3.

I can now turn to examination of the third question. It appears from the arguments put forward by the accused in the main action that this question depends on the interpretation of Article 7 of the EEC Treaty and Article 2 of Regulation No 101/76. It is to enable the national court to assess the compatibility of the content of the Netherlands measures in question with the principle of equal treatment laid down in the above-mentioned provisions. Article 7 of the EEC Treaty prohibits in principle any discrimination on the ground of nationality, whilst Article 2 of Regulation No 101/76 provides that rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States and that equal conditions of access to and use of the fishing grounds situated in the territorial waters of the Member States must be granted to the fishing vessels of Member States. The accused in the main action contend that independently of whether or not there was a duty in Community law to take the measures in question it is certain that the other Member States took no corresponding conservation measures at the time in question, which in itself places the Netherlands fishermen at a disadvantage. In addition to that, however, the disputed Netherlands decrees themselves conflict with the prohibition against discrimination. For if the prohibition applies to all fishermen, only Netherlands fishermen are exempt up to the limit of the quotas allocated, and they are thus placed in a better position than fishermen from the other Member States. If the prohibition applies only to Netherlands fishermen, however, it means that fishermen from the other Member States are free to fish as they please, whilst Netherlands fishermen are restricted to the quotas and therefore at a disadvantage. In effect, though, the Netherlands rules refer only to Netherlands fishermen, since the Netherlands authorities have no jurisdiction over fishing vessels from other Member States outside the fishing zone of 200 miles, and even within the 200-mile zone the rules are only applied to Netherlands fishermen. The Governments taking pan in the proceedings and the Commission refute this argument as in their opinion the rules in question constitute discrimination, if any, ‘in reverse’, which is not prohibited by Article 7 of the EEC Treaty. I, too, do not see in the measures in question any infringement of Community law's requirement of equal treatment. I have already mentioned that the Member States were bound by the Council decision taken at the meeting on 5, 6 and 7 December 1977 to extend until 1 February 1978 the protective measures adopted for the year 1977 under Recommendation No 15 A of the Fisheries Commission of 25 November 1976. In doing so the Council was acting on the assumption that the conservation of the biological resources of the sea can only be effectively and properly ensured by a system of control which so far as possible is binding on all the States concerned. The conservation measures taken on the basis of Recommendation No 15 A divided the yearly global quotas for catches of sole and plaice in the North Sea into individual quotas for the countries with coast-lines on the North Sea. The geographical sphere of application of the recommendation covers maritime waters subject to the jurisdiction of Member States and also of Norway. Within this zone it is immaterial where the relevant quotas are caught; all that matters is that the level should not be exceeded, and this is to be guaranteed by the States parties to the agreement. In this connexion I need not emphasize that rules fixing quotas cannot in themselves infringe the prohibition of discrimination if, as has been shown, they are expressly allowed for in Community law. After the Netherlands had followed the recommendation of the Fisheries Commission by issuing the Beschikking Vangstbeperking Tong en Schol 1977 (Decree laying down restrictions on catches of sole and plaice, Staatscourant 1976, No 251) and to implement it had published the Beschikking Contingentering Tong en Schol Noordzee 1977 [Decree laying down quotas for North Sea sole and plaice, Staatscourant 1976, No 251], they extended the period of validity of these measures, in accordance with the Council decision of December 1977, as the representative of the Netherlands Government has told us, by means of the decrees of 29 December 1978 and at the same time, in view of the provisional nature of their validity, replaced the yearly quotas by monthly catch quotas, which were roughly equal to one twelfth of the yearly quota. From the disputed measures themselves it is not hard to see that, even if they do not expressly say so, they only apply to Netherlands fishermen. For the prohibition in Article 2 of the Decree provisionally laying down restrictions on catches of sole and plaice, 1978 applies not only to the North sea, but also to the English Channel, the Bristol Channel and the Irish Sea, that is to say, to waters which are either not at all, or are only to a small extent, under Netherlands jurisdiction. Owing to territorial sovereignty, a prohibition against all fishing vessels could only be made for maritime waters within Netherlands jurisdiction, whereas the sovereignty exercisable over a State's own nationals made it posible to prohibit fishing by them even in waters outside the 200-mile fishing zone. But in any case there was no occasion to extend the application of the disputed regulations to non-Netherlands fishing vessels. It is obvious that the Netherlands authorities have no power to make rules governing foreign fishing vessels in maritime waters outside Netherlands jurisdiction. As regards the waters within their jurisdiction there is already, however, a general prohibition against fishing by foreign fishing vessels by virtue of Article 5 (1) of the Netherlands Fisheries Law of 1963 (Staatsblad No 312). According to paragraph (2) of that article this prohibition does not apply, however, if anything to the contrary is adopted by international agreement or by decisions of. organizations recognized by international law. The Council decision taken in December 1977 to the effect that national conservation measures based on the quota restrictions of the North-East Atlantic Fisheries Convention should be extended constitutes such a legal act. Consequently fishing vessels belonging to other Member States are not subject to the prohibition in paragraph (1), or at least only in so far as the quota allocated to the Member State concerned is not exceeded, whilst Netherlands fishermen, so long as they comply with the quota restrictions, are exempt under Article 3 of the Decree provisionally laying down restrictions on catches of sole and plaice, 1978. This being the law, it is clear that by virtue of the disputed Netherlands measures for conservation of sole and plaice stocks Netherlands fishing vessels, which without this control would be favoured, are treated equally with vessels flying the flag of another Member State. That is, of course, assuming that the other Member States have also extended their national quota restrictions in compliance with the Council decision in question. Should it be that the other Member States have failed to comply fully with the Council decision of December 1977, the result could well be that Netherlands fishermen are at a disadvantage. But the fact that other Member States act against the interests of the Community must not expose the Netherlands, which acted in accordance with the Treaty, to a charge of infringing the prohibition of discrimination in Article 7 of the Treaty or Article 2 of Regulation No 101/76. To close my examination, permit me to make a brief comment on the complaint about discrimination in prosecution practice. As you know, each party to the North-East Atlantic Fisheries Convention has to guarantee by legislation that the catch quotas allocated will not be exceeded. So it is possible in principle for the prosecuting authorities in the Netherlands to take proceedings against both Netherlands fishermen and fishermen of other nationalities if catch quotas are exceeded. But it would be difficult to prosecute foreign nationals in that case owing to the difficulty of ascertaining whether the national quotas had been exceeded. The difference in treatment results therefore from a difference in actual circumstances and as such does not infringe the prohibition of discrimination in Community law.