2.

The further question now arises whether the Member States, in the period after 31 December 1978, were entirely precluded from taking protective measures after the Council's failure, for lack of unanimity, to comply with the obligation imposed upon it by Article 102 of the Act of Accession. The Council, on the correct supposition that the effect of Annex VI to the Hague Resolution was limited to the transitional period, did not adopt a decision until 19 December 1978, with effect from 1 January 1979, which was extended on a number of occasions and provided in Article 2 that “as regards technical measures for the conservation and surveillance of fishery resources, Member States shall apply the same measures as they applied on 3 November 1976, and other measures taken in accordance with the procedures and criteria of Annex VI to the Council Resolution of 3 November 1976”. Whether or not the United Kingdom was within its rights in enacting the contested measures after the expiry of the transitional period laid down in Article 102 of the Act of Accession depends upon the interpretation of these provisions. The British Government, which wishes to interpret Article 102 of the Act of Accession as constituting only an obligation on the Council to take action as regards the conservation of the biological resources of the seas, considers that even after the expiry of the period mentioned in that provision the Member States continue to retain their powers regarding conservation measures in this sphere. It accordingly takes the view that the transitional decisions of the Council merely constitute a reference to Annex VI to the Hague Resolution and the resolution of the Council of 31 January 1978. On that view, so long as the Council did not act the Member States continued, even after the expiry of the period mentioned in Article 102 of the Act of Accession, to have power to enact unilateral measures for the conservation of fishery resources and in the enactment of such measures were merely required to have regard to the criteria laid down in these resolutions. From the point of view of procedural law it was accordingly only necessary for the Member States to endeavour to obtain the approval of the Commission, which must still be consulted. However, the spirit and objective themselves of Article 102 of the Act of Accession, which were, as has been stated, to concede to the Member States power to enact measures regarding fisheries only for a precisely-limited transitional period, run contrary to that view. As the Commission and the French Government rightly observe, after the expiry of this transitional period the Member States have at any rate lost their power to enact such measures regardless of whether or not the Community has exercised its power after the expiry of the transitional period. On the basis of these considerations, the French Government, having refused to consider the transitional decisions as a retransfer of powers from the Community to the Member States, accordingly comes to the conclusion that the sole objective which these decisions could have had was to prescribe the conservation measures enacted before the expiry of the transitional period in order to avoid a legal vacuum. This is clear from the fact that it is expressly stated to be the duty of the Member States after 1 January 1979 to apply only such measures as were in force on 3 November 1976, the date of Annex VI to the Hague Resolution, or which were taken in accordance with that annex. The latter measures can thus only be those which were enacted before 31 December 1978 since on the one hand the provision expressly refers to “measures taken”, that is measures already existing in the past, and on the other Annex VI ceased to be in any way applicable after the expiry of the transitional period. In appraising that argument it is my view that the French Government's opinion should be espoused, inasmuch as it is impossible to discover in the decisions in question any complete retransfer of Community powers to the Member States in the sense that the latter thereby regained an independent power in the field of fisheries policy. It should instead be noted in principle that, as the Court of Justice held in Case 7/71, Commission v French Republic, judgment of 14 December 1971, [1971] ECR 1003, sovereign rights flowing from the limitation of the powers of the Member States or from their transfer to the Community may only be withdrawn by virtue of an express provision of the Treaty and restored to the exclusive power of the Member States. In addition, as the Court of Justice held in Joined Cases 80 and 81/77 (Société Les Commissionnaires Réunis v Receveur des Douanes and Sàrl Les Fils de Henri Ramel v Receveur des Douanes, judgment of 20 April 1978, [1978] ECR 927), any exception from a fundamental principle of the common market must be clearly provided for. As the French Government rightly remarks, it would be difficult for the transitional decisions in question to comply with that condition. If, however, one wishes to regard the decisions in question as constituting only a partial restoration of powers and consider this to be permissible in principle it is necessary, as the Court has decided on a number of occasions (cf. in this connexion Joined Cases 80 and 81/77, Ramel, [1978] ECR 927; Case 52/76 Luigi Benedetti v Munari, judgment of 3 February 1977, [1977] ECR 163; Case 60/75 Carmine Antonio Russo v Azienda di Stato gli Interventi sul Mercato Agricolo, judgment of 22 January 1976, [1976] ECR 45; Case 65/75 Riccardo Tasca, judgment of 26 February 1976 [1976] ECR 291) at least to ensure that the basic rules of the Treaty are not infringed. One of these rules, however, is that in the agricultural sector, and in particular the fisheries sector, the Commission must be brought into the Community legislative procedure after the end of the transitional period laid down in Article 102 of the Act of Accession. It follows that the Council, if it is to be recognized as possessing a power of partial delegation, may not deprive the Commission of its right to participate in the legislative procedure. But that participation, which promotes the Community interest, would only be ensured if the redelegation proceeded on the basis of a proposal of the Commission which, as the Court is aware, was not the case or if the Commission had been brought into the legislative process of the Member States. Since the Commission possesses no power, in relation to the Member States, to initiate legislation, it can participate effectively only by means of the requirement of its approval. The interim decisions, in so far as they are to be regarded as a partial transfer of powers, would not infringe Community law only if they were construed as meaning that the powers of the Member States to act were made dependent on the approval of the Commission. If the grounds set out above should provide a further reason for not regarding the interim decisions in question as effecting a transfer of powers, it follows, as the Commission rightly points out, although the French Government takes a different view, that after the expiry of the transitional period the Member States no longer had any power at all to issue new conservation measures concerning sea fisheries. Although it is true that, whilst the solution proposed by the French Government, a simple continuation after the end of the transitional period of the measures enacted during that period, does not produce a legal vacuum, which is to be avoided, that contention, however, suffers in general from the disadvantage that it prolongs a static state of affairs, and, so long as the Council does not act, does not permit the measures taken to be adapted to actual requirements. In addition it appears possible on other grounds to avoid the conclusion that the decisions in question were merely intended to prolong the measures taken during the transitional period. Thus a semantic interpretation of the words “measures taken” does not unequivocally indicate that what is meant must be measures enacted in the past. Furthermore, the argument that Annex VI to the Hague Resolution lost all effect at the latest by 31 December 1978 and that accordingly the interim decisions could only relate to measures taken during that time, is not convincing, since reference is made to measures taken “in accordance with the procedures and criteri a of Annex VI”. However, the case-law of the Court of Justice runs contrary to the view that after the expiry of the transitional period, if the Community fails to act, the Member States are likewise precluded from adopting measures regarding the conservation of the biological resources of the sea and that accordingly the interim decisions were merely intended to prolong the measures taken before 31 December 1978. Thus as early as the Van Dam cases (Joined Cases 185 to 204/78) it was held, with regard to the national protective measures enacted ruring the transitional period, that in order to avoid a legal vacuum “during the year 1978 the Member States had the right and the duty to adopt, within their respective spheres of jurisdiction, any measures compatible with Community law to protect the biological resources of the sea... ”. It is stated clearly in Case 32/79, Commission v United Kingdom, which in this respect is similar to the present case, that such a legal vacuum should be avoided if the Community, which is competent by itself, is prevented from adopting further protective measures. The Council had already in 1977 exercised its powers with regard to the sea zones in question and was merely unable to reach a decision to extend those measures to the remainder of the transitional period. However, as the Court of Justice emphasized in its judgment, this did not result in depriving the Community of its powers in this respect and thus restoring to the Member States freedom to act at will in the field in question. The Court of Justice, proceeding on the basis that the Community in principle has jurisdiction which only the above-mentioned reasons prevented from being exercised, decided that “in such a situation it [was] for the Member States, as regards the maritime zones coming within their jurisdiction, to take the necessary conservation measures in the common interest and in accordance with the substantive and procedural rules arising from Community law”. As is further made plain in the said judgment, it emerges from the totality of the measures in force up to 31 December 1978, from the objectives of those measures, and from the general duties laid down in Article 5 of the Treaty that there exists such a duty to take, in the interests of the Community, measures which meet established conservation needs if such measures cannot be introduced in good time on a Community basis. In this connexion express mention was in fact made of Annex VI to the Hague Resolution which, as the Court of Justice emphasized in Case 141/78, French Republic v United Kingdom,“in the specific field to which it applies, makes specific the duties of cooperation which the Member States assumed under Article 5 of the EEC Treaty when they acceded to the Community”. The significance of these duties, arising under Article 5 of the Treaty, of cooperating in the interests of the Community were emphasized in the same judgment when the Court of Justice stated that “performance of these duties is particularly necessary in a situation in which it has appeared impossible, by reason of divergences of interest which it has not yet been possible to resolve, to establish a common policy and in a field such as that of the conservation of the biological resources of the sea in which worthwhile results can only be attained thanks to the cooperation of all the Member States”. It is unnecessary to provide further grounds for the existence of such a duty on the Member States under Article 5 of the Treaty when the Council remains unable to take the appropriate conservation measures and, as I explained in some detail in my opinion of 21 May 1980 in Case 32/79, Commission v United Kingdom, with further references to case-law, that duty must apply to the period after 31 December 1978. Although during the transitional period, when both the Community and Member States had concurrent powers to enact conservation measures, it was sufficient that the Member States in question should endeavour to obtain the Commission's approval before enacting the measure — this follows from Annex VI to the Hague Resolution — the legal situation after the end of the transitional period differs in that, as we have seen, the Community has now exclusive power to enact such measures. In my opinion it is, however, a necessary consequence of that power that the Community interest can only be upheld if the measures enacted by the Member States as representatives of the Community are adopted, which was not so in the previous legal situation, with the approval of the Community. Furthermore, this is probably the explanation for the fact that in the interim decisions, which, like Annex VI to the Hague Resolution, merely give specific expression to the duty of cooperation which the Member States accepted in accordance with Article 5 of the EEC Treaty on becoming members of the Community, reference is merely made to measures adopted in accordance with the procedures and criteria of Annex VI to the Council resolution.