1 BY ORDER OF 14 NOVEMBER 1980 , WHICH WAS RECEIVED AT THE COURT ON 5 DECEMBER 1980 , THE COURT OF APPEAL , CRIMINAL DEVISION , LONDON , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FIVE QUESTIONS AS TO THE INTERPRETATION OF ARTICLE 102 OF THE ACT OF 22 JANUARY 1972 CONCERNING CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES AND CERTAIN OTHER PROVISIONS OF COMMUNITY LAW IN RELATION TO A UNITED KINGDOM MEASURE CONCERNING FISHERIES .
2 THESE QUESTIONS WERE RAISED IN THE CONTEXT OF CRIMINAL PROCEEDINGS AGAINST THE MASTER OF A FRENCH TRAWLER , MR TYMEN , FOR THE INFRINGEMENT OF THE FISHING NETS ( NORTH-EAST ATLANTIC ) ( VARIATION ) ORDER 1979 ( SI 1979 NO 744 ). THAT ORDER , WHICH ENTERED INTO FORCE ON 1 JULY 1979 AND WHICH AMENDED THE FISHING NETS ( NORTH-EAST ATLANTIC ) ORDER 1977 ( SI 1977 NO 440 ), PROHIBITS IN A SPECIFIED ZONE OF THE ATLANTIC AND ARCTIC OCEANS AND THE SEAS ADJACENT TO THOSE OCEANS THE PRESENCE ON BOARD FISHING BOATS OF NETS HAVING A MESH-SIZE LESS THAN CERTAIN PRESCRIBED MINIMUM SIZES .
3 IN THE CASE IN POINT MR TYMEN WAS FOUND GUILTY BY CARDIFF CROWN COURT OF OFFENCES CONTRARY TO THE ABOVE-MENTIONED ORDERS , HAVING BEEN FOUND IN POSSESSION ON 16 OCTOBER 1979 ON BOARD HIS SHIP WITHIN THE UNITED KINGDOM FISHING ZONE OF NETS HAVING AN AVERAGE MESH-SIZE LESS THAN THE MINIMUM PERMITTED MESH-SIZE . HE APPEALED AGAINST THAT JUDGMENT TO THE COURT OF APPEAL , CRIMINAL DIVISION .
4 IT SHOULD BE RECALLED THAT THE ABOVE-MENTIONED UNITED KINGDOM ORDERS HAVE LED TO TWO ACTIONS AGAINST THE UNITED KINGDOM FOR FAILURE TO FULFIL ITS OBLIGATIONS UNDER THE TREATY , BROUGHT BY FRANCE AND THE COMMISSION UNDER ARTICLES 170 AND 169 OF THE EEC TREATY RESPECTIVELY . IN THE FIRST OF THESE CASES THE COURT DECLARED , IN ITS JUDGMENT OF 4 OCTOBER 1979 ( CASE 141/78 , FRANCE V UNITED KINGDOM , ( 1979 ) ECR 2923 ) THAT , BY BRINGING INTO FORCE ON 1 APRIL 1977 THE FISHING NETS ( NORTH-EAST ATLANTIC ) ORDER 1977 , THE UNITED KINGDOM HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY . IN THE SECOND CASE THE COURT DECLARED , BY JUDGMENT OF 5 MAY 1981 ( CASE 804/79 , COMMISSION V UNITED KINGDOM , ( 1981 ) ECR 1045 ) THAT THE UNITED KINGDOM HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY INTER ALIA BY HAVING BROUGHT INTO FORCE ON 1 JULY 1979 , WITHOUT APPROPRIATE PRIOR CONSULTATION AND IN SPITE OF THE COMMISSION ' S OBJECTIONS , THE FISHING NETS ( NORTH-EAST ATLANTIC ) ( VARIATION ) ORDER 1979 ( SI NO 744 ).
5 SINCE THE COURT OF APPEAL , CRIMINAL DIVISION , CONSIDERED THAT A RULING OF THE COURT OF JUSTICE WAS NECESSARY TO ENABLE IT TO DECIDE WHETHER THE UNITED KINGDOM ORDER OF 1979 WAS COMPATIBLE WITH COMMUNITY LAW IT SUBMITTED THE FOLLOWING QUESTIONS : ' ' 1 . DOES A MEMBER STATE HAVE POWER TO ADOPT AND BRING INTO FORCE A FISHERY CONSERVATION MEASURE PRESCRIBING A MINIMUM MESH SIZE FOR NEPHROPS OF A KIND CONTAINED IN THE UNITED KINGDOM ' S FISHING NETS ( NORTH-EAST ATLANTIC ) ( VARIATION ) ORDER 1979 ( SI 1979 NO 744 ) AFTER THE EXPIRY OF THE PERIOD REFERRED TO IN ARTICLE 102 OF THE ACT OF ACCESSION ON 31 DECEMBER 1978? 2.IF NOT , HAVE INDIVIDUALS PROSECUTED UNDER SUCH A MEASURE ANY AND IF SO WHAT RIGHTS WHICH NATIONAL COURTS MUST PROTECT? 3.IF THE ANSWER TO 1 ABOVE IS YES , WOULD ( A ) THE PROCEDURAL REQUIREMENTS OR ( B)THE OTHER REQUIREMENTS OF THE FOLLOWING PROVISIONS : ( I ) ARTICLE 3 OF COUNCIL REGULATION NO 101/76 OF 19 JANUARY 1976 ; ( II)ANNEX VI TO THE HAGUE RESOLUTION OF 3 NOVEMBER 1976 ; ( III)DECISION 79/590/EEC OF 25 JUNE 1979 ; ( IV)ARTICLE 5 OF THE EEC TREATY , HAVE BEEN SATISFIED BY A MEMBER STATE WHICH , BEFORE ADOPTING SUCH A FISHERY CONSERVATION MEASURE , ACTED IN THE WAY THE UNITED KINGDOM ACTED AS SHOWN IN THE FILE MARKED ' STATEMENT OF FACTS ' ANNEXED HERETO? 4.DOES THE FACT THAT THE COURT OF JUSTICE IN CASE 141/78 FRENCH REPUBLIC V UNITED KINGDOM ( 1979 ) ECR 2923 FOUND THAT THE UNITED KINGDOM , IN BRINGING INTO FORCE THE FISHING NETS ( NORTH-EAST ATLANTIC ) ORDER 1977 ( SI 1977 NO 440 ), FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY , MAKE ANY DIFFERENCE TO THE ANSWER TO 3 ABOVE? 5.IF ALL OR ANY OF THE AFORESAID REQUIREMENTS WERE NOT SATISFIED , HAVE INDIVIDUALS PROSECUTED UNDER SUCH A MEASURE ANY AND IF SO WHAT RIGHTS WHICH 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 A UNILATERAL NATIONAL MEASURE , EVEN OF ONE HAVING THE SAME CONTENT , WHICH IS ADOPTED IN A SPHERE COMING WITHIN THE POWERS OF THE COMMUNITY . TO ACCEPT THE REASONING OF THE BRITISH GOVERNMENT WOULD AMOUNT TO RECOGNIZING THE LAWFULNESS OF NATIONAL MEASURES ADOPTED IN A SPHERE WITHIN WHICH THE POWERS OF THE COMMUNITY APPLY SOLELY BY REASON OF THE EXISTENCE OF A COMMUNITY PROPOSAL WHICH IS IDENTICAL IN PRINCIPLE . THAT WOULD NOT ONLY BE CONTRARY TO LEGAL CERTAINTY BUT WOULD LEAD TO A DISTORTION OF THE DIVISION OF POWERS BETWEEN THE COMMUNITY AND THE MEMBER STATES AND WOULD THUS ADVERSELY AFFECT THE ESSENTIAL BALANCES ESTABLISHED BY THE TREATY .
12 FURTHERMORE , WHERE , WITH REGARD TO FISHERY CONSERVATION MEASURES ADOPTED DURING THE PERIOD IN WHICH THE COUNCIL HAD NOT YET EXERCISED THE POWERS WHICH IT POSSESSES , THE COMMISSION HAS PUT FORWARD EXPRESS OBJECTIONS TO THE NATIONAL MEASURE CONTEMPLATED , SUCH OBJECTIONS MAY BE CONSIDERED TO HAVE BEEN WITHDRAWN ONLY WHEN THE COMMISSION HAS CLEARLY AND EXPRESSLY INDICATED THAT IT NO LONGER INTENDS TO INSIST ON THEM . CONSIDERATION , IN THE LIGHT OF THE STATE OF THE LAW THUS DEFINED , OF THE MEASURE REFERRED TO BY THE NATIONAL COURT DOES NOT DISCLOSE ANY FACTOR OF SUCH A KIND AS TO ALLOW THE CONCLUSION THAT THAT IS THE POSITION . ON THE CONTRARY , AS IS MADE CLEAR BY THE COMMUNICATION FROM THE COMMISSION RELATING TO THE PUBLICATION OF NATIONAL FISHERY CONSERVATION MEASURES OF 4 JUNE 1980 ( OFFICIAL JOURNAL C 133 , P . 2 ), THE COMMISSION , ON 3 AUGUST 1979 , EXPRESSLY PERSISTED IN ITS DISAPPROVAL OF THE DISPUTED ORDER AS SUCH ALTHOUGH IT APPROVED OF THE DESIGNATION IN THE ORDER OF A CERTAIN FISH AS A PROTECTED SPECIES .
13 SIMILARLY , THE UNITED KINGDOM ' S ALTERNATIVE ARGUMENT TO THE EFFECT THAT THE COMMISSION ACTED UNREASONABLY BY REFUSING ITS APPROVAL MUST BE REJECTED . WHERE , AS WAS FOUND WITH REGARD TO THE CONTESTED MEASURES IN THE ABOVE-MENTIONED JUDGMENT OF 5 MAY 1981 , THE MEMBER STATE CONCERNED HAS OMITTED TO APPLY THE PROCEDURE OF CONSULTATION IN SUCH A WAY AS TO ENABLE THE COMMISSION TO UNDERTAKE AN APPROPRIATE EXAMINATION OF THE MEASURES CONTEMPLATED IT IS IMPOSSIBLE TO CHARGE THE COMMISSION WITH HAVING ACTED IN BREACH OF THE LAW BY FAILING TO APPROVE THE MEASURE RETROACTIVELY .
14 THE REPLY TO THE FIRST QUESTION MUST ACCORDINGLY BE THAT AFTER THE EXPIRY OF THE PERIOD REFERRED TO IN ARTICLE 102 OF THE ACT OF ACCESSION A MEMBER STATE DOES NOT HAVE POWER TO ADOPT AND BRING INTO FORCE , WITHOUT APPROPRIATE PRIOR CONSULTATION WITH THE COMMISSION AND IN SPITE OF OBJECTIONS , RESERVATIONS OR CONDITIONS FORMULATED BY THE COMMISSION , A FISHERY CONSERVATION MEASURE OF THE KIND WHICH FORMS THE SUBJECT-MATTER OF THE FISHING NETS ( NORTH-EAST ATLANTIC ) ( VARIATION ) ORDER 1979 ( SI 1979 NO 744 ). SECOND QUESTION
15 THE SECOND QUESTION INQUIRES IN SUBSTANCE WHETHER INDIVIDUALS MAY BE PROSECUTED UNDER A MEASURE WHICH IS FOUND TO BE CONTRARY TO COMMUNITY LAW .
16 THE SAME QUESTION HAS ALREADY FORMED THE SUBJECT-MATTER OF THE JUDGMENT OF 16 FEBRUARY 1978 ( CASE 88/77 , SCHONENBERG , ( 1978 ) ECR 473 ). IN THAT JUDGMENT , WHICH , LIKE THE PRESENT CASE , CONCERNED A BREACH OF NATIONAL FISHERY PROVISIONS , THE COURT FOUND THAT WHERE CRIMINAL PROCEEDINGS ARE BROUGHT BY VIRTUE OF A NATIONAL MEASURE WHICH IS HELD TO BE CONTRARY TO COMMUNITY LAW A CONVICTION IN THOSE PROCEEDINGS IS ALSO INCOMPATIBLE WITH THAT LAW .
17 THE REPLY TO THE SECOND QUESTION MUST ACCORDINGLY BE THAT WHERE CRIMINAL PROCEEDINGS ARE BROUGHT BY VIRTUE OF A NATIONAL MEASURE WHICH IS HELD TO BE CONTRARY TO COMMUNITY LAW A CONVICTION IN THOSE PROCEEDINGS IS ALSO INCOMPATIBLE WITH THAT LAW . THIRD , FOURTH AND FIFTH QUESTIONS
18 SINCE THE THIRD , FOURTH AND FIFTH QUESTIONS WERE SUBMITTED ONLY IN THE EVENT OF AN AFFIRMATIVE REPLY TO THE FIRST QUESTION IT IS UNNECESSARY TO REPLY TO THEM .