NATIONAL COURTS MUST PROTECT?
' '
FIRST QUESTION
6 THE FIRST QUESTION INQUIRES WHETHER THE MEMBER STATES STILL RETAINED POWER AFTER 31 DECEMBER 1978 TO ADOPT CONSERVATION MEASURES OF THE KIND CONTAINED IN THE UNITED KINGDOM ORDER IN QUESTION .
7 AS THE COURT HAS ALREADY HELD IN ITS ABOVE-MENTIONED JUDGMENT OF 5 MAY 1981 , THE POWER TO ADOPT , AS PART OF THE COMMON FISHERIES POLICY , MEASURES RELATING TO THE CONSERVATION OF THE RESOURCES OF THE SEA HAS BELONGED FULLY AND DEFINITIVELY TO THE COMMUNITIES SINCE THE EXPIRATION ON 1 JANUARY 1979 OF THE TRANSITIONAL PERIOD LAID DOWN BY ARTICLE 102 OF THE ACT OF ACCESSION SO THAT AFTER THAT DATE THE MEMBER STATES ARE NO LONGER ENTITLED TO EXERCISE ANY POWER OF THEIR OWN IN THIS MATTER AND MAY HENCEFORTH ONLY ACT AS TRUSTEES OF THE COMMON INTEREST , IN THE ABSENCE OF APPROPRIATE ACTION ON THE PART OF THE COUNCIL .
8 THE COURT CONSEQUENTLY HELD IN THAT JUDGMENT THAT , IN A SITUATION CHARACTERIZED BY THE INACTION OF THE COUNCIL AND BY THE MAINTENANCE , IN PRINCIPLE , OF THE CONSERVATION MEASURES IN FORCE THE MEMBER STATES NOT ONLY HAVE AN OBLIGATION TO UNDERTAKE DETAILED CONSULTATIONS WITH THE COMMISSION AND TO SEEK ITS APPROVAL IN GOOD FAITH BUT ALSO A DUTY NOT TO LAY DOWN NATIONAL CONSERVATION MEASURES IN SPITE OF OBJECTIONS , RESERVATIONS OR CONDITIONS WHICH MAY BE FORMULATED BY THE COMMISSION .
9 THE UNITED KINGDOM CLAIMED THAT THE COMMISSION HAD IN ESSENCE OPPOSED THE DATE OF THE ENTRY INTO FORCE OF THE ORDER REFERRED TO BY THE NATIONAL COURT , THAT IS 1 JULY 1979 , WITHOUT PUTTING FORWARD OBJECTIONS AS TO ITS CONTENT . SINCE THE COMMISSION HAD SUBMITTED TO THE COUNCIL AT THE SAME TIME , THAT IS IN JUNE 1979 , PROPOSALS WHICH IN SUBSTANCE WERE IDENTICAL AND WHICH WERE TO ENTER INTO FORCE ON 1 SEPTEMBER 1979 , IT BY IMPLICATION APPROVED THE ORDER WITH EFFECT FROM THAT DATE .
10 IN THIS CONNECTION IT IS NOT CONTESTED BY THE COMMISSION THAT THE UNITED KINGDOM ORDER OF 1979 CORRESPONDED , IN PRINCIPLE AT LEAST , TO THE MEASURES PROPOSED AT THE SAME TIME BY THE COMMISSION TO THE COUNCIL FOR THE WHOLE OF THE RELEVANT AREAS OF SEA . THE CRITICISMS ADVANCED BY THE COMMISSION WERE BASED ON THE CONSIDERATION THAT MEASURES OF THAT NATURE COULD NOT BE INTRODUCED WITHOUT AFFORDING FISHERMEN A REASONABLE TIME WITHIN WHICH TO ADAPT THEMSELVES TO THEM . MOREOVER , ACCORDING TO THE COMMISSION , SUCH MEASURES MIGHT PROPERLY BE TAKEN ONLY FOR THE COMMUNITY AS A WHOLE . BY UNILATERALLY ADOPTING THE MEASURES IN QUESTION THE UNITED KINGDOM HAS ENCROACHED ON POWERS WHICH , FROM 1 JANUARY 1979 , BELONGED ENTIRELY TO THE COMMUNITY .
11 IT IS TO BE REMARKED IN THIS CONNECTION THAT A PROPOSAL SUBMITTED BY THE COMMISSION TO THE COUNCIL WITH A VIEW TO TAKING CONCERTED COMMUNITY ACTION CANNOT BE CONSIDERED AS CONSTITUTING IN ITSELF APPROVAL OF