1 BY ORDER OF 7 DECEMBER 1979 , WHICH WAS RECEIVED AT THE COURT ON 11 DECEMBER 1979 , THE CIRCUIT COURT OF THE COUNTY OF CORK SUBMITTED UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS ON THE INTERPRETATION OF ARTICLE 234 OF THE TREATY AND THE REGIME APPLICABLE TO THE FISHERY LIMITS OF IRELAND .
2 THOSE QUESTIONS HAVE ARISEN IN THE COURSE OF CRIMINAL PROCEEDINGS AGAINST THE MASTER OF A SPANISH-REGISTERED FISHING VESSEL WHO IS CHARGED WITH FISHING AND ATTEMPTING TO FISH WITHOUT AUTHORITY IN IRISH FISHERY LIMITS AND WITH HAVING ON BOARD NETS HAVING A SIZE OF MESH WHICH IS PROHIBITED IN THOSE FISHERY LIMITS .
3 THE CHARGES AGAINST THE ACCUSED ALLEGE THAT HE COMMITTED THOSE ACTS ON 10 JULY 1978 WHEN THE VESSEL WHICH HE COMMANDED WAS POSITIONED 51* 55U NORTH AND 11* 10U WEST , THAT IS , 20 NAUTICAL MILES OFF THE BASE-LINE , WHEREAS THE IRISH STATE HAD EXTENDED ITS FISHERY LIMITS TO 200 NAUTICAL MILES FROM THE BASE-LINES AS FROM 1 JANUARY 1977 .
4 THE ACCUSED SUBMITTED BEFORE THE CIRCUIT COURT THAT THE LONDON FISHERIES CONVENTION OF 9 MARCH 1964 ( UN TREATY SERIES 581 , NO 8432 ), TO WHICH SPAIN AND IRELAND ARE PARTIES , CREATED FOR HIM ANTECEDENT RIGHTS WHICH ARE MAINTAINED OR PRESERVED BY THE RULES OF COMMUNITY LAW IN GENERAL AND BY ARTICLE 234 OF THE TREATY IN PARTICULAR AND THE NATIONAL COURT REFERRED TO THE COURT OF JUSTICE FOUR QUESTIONS ON THE INTERPRETATION OF COMMUNITY LAW . ARTICLE 234 ( QUESTIONS 1 , 2 AND 3 )
5 THE FIRST THREE QUESTIONS ARE WORDED AS FOLLOWS : ' ' 1 . DOES ARTICLE 234 OF THE TREATY OF ROME CREATE RIGHTS AND OBLIGATIONS : ( A ) FOR THE INSTITUTIONS OF THE EUROPEAN COMMUNITIES ; ( B ) FOR THE MEMBER STATES OF THE COMMUNITIES? 2.DOES ARTICLE 234 OF THE TREATY OF ROME , OR ANY OTHER RULE OF COMMUNITY LAW , MAINTAIN OR UPHOLD RIGHTS OF THE BENEFICIARIES OF TREATIES TO WHICH ARTICLE 234 OF THE TREATY OF ROME APPLIES , WHICH NATIONAL COURTS OF THE MEMBER STATES MUST UPHOLD? 3.IS THE 1964 LONDON FISHERIES CONVENTION A TREATY OF THE KIND TO WHICH ARTICLE 234 , AS ADAPTED IN RELATION TO IRELAND , THE UNITED KINGDOM AND DENMARK BY ARTICLE 5 OF THE ACT OF ACCESSION , OF THE TREATY OF ROME APPLIES? ' '
6 THE FIRST PARAGRAPH OF ARTICLE 234 OF THE TREATY PROVIDES THAT THE RIGHTS AND OBLIGATIONS ARISING FROM AGREEMENTS CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE TREATY BETWEEN ONE OR MORE MEMBER STATES ON THE ONE HAND , AND ONE OR MORE THIRD COUNTRIES ON THE OTHER , SHALL NOT BE AFFECTED BY THE PROVISIONS OF THE TREATY . THAT IS WITHOUT PREJUDICE TO THE OBLIGATION ON THE MEMBER STATE CONCERNED TO TAKE , IN ACCORDANCE WITH THE SECOND PARAGRAPH OF THAT ARTICLE , ALL APPROPRIATE STEPS TO ELIMINATE ANY INCOMPATIBILITIES BETWEEN SUCH AGREEMENTS AND THE TREATY . ARTICLE 234 IS OF GENERAL SCOPE AND IT APPLIES TO ANY INTERNATIONAL AGREEMENT , IRRESPECTIVE OF SUBJECT-MATTER , WHICH IS CAPABLE OF AFFECTING THE APPLICATION OF THE TREATY .
7 UNDER ARTICLE 5 OF THE ACT OF ACCESSION ARTICLE 234 OF THE TREATY IS TO APPLY , FOR IRELAND , TO AGREEMENTS OR CONVENTIONS CONCLUDED BEFORE ACCESSION . IN SO FAR AS IRELAND AND SPAIN ARE CONCERNED , THE LONDON FISHERIES CONVENTION CAME INTO FORCE ON 15 MARCH 1966 . IT HAD BEEN SIGNED AND RATIFIED BY BOTH STATES ON DATES PRIOR TO THAT OF IRELAND ' S ACCESSION TO THE COMMUNITY . SINCE IRELAND IS THUS BOUND BY OBLIGATIONS TOWARDS SPAIN UNDER A CONVENTION CONCLUDED BEFORE ITS ACCESSION , THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 234 APPLY .
8 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 27 FEBRUARY 1962 IN CASE 10/61 COMMISSION V ITALY ( 1962 ) ECR 1 , THE PURPOSE OF THAT PROVISION IS TO LAY DOWN , IN ACCORDANCE WITH THE PRINCIPLES OF INTERNATIONAL LAW , THAT THE APPLICATION OF THE TREATY DOES NOT AFFECT THE DUTY OF THE MEMBER STATE CONCERNED TO RESPECT THE RIGHTS OF NON-MEMBER COUNTRIES UNDER A PRIOR AGREEMENT AND TO PERFORM ITS OBLIGATIONS THEREUNDER .
9 ALTHOUGH THE FIRST PARAGRAPH OF ARTICLE 234 MAKES MENTION ONLY OF THE OBLIGATIONS OF THE MEMBER STATES , IT WOULD NOT ACHIEVE ITS PURPOSE IF IT DID NOT IMPLY A DUTY ON THE PART OF THE INSTITUTIONS OF THE COMMUNITY NOT TO IMPEDE THE PERFORMANCE OF THE OBLIGATIONS OF MEMBER STATES WHICH STEM FROM A PRIOR AGREEMENT . HOWEVER , THAT DUTY OF THE COMMUNITY INSTITUTIONS IS DIRECTED ONLY TO PERMITTING THE MEMBER STATE CONCERNED TO PERFORM ITS OBLIGATIONS UNDER THE PRIOR AGREEMENT AND DOES NOT BIND THE COMMUNITY AS REGARDS THE NON-MEMBER COUNTRY IN QUESTION .
10 SINCE THE PURPOSE OF THE FIRST PARAGRAPH OF ARTICLE 234 IS TO REMOVE ANY OBSTACLE TO THE PERFORMANCE OF AGREEMENTS PREVIOUSLY CONCLUDED WITH NON-MEMBER COUNTRIES WHICH THE ACCESSION OF A MEMBER STATE TO THE COMMUNITY MAY PRESENT , IT CANNOT HAVE THE EFFECT OF ALTERING THE NATURE OF THE RIGHTS WHICH MAY FLOW FROM SUCH AGREEMENTS . FROM THAT IT FOLLOWS THAT THAT PROVISION DOES NOT HAVE THE EFFECT OF CONFERRING UPON INDIVIDUALS WHO RELY UPON AN AGREEMENT CONCLUDED PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OR , AS THE CASE MAY BE , THE ACCESSION OF THE MEMBER STATE CONCERNED , RIGHTS WHICH THE NATIONAL COURTS OF THE MEMBER STATES MUST UPHOLD . NOR DOES IT ADVERSELY AFFECT THE RIGHTS WHICH INDIVIDUALS MAY DERIVE FROM SUCH AN AGREEMENT .
11 THE FOLLOWING ANSWERS SHOULD ACCORDINGLY BE GIVEN : ( A ) TO THE FIRST QUESTION : ARTICLE 234 OF THE TREATY MUST BE INTERPRETED AS MEANING THAT THE APPLICATION OF THE TREATY DOES NOT AFFECT EITHER THE DUTY TO OBSERVE THE RIGHTS OF NON-MEMBER COUNTRIES UNDER AN AGREEMENT CONCLUDED WITH A MEMBER STATE PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OR , AS THE CASE MAY BE , THE ACCESSION OF A MEMBER STATE , OR THE OBSERVANCE BY THAT MEMBER STATE OF ITS OBLIGATIONS UNDER THE AGREEMENT AND THAT , CONSEQUENTLY , THE INSTITUTIONS OF THE COMMUNITY ARE BOUND NOT TO IMPEDE THE PERFORMANCE OF THOSE OBLIGATIONS BY THE MEMBER STATE CONCERNED ; ( B)TO THE SECOND QUESTION : BY ITSELF , ARTICLE 234 OF THE TREATY DOES NOT HAVE THE EFFECT EITHER OF CONFERRING UPON INDIVIDUALS WHO RELY UPON ONE OF THE AGREEMENTS TO WHICH THE ANSWER TO THE FIRST QUESTION REFERS RIGHTS WHICH THE NATIONAL COURTS OF THE MEMBER STATES MUST PROTECT OR OF ADVERSELY AFFECTING THE RIGHTS WHICH INDIVIDUALS MAY DERIVE FROM SUCH AN AGREEMENT ; ( C)TO THE THIRD QUESTION : THE FIRST PARAGRAPH OF ARTICLE 234 OF THE TREATY APPLIES TO THE RIGHTS AND OBLIGATIONS CREATED BETWEEN IRELAND AND SPAIN BY THE 1964 LONDON FISHERIES CONVENTION . THE FISHERIES REGIME APPLICABLE TO THE EXCLUSIVE FISHERY LIMITS OF IRELAND ( FOURTH QUESTION )
12 IN ITS FOURTH QUESTION THE NATIONAL COURT ASKS WHETHER A CONVICTION OF THE ACCUSED UNDER IRISH LEGISLATION IN THE CRIMINAL PROCEEDINGS PENDING BEFORE IT WOULD BE CONTRARY TO COMMUNITY LAW .
13 ALTHOUGH IT IS NOT OPEN TO THE COURT TO PASS JUDGMENT IN THE CONTEXT OF ARTICLE 177 OF THE TREATY ON THE VALIDITY OR THE INTERPRETATION OF A NATIONAL LAW , NONE THE LESS , FOR THE PURPOSE OF ASSISTING NATIONAL COURTS , IT IS WITHIN ITS POWERS TO EXTRACT THE MATTERS OF COMMUNITY LAW THE INTERPRETATION OF WHICH IS NECESSARY TO ENABLE THE NATIONAL COURT TO GIVE JUDGMENT ON THE DISPUTE BEFORE IT IN ACCORDANCE WITH COMMUNITY RULES .
14 IT APPEARS FROM THE FILE ON THE CASE AND FROM THE DISCUSSION BEFORE THE COURT THAT THE DOUBTS FELT BY THE CIRCUIT COURT OF CORK ARE CONCERNED WITH THE QUESTION WHETHER SPANISH-REGISTERED FISHING VESSELS MAY BE MADE SUBJECT TO A REGIME REQUIRING THEM TO OBTAIN AN AUTHORIZATION FOR THE IRISH FISHERY ZONE LYING BETWEEN 12 AND 200 NAUTICAL MILES FROM THE BASE-LINES , IT BEING ACCEPTED THAT THE TEXT OF THE LONDON CONVENTION REFERS ONLY TO THE ZONE EXTENDING UP TO 12 MILES .
15 BEFORE THE NATIONAL COURT THE ATTORNEY GENERAL CONTENDED THAT SUCH AN AUTHORIZATION WAS REQUIRED ON THE BASIS OF SECTION 222 ( A ) OF THE IRISH FISHERIES ( CONSOLIDATION ) ACT 1959 , AS AMENDED IN 1978 , WHICH PROHIBITS A PERSON ON BOARD A FOREIGN SEA-FISHING BOAT FROM FISHING OR ATTEMPTING TO FISH WHILE THE BOAT IS WITHIN EXCLUSIVE IRISH FISHERY LIMITS UNLESS HE IS AUTHORIZED BY LAW TO DO SO .
16 SUCH A REQUIREMENT IS NOT IN CONFLICT WITH COMMUNITY LAW . IN FACT , AS THE COMMISSION CORRECTLY SUBMITTED , THE FISHERY ZONES OF THE MEMBER STATES WHICH EXTEND TO 200 NAUTICAL MILES OFF THE NORTH SEA AND ATLANTIC COASTS ARE THE SUBJECT OF COMMUNITY FISHERY RULES . AT THE TIME OF THE EVENTS IN THIS CASE , 10 JULY 1978 , THE RIGHTS OF SPANISH FISHING VESSELS TO FISH IN THE 200-MILE ZONE OFF THE WEST COAST OF IRELAND WERE GOVERNED BY COUNCIL REGULATION NO 1376/78 OF 21 JUNE 1978 EXTENDING CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN TO 31 JULY 1978 ( OFFICIAL JOURNAL , L 167 , P . 9 ).
17 THE AFOREMENTIONED REGULATION NO 1376/78 IN PARTICULAR EXTENDED CERTAIN PROVISIONS OF COUNCIL REGULATION NO 341/78 OF 20 FEBRUARY 1978 LAYING DOWN CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN FOR THE PERIOD OF 21 FEBRUARY TO 31 MAY 1978 ( OFFICIAL JOURNAL L 49 , P . 1 ). AMONGST THE PROVISIONS THUS EXTENDED WAS THAT WHICH PROVIDES THAT FISHING SHALL BE SUBJECT TO THE GRANT OF A LICENCE , ISSUED BY THE COMMISSION ON BEHALF OF THE COMMUNITY , AND TO COMPLIANCE WITH OTHER CONSERVATION AND SUPERVISORY MEASURES SUCH AS THE PROHIBITION ON USING CERTAIN KINDS OF NET FOR FISHING FOR HAKE AND THE RESTRICTION OF BY-CATCHES .
18 FROM ALL OF THOSE PROVISIONS IT APPEARS THAT , AT THE TIME IN QUESTION , THE PROHIBITION PREVENTING SPANISH-REGISTERED VESSELS FROM FISHING WITHOUT AUTHORIZATION IN THE IRISH FISHERY LIMITS BORDERING THE WEST COAST OF THAT COUNTRY STEMMED FROM COMMUNITY LEGISLATION , IN PARTICULAR , REGULATION NO 1376/78 . SINCE THAT REGULATION DID NOT PROVIDE FOR ANY PENALTIES FOR CONTRAVENING THAT PROHIBITION THE IRISH AUTHORITIES WERE BOUND TO TAKE ALL APPROPRIATE MEASURES TO ENSURE ITS IMPLEMENTATION AND THIS THEY DID BY INSERTING SECTION 222 ( A ) IN THE FISHERIES CONSOLIDATION ACT .
19 THE ACCUSED IN THE MAIN PROCEEDINGS SUBMITTED THAT THE COMMUNITY FISHERY MEASURES WERE ADOPTED UNILATERALLY AND WERE ACCORDINGLY UNLAWFUL . IT WAS SAID THAT , ON THE ONE HAND , THEY WERE IN BREACH OF THE PRINCIPLE OF INTER NATIONAL LAW WHEREBY EACH STATE MUST RECOGNIZE TRADITIONAL FISHING RIGHTS IN ITS FISHERY WATERS . ON THE OTHER HAND THEY WERE CONTRARY TO THE SPIRIT OF THE LONDON CONVENTION WHICH , SINCE IT RECOGNIZED TRADITIONAL FISHING RIGHTS IN THE 6 TO 12-MILE ZONE , MUST BE UNDERSTOOD AS MEANING THAT , AFTER THE EXTENSION OF FISHERY LIMITS , THE SAME REGIME EXTENDS UP TO 200 MILES .
20 IT IS NOT NECESSARY TO CONSIDER THE SOUNDNESS OF EITHER OF THOSE PROPOSITIONS AND TO DETERMINE WHAT WAS THE REGIME WHICH APPLIED IN THE FISHING ZONES BETWEEN 12 AND 200 MILES BEFORE THE COMING INTO FORCE OF THE COMMUNITY RULES . ALTHOUGH IT IS FOR THE COURT TO RULE UPON THE VALIDITY OF ACTS OF INSTITUTIONS OF THE COMMUNITY WHERE THAT VALIDITY HAS BEEN CALLED IN QUESTION , AN EXAMINATION OF THE VALIDITY OF REGULATIONS NOS 341/78 AND 1376/78 , WHICH ARE INVOLVED IN THE PRESENT CASE , DOES NOT REQUIRE AN APPRECIATION OF THE SITUATION WHICH EXISTED BEFORE THE INTRODUCTION OF THE COMMUNITY MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES .
21 IN THIS REGARD IT MUST BE STRESSED AT THE OUTSET THAT ARTICLE 102 OF THE ACT OF ACCESSION REQUIRES THE COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION , TO DETERMINE CONDITIONS FOR FISHING WITH A VIEW TO ENSURING PROTECTION OF THE FISHING GROUNDS AND CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA . THE RECITALS IN THE PREAMBLES TO REGULATIONS NOS 341/78 AND 1376/78 INDICATE THAT CONTROL OF FISHING MAY BE ACHIEVED BY A SYSTEM OF FISHING LICENCES WHICH MAY BE WITHDRAWN IN THE EVENT OF IRREGULARITIES OR OF THE QUOTAS FIXED BECOMING EXHAUSTED . THAT IS PARTICULARLY THE CASE WHERE CONTROL OF THE CATCH CANNOT BE CARRIED OUT IN ADJACENT COASTAL PORTS SINCE FISHING VESSELS FROM NON-MEMBER COUNTRIES NORMALLY RETURN TO THEIR PORTS OF ORIGIN IN ORDER TO LAND THEIR CATCHES .
22 RECOGNITION OF THE EVER MORE PRESSING NEED FOR CONSERVATION OF THE RESOURCES OF THE SEA , WHICH HAD ALREADY PROMPTED ARTICLE 5 OF THE 1964 LONDON FISHERIES CONVENTION AND WHICH FOUND EXPRESSION IN ARTICLE 102 OF THE ACT OF ACCESSION , LED THE COMMUNITY , AT THE TIME WHEN FISHING ZONES WERE EXTENDED TO 200 MILES , TO START NEGOTIATIONS WITH NON-MEMBER COUNTRIES , INCLUDING SPAIN , IN ORDER TO REACH LONG-TERM AGREEMENTS BASED UPON RECIPROCITY . IN ORDER TO RECONCILE THE NEEDS OF CONSERVATION WITH THE INTERESTS OF FISHERMEN WHO TRADITIONALLY FISHED IN THE WATERS IN QUESTION , THOSE AGREEMENTS PROVIDE THAT EACH OF THE PARTIES SHALL GRANT ACCESS TO ITS 200-MILE ZONE TO FISHING VESSELS OF THE OTHER PARTY IN ORDER TO CATCH SPECIFIC QUOTAS . IN ORDER TO IMPLEMENT THAT REGIME , THE AGREEMENTS PROVIDE THAT EACH OF THE PARTIES MAY REQUIRE VESSELS OF THE OTHER PARTY FISHING IN ITS WATERS TO HOLD A LICENCE .
23 REGULATIONS NOS 341/78 WERE PUT INTO FORCE BEFORE THE FINAL CONCLUSION OF THE NEGOTIATIONS BETWEEN THE COMMUNITY AND SPAIN . THE RECITALS IN THE PREAMBLES STATE THAT , PENDING THE CONCLUSION IN THE NEAR FUTURE OF A FRAMEWORK AGREEMENT BETWEEN THE COMMUNITY AND SPAIN , INTERIM MEASURES SHOULD BE LAID DOWN . IT APPEARS FROM INFORMATION GIVEN TO THE COURT BY THE COMMISSION THAT THE SPANISH AUTHORITIES COOPERATED WITH THE COMMISSION IN ORDER TO ENSURE THE IMPLEMENTATION OF THIS INTERIM REGIME AND , IN PARTICULAR , IN ORDER TO ORGANIZE THE ISSUE OF THE COMMUNITY LICENCES .
24 FROM THE FOREGOING IT FOLLOWS THAT THE INTERIM REGIME WHICH THE COMMUNITY SET UP 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 EXCLUSIVE FISHERY LIMITS AND IN ORDER TO ENSURE RECIPROCAL ACCESS BY FISHERMEN TO THE WATERS SUBJECT TO SUCH MEASURES . THOSE RELATIONS WERE SUPERIMPOSED ON THE REGIME WHICH PREVIOUSLY APPLIED IN THOSE ZONES IN ORDER TO TAKE ACCOUNT OF THE GENERAL DEVELOPMENT OF INTERNATIONAL LAW IN THE FIELD OF FISHING ON THE HIGH SEAS .
25 FROM THAT IT FOLLOWS THAT CONSIDERATION OF REGULATION NO 1376/78 HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT ITS VALIDITY AND THAT CONSEQUENTLY NATIONAL LEGISLATION WHICH IMPOSES PENALTIES FOR CONTRAVENTION OF THE PROHIBITIONS PRESCRIBED THEREIN IS NOT INCOMPATIBLE WITH COMMUNITY LAW .