1 BY ORDER DATED 17 DECEMBER 1985, WHICH WAS RECEIVED AT THE COURT ON 18 FEBRUARY 1986, THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), ZWOLLE ( NETHERLANDS ), REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE VALIDITY OF COUNCIL REGULATION ( EEC ) NO 1/85 OF 19 DECEMBER 1984 FIXING, FOR CERTAIN FISH STOCKS AND GROUPS OF FISH STOCKS, PROVISIONAL TOTAL ALLOWABLE CATCHES FOR 1985 AND CERTAIN CONDITIONS UNDER WHICH THEY MAY BE FISHED ( OFFICIAL JOURNAL 1985, L*1, P.*1 ).
2 REGULATION ( EEC ) NO 170/83 OF 25 JANUARY 1983 ESTABLISHING A COMMUNITY SYSTEM FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES ( OFFICIAL JOURNAL 1983, L 24, P . 1 ) WAS ADOPTED BY THE COUNCIL ON THE BASIS OF ARTICLE 43 OF THE TREATY UPON A PROPOSAL FROM THE COMMISSION AND AFTER CONSULTING THE EUROPEAN PARLIAMENT . THAT SYSTEM INCLUDES IN PARTICULAR CONSERVATION MEASURES WHICH, ACCORDING TO ARTICLE 2 OF REGULATION NO 170/83, ARE TO BE FORMULATED IN THE LIGHT OF THE AVAILABLE SCIENTIFIC ADVICE AND, IN PARTICULAR, OF THE REPORT PREPARED BY THE SCIENTIFIC AND TECHNICAL COMMITTEE FOR FISHERIES SET UP UNDER THE AUSPICES OF THE COMMISSION . ARTICLE 2 ALSO PROVIDES THAT THE CONSERVATION MEASURES MAY INCLUDE IN PARTICULAR THE RESTRICTION OF FISHING EFFORT, IN PARTICULAR BY LIMITS ON CATCHES .
3 IN THIS REGARD ARTICLE 3 OF REGULATION NO 170/83 PROVIDES THAT WHERE, IN THE CASE OF ONE SPECIES OR A GROUP OF RELATED SPECIES, IT BECOMES NECESSARY TO LIMIT THE CATCH, THE TOTAL ALLOWABLE CATCH FOR EACH STOCK OR GROUP OF STOCKS (" TAC "), THE SHARES AVAILABLE TO THE COMMUNITY AS WELL AS, WHERE APPLICABLE, THE TOTAL CATCH ALLOCATED TO THIRD COUNTRIES, AND THE SPECIFIC CONDITIONS FOR TAKING THESE CATCHES, SHALL BE FIXED EACH YEAR .
4 ARTICLE 4 ( 1 ) OF REGULATION NO 170/83 FURTHER PROVIDES THAT : "THE VOLUME OF THE CATCHES AVAILABLE TO THE COMMUNITY ... SHALL BE DISTRIBUTED BETWEEN THE MEMBER STATES IN A MANNER WHICH ASSURES EACH MEMBER STATE RELATIVE STABILITY OF FISHING ACTIVITIES FOR EACH OF THE STOCKS CONSIDERED ". ARTICLE 5 ( 1 ) OF THE REGULATION PROVIDES THAT "MEMBER STATES MAY EXCHANGE ALL OR PART OF THE QUOTAS IN RESPECT OF A SPECIES OR GROUP OF SPECIES ALLOCATED TO THEM UNDER ARTICLE 4 PROVIDED THAT PRIOR NOTICE IS GIVEN TO THE COMMISSION ".
5 FINALLY, ARTICLE 11 OF REGULATION NO 170/83 STATES THAT THE MEASURES CONCERNING THE CHOICE OF CONSERVATION MEASURES, THE FIXING OF THE TACS AND THE VOLUME AVAILABLE TO THE COMMUNITY AND THE DISTRIBUTION OF THAT VOLUME BETWEEN THE MEMBER STATES ARE TO BE ADOPTED BY THE COUNCIL ACTING BY A QUALIFIED MAJORITY ON A PROPOSAL FROM THE COMMISSION .
6 ON THAT BASIS REGULATIONS DETERMINING THE TACS FOR SPECIES OF FISH REQUIRING CONSERVATION AND DISTRIBUTING THE VOLUME OF CATCHES AVAILABLE TO THE COMMUNITY BETWEEN THE MEMBER STATES HAVE BEEN ADOPTED EACH YEAR SINCE 1983 . ONE OF THOSE REGULATIONS IS REGULATION NO 1/85 WHICH RELATES TO 1985 . A COMPARISON OF THOSE VARIOUS REGULATIONS SHOWS THAT EACH YEAR THE MEMBER STATES HAVE RECEIVED THE SAME PERCENTAGE OF THE VOLUME OF AVAILABLE CATCHES FOR EACH SPECIES OF FISH . THOSE PERCENTAGES WERE FIRST LAID DOWN IN COUNCIL REGULATION NO 172/83 OF 25 JANUARY 1983 ( OFFICIAL JOURNAL 1983, L 24, P . 30 ), WHICH RETROACTIVELY DETERMINED THE DISTRIBUTION OF THE VOLUME OF CATCHES AVAILABLE TO THE COMMUNITY FOR 1982 . IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THOSE PERCENTAGES WERE CALCULATED BY TAKING INTO ACCOUNT THE AVERAGE QUANTITIES CAUGHT BY THE FLEETS OF THE VARIOUS MEMBER STATES DURING THE PERIOD 1973 TO 1978 . HOWEVER, IT APPEARS FROM ARTICLE 4 ( 2 ) OF REGULATION NO 170/83 THAT THE COUNCIL, ACTING IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 43 OF THE TREATY, MUST ENACT PROVISIONS EFFECTING THE ADJUSTMENTS WHICH MAY PROVE NECESSARY IN THE LIGHT OF THE REPORT WHICH ARTICLE 8 OF THE SAME REGULATION REQUIRES THE COMMISSION TO DRAW UP BEFORE 31 DECEMBER 1991 .
7 COUNCIL REGULATION NO 1/85 DETERMINED THE VOLUME OF CATCHES AVAILABLE TO THE COMMUNITY FOR VARIOUS SPECIES OF FISH IN 1985 . AS REGARDS PLAICE CAUGHT IN THE NORTH SEA, THAT VOLUME WAS FIXED AT 186*000 TONNES OF WHICH 71*540 TONNES WERE ALLOCATED TO THE NETHERLANDS ( 38.4 %).
8 THE NETHERLANDS QUOTA WAS DIVIDED BETWEEN THE VARIOUS NETHERLANDS FISHING ASSOCIATIONS BY THE BESCHIKKING REGELING CONTINGENTERING TONG EN SCHOL NOORDZEE ( QUOTA RULES FOR PLAICE AND SOLE ( NORTH SEA ) ORDER ) 1985 ( STAATSCOURANT NO 254 OF 31.12.1984 ), WHICH WAS ADOPTED BY THE NETHERLANDS STATE SECRETARY FOR AGRICULTURE AND FISHERIES . THAT ORDER EXPRESSLY STATES THAT IT WAS ADOPTED "IN ORDER TO IMPLEMENT THE PROVISIONS LAID DOWN BY OR UNDER REGULATION NO 170/83 ". ONE OF THE ASSOCIATIONS PARTICIPATING IN THE ALLOCATION OF THE QUOTA WAS THE PRODUCENTENORGANISATIE OOST TO WHICH MR ROMKES BELONGS .
9 ALTHOUGH HIS SHARE OF THE QUOTA OF THE PRODUCENTENORGANISATIE OOST HAD BEEN EXHAUSTED BY 12 OCTOBER 1985, MR ROMKES CONTINUED TO FISH FOR PLAICE IN THE NORTH SEA . THE OFFICIER VAN JUSTITIE FOR THE DISTRICT OF ZWOLLE CONSIDERED THAT MR ROMKES HAD THUS INFRINGED ARTICLE 7 ( 1 ) AND ARTICLE 8 ( 2 ) OF THE AFORESAID ORDER . ON 14 NOVEMBER 1985 THE OFFICIER VAN JUSTITIE THEN ADOPTED, ON THE BASIS OF THE WET OP DE ECONOMISCHE DELICTEN ( LAW ON ECONOMIC OFFENCES ), A PROVISIONAL MEASURE REQUIRING MR ROMKES TO CEASE FISHING FOR PLAICE IN ICES DIVISIONS IIA AND IV ( THAT IS TO SAY THE NORTH SEA ).
10 BY 29 NOVEMBER 1985 ALL THE QUOTA ALLOCATED TO THE NETHERLANDS HAD BEEN EXHAUSTED . AS FROM 30 NOVEMBER 1985 ALL NETHERLANDS FISHERMEN WERE ORDERED TO CEASE FISHING FOR PLAICE .
11 MR ROMKES MADE AN APPLICATION TO THE ARRONDISSEMENTSRECHTBANK, ZWOLLE, FOR THE ANNULMENT OF THE PROVISIONAL MEASURE TAKEN BY THE OFFICIER VAN JUSTITIE ON THE GROUND THAT THE AFORESAID ORDER WAS INVALID BECAUSE IT WAS ADOPTED IN IMPLEMENTATION OF REGULATION NO 1/85 WHICH WAS ITSELF INVALID .
12 IN VIEW OF THAT ARGUMENT THE ARRONDISSEMENTSRECHTBANK CONSIDERED THAT IT WAS NECESSARY TO ASK THE COURT OF JUSTICE WHETHER REGULATION NO 1/85 WAS VALID IN SO FAR AS IT CONCERNED THE ALLOCATION BETWEEN THE MEMBER STATES OF THE TOTAL ALLOWABLE CATCHES OF PLAICE IN ICES DIVISIONS IIA AND IV .
13 FOR A SUMMARY OF THE VIEWS OF THE ARRONDISSEMENTSRECHTBANK AND THE WRITTEN OBSERVATIONS SUBMITTED TO THE COURT BY MR ROMKES, THE NETHERLANDS GOVERNMENT, THE UNITED KINGDOM, THE COUNCIL AND THE COMMISSION, REFERENCE IS MADE TO THE REPORT FOR THE HEARING .
14 IN ITS ORDER FOR REFERENCE, THE ARRONDISSEMENTSRECHTBANK FIRST OBSERVES THAT THE REQUIREMENT OF RELATIVE STABILITY DOES NOT MEAN A GUARANTEE FOR EACH FLEET THAT IT WILL ALWAYS HAVE QUOTAS CORRESPONDING TO ITS CAPACITY . IT POINTS OUT, HOWEVER, THAT, ACCORDING TO THE SIXTH RECITAL OF THE PREAMBLE TO REGULATION NO*170/83, THE REQUIREMENT OF RELATIVE STABILITY MEANS THAT THE TEMPORARY BIOLOGICAL SITUATION OF FISH STOCKS SHOULD BE TAKEN INTO ACCOUNT IN THE FIXING OF QUOTAS . BETWEEN 1983 AND 1986, HOWEVER, THE ALLOWABLE CATCHES FOR PLAICE INCREASED BY 56*000 TONNES . MOREOVER, IT HAS EMERGED THAT, UNLIKE THE NETHERLANDS, OTHER MEMBER STATES HAD NOT EXHAUSTED THEIR QUOTAS . IN THOSE CIRCUMSTANCES THE ARRONDISSEMENTSRECHTBANK RAISES THE QUESTION WHETHER THE COUNCIL HAS MISCONSTRUED THE REQUIREMENT OF RELATIVE STABILITY BY NOT CHANGING THE MEMBER STATES' QUOTAS DESPITE THEIR DIFFERENT NEEDS .
15 IT MUST BE POINTED OUT THAT THAT QUESTION PRESUPPOSES THAT THE VALIDITY OF COUNCIL REGULATION NO 1/85 AND THE PRACTICE WHICH IT EMBODIES CAN BE ASSESSED BY REFERENCE TO THE PRINCIPLES LAID DOWN IN COUNCIL REGULATION NO 170/83 .
16 IT SHOULD BE BORNE IN MIND IN THIS REGARD THAT, AS THE COURT HELD IN ITS JUDGMENT OF 17 DECEMBER 1970 IN CASE 25/70 EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL V KOESTER, BERODT & CO (( 1970 )) ECR 1161, THE COUNCIL CANNOT BE REQUIRED TO DRAW UP ALL THE DETAILS OF THE REGULATIONS CONCERNING THE COMMON AGRICULTURAL POLICY ACCORDING TO THE PROCEDURE LAID DOWN IN ARTICLE 43 OF THE TREATY; IT IS SUFFICIENT FOR THE PURPOSES OF THAT PROVISION THAT THE BASIC ELEMENTS OF THE MATTER TO BE DEALT WITH HAVE BEEN ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY THAT PROVISION; THE PROVISIONS IMPLEMENTING THE BASIC REGULATIONS MAY BE ADOPTED BY THE COUNCIL ACCORDING TO A PROCEDURE DIFFERENT FROM THAT LAID DOWN IN ARTICLE 43 OF THE TREATY, AS IS PROVIDED FOR IN ARTICLE 11 OF REGULATION NO 170/83 . NEVERTHELESS, AN IMPLEMENTING REGULATION, LIKE REGULATION NO 1/85, ADOPTED WITHOUT CONSULTATION OF THE EUROPEAN PARLIAMENT, MUST RESPECT THE BASIC ELEMENTS LAID DOWN IN THE BASIC REGULATION, IN THIS CASE REGULATION NO 170/83, AFTER CONSULTATION OF THE EUROPEAN PARLIAMENT .
17 AS REGARDS THE QUESTION WHETHER THE ALLOCATION EFFECTED BY REGULATION NO 1/85 IS COMPATIBLE WITH THE REQUIREMENT OF RELATIVE STABILITY LAID DOWN IN REGULATION NO 170/83, IT SHOULD BE POINTED OUT FIRST OF ALL THAT, IN THE CASE OF CATCH RESTRICTIONS, ARTICLE 4 ( 1 ) OF REGULATION NO 170/83 PROVIDES THAT THE VOLUME OF THE CATCHES AVAILABLE TO THE COMMUNITY IS TO BE DISTRIBUTED BETWEEN THE MEMBER STATES . THAT VOLUME IS THEREFORE TO BE ADMINISTERED ON THE BASIS OF NATIONAL QUOTAS . ARTICLE 4 ( 1 ) FURTHER PROVIDES THAT IT MUST BE DISTRIBUTED "IN A MANNER WHICH ASSURES EACH MEMBER STATE RELATIVE STABILITY OF FISHING ACTIVITIES FOR EACH OF THE STOCKS CONSIDERED ". THAT REQUIREMENT OF RELATIVE STABILITY MUST BE UNDERSTOOD AS MEANING THAT IN THAT DISTRIBUTION EACH MEMBER STATE IS TO RETAIN A FIXED PERCENTAGE . IN SPECIFYING THAT PROVISIONS EFFECTING THE ADJUSTMENTS THAT IT MAY PROVE NECESSARY TO MAKE TO THE DISTRIBUTION OF THE RESOURCES AMONG MEMBER STATES ARE TO BE ENACTED BY THE COUNCIL IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 43 OF THE TREATY, ARTICLE 4 ( 2 ) SHOWS THAT THE DISTRIBUTION FORMULA ORIGINALLY LAID DOWN UNDER ARTICLE 4 ( 1 ) ON THE BASIS OF ARTICLE 11 IS TO CONTINUE TO APPLY UNTIL AN AMENDING REGULATION IS ADOPTED IN ACCORDANCE WITH THE PROCEDURE FOLLOWED FOR REGULATION NO 170/83 .
18 PENDING SUCH A REVIEW THE COUNCIL HAS INTRODUCED A DEGREE OF FLEXIBILITY INTO THE SYSTEM . UNDER ARTICLE 5 ( 1 ) OF REGULATION NO 170/83 THE MEMBER STATES MAY NOW EXCHANGE ALL OR PART OF THE QUOTAS ALLOCATED TO THEM . THAT POSSIBILITY HAS ALREADY BEEN USED . FOR EXAMPLE, IN 1985 AND 1986, THE UNITED KINGDOM TRANSFERRED PART OF ITS PLAICE QUOTA TO THE NETHERLANDS .
19 MOREOVER, ACCORDING TO THE EXPLANATIONS WHICH WERE GIVEN TO THE COURT BY THE COMMISSION AND HAVE NOT BEEN DISPUTED, THE REASON WHY THE OTHER MEMBER STATES RECEIVED QUOTAS WHICH EXCEEDED THEIR NEEDS AND WERE NOT EXHAUSTED WAS THAT THE TAC FOR PLAICE WAS FIXED IN 1985 AT A LEVEL HIGHER THAN WAS DESIRABLE FROM THE BIOLOGICAL POINT OF VIEW IN ORDER TO MAKE ADDITIONAL QUANTITIES AVAILABLE TO THE NETHERLANDS FISHING FLEET THROUGH THE APPLICATION OF THE PERCENTAGE ALLOCATED TO THE NETHERLANDS IN ACCORDANCE WITH THE REQUIREMENT OF RELATIVE STABILITY .
20 IN THOSE CIRCUMSTANCES, THE COUNCIL CANNOT BE REGARDED AS HAVING DISREGARDED THE REQUIREMENT OF RELATIVE STABILITY LAID DOWN IN REGULATION NO 170/83 BY GRANTING TO THE MEMBER STATES IN REGULATION NO 1/85 THE SAME PERCENTAGE OF THE VOLUME OF CATCHES AVAILABLE TO THE COMMUNITY AS THOSE LAID DOWN IN COUNCIL REGULATION NO 172/83 OF 25 JANUARY 1983 ( OFFICIAL JOURNAL 1983, L 24, P . 30 ), COUNCIL REGULATION NO 3624/83 OF 20 DECEMBER 1983 ( OFFICIAL JOURNAL 1983, L 365, P . 10 ) AND COUNCIL REGULATION NO 320/84 OF 31 JANUARY 1984 ( OFFICIAL JOURNAL 1984, L*37, P.*11 ).
21 AFTER SETTING FORTH THE ARGUMENT INVOKED BY MR ROMKES TO THE EFFECT THAT REGULATION NO 1/85 IS IN BREACH OF ARTICLES 39, 7 AND 30 OF THE EEC TREATY, THE NATIONAL COURT RAISES THE FURTHER QUESTION IN ITS ORDER FOR REFERENCE WHETHER THE ALLOCATION OF QUOTAS PROVIDED FOR IN REGULATION NO 1/85 ENTAILS RESTRICTIONS ON NETHERLANDS FISHERMEN WHICH HINDER TRADE AND WHICH ARE NOT NECESSARY FOR THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA .
22 AS FAR AS THE COMPATIBILITY OF REGULATION NO 1/85 WITH ARTICLE 39 OF THE TREATY IS CONCERNED, IT MUST BE NOTED THAT ONE OF THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY REFERRED TO IN ARTICLE 39 OF THE TREATY IS TO STABILIZE MARKETS . BY RESTRICTING IN THE SHORT TERM THE QUANTITIES OF FISH WHICH MAY BE CAUGHT, THE FIXING OF FISHING QUOTAS ENABLES CERTAIN SPECIES OF FISH TO BE CONSERVED AND THUS CONTRIBUTES TO THE STABILIZATION OF THE MARKETS IN THE LONG TERM . SUCH A SYSTEM ALSO SERVES TO ENSURE OPTIMUM UTILIZATION OF THE FACTORS OF PRODUCTION, WHICH IS ANOTHER OBJECTIVE MENTIONED IN ARTICLE 39 OF THE TREATY, SINCE WITHOUT ANY SUCH SYSTEM, CERTAIN RESOURCES OF THE SEA WOULD RAPIDLY BECOME EXHAUSTED AND THE OPTIMUM UTILIZATION OF THE FACTORS OF PRODUCTION WOULD THUS BECOME IMPOSSIBLE TO ACHIEVE IN THE LONG TERM .
23 AS REGARDS THE COMPATIBILITY OF THE SYSTEM ESTABLISHED BY REGULATION NO 1/85 WITH ARTICLE 7 OF THE TREATY, IT SHOULD BE OBSERVED THAT, ACCORDING TO THE DOCUMENTS BEFORE THE COURT, THE PERCENTAGES ALLOCATED TO THE VARIOUS MEMBER STATES WERE FIXED ACCORDING TO THE QUANTITIES OF FISH CAUGHT DURING A REFERENCE PERIOD BY THEIR RESPECTIVE FLEETS WHICH REFLECTED THEIR FISHING CAPACITY AT THAT TIME . SUCH A METHOD IS NOT CONTRARY TO THE PROHIBITION OF DISCRIMINATION LAID DOWN IN ARTICLE 7 OF THE TREATY SINCE IT REQUIRES THE FISHERMEN OF EACH MEMBER STATE TO MAKE AN EFFORT TO RESTRICT THEIR CATCHES TO LEVELS IN PROPORTION TO THE CATCHES THEY WERE TAKING BEFORE THE ENTRY INTO FORCE OF THE COMMUNITY SYSTEM FOR THE CONSERVATION OF FISHERY RESOURCES .
24 FINALLY, AS REGARDS THE COMPATIBILITY OF REGULATION NO 1/85 WITH ARTICLE 30 OF THE TREATY, IT SHOULD BE POINTED OUT THAT, IN ITS JUDGMENT OF 14 JULY 1976 IN JOINED CASES 3, 4 AND 6/76 KRAMER (( 1976 )) ECR 1279, THE COURT HELD THAT NATIONAL MEASURES RESTRICTING THE QUANTITIES OF FISH CAUGHT DO NOT CONSTITUTE MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON THE GROUND THAT, EVEN IF SUCH NATIONAL MEASURES HAVE THE EFFECT, IN THE SHORT TERM, OF REDUCING THE QUANTITIES OF FISH THAT THE MEMBER STATES ARE ABLE TO EXCHANGE BETWEEN THEMSELVES, THEIR PURPOSE IN THE LONG TERM IS TO ENSURE AN OPTIMUM YIELD FROM FISHING AND THEREFORE TO INCREASE SUCH EXCHANGES . CONSEQUENTLY, IT IS SUFFICIENT TO STATE THAT MEASURES OF THE KIND AT ISSUE IN THIS CASE DO NOT IN ANY EVENT FALL WITHIN THE SCOPE OF ARTICLE 30 OF THE TREATY, WITHOUT THERE BEING ANY NEED TO EXAMINE WHETHER ARTICLE 30 OF THE TREATY IS APPLICABLE TO MEASURES ADOPTED BY THE COMMUNITY INSTITUTIONS .
25 ON THE BASIS OF THE FOREGOING, IT MUST BE CONCLUDED THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATION NO 1/85 .