, the regulations in question lay down "unequivocally" that TACs and quotas are applicable to all ICES divisions or sub-zones, unless there is evidence to the contrary.

10. On reading the regulations in question, it is apparent that it is only in certain situations that the relevant ICES zone is followed by the designation "EC", while in other situations there is no such designation. (8) It is clear, therefore, that in the latter case the TAC or quota applies to the whole of the ICES zone without being limited only to such part as is within the territorial waters of the Member States of the Community. Moreover, in the regulations in question, the determination of certain quotas is accompanied by the words: "May be fished only in the waters under the sovereignty or within the jurisdiction of the Member State concerned, or in international waters of the zone concerned". (9) Finally, and above all, the regulations refer to certain ICES zones, such as Zone IX for example, which are essentially outside Community waters.

11. Thus there is no ambiguity: those regulations fixed quotas for certain zones which are not restricted to "Community" fishing waters but which also concern, where appropriate, international waters.

12. The Kingdom of Spain, and once again this is its only defence, disputes the Community' s authority to adopt measures limiting fishing activities in international waters.

13. Whether Spain realizes it or not, its defence constitutes an objection of illegality against the regulations in question since there is no scope for interpreting those measures in that respect, contrary to what Spain has suggested. The Community has clearly exercised the authority that the Kingdom of Spain disputes. No matter how the defendant presents its arguments, these consist precisely in calling into question the existence of such authority.

14. No doubt, in the instant case, Spain' s assertion is not that the regulations alleged by the Commission to have been infringed by that State are illegal; Spain is essentially disputing the legality of the provisions fixing the TAC zones, with which the rules on the monitoring of catches referred to in the application are specifically intended to ensure compliance. Clearly, if Spain' s arguments concerning the Community' s lack of authority to fix TACs in international waters were well founded, the Commission' s application concerning non-compliance with the rules on the monitoring of catches made in those waters would have to be dismissed. It is equally clear that if Spain' s defence were to be upheld by the Court, the regulations fixing the quotas would be inapplicable in so far as they relate to the zone extending outside Community waters. The Kingdom of Spain, for its part, does not wish its arguments to be treated as an objection of illegality, and contends that it is a matter of interpreting the regulations. However, the Court must find that the substance and subject-matter of Spain' s defence constitutes an objection of illegality, and consequently redefine it as such. Let me emphasize that, since what is being disputed is the Community' s authority which has actually been exercised through the regulations in question, the "label" which the defendant State attaches to its defence obviously cannot prevent the Court from reconstructing it, so as to hold that in actual fact it constitutes an objection of illegality.

15. From that point of view, although the Commission apparently perceived at the hearing that Spain' s arguments in fact constituted an objection of illegality against the regulations in question, it did not comment in any way on whether it was permissible for a State to raise such an objection against a regulation in proceedings brought against it for failure to fulfil its obligations.

16. It would have been desirable, moreover, for the parties to have clearly stated their views in that regard, since the fundamental question, which is of some importance, has not to date been clearly resolved by the Court in its decisions.

17. To my mind, the Court cannot evade that question in the instant case. An examination of the Kingdom of Spain' s arguments necessarily leads to the conclusion that a State may rely on the illegality of a regulation which forms the basis of an action against it for failure to fulfil its obligations. That standpoint cannot be adopted by implication and, in my view, it is necessary to tackle the question at issue. As I said, the Court has not given a clear-cut answer to that difficulty. Its case-law does, however, contain some interesting pointers.

18. In the judgment in Italy v Council and Commission, (10) the applicant State had raised an objection of illegality against a regulation, in support of an application for annulment which it had brought against another regulation. The Court may have declared that the objection was inadmissible on the ground that there was no connection between the two regulations. However, it must be said that the Court' s solution was not to deny a State, generally speaking, the benefit of being able to raise an objection of illegality against a regulation; instead, the wording of the Court' s decision quite clearly supports the conclusion that it accepted that possibility in principle. It is true that in academic legal writing the view has sometimes been taken that such a conclusion could, at most, apply only to an objection of illegality raised by a Member State in proceedings for annulment which it had instituted, and not to an objection relied upon by way of defence to an action brought against that State for failure to fulfil its obligations. (11) To my mind, that distinction is difficult to justify, in view of the general nature of the words used by the Court in its judgment, when it pointed out that

"(Article 184) provides that any party may, in proceedings in which a regulation is in issue, plead the grounds specified in the first paragraph of Article 173, in order to invoke the inapplicability of that regulation".

19. Another point is that in its judgment in Commission v Germany, (12) the Court purely and simply examined the objections of illegality raised by the defendant State against the rules with which, according to the Commission, it had failed to comply. However, an examination of the decision and of the Report for the Hearing reveals that no attention had been paid specifically to the procedural problem at issue.

20. Furthermore, the Court' s judgment in Commission v Belgium (13) appears to me to be far from having ruled out the possibility that a Member State may rely on the illegality of a regulation by means of an objection. Before denying a Member State the possibility of raising an objection of illegality against an individual decision addressed to it, the Court pointed out that

"the objection provided for in Article 184 of the Treaty is limited under that provision to proceedings 'in which a regulation of the Council or of the Commission is in issue' ". (14)

21. While circumscribing in those terms the type of measures capable of being challenged by means of an objection of illegality, the Court none the less reaffirms the literal meaning of Article 184 and thus, to my mind, the right which is inherent therein and which can also be exercised by a Member State against which proceedings have been brought for failure to fulfil its obligations.

22. Admittedly, the Court pointed out in its judgment in Simmenthal v Commission, (15) that

"Article 184 of the EEC Treaty gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 173 of the Treaty to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void". (16)

This passage is relied upon in academic legal writing against (17) the view that Member States may raise an objection of illegality against a regulation which they could have attacked. Since they can bring an action for annulment against a regulation, Member States cannot also be given the possibility of raising an objection of illegality, without the requirements of legal certainty which give rise to the period for instituting proceedings laid down in Article 173 being disregarded. From that point of view, the only function of that provision is to "protect persons against individual decisions taken on the basis of defective regulations and thus to offset the restrictions which are placed on their bringing a direct action against the regulation itself". (18)

23. For my part, I would go along with the argument which is favoured by most academic legal writers, (19) to the effect that a Member State may raise an objection of illegality against a regulation in proceedings instituted against that State for failure to fulfil its obligations, and which several of the Court' s Advocates General (20) seem to me to have endorsed in their Opinions.

24. In the first place, the wording of Article 184 is perfectly clear: "Notwithstanding the expiry of the period laid down in the third paragraph of Article 173, any party may, in proceedings in which a regulation of the Council or of the Commission is in issue, plead the grounds specified in the first paragraph of Article 173, in order to invoke before the Court of Justice the inapplicability of that regulation."

25. It is obvious that, if "any party" may rely on the illegality of a regulation by means of an objection, that possibility may not be reserved solely to individuals without giving a restrictive meaning to the provision in question. (21) Besides, if that provision lays down that an objection of illegality may be raised "notwithstanding" the expiry of the period for instituting proceedings, the argument that this possibility should be reserved to persons who would in fact have been unable to take action within that period is not very convincing.

26. Instead, by providing that an objection of illegality may be raised, despite the expiry of the period for bringing an action for annulment, that article undoubtedly opens up an additional possibility of review for privileged applicants who would have been able to institute proceedings for annulment as of right.

27. Although in its judgment in Simmenthal, referred to above, the Court appeared to link the possibility of initiating an indirect review to the impossibility of bringing an action for annulment, it seems to me that such an approach would be too restrictive and contrary to Article 184 if, as a result, the Member States were denied the benefit of the objection of illegality.

28. Besides, I would find it difficult to accept that, faced with a regulation alleged by the defendant State to be illegal in certain respects, the Court should declare, automatically as it were, that that State had failed to fulfil its obligations, without examining the allegations and merely pointing out that they could have been made in proceedings for annulment. (22)

29. Admittedly, the Court has ruled out the possibility of a State raising an objection of illegality against a decision addressed to it. (23) However, it must be pointed out in that respect that the wording of Article 184 refers only to regulations, which, unlike decisions, are not addressed to Member States. In that regard, it is quite conceivable that the difference in the rules governing the objection of illegality with regard, on the one hand, to regulations, which legally are not addressed to the State, and on the other, to decisions which are addressed to the State, is based on the fact that the measures involved are different. In other words, while a measure addressed to a Member State may be challenged only by means of a direct review initiated by that State, a regulation, which constitutes Community legislation, is also open to an indirect review initiated by the Member States, which are subject to that measure even though legally it is not addressed to them.

30. Furthermore, I would draw the Court' s attention to certain considerations of judicial policy. By depriving Member States of the possibility of raising an objection of illegality against a regulation, there is a real risk of an increase in direct actions which are purely "preventive". Moreover, the action for annulment under Article 173 constitutes an abstract review of legislation, while an indirect review, initiated in connection with a specific difficulty in applying a measure, is alone capable of revealing certain defects in the relevant Community legislation. (24)

31. Finally, the argument which is occasionally relied upon, to the effect that the participation of the Member States in the drafting of regulations within the Council enables them to influence their content and to avert their drawbacks, is far from convincing. (25) To begin with, it would apply, where appropriate, only to regulations adopted by the Council in accordance with the rule of unanimity. But above all, even in such a case, those considerations do not in any way impair the right to bring an action for annulment, which is fully available to the Member States. For what reason should such considerations stand in the way of an objection of illegality?

32. Consequently, while the Kingdom of Spain' s reasoning must to my mind be treated as an objection of illegality against the regulations fixing quotas and must be redefined as such by the Court, the Court should recognize that a Member State may rely on that objection by way of defence to an action brought against it for failure to fulfil its obligations. I would also point out that, for at least one of the two regulations concerned, adopted before the accession to the Community of the Kingdom of Spain took effect, serious questions of principle and procedure could be raised in relation to an action for annulment by that State, when it is that very possibility which, according to academic legal writers hostile to the view that a Member State may raise an objection of illegality against a regulation in proceedings brought against it for failure to fulfil its obligations, serves to justify that exclusion.

33. The present case is thus concerned with ascertaining the extent to which the Community' s internal powers in respect of the common fisheries policy encompass the independent adoption of rules in respect of catches made outside Community waters. In other words, can TACs and quotas be extended to catches made in international waters?

34. In that regard, the Kingdom of Spain submits essentially that the only measures which the Community may take with regard to catches in waters not falling under the sovereignty or within the jurisdiction of the Member States of the EEC are the negotiation of international agreements and the adoption of measures designed to implement those agreements.

35. The Commission' s response to the defendant' s standpoint is a particularly detailed series of arguments, not all of which, however, seem to be of equal merit. Let us examine those which are peripheral first.

36. That is the case, first of all, as regards the reference to the legislative practice of the Community itself. From that point of view, if the scope of the Community' s powers is called into question by the defendant State, the Commission obviously cannot refute that argument by relying on the Community rules adopted in the exercise of the powers which are in fact now under challenge.

37. In these proceedings, therefore, I do not attach any significance, in point of principle, to the relevant secondary legislation adopted by the Community. At most, the considerable changes that acceptance by the Court of the Spanish Government' s argument would entail with regard to the practice hitherto followed by the Council may be pointed out.

38. Nor does the reference to the conclusion by the Community of international agreements relating to the high seas make any contribution to the present discussion. It is not in any way the Community' s external powers in that regard, but the scope of its internal powers, that Spain is calling into question.

39. On the other hand, the Commission appears to have been right to rely on the principles laid down in the Court' s case-law. In that regard, the arguments of the defendant do not in any way detract from the unequivocal meaning of the Court' s important judgment in Kramer. (26)

40. In that judgment, in order to be able to state that

"it follows from the very duties and powers which Community law has established and assigned to the institutions of the Community on the internal level that the Community has authority to enter into international commitments for the conservation of the resources of the sea", (27)

the Court first laid down that

"the Community has at its disposal, on the internal level, the power to take any measures for the conservation of the biological resources of the sea, measures which include the fixing of catch quotas and their allocation between the different Member States", (28)

pointing out that

"it ... follows [from] Article 102 of the Act of Accession, from Article 1 of the said regulation and, moreover, from the very nature of things that the rule-making authority of the Community ratione materiae also extends - in so far as the Member States have similar authority under public international law - to fishing on the high seas". (29)

41. In response to such precise reasoning, the Kingdom of Spain argues that the passage in question should be viewed in the context of the judgment, which deals with the question of the Community' s external powers, and may not therefore usefully be relied upon with regard to internal powers.

42. That analysis disregards the rationale behind the Court' s case-law regarding the Community' s external powers.

43. Without examining in detail the Court' s approach in this area, I would simply point out that the parallelism between internal powers and external powers obviously presupposes that the former should exist in order that they may be projected, as it were, into the latter. That is precisely the structure of the Court' s judgment in Kramer.

44. According to one author: "Parallelism is the result, and not the cause, of the implicit conferral of external powers; the real basis of external powers lies in the automatic extension of internal powers. It follows that the internal powers required must be of a legislative nature since it is difficult to see how the powers conferred on the Community could make it possible to conclude an international agreement which itself creates rights and obligations if they were not accompanied, in the internal order, by such legislative powers." (30) The author continues: "In Kramer the Court took the view that, since fishing activities inside, and even outside, the limit of 200-nautical miles, are subject to the Community' s common fisheries policy, which itself forms part of the common agricultural policy, the Community is capable of concluding agreements on fisheries by reference to Article 43." (31)

45. If the Court' s judgment in Kramer thus provides a clear-cut reply which stands in sharp contrast to the argument put forward by the Spanish Government, that argument is by no means strengthened by an examination of the Court' s subsequent case-law.

46. The judgment in Commission v Ireland, (32) in which the Court refers to Kramer in stating that

"the Community has the power to take conservation measures both independently and in the form of contractual commitments with non-member States or under the auspices of international organizations", (33)

clearly confirms the existence of parallelism in this area between internal and external powers, and does not in any event offer any support for the view that the Community has no independent authority to restrict fishing activities on the high seas.

47. Furthermore, the Commission has, to my mind, judiciously relied upon the judgment in Van Dam. (34) That case concerned the adoption of measures by a Member State, the Netherlands, acting on its own, independently of the implementation of any international obligation, which prohibited fishing for certain categories of fish in waters coming within the jurisdiction of the Member States of the EEC, but also in non-Community waters, namely those of Norway. Those measures had been taken before the Council adopted the conservation measures laid down by Article 102 of the 1972 Act of Accession. The Court thus acknowledged that the national measures in question were "at the time in question" within the powers of the Member States, in accordance with the solution which it had arrived at in Commission v Ireland for the period in question, taking account of the Council' s failure to act in that regard. In so doing, however, did not the Court implicitly acknowledge that, even though the Member States could adopt measures on the basis of national legislation so long as the Community had not exercised its own powers in that area, those powers extended to the independent adoption of rules whose scope extends, where necessary, outside the waters coming within the jurisdiction of the Member States?

48. Finally, the Court' s recent judgment in Spain and France v Commission (35) does not appear in any way to invalidate the argument put forward by the Commission. The Court considered that

"the catch-monitoring system, closely linked as it is with the Community system for the conservation and management of fishery resources, does not apply to those zones for which no catch limitation has been imposed by a Community regulation or an agreement concluded by the Community with non-member countries". (36)

49. Is it not possible perhaps to elicit from that passage express confirmation of the Community' s independent authority to restrict fishing activities irrespective of the zone concerned? It is clear, in any event, that there is no support whatsoever in that decision for the Spanish argument that the Community' s rule-making power is confined to the territorial waters of the Community.

50. Besides, the crux of the matter in these proceedings had nothing to do with the geographical extent of the Community' s powers in this area, but was concerned with the question whether the catch-monitoring system could be applied in connection with the management of fishery agreements with developing countries outside the ambit of the Community system of conservation and management of fishery resources.

51. Finally, while Mr Advocate General Tesauro, to whose Opinion the Spanish Government makes ample reference, stated in substance that the relevant Community system had been conceived as a set of measures intended essentially to operate in Community waters, he did not by any means assert that the Community' s independent authority would be confined to those waters.

52. To my mind, therefore, it follows quite clearly from the Court' s case-law that the Community' s independent authority to adopt measures for the conservation of fishery resources applies, where appropriate, to the high seas. Hence there would appear to be a contradiction in the position adopted by the Kingdom of Spain, since the defendant accepts the result, that is the existence of external Community powers, but not the premise, that is the existence of internal Community powers.

53. In reply to some of the questions which were put to it at the hearing and which revealed the inconsistency of that argument, the Spanish Government contended that independent authority to limit catches on the high seas cannot be vested in the Community, since the Member States, and in any event Spain, did not previously have such authority. In other words, the Community has no internal powers in this area, since there were no powers that the Member States could have "transferred" to it.

54. This last assertion is surprising. The question is not whether the Member States have actually limited the catches of their fishing vessels in international waters. It is whether "the Member States have [such] authority under public international law". (37)

55. As the United Kingdom pointed out at the hearing, the assertions of the Spanish Government amount to challenging precisely a fundamental principle of public international law of the sea, namely the law of the flag. As regards, more particularly, fishing on the high seas, the principles of public international law are as follows: "Apart from giving all States the right to fish and the right to authorize their nationals to make use of that right, the system which derives from the 'freedom of the high seas' corresponds to a division of powers between States. Within their territories, the power to lay down laws and regulations is usually shared by States according to the criterion of territoriality. On the high seas, the power to regulate the conduct of vessels and to adopt implementing measures in respect thereof is vested essentially in the flag State. On the high seas, a State generally has full power over all vessels having the nationality of that State, while the rule-making and implementing measures which are also applicable to vessels of a different nationality must be adopted, or at least approved, by the various other flag States to be taken into account." (38) The powers of the State are thus legally incontrovertible.

56. Admittedly, the point has been made that in practice States grant "de facto freedom to the [individual] operator" (39) by not laying down rules in respect of the conservation of stocks on the high seas. That observation, however, which probably explains the reasons for the Spanish Government' s standpoint, (40) does not in any way challenge the fundamental principle that the State is empowered, from the point of view of public international law, to impose any restrictions on catches on the high seas. That, to my mind, is the conclusion which the Court will have to draw.

57. Spain has also contended that a unilateral limitation by the Community of fishing activities on the high seas would be detrimental to its fishermen without being effective, since non-member countries continue to leave complete freedom to their fishing fleets. To my mind, that reasoning is based purely on considerations of expediency and is of no relevance in proceedings concerned with the question whether or not the Community has authority in this area.

58. However, it is impossible to ignore the practical consequences, which are particularly detrimental to the effectiveness per se of the Community fisheries policy, that the acceptance of Spain' s argument would entail. In that regard, the Commission and the United Kingdom, the intervener, have advanced arguments which, overall, are highly persuasive. Two points in particular are worthy of attention.

59. To begin with, fishery resources, that is fish stocks, may move naturally inside or outside the demarcation line of the Community fishing zone. There is little doubt that limiting fishing activities to situations where the stock is to be found inside Community waters would hardly be effective and would wholly undermine the objectives of conserving the stock in question, since it would be not be subject to quota once it moved outside the 200-mile zone.

60. Secondly, if the quota system were to apply only to catches made in territorial waters, the risk of fraud would be considerable. Catches inside the Community zone could thus be declared as having been made on the high seas, while the obvious difficulty of verifying the actual fishing ground would, at least with the technical methods currently in use, preclude the detection of false statements. Moreover, the Commission was not contradicted by the Spanish Government when it referred in that regard to the prospect that the entire system of limiting fishing activities, which forms the basis of the common policy of conservation and management of fishery resources, might collapse.

61. In other words, even without examining at this juncture the extent to which the restriction of fishing activities outside the Community zone would contribute to the conservation of fishery resources in international waters as such, it is worth noting that the measures adopted by the Community in that regard are in any event essential in view of the actual objectives of the common fisheries policy.

62. A final argument advanced by the Kingdom of Spain, which considers that the Act of Accession does not confer authority on the Community to regulate fishing activities outside Community waters, remains to be examined. According to the defendant, that follows from the wording of Article 156 of that Act, which states that: "For the purposes of their integration into the Community system for the conservation and management of fishery resources established by Regulation (EEC) No 170/83, access to the waters falling under the sovereignty or within the jurisdiction of the present Member States and covered by the International Council for the Exploration of the Sea (ICES) by vessels flying the flag of Spain and recorded and/or registered in a port situated in the territory to which the common fisheries policy applies shall be subject to the system defined in this section."

63. The Kingdom of Spain infers from that provision that the TAC shares allocated to Spain by Article 161 of the Act of Accession, a provision included in the same section as Article 156, can apply only inside the 200-mile limit where the ICES zones in respect of which a specific share has been reserved for Spain are to be found.

64. In other words, according to Spain, the percentage of the quotas allocated to Spain by Article 161 cannot apply outside Community waters, inasmuch as Article 156 provides that access to waters falling within the jurisdiction of the Member States and belonging to the ICES zones is governed by the provisions of the relevant section of the Act of Accession. A contrario, therefore, those provisions were incapable of applying to zones not falling within the jurisdiction of the Member States, even if they were included in the ICES zones.

65. That interpretation cannot be accepted, as shown by a detailed examination of the relevant section.

66. It is appropriate to distinguish between Articles 156 to 160 which govern access to waters falling within the jurisdiction of the Member States of the Community of Ten, and Article 161 which determines the TAC shares for species subject to TACs and quotas allocated to Spain, which cannot, in my view, be regarded as being confined to the zones of those States.

67. That analysis is based primarily on the wording of the provisions in question. As is already apparent from the title, Section II concerns "Access to waters and resources", and thus distinguishes the two situations. Article 156 refers only to access to the waters of the Member States of the Community of Ten for Spanish vessels, which is regulated by the system (which is transitional and derogates from the principle of equal access for the vessels of each Member State to the waters of all the Member States) laid down in Articles 157 to 160. Those provisions, including Article 156, do not refer to resources. Hence the scope of Article 156 (access to the waters of the Member States of the Community of Ten coming within ICES zones) does not extend to the allocation of resources unless Article 161, concerning the allocation of resources, is capable of being construed as similar in scope, which is not the case.

68. In that regard, the first point is that the provision in question refers to the ICES zones without further qualification, and contains no indication at all that it applies solely to the territorial waters of the Member States of the Community of Ten. Next, and above all, Article 161 cannot be regarded as subject to the same territorial scope as Article 156, since it expressly lays down quotas for Spain in zones VIIIC and IX, which are entirely outside the waters of the Member States of the Community of Ten. If the allocation of resources is indisputably organized for zones outside the waters of the Member States of the Community of Ten, that constitutes proof that the scope of the system governing access to waters - belonging to the Member States of the Community of Ten and to the ICES zones - cannot be regarded as applying to the allocation of quotas.

69. The Court will therefore have to reject the argument which the Kingdom of Spain deduces from the wording of the provisions of the Act of Accession.

70. Accordingly, by failing to apply control measures to catches made outside Community waters of stocks or groups of stocks subject to a TAC or quota, the Kingdom of Spain has infringed Articles 6 to 9 and 10(1) of Regulation No 2057/82 and Articles 5 to 9 and 11(1) of Regulation No 2241/87. Let me point out in that regard that while Articles 7 and 8 of Regulation No 2057/82 and Article 8 of Regulation No 2241/87 apparently impose obligations only on the skippers of fishing vessels, the attitude of a State which does not record certain catches covered by a quota may evidently induce the skippers of that State' s fishing vessels not to comply with their obligations in respect of those catches; in those circumstances, the Commission is, in my view, justified in finding that the Kingdom of Spain has infringed the provision in question.

71. Furthermore, by failing to take any penal or administrative action against persons responsible for fishing vessels who did not declare landings or transhipments of their catches, or who fished and landed or transhipped catches made in zones where Spain had no quotas, the Kingdom of Spain has failed to comply with Article 1(2) in both of the regulations at issue.

72. Finally, the attitude of the Spanish authorities may lead - and, as the Commission has alleged without being contradicted by the defendant actually has led - to Spain exceeding its fishing quotas, and to Spanish fishing vessels making catches in zones in respect of which Spain does not have a quota. Such conduct necessarily entails a breach of Article 10(2) of Regulation No 2057/82 and Article 11(2) of Regulation No 2241/87, which, as we have seen, require Member States provisionally to prohibit fishing with effect from the date on which their vessels are deemed to have exhausted the quota in question.

73. I therefore propose that the Court:

(1) declare that, by failing to apply the control measures laid down by Regulation (EEC) No 2057/82, in particular Articles 1, 6 to 9 and 10 thereof, and by Regulation (EEC) No 2241/87, in particular Articles 1, 5 to 9 and 11 thereof, to catches made outside the Community fishing zone of stocks or groups of stocks subject to a TAC or quota, the Kingdom of Spain has failed to fulfil its obligation under the Treaty;

(2) order the Kingdom of Spain to pay the costs.

( *) Original language: French.

( 1) Council Regulation of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (OJ 1982 L 220, p. 1).

( 2) Council Regulation of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1).

( 3) Article 9 in both regulations.

( 4) Article 10 of Regulation No 2057/82, Article 11 of Regulation No 2241/87.

( 5) Articles 3, 6, 7 and 8 of Regulation No 2057/82 and Articles 5, 6, 7 and 8 of Regulation No 2241/87.

( 6) Council Regulation of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1).

( 7) Council Regulation (EEC) No 3777/85 of 31 October 1985 amending Regulation (EEC) No 3721/85 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1986 and certain conditions under which they can be fished (OJ 1985 L 363, p. 1) and Council Regulation (EEC) No 4034/86 of 22 December 1986 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1987 and certain conditions under which they may be fished (OJ 1986 L 376, p. 39).

( 8) See, in particular, Annex I to Regulation No 3777/85 (OJ 1985 L 363, p. 3 et seq.), Annex I, columns 2 and 3, and Annex II to Regulation No 4034/86 (OJ 1986 L 376, p. 43 et seq.).

( 9) Emphasis added; see, for example, Regulation No 3777/85 (OJ 1985 L 363, p. 6, notes 1 and 2) and Regulation No 4034/86 (OJ 1986 L 376, p. 54, note 1).

( 10) Judgment in Case 32/65 [1966] ECR 389.

( 11) Joliet, R.: Le droit institutionnel des Communautés européennes. Le contentieux, Université de Liège, 1981, pp. 132-133.

( 12) Judgment in Case 116/82 [1986] ECR 2519.

( 13) Judgment in Case 156/77 [1978] ECR 1881.

( 14) Paragraph 21.

( 15) Judgment in Case 92/78 [1979] ECR 777.

( 16) Paragraph 39.

( 17) Joliet, R.: op. cit.

( 18) Joliet, R.: op. cit., p. 134.

( 19) Barav, A.: "The exception of illegality in Community Law; A Critical Analysis", CML Review, 1974, p. 366; Megret, J., Waelbroeck, M., Louis, J.-V., Vignes, D., Vandersanden, G.: Le droit de la CEE, Vol. 10, p. 359; Dubois, P.: "L' exception d' illégalité devant la Cour de Justice des Communautés européennes", CDE 1978, p. 411 et seq.: Louis, J.-V.: "De l' exception d' illégalité dans la jurisprudence de la Cour des Communautés européennes", Revista de derecho y jurisprudencia de Administración (Montevideo), 1965, pp. 119-120; contra, see, in particular, Joliet, R.: op. cit., and Bebr, G.: "Judicial Remedy of Private Parties against Normative Acts of the European Communities: The Role of the Exception of Illegality", CML Review, 1966-1967, pp. 7, 11-13.

( 20) Opinion of Mr Advocate General Roemer in Case 32/65 Italy v Commission and Council (cited above); Opinion of Advocate General Sir Gordon Slynn in Case 181/85 France v Commission [1987] ECR 689; Opinion of Mr Advocate General Mancini in Case 204/86 Greece v Commission [1988] ECR 5323; those Opinions were delivered in proceedings brought by Member States and not in proceedings for failure by a Member State to fulfil its obligations; in my view, however, the positions taken in those Opinions also apply to an objection of illegality raised against a regulation by a Member State defending an action for failure to fulfil its obligations.

( 21) See the judgment in Case 25/62 Plaumann v Commission [1963] ECR 95, and the Opinion of Mr Advocate General Mancini in Case 204/86, cited above.

( 22) See Barav, op. cit., p. 384.

( 23) A similar solution was arrived at in proceedings brought by the Commission on the basis of Article 93(2) (see the judgment in Joined Cases 6 and 11/69 Commission v France [1969] ECR 523 and in Case 156/77, supra) and Article 169 (judgment in Case 226/87 Commission v Greece [1988] ECR 3611); it should be borne in mind in that respect, however, that the Court (in Joined Cases 6 and 11/69) made a reservation in cases where the decisions were taken in an area falling within the jurisdiction of the Member States and thus lack any legal basis in the Community legal order; compare, in that respect, as regards directives, the judgments in Cases 91/79 and 92/79 Commission v Italy [1980] ECR 1099 and 1115, and the Opinion of Mr Advocate General Mayras; in those cases the Italian Government, against which proceedings were brought for failure to comply with certain directives, had stated that the matters governed by those measures lay "at the fringe" of Community powers, and thus amounted to a convention drawn up in the form of a directive, while pointing out that it was not raising an objection of illegality, and the Court examined the defendant State' s arguments.

( 24) See the Opinion of Mr Advocate General Roemer, cited above, in Case 32/65, which emphasizes that "the defects appertaining to a general regulation often do not clearly emerge until the regulation is applied to a particular case".

( 25) See Bebr, op. cit., p. 12.

( 26) Judgment in Joined Cases 3, 4 and 6/76 [1976] ECR 1279.

( 27) Paragraph 33.

( 28) Paragraph 30.

( 29) Paragraph 31, emphasis added.

( 30) Isaac, G.: Droit communautaire général, Masson 1990, 3rd Ed., p. 95, emphasized by the author.

( 31) Ibid., emphasis added.

( 32) Judgment in Case 61/77 [1978] ECR 417.

( 33) Paragraph 63.

( 34) Judgment in Joined Cases 185 to 204/78 [1979] ECR 2345.

( 35) Judgment in Joined Cases 6 and 7/88 [1989] ECR 3639; Opinion of Mr Advocate General Tesauro.

( 36) Paragraph 23, emphasis added.

( 37) Joined Cases 3, 4 and 6/76, supra.

( 38) Fleischer, C.: "La pêche" in Dupuy, R.-J. and Vignes, D.: Traité du Nouveau Droit de la Mer, Bruylant 1985, p. 942.

( 39) Ibid.

( 40) Ibid., p. 942. "In practice, this legal system of sharing powers has often given way to a de facto freedom for the individual operator. States are reluctant to adopt effective rules on the conservation of stocks or measures for their implementation if those rules and those measures apply only to their own vessels."