JUSTICIARY , SCOTLAND , SUBMITTED A QUESTION FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF THE PROVISIONS OF COMMUNITY LAW RELATING TO THE CONSERVATION OF FISHERY RESOURCES .
2 THE QUESTION IS SUBMITTED IN THE CONTEXT OF PROCEEDINGS INSTITUTED AGAINST TWO GERMAN FISHERMEN BY THE UNITED KINGDOM AUTHORITIES FOLLOWING THE CONFISCATION ON 10 JULY 1981 OF THEIR HERRING CATCHES TAKEN , IN CONTRAVENTION OF THE RELEVANT UNITED KINGDOM LEGISLATION , IN THE AREA TO THE WEST OF SCOTLAND DESIGNATED DIVISION VI(A ) BY THE INTERNATIONAL COUNCIL FOR THE EXPLORATION OF THE SEA ( HEREINAFTER REFERRED TO AS ' ' ICES DIVISION VI(A ) ' ' ).
3 THE NATIONAL LEGISLATION UNDER WHICH THE TWO GERMAN FISHERMEN WERE CONVICTED WAS THE WEST COAST HERRING ( PROHIBITION OF FISHING ) ORDER 1981 ( S.I . 1981/585 ) ( HEREINAFTER REFERRED TO AS ' ' THE 1981 ORDER ' ' ) WHICH WAS BROUGHT INTO FORCE ON 1 MAY 1981 . THERE WAS ALSO IN FORCE AT THE MATERIAL TIME THE NORTH COAST ( PROHIBITION OF HERRING FISHING ) REGULATIONS ( NORTHERN IRELAND ) 1981 ( S.I . 1981/100 ) WHICH RELATED TO AN ADJOINING MARITIME ZONE . THESE TWO MEASURES ARE HEREINAFTER REFERRED TO AS ' ' THE 1981 MEASURES ' ' . ACCORDING TO THE ORDER MAKING THE REFERENCE FOR A PRELIMINARY RULING THE TWO MEASURES RE-ENACTED , WITHOUT SUBSTANTIVE AMENDMENT , THE PROVISIONS OF THE WEST COAST HERRING ( PROHIBITION OF FISHING ) ORDER OF 3 JULY 1978 ( S.I . 1978/930 ) SOLELY IN ORDER TO CORRECT A PROCEDURAL IRREGU- LARITY BY WHICH THE LATTER ORDER WAS PARTIALLY INVALIDATED SINCE IT COVERED A SMALL AREA OF SEA , NOT RELEVANT TO THE PRESENT CASE , WHICH FELL TO BE DEALT WITH UNDER A STATUTE APPLICABLE TO NORTHERN IRELAND .
4 AFTER THEY HAD BEEN CONVICTED OF A CONTRAVENTION OF THE 1981 ORDER BY THE SHERIFF OF GRAMPIAN HIGHLANDS AND ISLANDS AT STORNOWAY , THE FISHERMEN BROUGHT THEIR CONVICTIONS UNDER REVIEW BY THE HIGH COURT OF JUSTICIARY , SCOTLAND , CLAIMING THAT THE ORDER WAS NOT IN CONFORMITY WITH COMMUNITY LAW . THE NATIONAL COURT REQUESTS THE COURT OF JUSTICE TO GIVE A RULING ON THE FOLLOWING QUESTION :
' ' WHERE , AFTER 1 JANUARY 1979 , A MEMBER STATE NOTIFIES THE COMMISSION OF A RE-ENACTMENT , WITHOUT SUBSTANTIVE AMENDMENT , OF A NATIONAL CONSERVATION MEASURE WHICH WAS ITSELF MADE AND MAINTAINED IN CONFORMITY WITH COMMUNITY LAW , DOES THE MEASURE SO RE-ENACTED REMAIN MADE AND MAINTAINED IN CONFORMITY WITH COMMUNITY LAW IN THE ABSENCE OF EXPRESS COMMISSION APPROVAL?
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5 IT MUST BE BORNE IN MIND THAT BY VIRTUE OF ARTICLE 102 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES , THE POWER TO ADOPT MEASURES FOR THE PROTECTION OF THE BIOLOGICAL RESOURCES OF THE SEA HAS SINCE 1 JANUARY 1979 BEEN VESTED EXCLUSIVELY IN THE COUNCIL , ACTING ON A PROPOSAL FROM THE