5.

I come now to the College's question. As has been seen, it seeks to determine whether rules such as those applying in the Netherlands, which on the one hand confine the national quota to fishermen equipped to treat ‘maatjes’ and on the other prohibits on pain of revocation of the licence the landing of other kinds of herrings, is compatible with the abovementioned Community provisions. Of those provisions, Article 5 (2) of Regulation No 170/83 is undoubtedly of prime importance. Is it therefore possible to say that the Netherlands measures constitute ‘detailed rules for the utilization of the quotas’? And if so, can they be regarded as being in accordance with the ‘applicable Community provisions’? The Netherlands Government, like the French Government which intervened in the oral procedure, clearly considers that the answer to both questions is ‘Yes’. According to the Netherlands Government, in particular, it is necessary to bear in mind that fishing for herring had been prohibited for six years and when the prohibition was lifted it was necessary to restore the ancient custom, to which the fourth recital to Regulation No 1353/80 refers, of fishing for and consumption of ‘maatjes’. The contested rules which have that aim are thus ‘rules for the utilization’ of the quotas. Further the conditions which they impose for access to the quota cannot, in the Netherlands Government's view, be regarded as contrary to Community law. Indeed, Council Regulation (EEC) No 171/83 of 25 January 1983 (Official Journal 1983, L 24, p. 14) enables Member States to adopt even stricter measures than the Community ones to ensure optimal use of the quota. Furthermore, it is submitted, in 1983 the Netherlands imposed no conditions on fishing for herring in certain maritime zones; it cannot therefore be said that the measures in question were unnecessarily restrictive or discriminatory. Let me say straightaway that in my opinion the first half of that argument is correct. As the Commission says, there is no doubt that the Netherlands was entitled to reserve the quota for fishermen fishing for ‘maatjes’. After all it is the Community rules in relation to the conservation of fishery resources which provide for restrictions on catches and give the Member States power to specify their terms. Furthermore, according to Netherlands custom, ‘maatjes’ are fished, landed and consumed on the spot during June and July; Community law recognizes that custom and thus the lawfulness of the rules intended to revive it. The prohibition on landing and marketing other kinds of herring is another matter. It is true that that measure could also be regarded as being in accordance with the rules on conservation and in particular with that which provides for the establishment of zones where ‘fishing is prohibited orrestricted to certain periods, types of vessel... or certain end-uses’ (Article 2 (2) (a) of Regulation No 170/83). Nevertheless measures of that kind have to be notified to the Commission according to the procedure referred to in Articles 19 and 20 of Regulation No 171/83 and in the case of the provision at issue no such notification appears to have been given. How is it therefore to be regarded? I agree with the Commission and de Boer that since its basic aim is to regulate the sale of herring, the provision affects the organization of the markets in fishery products. Let us therefore look at it in relation to the relevant rules. I have already referred to the substance of those rules. It is pertinent here to bear in mind the importance of the provisions concerned with adjusting supply to the requirements of the market (applying ‘common marketing standards’) and in particular those governing associations created on the initiative of producers for the purpose of rationalizing fishing and improving selling conditions. The associations, as has been seen, have considerable powers. Article 13 (1) (d) of Regulation No 3796/81 even authorizes them to ban the sale of certain categories of products and Article 7 allows the Member States to extend the ban to persons who are not members of the association. The contested measure excludes from the market herring other than ‘maatjes’. Is it to be regarded as lawful on the basis of the last two provisions I have cited? The answer, as I have already indicated, cannot be in the affirmative. The measure would have been lawful if it had been adopted by an association representative of producers as for example the Coöperatieve Producentenorganisatie van de Visserij (Official Journal 1979, C 109). But the Produktschap is not an association; in fact it is an organization set up by State initiative as is shown by its recognized public-law status (see the Netherlands Government's answer to the question put to it by the Court on that issue).