CELEX: 61982CC0013
Language: en
Date: 1982-10-06
Title: Joined opinion of Mr Advocate General Capotorti delivered on 6 October 1982. # José Arantzamendi-Osa and others v Procureur de la République and Procureur général. # References for a preliminary ruling: Cour d'appel de Rennes - France. # Fisheries: Rights of non-member countries. # Joined cases 13 to 28/82. # Administrateur des Affaires Maritimes, Bayonne and Procureur de la République v José Dorca Marina and others. # References for a preliminary ruling: Tribunal de grande instance de Bayonne - France. # Fisheries: Rights of non-member countries. # Joined cases 50 to 58/82.

OPINION OF MR ADVOCATE GENERAL CAPOTORTI
      DELIVERED ON 6 OCTOBER 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      Once again the French courts have brought before the Court of Justice the problem whether, having regard to prior international obligations, Community regulations which, in laying down temporary measures for the conservation and management of fishery resources applicable to Spanish vessels, prescribed specific conditions for fishing by such vessels in the French economic zone, are valid, and, if so, whether they are enforceable against Spanish nationals.
      In this matter the decisions which must be taken into account are the judgments of 8 December 1981 which were delivered in Case 181/80 (Arbelaiz-Emazabel) and in Joined Cases 180 and 266/80 (Crujeiras Tome and Yurrita) ([1981] ECR 2961 and 2997). Subsequently two groups of joined cases, 137 and 140/81 (Campandeguy Sagarzazu and Echevarría Sagasti), and 138 and 139/81 (Marticorena-Otazo and Prego Parada), were brought before the Court. My Opinion in both groups of cases was delivered at the sitting on 27 May 1982 but the Court has not yet given judgment.
      I have to observe that the questions with which I shall deal are the same as those which formed the subject-matter of Joined Cases 180 and 266/80. The circumstances, too, are analogous. The sole new element in the present cases consists in certain new arguments put forward on behalf of the defendants in the main proceedings in support of the view that the abovementioned regulations are invalid.
      
               2. 
            
            
               The facts may be summarized as follows :
               
                        A —
                     
                     
                        The Tribunal de Grande Instance [Regional Court], Lorient, and the Tribunal de Grande Instance, Quimper, by judgments delivered in the period 1980 to 1981, imposed fines of varying amounts on Mr Arantzamendi-Osa and other Spanish fishermen for fishing in the waters between 12 and 200 miles from the French Atlantic coast without holding the Community licence required for vessels of Spanish nationality. The defendant appealed to the Cour d'Appel [Court of Appeal], Rennes, claiming that the Community provisions compliance with which the French criminal legislation was intended to ensure were invalid because they were contrary to prior international obligations. The Cour d'Appel, Rennes, decided, by a series of judgments dated 3 December 1981, to stay the proceedings and to refer to this Court the question the content of which I have mentioned.
                     
                  
                        B —
                     
                     
                        In the second half of 1981 Mr Dorca Marina and other Spanish fishermen were charged before the Tribunal de Grande Instance, Bayonne, with having fished in the sea-area lying between 12 and 200 miles from the French Atlantic coast without holding the Community licence. That court, in a series of judgments delivered on 17 September and 5 November 1981, decided to stay the proceedings and to refer to this Court a preliminary question identical to that formulated by the Cour d'Appel, Rennes.
                     
                  
         
               3. 
            
            
               The Council regulations whose validity is challenged all provide that in order for vessels flying the flag of Spain to be able to fish in the waters of the Member States within a zone of 200 sea-miles from the coast they must hold a licence issued by the Commission of the European Communities and not exceed the authorized catches. The period of validity of each of the regulations in question is limited and accordingly the regulation applicable varies from case to case depending on the time when the acts with which the defendants are charged were committed. Nevertheless from the point of view of their content the regulations in question do not display significant differences for the purposes of the present cases which have been referred for a preliminary ruling. Moreover, it must not be forgotten that the question submitted by the French courts concerns the temporary Community measures for the conservation and management of fishery resources as a whole. Certain distinctive factors do, however, occur in the most recent of the relevant regulations (Regulation No 1569 of 1 June 1981); I shall have something to say later on that point.
               With regard, then, to the “prior international obligations”, with which the abovementioned regulations are said to be in conflict, in the grounds of the judgments making the references to this Court the Tribunal de Grande Instance, Bayonne, mentions the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas of 29 April 1958, the London Fisheries Convention of 9 March 1964 and the Agreement on Fisheries between France and Spain of 20 March 1967, that is to say exactly the same sources which were relied upon in the previous cases and which the Court has already had occasion to examine in the abovementioned judgments of 8 December 1981.
               I should like to recall that in those judgments the Court held that it was not “necessary to examine whether the provisions of the London Convention, the letter of which limits its territorial scope to the zone extending 12 miles from the baselines, may possibly apply to the zone extending 12 to 200 miles, or to ascertain whether the interim conservation measures adopted by the Community fulfilled the requirements, such as prior consultation, laid down by the Geneva Convention”. That view was based on the consideration that “the interim regime established by the Community under its own rules falls within the framework of the relations established between the Community and Spain in order to resolve the problems inherent in conservation measures and the extension of fishery limits and in order to ensure reciprocal access by fishermen to the waters subject to such measures. Those relations were substituted for the regime which previously applied in those zones in order to take account of the general development of international law in relation to fishing on the high seas and the increasingly urgent need to conserve the living resources of the sea”. The Court inferred from this that the interim regime established by the Community formed “part of the progressive creation of new reciprocal relations between the Community and Spain in the field of sea-fishing which were substituted for the regime previously applicable to fishing on the high seas” with the consequence that “Spanish fishermen may not rely on prior international agreements between France and Spain in order to prevent the application of the interim regulations adopted by the Community in the event of any incompatibility between the two categories of provisions” (cf. paragraphs 17 to 20 of the decision in the Cntjeiras Tome and Yurrita case and similarly paragraphs 29 to 31 of the decision in the Arbelaiz-Emazabel case).
               Taking into account the foregoing case-law — which, although referring to specific regulations, really concerns the entire interim regime for fishing by Spanish ships established by the Community from 1977 onwards — it does not appear to me necessary to rehearse the arguments which I set out in my Opinion of 15 September 1981 in Cases 180, 181 and 266/80 ([1981] ECR 2984) and subsequently adopted in my Opinion of 27 May 1982 in Cases 137 to 140/81. Furthermore, the two judgments of this Court of 8 December 1981 are soundly formulated and no new facts have been supplied by the courts in the main proceedings concerning the relationship between the Community rules on fishing in the period in question and the “prior international obligations”. This leads me to consider that the decision in the present cases should follow the lines laid down by the previous judgments of the Court both with regard to the validity of the regulations and their enforceability against Spanish fishermen.
            
         
               4. 
            
            
               In the proceedings before the national courts which gave rise to Cases 13 to 28/82 it emerged that the Spanish vessels had engaged in fishing without a licence on 2 and 14 February 1981 respectively, which dates fall within a period (from 1 February to 3 March 1981) during which there was no Community regulation in force laying down interim measures for the conservation and management of fishery resources. Regulation No 3305/80 of 17 February 1980 had extended from 31 December 1980 to 31 January 1981 the validity of the fishing licences for Spanish vessels which had already been granted under Regulation No 1719/80 of 30 June 1980 and it was only the subsequent Regulation No 554/81 of 27 February 1981 which reintroduced the system of licences with effect from 4 March. That singular situation gave rise to the problem of ascertaining whether, during the said period when the Community arrangements on licences were interrupted, Spanish fishermen had to be considered to be entitled to pursue their activity in the fishing zones in question.
               I have discussed the question fully in my Opinion of 27 May of this year in Cases 137 to 140/81 (Parts 3, 4, 5 and 6). I repeat that, in my view, the absence of specific Community provisions governing fishing licences in the period between 1 February and 3 March 1981“is a fact which the court in the main action must appraise: that court has not asked the Court of Justice in this case how the Community legal system must be applied to fishing carried on by Spanish vessels in that particular period”. I still adhere to the view that if the Court were to decide that point it would be putting itself “in the place of the national court in dealing with a question of ascertaining the rules which are applicable” whilst that court “has requested the validity of specified regulations to be ascertained”; and I emphasize that “such an attempt by the parties to overstep the scope of preliminary questions should not be upheld by the Court”.
               With regard to the substance of the cases, my view is that in the periods during which Community measures on the conservation and management of fishery resources were not in force Spanish vessels were not authorized to fish in the waters of the Member States of the EEC. That point of view is based on the exclusive nature of the 200-mile belt of sea under the general international law applicable and is confirmed by examination of the Agreement on Fisheries between the European Economic Community and Spain of 15 April 1980. I would refer in this connection to my Opinion of 27 May and observe that the parties have not adduced fresh evidence in support of their respective arguments.
            
         
               5. 
            
            
               It is submitted on behalf of the defendants in the main proceedings concerning Cases 50 to 58/82 that the Community regulations applicable to Spanish fishermen are also invalid for a breach of certain fundamental rights : the right to equal treatment, the right to a hearing, the right to work and carry on a trade or profession and a right not to be subjected to retroactive penalties.
               In order to dismiss these alleged grounds of invalidity it would be sufficient to observe that they are entirely irrelevant to the question formulated by the French courts which concerns exclusively the compatibility of the relevant Community rules with prior international obligations. Nevertheless I feel that I should comment briefly on the complaints which have been made in order to show they are not well founded.
               
                        A —
                     
                     
                        The principle of equality is relied upon in connection with the argument to the effect that the Community regulations in question discriminate between Spanish fishermen and fishermen of Member States of the European Community in so far as only the former are required to hold a fishing licence. For the purpose of refuting that argument it was observed that the fishing licence constitutes the only means of ensuring that the system of fishing quotas is complied with. The system is also applied to Community fishermen although in their case the means of ensuring that it is complied with is the check on the catches carried out in the ports where they are landed. Nevertheless a more serious criticism is that the catalogue of human rights discloses no principle which obliges the Community to ensure that Spanish nationals enjoy the same rights as nationals of the Member States of the Community with regard to the exploitation of the economic zone adjacent to the coasts of the Member States. Both the provisions of Article 14 of the European Convention on Human Rights and the corresponding provisions of the two universal covenants on human rights (Article 2 (1) of the Covenant on Civil and Political Rights and Article 2 (2) of the Covenant on Economic, Social and Cultural Rights) require nondiscrimination in the enjoyment of the rights recognized by each of these international legal instruments. But no right to fish in the economic zone of any country is recognized by the European Convention or by the covenants. With regard to the principle that all persons are equal before the law and to the right to the equal protection of the law (Article 26 of the Universal Covenant on Civil and Political Rights) it is indeed the case that they guarantee the formal equality of persons with regard to each legal order considered as a whole but only in order to preclude the legislature from introducing arbitrary discrimination or differences in treatment without any objective justification whatever.
                        In particular, the prohibition of all discrimination based on national origin does not in any way prevent legislation from creating a large number of differences in the treatment of nationals and foreigners, above all in the field of public law provided that the basis of rules of that nature is reasonable (as is unquestionably the case as regards the requirement of fishing licences within the framework of the measures for the conservation of the resources of the sea and of the related system of fishing quotas).
                     
                  
                        B —
                     
                     
                        The alleged breach of the right to a hearing is said to consist in the fact that the administrative penalties applied by the Commission to Spanish fishermen (withdrawal of the licence and suspension for a specified period of the issue of a new licence) are imposed without providing them with an opportunity of presenting their point of view in advance. That is said to be contrary to Article 6 of the European Convention on Human Rights according to which, as the Court is aware, everyone charged with a criminal offence has the right to defend himself in person or through legal assistance of his own choosing (paragraph (3) (c)). Mention should also be made in this connection of the Court's judgment of 27 October 1977 in Case 121/76 Moli C [1977] ECR 1971) which states “the general principle that when any administrative body adopts a measure which is liable gravely to prejudice the interests of an individual it is bound to put him in a position to express his point of view” (paragraph 20 of the decision).
                        That complaint is unfounded. In the first place it should be made clear that Article 6 of the European Convention does not apply to procedures other than proceedings before a court or tribunal. The Commission of Human Rights made that point in its Report of 25 January 1976 in the case of Ireland against the United Kingdom. Secondly, the individuals upon whom the Commission has imposed penalties are always entitled to challenge the decisions in question under the second paragraph of Article 173 of the EEC Treaty. The resultant adversary proceedings ensure that the persons concerned are able to present their defence. The adversary proceedings in question are only contingent because it remains for the persons concerned to institute them and they are subsequent in so far as they take place after the adoption of the measure adversely affecting those persons, but this is justified by the need for the Commission to act swiftly in order to avoid more serious injury to Community interests. Furthermore, as the Court knows, various forms of administrative action (and indeed judicial action) take place in the absence of any hearing of the other party so that the adversary proceedings, and thus the presentation of the defence, are postponed to a second stage of the procedure.
                        Finally, the reference to the Moli case is in my opinion inappropriate in so far as in that case the Court upheld a principle which is valid in relationships between an administration and its officials but which may not be transposed automatically to any relationship between the administration and individuals.
                     
                  
                        C —
                     
                     
                        It appears to me that the right to work and the freedom to engage in economic activity, upon which reliance also has been placed, are irrelevant in the context of these cases. The former is of very general scope, consisting as it does in the “right of everyone to the opportunity to gain his living by work which he freely chooses or accepts ...” (Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights). It is clear that the numerous limitations or conditions — factual or legal — which circumscribe that opportunity cannot be understood as so many breaches of the principle! In particular, even though the Community rules restrict fishing by Spanish fishermen in certain zones of the sea, the existence of their right to earn their living by fishing is not called in question.
                        Similar reasoning applies to the freedom to engage in economic activity which, as I had occasion to state in part 10 of my Opinion in the Hauer case (Case 44/79 [1979] ECR 3764), “is not guaranteed with regard to a particular sphere of activity”. The regulations with which we are concerned affect the right to exploit the fishery resources of specific zones of the sea but the Spanish fishing undertakings remain free to fish in these zones, subject to the conditions laid down by the said regulations, or elsewhere.
                     
                  
                        D —
                     
                     
                        The complaint of infringement of Article 7 of the European Convention for the Protection of Human Rights was put forward on behalf of the defendants in the cases referred to the Court by the Tribunal de Grande Instance, Bayonne, because Regulation No 1569/81 of 1 June 1981 retroactively increases the penalties which the Commission may impose on those who fail to comply with the Community measures on fishing. The penalties provided for in Article 13 of that regulation are more severe than those laid down by previous regulations (withdrawal of the licence to fish and postponement of the issue of new licences; both penalties may be extended to other vessels of the same owner) and the article has retroactive effect because the whole regulation applies with effect from 1 January 1981 whilst the previous regulation, Regulation No 554/81, which was in force until 31 May, was expressly repealed.
                     
                  Nevertheless although these aspects of the Community measures are deplorable they cannot be considered contrary to the abovementioned rules of the European Convention for the simple reason that it is solely concerned with sanctions of criminal law. It is sufficient to read the second sentence of Article 7 (1) (“... Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”) to realize that the principle may not be extended to sanctions of an administrative nature. A statement to that effect was made by the European Commission of Human Rights in the decisions on Applications Nos 4274/69 and 4519/70 (Yearbook of the European Convention on Human Rights, Volume 13, p. 888 et seq., in particular p. 890; and Volume 14, p. 616 et seq., in particular p. 622).
            
         
               6. 
            
            
               It remains to examine a further complaint concerning the validity of the regulations at issue which was made on behalf of the accused fishermen in the criminal proceedings which gave rise to Cases 50 to 58/82. It concerns the alleged conflict between those regulations and the provisions of the Agreement on Fisheries concluded by the Community with Spain on 15 April 1980 which became provisionally applicable on the same date (by virtue of Article 12 thereof) and finally entered into force on 22 May 1981.
               The first observation to be made is that the French courts which referred to this Court the question on the validity of the interim measures of the Community concerning the conservation and management of the resources of the seas, and their enforceability against Spanish nationals, certainly did not take into account the Agreement between the Community and Spain when they referred to “prior international obligations”. That is clearly apparent from the grounds of the judgments making the references. It should be added that the Agreement is certainly “prior” only to Regulation No 1569/81, which was issued on 1 June 1981 (that is nine days after the entry into force of the Agreement), whilst it is subsequent to most of the Community rules in question (it remains doubtful whether it is possible to consider it a means of gauging the validity of the regulations issued during the period when it was provisionally applicable).
               In any case I do not think that the argument which I have outlined above is correct. Its proponents claim that the Agreement between the Community and Spain ensures that Spanish fishermen may obtain access to the exclusive economic zone in accordance with a principle of balance and nondiscrimination embodied in Article 3 (1) (b) and establishes that such fishermen are entitled to the historical rights of fishing already embodied in prior international treaties whilst the Community regulations (in particular Regulation No 554/81 of 27 February 1981) are in breach of both of these principles. Nevertheless I continue to take the view (which I have previously expressed in my Opinion of 27 May 1982 in Joined Cases 137, 138, 139 and 140/81) that the Agreement on Fisheries between the Community and Spain does not by any means confer “free access for the fishing vessels of each party to the fishing zone of the other; such access is made available through a concession which ... presupposes that the catches which the fishing vessels of the other party may make have been determined” as well as the issue of the appropriate licences. It must be noted in this connection that the satisfactory balance between the opportunities for fishing which each party to the Agreement enjoys in the fishing zone of the other is the objective to be realized on the conclusion of the consultation provided for in Article 3 (1) (b). However, the volume of the catches allotted to the fishing vessels of one party (and the zones where the catches are permitted) depends upon the unilateral decision of the other party, although it is always presupposed that consultations have taken place (cf. again Article 3 (1) (b)).
               Fot its part, the French Government properly observed through its representative in the course of the oral proceedings that, pursuant to Article 7 of the Agreement, “within the fishing zone falling under its jurisdiction, each party may, in conformity with international law, take such measures as may be necessary to ensure that vessels of the other party comply with the provisions of this Agreement”. The international rules which are relevant (by virtue, moreover, of the reference made to them in Article 7) certainly include the rule set out in Article 56 (1) (a) of the Draft Convention drawn up by the Third Conference on the Law of the Sea in accordance with which “in the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or nonliving, of the seabed ...”. That clear recognition of the right of the coastal State to the exclusive exploitation, conservation and management of the resources of the exclusive economic zone is sufficient to preclude the prerequisites for the existence of historical rights claimed by the Spanish fishermen. In this matter I would also refer to the considerations which I set out in part 6 of my Opinion of 27 May 1982.
            
         
               7. 
            
            
               On the basis of all the considerations which I have set out above I propose that the Court should reply to the questions referred to it in identical terms by the Cour d'Appel, Rennes, by judgments of 3 December 1981 (Joined Cases 13 to 28/82) and by the Tribunal de Grande Instance, Bayonne, by judgments of 17 September 1981 (Case 50/82), of 22 October 1981 (Cases 51, 52 and 58/81) and of 5 November 1981 (Cases 53, 54, 55, 56 and 57/82) by ruling as follows:
               
                        (a)
                     
                     
                        Consideration of the regulations of the Council laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain has disclosed no factor of such a nature as to affect their validity.
                     
                  
                        (b)
                     
                     
                        The said regulations were accordingly enforceable against Spanish nationals.
                     
                  Finally, if the Court considers that it must give a ruling on the matter of the interruption of the arrangements concerning fishing licences from 1 February to 3 March 1981, I propose that it should give the following ruling on that point:
               In the period when the arrangements for granting licences to Spanish fishermen were interrupted, from 1 February to 3 March 1981, such fishermen were prohibited from fishing in the territorial waters of the Member States and in the respective exclusive economic zones subject to the Community measures on the conservation and management of fishery resources.
            
         (
            1
         )	Translated from the Italian.