2.

In the late 1970s fish prices underwent a marked downturn as a result of increased catches made in the North Atlantic and in the seas of the southern hemisphere coming on to the market in the Community. This came as a hard blow to the Community fishing industry, which had already been damaged by reduced if not total loss of access to Norwegian and Icelandic waters. Hence the various attempts that were made to alleviate the situation, including the events which are the subject of these proceedings. Fearful of the effects which an idle fishing fleet would have on fishermen's employment and, at the same time, anxious to continue to supply fish products to the processing industry, a number of British operators approached the Polish authorities with the proposal that joint cod-fishing operations be undertaken in the Baltic Sea. Agreement was reached, and so it was that in April 1980 five or six deep-sea trawlers set out from the northeast of England to cast their nets into the sea 40 to 80 miles off the Polish coast, hence in international waters (for which, however, Poland apparently claims exclusive fishing rights). The lines attached to the nets were taken over by Polish fishing vessels and the nets trawled. After some time the British trawlers drew alongside the Polish vessels and took the lines on board. The nets were hoisted on deck and the catch, consisting of 2500 tonnes of cod, was discharged into the trawlers' refrigerated holds. On completion of those operations the British trawlermen recompensed their Polish partners (apparently with a load of fish, such as mackerel and herring, not found in those waters) before turning for home. On the basis of the statements made by the masters of the trawlers, the customs authorities at the port of disembarcation considered the cod to have originated in a nonmember country and ordered that security of UKL 141000 be furnished against any duty that might be payable. The owners of the trawlers appealed against that measure to Her Majesty's Customs and Excise. That authority allowed the appeal and ordered the security to be repaid. The reason which it gave tor its decision was that, for the purposes of Article 4 (2) (f) of Regulation No 802/68, the product of the joint fishing operation must be regarded as being of United Kingdom origin and hence exempt from customs duties. At this point, alerted by a written question from three Members of the European Parliament, the Commission made inquiries of the United Kingdom Government. The reply came in a note dated 6 January 1982 in which it was stated that the United Kingdom customs authority considered the fish to be of Community origin since vessels registered in the United Kingdom and flying the British flag had taken it from the sea. But that did not convince the Commission, which took the view that the words ‘taken from the sea’ (‘extraits de la mer’) denoted rather the catching of fish. In its contention fish could not be of Community origin if the nets were trawled by vessels from nonmember countries. In addition, it maintained, since there were no agreements between Poland and the Community governing fishing in the Baltic, citizens of Member States of the Community were not entitled to fish in the area in which the cod was ‘taken from the sea’: consequently, in order to enter into possession of the fish the British trawlermen must have purchased it. Being therefore convinced that the fish in question was of Polish origin the Commission, by letter of 13 August 1982, initiated the procedure laid down in Article 169 of the EEC Treaty. In reply, however, the United Kingdom Government merely enlarged on the line indicated by it a few months earlier; it stated that according to Regulation No 802/68 fish had the origin of the country whose vessel ‘takes them from the sea’ and that it was only when the net was brought aboard the vessel that the fish inside the net were ‘taken from the sea’. That was the point that mattered and arguments such as the absence of agreements between the Community and Poland had no bearing on it. Nevertheless, the United Kingdom was prepared to accept amendments to the legislation governing the origin of goods provided that they were not retroactive. The Commission, however, maintained its position and proceeded to deliver a reasoned opinion on 10 October 1983 in which it argued as follows: (a) ‘extraire’ signifies, inter alia, the act of separating a substance from the whole of which it is a part and ‘extraits de la mer’ signifies the act of catching fish in the net and so separating them from the element in which they lived before being caught; (b) the absence of agreements between the Community and Poland and the latter's claim to exclusive fishing rights in the waters in which the fishing took place are not matters of no import: on the contrary, they imply that the British fishermen were only acting as transporters of Polish fish; (c) there is no need for the legislative amendment to which the United Kingdom refers, since Regulation (EEC) No 802/68 already covers joint fishing operations. Consequently, the United Kingdom Government was requested to take, within one month from the date of service of the opinion, the measures necessary to comply with it, including in particular the recovery of the import duties payable. On 15 November 1983, the United Kingdom requested an extension of one month in order that full consideration might be given to the matter. But once it had been established that the United Kingdom did not intend to comply with the opinion, the Commission brought an action before the Court by an application dated 5 April 1984.