6.

A question which presents greater difficulty and which I must deal with at this juncture is whether State measures of the same kind as those referred to by the national court and which were adopted in implementation of the recommendation adopted in November 1974 by the Commission provided for under the North-East Atlantic Fisheries Convention as valid for the whole of 1975 are, in fact, compatible with Community law. The Netherlands regulations, the compatibility of which with Community law is the subject of doubt on the part of the courts making the reference, comprises three groups of measures. The main instrument is an order of the Ministry of Agriculture of 25 February 1975 which places restrictions of various kinds on the fishing of sole and plaice, namely, a comprehensive and absolute prohibition of fishing in certain areas, a prohibition on fishing in coastal waters by vessels exceeding certain limits of size and power and, finally, a limit on the amount of total catch by national fishermen within the jurisdiction in the North Sea and the Irish Sea. Pursuant to this Ministerial order, the appropriate Netherlands authority (Produktschap voor Vis en Visprodukten) made an order which prohibits the landing of sole and plaice fished in the areas subject to absolute prohibition of fishing or caught in the territorial waters by fishing vessels with a tonnage or power greater than that laid down in the Ministerial Order. It further provides for the adoption of implementing measures for the distribution of the quotas of fish allowed to Netherlands fishermen as a whole. These implementing provisions were then adopted by the President of the aforesaid authority and were subject to a large number of changes during 1975. At an early date, a limit was imposed on the number of trips by each fishing vessel in the North Sea, then a quantitative restriction was imposed on weekly landings of sole by each fishing vessel regardless of the number of trips. Subsequently, these rules were replaced by a system of quotas laid down for every vessel on the basis of its engine power and finally, with effect from 27 November 1975, there was an absolute prohibition of any landing of sole from the North Sea. On the other hand, as far as plaice was concerned, the only step taken for 1975 was to require fishermen to report the size of their catches and where they came from. Should regulations of this kind be regarded, at the present stage, as incompatible with the Community rules for fishing or, more generally, with directly applicable provisions of the EEC Treaty? From what I have said it is clear that the national legislation adopted with a view to ensuring observance of the quota allotted to the Netherlands comprises two different types of prohibition or restriction: the first type is directly applicable to fishing in order to maintain the total catch of Netherlands fishermen within the limits of the quota allotted to the Netherlands; the second type consists of restrictions of various kinds (on the number of trips, limitation of the quantity of fish which each trawler is allowed to land etc.) which are not directly concerned with fishing operations but rather with the use to which the result of these operations is put and have as their purpose the division of the aggregate national quota among individual Netherlands fishermen. While, therefore, the first type of restriction has a direct bearing on the stage preceding the marketing of the product, restrictions in the second category, or at least some of them, particularly the quantitative restrictions and the absolute prohibition on landing certain types of fish, appear to come more into play at the beginning of the marketing stage by restricting marketing in terms of quantity or even stopping it altogether so far as the product fished in the North Sea is concerned. Measures of the second type, however, are also adopted solely for the purpose of restricting fishing. On the other hand, it is clear that even when the prohibition applies directly at the earlier stage, namely to actual fishing activity, it is obviously liable to affect trade in the product by limiting from the beginning the quantities which can be offered on the market by the national fishermen as a whole, and this applies not only in the case of the national market but to that of any other country, since the quota allotted to any State is applied regardless of the place where the catch of the national fishing fleet is landed or at least offered for sale. The question arises whether such restrictions have to be regarded as measures having an effect equivalent to quantitative restrictions which, as such, would fall under the prohibition laid down by Article 31 of the Treaty, the direct applicability of which the Court has already recognized (judgment in Case 13/68, Salgoil [1968] ECR 453). As we have seen, all the restrictions with which we are concerned, even though of different types and applicable at different stages of industrial activity, were imposed exclusively for the purpose of restricting the amount of fishing. The restriction of trade as such has nothing whatever to do with the objectives porsued either by the international body for the implementation of the NEAFC or by the Member State with which we are concerned. The case-law of the Court has evolved a wide concept of restrictions having an effect equivalent to quantitative restrictions which applies to any trading rules ‘which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade’ (judgment in Case 8/74, Dassonville [1974] ECR 852) so that they also embrace measures directly applicable only at the stage of production. In the judgment in Case Van Haaster ([1974] ECR 1134), national legislation having the purpose of quantitatively restricting the cultivation of a floral product falling within a common organization of the market was held to be a measure having equivalent effect. Nevertheless, it cannot be concluded from the grounds of judgment that the conclusion reached in that case amounts to acceptance of a general rule applicable in every case to all products falling within a common organization of the market, since that judgment was based on the peculiar features of the particular market organization concerned. In that case, the Court did in fact place major emphasis on the existence of rules laying down common standards of quality, which in themselves had a restrictive effect on production. The Community regulations on fishing also provide for measures calculated to improve the quality of the products and to adapt the volume of supply to the requirements of the market (Article 5 of Regulation No 2142/70). But although regulations of this kind are calculated to prevent overproduction they certainly do not suffice to prevent impoverishment of natural resources. The salient feature of the present case is the fact that in contrast to the hyacinths which were the subject of the legislation under review in Van Haaster, the product cannot be reproduced in potentially unlimited quantities as man sees fit. Reproduction depends entirely on natural factors and environmental conditions which man can certainly worsen, as was demonstrated for us by the recent experience of the most highly industrialized countries, and for the conservation of which the States are, in fact, endeavouring to take common or at least co-ordinated action of which the restrictive measures in question form part. On the subject of reproduction of fish one of the hard facts at the present time is the threatened danger of depopulation of the seas due amongst other things to more sophisticated techniques and the improved effectiveness of fishing methods. In a situation of this kind, which involves serious risks not only as regards ecological balance but also as regards the economics of supply, can it be accepted that State measures designed to place reasonable restrictions on fishing, based on scientific data (that is to say, which impose restrictions which are necessary and proportionate to their aim), for the purpose of ensuring that there are sound prospects of fishing in the future and also therefore of trade in fish, escape the prohibition in Articles 30 et seq. of the EEC Treaty? Consideration of the immediate effect of these measures, which is a predictable reduction in trade in fish between the Member States, of necessity means that it falls within the Community prohibitions. On the other hand, on a wider view of the problem which pays regard to the foreseeable longer-term effects of the measures in question, which cannot be other than favourable for fishing operations and trade, could supply arguments justifying a different conclusion. To treat such measures as falling outside the terms of Articles 30 and 31 of the Treaty implies acceptance of a somewhat pragmatic and perhaps indeed flexible view of the concept of measures having equivalent effect, a concept which ought to be capable of adaptation in accordance with an assessment of the importance of any effects on trade, without limitation to the short term. The inclusion, in the concept of measures having equivalent effect, of a consideration of the objects pursued and of the effects, even long term, may complicate and obscure the concept and possibly also make the prohibition less effective. This makes me hesitate to recommend its acceptance. Moreover, I believe that the ecological objectives can be successfully pursued without running the risk of weakening the prohibition of measures having an effect equivalent to quantitative restrictions; indeed, they can perhaps be pursued more effectively by avoiding the introduction into the Community system of national escape clauses which could, in practice, also endanger the effective exercise of Community powers in the sector concerned. Although, therefore, in order to avoid this danger, I prefer to adopt a stricter concept, which would mean treating the class of measures under consideration as falling under the prohibition in Article 31 of the Treaty, consideration must at once be given to the question whether the effect of the exception embodied in Article 36 does not exempt from the prohibition State measures restricting fishing for the justifiable purpose of conserving stocks of fish. Article 36 authorizes exceptions from the prohibitions of quantitative restrictions and measures having equivalent effect for the protection, inter alia, of animal and plant life. In the absence of any Community initiative designed for this purpose of preserving the natural environment, the question arises whether this omission suffices to exclude from the prohibition the unilateral action of States acting on purely conservationist grounds in so far, of course, as the restrictions imposed are necessary and appropriate. Article 36 permits direct quantitative restrictions on trade between Member States. It must a fortiori permit indirect restrictions such as the restrictions, for a double purpose, on fishing, which are indirect first because they apply to ‘production’ and further because they do not apply directly to imports or exports. In fact, to the extent, also, to which the restrictions imposed on national fishermen are directly applicable to the quantities of fish permitted to be landed in the Netherlands, trade between States is not directly involved because, under Community law, fish is considered as a product originating in the country where the vessel is registered or recorded and whose flag it flies (see Article 4 (2) (f) of Regulation No 802/68/EEC of the Council). In view of the underlying purposes of the international regulations on fishing, of which the national provisions under consideration are merely implementing measures, there can be no possibility whatever that the restrictions in question constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Even though the objectives pursued have substantial economic repercussions, they are nevertheless innocent of any discriminatory or protectionist effect. Their main purpose is conservation of the environment. From this point of view, too, the conditions under which Article 36 may apply are satisfied. At the same time it may be that a factor concerning the essential spirit and purpose of this exempting clause is lacking: that is to say, the restrictive measures do not have the genuinely unilateral character, confined to a particular State, which results from the fact that the interest for which Article 36 provides protection is essentially national and internal to the State. As I have already pointed out, the measures in question achieve their purpose only if, as is the case here, they form part of joint action by all the States who operate in the wide area of sea with which we are concerned. This makes it clear that in the present case there is no question of the particular interests of one State conflicting with the interests of the other States but that, in fact, the measures in question further interests which are, by their nature, common to all those States and which are indeed also those of the Community, which must itself safeguard them in substitution for the individual Member States. The established need, for the purpose of protecting factory resources, of common actions constitutes further evidence of the Community's predominant right to act in this sector in accordance with the above-mentioned provisions of Regulation No 2141/70 and of the Act of Accession. Perhaps I may also refer to the comment I made in my opinion in the Dassonville case: that the provision for exemption in Article 36 entitles each Member State to restrict the freedom of movement of goods in terms of the production of rights and interests falling within its own sphere of interest. Can the same thing apply to restriction of fishing on the high seas, namely in an area situated outside the territorial waters which are subject neither to the sovereignty nor to the juridiction of the individual State? But is this precise definition of Article 36 and of its essential purpose, which is to protect an individual State from more general Community principles concerning free movement, sufficient to rule out reliance upon it in the present case? We have seen that there is a lacuna in Community legislation on fishing since there are still no rules for the protection of fishery resources. In exercising the power conferred on it in this field, the Community will probably have to impose restrictions of the kind which are the subject of the national measures with which we are concerned. Pending action on the part of the Community, the action of each State toward this end may be regarded as designed as a safeguard necessary for the protection of one of its assets and which has a counterpart in the interests of other States, too. Notwithstanding the cogent formal objections set out above, this consideration, which is one of substance, might perhaps make it possible to rely, even if only for a limited period, on the provision in Article 36, the essential purpose of which is to protect the basic assets of each individual State even although this does not involve conflict between the State's own interests and the common interests but the protection of its own interests pending their protection in the wider field of the Community.