1 BY ORDER OF 1 FEBRUARY 1983 THE HIGH COURT OF 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? ' '
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 COMMISSION .
6 THE LEGAL CONTEXT OF THE MAIN PROCEEDINGS HAS TO BE VIEWED IN THE LIGHT OF THE SITUATION CREATED BY THE FACT THAT THE COUNCIL DID NOT LAY DOWN FOR 1981 THE CONSERVATION MEASURES PROVIDED FOR IN ARTICLE 102 OF THE ACT OF ACCESSION .
7 ALTHOUGH , AS THE COURT MADE CLEAR IN ITS JUDGMENT OF 5 MAY 1981 ( CASE 804/79 COMMISSION V UNITED KINGDOM ( 1981 ) ECR 1045 ) THE MEMBER STATES MAY , IN THE CASE OF INACTION BY THE COUNCIL , BRING INTO FORCE INTERIM CONSERVATION MEASURES , THEY MUST , WITHIN THE FRAMEWORK OF THE GENERAL TASK OF SUPERVISION WHICH ARTICLE 155 OF THE TREATY ENTRUSTS TO THE COMMISSION , COMPLY WITH THE PROCEDURAL AND SUBSTANTIVE CONDITIONS LAID DOWN BY THE COUNCIL IN ANNEX VI TO THE HAGUE RESOLUTION OF 3 NOVEMBER 1976 WHICH WERE CONFIRMED BY THE COUNCIL DECLARATION OF 31 JANUARY 1978 .
8 IT FOLLOWS FROM THE TERMS OF THE ABOVE-MENTIONED RESOLUTION AND DECLARATION , TAKEN TOGETHER , THAT AS REGARDS THE PROCEDURAL RULES THE MEMBER STATE CONCERNED MUST NOT BRING NATIONAL CONSERVATION MEASURES INTO FORCE UNTIL IT HAS SOUGHT IN GOOD FAITH THE APPROVAL OF THE COMMISSION , WHICH HAS TO BE CONSULTED AT ALL STAGES OF THE PROCEDURE .
9 IT IS NOT IN DISPUTE THAT THE 1981 ORDER , WHICH ENTERED INTO FORCE ON 1 MAY 1981 , WAS NOT NOTIFIED TO THE COMMISSION UNTIL 4 MAY 1981 AND THAT THEREFORE THAT CONDITION WAS NOT SATISFIED .
10 IT THUS APPEARS THAT THE NATIONAL COURT IS ASKING THE COURT OF JUSTICE WHETHER THE OBLIGATION TO CONSULT THE COMMISSION AND SEEK ITS APPROVAL BEFORE BRINGING NATIONAL CONSERVATION MEASURES INTO FORCE IS ABSOLUTE AND WHETHER , CONSEQUENTLY , THAT OBLIGATION EXTENDS TO THE ADOPTION OF EVERY NATIONAL MEASURE , INCLUDING THE RE-ENACTMENT , WITHOUT SUBSTANTIVE AMENDMENT , OF MEASURES APPROVED AT THE APPROPRIATE TIME BY THE COMMISSION .
11 THE BINDING FORCE OF THE PROCEDURAL RULES LAID DOWN IN THE ABOVE-MENTIONED RESOLUTION AND DECLARATION MUST BE JUDGED IN THE LIGHT OF THE OBJECTIVES PURSUED BY THE COMMUNITY .
12 IN THAT RESPECT , IT SHOULD BE EMPHASIZED THAT THE PROCEDURAL RULES IN QUESTION ARE INTENDED TO ENSURE COMPLIANCE WITH THE SUBSTANTIVE CONDITIONS WHICH WERE LAID DOWN BY THE COUNCIL IN THE SAID DOCUMENTS , AND WHICH ARE BINDING ON THE MEMBER STATES , IN A SITUATION MARKED BY THE FAILURE TO IMPLEMENT A COMMON POLICY REGARDING THE CONSERVATION OF FISHERY RESOURCES .
13 AS THE COURT ACKNOWLEDGED IN THE ABOVE-MENTIONED JUDGMENT OF 5 MAY 1981 ( CASE 804/79 COMMISSION V UNITED KINGDOM ), THE REQUIREMENTS INHERENT IN THE SAFEGUARDING BY THE COMMUNITY OF THE COMMON INTEREST AND OF THE INTEGRITY OF ITS OWN POWERS IMPOSE UPON THE MEMBER STATES IN SUCH CIRCUMSTANCES THE OBLIGATION NOT TO LAY DOWN NATIONAL CONSERVATION MEASURES IN THE FACE OF OBJECTIONS , RESERVATIONS OR CONDITIONS WHICH MIGHT BE FORMULATED BY THE COMMISSION .
14 IT FOLLOWS , ON THE OTHER HAND , FROM THE FOREGOING CONSIDERATIONS THAT IN PRINCIPLE NO FRESH CONSULTATION OF THE COMMISSION IS REQUIRED IN THE CASE OF THE RE-ENACTMENT BY A MEMBER STATE , WITHOUT SUBSTANTIVE AMENDMENT , OF A NATIONAL MEASURE FOR THE CONSERVATION OF FISHERY RESOURCES WHICH WAS ADOPTED PREVIOUSLY IN CONFORMITY WITH THE PROCEDURAL AND SUBSTANTIVE CONDITIONS LAID DOWN BY COMMUNITY LAW . THE NOTIFICATION OF NEW NATIONAL MEASURES NEVERTHELESS CONTINUES TO BE NECESSARY , IN ORDER THAT THE COMMISSION MAY BE ACCURATELY INFORMED OF THE STATE OF THE LAW IN FORCE IN THE VARIOUS MEMBER STATES .
15 IT IS IMPORTANT TO NOTE THAT IN ITS STATEMENT OF 27 MARCH 1981 , WHICH WAS ANNEXED TO THE MINUTES OF ITS MEETING , THE COUNCIL NOTED THAT OUT OF A DESIRE TO AVOID SERIOUS DISRUPTIONS THE MEMBER STATES WOULD TAKE FOR 1981 MEASURES SIMILAR TO THOSE WHICH THEY HAD TAKEN IN PREVIOUS YEARS .
16 BY REGULATION NO 754/80 OF 26 MARCH 1980 ( OFFICIAL JOURNAL 1980 , NO L 84 , P . 36 ), THE COUNCIL FIXED , FOR 1980 , THE TOTAL ALLOWABLE CATCH FOR HERRING IN ICES DIVISION VI(A ) AT ZERO ; ON 18 NOVEMBER AND 16 DECEMBER 1980 THE COMMISSION PROPOSED THAT THE TOTAL ALLOWABLE CATCH FOR HERRING IN THE SAME DIVISION FOR THE YEAR 1981 SHOULD BE ZERO .
17 IT WAS NOT UNTIL AFTER THE BRINGING INTO FORCE OF THE 1981 MEASURES THAT , ON 12 JUNE AND 24 JULY 1981 , THE COMMISSION AMENDED ITS INITIAL PROPOSALS FOR A TOTAL ALLOWABLE CATCH OF ZERO FOR THAT YEAR - PROPOSALS WHICH HAD NOT YET BEEN ADOPTED BY THE COUNCIL - AND , ON 27 JULY 1981 , NOTIFIED THE MEMBER STATES THAT ITS LATEST PROPOSAL FOR A TOTAL ALLOWABLE CATCH OF 65 000 TONNES OF HERRING SHOULD BE REGARDED AS BINDING UPON THEM ( OFFICIAL JOURNAL 1981 , C 224 , P . 1 ).
18 ACCORDING TO THE OBSERVATIONS SUBMITTED TO THE COURT BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , A SITUATION MAY ARISE IN WHICH A NATIONAL CONSERVATION MEASURE PREVIOUSLY ADOPTED IN COMPLIANCE WITH COMMUNITY LAW CANNOT BE RETAINED WITHOUT SUBSTANTIVE AMENDMENT - THAT IS TO SAY WHERE THE TREND REVEALED BY THE RELEVANT AVAILABLE SCIENTIFIC DATA SHOWS THAT THE EARLIER PROTECTION MEASURES ARE NO LONGER STRICTLY NECESSARY FOR THE MANAGEMENT AND CONSERVATION OF THE FISHERY RESOURCES . IT IS THEREFORE FOR THE NATIONAL AUTHORITIES TO TAKE THE INITIATIVE BY AMENDING THEIR RULES , IN CONFORMITY WITH THE PROCEDURAL AND SUBSTANTIVE CONDITIONS REFERRED TO ABOVE , IN ORDER TO ADAPT THEM TO THE NEW SITUATION .
19 THAT ARGUMENT CANNOT BE UPHELD . IF FAILS TO TAKE ACCOUNT OF THE POWER VESTED IN THE COMMUNITY SINCE 1 JANUARY 1979 TO ADOPT MEASURES FOR PROTECTION OF THE BIOLOGICAL RESOURCES OF THE SEA . THE DETERMINATION THAT THE FORMER RULES ON PROTECTION ARE NO LONGER APPROPRIATE IN THE LIGHT OF SCIENTIFIC INFORMATION NEWLY AVAILABLE AND THE ADOPTION OF THE MEASURES CALLED FOR BY THAT SITUATION ARE THEREFORE MATTERS EXCLUSIVELY FOR THE COMMUNITY AUTHORITIES .
20 IN VIEW OF THE FOREGOING CONSIDERATIONS , THE ANSWER TO BE GIVEN TO THE NATIONAL COURT SHOULD BE THAT NO FRESH CONSULTATION OF THE COMMISSION IS REQUIRED IN THE CASE OF THE RE-ENACTMENT , WITHOUT SUBSTANTIVE AMENDMENT , OF A NATIONAL MEASURE FOR THE CONSERVATION OF FISHERY RESOURCES , WHICH WAS PREVIOUSLY ADOPTED IN CONFORMITY WITH THE PROCEDURAL AND SUBSTANTIVE CONDITIONS LAID DOWN BY COMMUNITY LAW .