JUDGMENT OF 16. 2. 1978 — CASE 88/72 MINISTER FOR FISHERIES v SCHONENBERG

In Case 88/77 Reference to the Court under Article 177 of the EEC Treaty by the District Court for the District Court Area of Cork City (Ireland) for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco, Presidents of Chambers, A. M. Donner, P. Pescatore, Lord Mackenzie Stuart and A. O'Keeffe, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

I — Facts and written procedure

II — Written observations submitted before the Court

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Does Community law and in particular Article 7 of the Treaty of Rome or Article 2 of Council Regulation No 101/76 taken alone or read with Articles 100 and 101 of the Treaty of Accession preclude Ireland from taking measures such as are set out in the Sea Fisheries (Conservation and Rational Exploitation) Order 1977 (S.I. No 38 of 1977) and/or the Sea Fisheries (Conservation and Rational Exploitation) (No 2) Order 1977 (S.I. No 39 of 1977)?

2. Does Community law and in particular Articles 102 and 103 of the Treaty of Accession either taken alone or read with Council Regulation (EEC) No 101/76 Article 4, preclude Ireland from taking measures such as are set out in the Fisheries (Conservation and Exploitation) Order 1977 (S.I. No 38 of 1977) and/or the Sea Fisheries (Conservation and Rational Exploitation) (No 2) Order 1977 (S.I. No 39 of 1977)?

3. Would a conviction of the defendants by this court on the charges referred to in the Second Schedule hereto be incompatible with Community law?

II —. Written observations submitted before the Court

(a). The argument that by virtue of Articles 100 and 101 of the Act of Accession Ireland has no jurisdiction whatever over the maritime waters outside its 6 to 12 mile limits, as the case may be, and within the 200 mile limit recently adopted is quite unsustainable.

(b). Contrary to the argument put forward by the defendants in the main action, Articles 102 and 103 of the Act of Accession empowered Ireland to take measures for the conservation of fisheries such as those in question in the present case.

(c). As regards the allegation of discrimination the following factors must be borne in mind: the urgency and necessity of proper measures for conservation of fish stocks is universally recognized; pending the adoption of a Community regime the jurisdiction to introduce such measures is vested in Member States; any measures introduced will, of necessity, have different effects on different Member States; since the Irish measures are real and genuine conservation measures their validity cannot be challenged merely because they weigh more heavily on some Member States than on others; the Irish measures are not discriminatory either in form or in substance and the fact that they have a somewhat more severe effect on the Dutch fishing industry emerges not from any discriminatory content but from the fact that the conservation effects of the measures, in themselves, have a greater impact on the fishing fleet which takes most fish from the Irish waters.

(d). The following replies should be given to the questions referred:

(a). The essence of the second question, which must logically be dealt with first, relates to the extent of the powers retained by the Member States in relation to the making of conservation orders in fishery matters, a matter which has been, to some extent, transferred to the organs of the European Communities.

(b). The conservation measures adopted by the Irish Government are contrary to Article 2 (1) of Regulation No 101/76.

(c). In so far as the orders of 16 February 1977 are contrary to Community law they cease to have effect in Irish law. Any conviction in Irish courts based on them would be invalid.

(a). The Community character of the rules concerning fishing in particular emerges most clearly from Article 102 of the Act of Accession, Annex 1 to the Hague Resolutions and the case-law of the Court in the Kramer case. A twofold conclusion may be derived from those provisions: first, the power to establish permanent rules for fishing is held by the Community itself. In the terms of the consistent case-law of the Court of Justice the powers of the Community exclude the concurrent powers of the Member States. Secondly, the general rules of the Common Market are applicable to the fishing industry, in particular, Article 7 of the EEC Treaty prohibiting any discrimination on grounds of nationality, which was reaffirmed with regard to fishing in the second subparagraph of Article 2 (1) of Regulation No 101/76. The principle of equality of treatment entails an obligation to take account of the practical effects of a measure and its non-discriminatory appearance is not sufficient to justify it.

(b). In view of the present situation of Community law, determined in particular by the Statement on Annex VI to the Hague Resolutions, the validity of the Irish measures must be examined essentially having regard to, first, their non-discriminatory nature and whether they are adequate for the objective in question and, secondly, their effect on the establishment of the future common policy for the fishing industry.

(a). One difference is that the Kramer case concerned not a unilateral, national restriction of catches but one agreed on internationally. A second difference is to be found in the fact that since 1975 the Community institutions and the Member States have set out to formulate a Community policy for the conservation of fish stocks and that in the circumstances which have thus changed any national measure restricting catches may render considerably more difficult the creation and development of a common policy. The danger increases as the date approaches by which the Council must have determined measures to conserve the biological resources of the sea under Article 102 of the Act of Accession. A third difference relates to the fact that a national provision such as that adopted by Ireland cannot reasonably be regarded as serving to safeguard the resources of the sea. Contrary to Article 4 of Regulation No 101/76 and to the practice of international fishery organizations it contains no definition of species of fish, areas, fishing seasons, methods of fishing or fishing gear. Biological considerations based on factual calculations of the risks of overfishing, relating to certain areas and certain species, cannot reasonably constitute grounds for such a provision.

(b). The undeniable need for an adequate protection of fish stocks in the areas in question cannot justify the adoption of any type of measure restricting catches. Even if the national power still exists in that sphere in addition to the power of the Community it must, in any event, be understood as being limited to what is strictly necessary to achieve the common objective of the safeguarding of fish stocks. On the one hand restrictions on catches imposed on the fishing industry must be strictly necessary for the achievement of the common objective; on the other, the effects of the national measure on the functioning of the common organization of the market must be kept to a minimum. A system of rules regulating catches such as that at issue in the present case appears not to comply with those conditions. Various alternative measures are probably more appropriate for the protection of fish stocks, without excluding certain fishing boats on the basis of arbitrary criteria. Furthermore, the Irish measures are detrimental to a rational development of the fishing industry in that particularly the more modern trawlers are excluded. The modernization of the Netherlands fleet was rather related to its being designed for selective fishing of high quality fish intended for human consumption. It has also made possible an increase in the productivity of labour. That development, which is also set out as an aim in Articles 1 and 9 of Regulation No 101/76, would be thwarted by national measures such as those adopted by Ireland.

(c). The provision contained in the Irish measures also conflicts with a fundamental principle of the Community fishing policy. The equal rights of all fishing vessels from the Community in respect to access to and use of the fishing grounds as guaranteed by Article 2 of Regulation No 101/76 are prejudiced. The formally objective nature of the exclusion of boats above a certain length or engine power does not affect that conclusion. From the text of Article 2 (1) it is evident that it is the substantive effects of the national provision which are to be assessed and not its form alone.

(d). By reason of the one-sided nature of the restriction of catches, the method of restricting catches which is not justified on the grounds of protecting fish stocks and the discriminatory effect of the measures, both individually and in conjunction with each other, Community law bars measures such as those adopted by Ireland.

(a). Article 2 (1) of Regulation No 101/76 prohibits differences in treatment of other Member States, not merely express or open discrimination on the grounds of nationality. It also requires equal access to and use of the fishing grounds, which is another obligation of substance.

(b). The Irish measures prohibit all fishing by large fishing boats, for any species, even species not in need of conservation, over a very large area of sea, throughout the year, for an unlimited period. They do nothing to limit the total number of fish caught, or the total number of boats fishing, or the total time spent fishing, or the mesh size, equipment or techniques used. They are unselective. They do not limit either the total catch or the total fishing effort in the areas to which they relate. Nor do they prevent fishing in spawning grounds or nurseries, nor do they protect vulnerable areas from fishing by harmful methods.

(c). Annex VI to the Hague Resolutions, whatever its exact legal effect, does not lay down rules of substance or of procedure which are substantially different from the relevant rules of Community law. It is undeniable that, taken together, the resolutions gave an important mandate to the Commission to negotiate arrangements on fisheries with third countries in areas within 200 miles of Member Sutes' baselines. Ireland agreed to that mandate. Without disregarding Article 5 of the EEC Treaty, Annex VI could not authonze national measures incompatible with Community law.

(d). Article 2 of Regulation No 101/76 is directly applicable by virtue of Article 189 of the EEC Treaty. Individuals and companies have rights under it which are enforceable before national courts. A conviction of a national of a Member State in accordance with a national law which was contrary to Article 2 of Regulation No 101/76 would be contrary to Community law.

(e). The following answers should be given to the questions referred to the Court:

III —. Oral procedure

1. By order of 7 July 1977, received at the Court of Justice on 12 July, the Distria Court for the District Court Area of Cork City (Ireland) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions concerning the interpretation of Article 7 of the Treaty, Articles 100 to 103 of the Act of Accession and Articles 2 and 4 of Council Regulation No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ L 20, p. 19), the answers to which will enable it to assess the compatibility with Community law of two orders made by the Irish Minister for Fisheries on 16 February 1977 in relation to sea fishing (Sea Fisheries (Conservation and Rational Exploitation) Orders 1977).

2. The combined effect of the two orders was to prohibit fishing within a maritime area situated within the exclusive fishery limits of the Irish State which lie south of the parallel 56o 30' North latitude, east of the meridian of 12o West longitude and north of the parallel of 50o 30' North latitude by all fishing boats exceeding 33 metres in registered length and whose engine power exceeds 1100 brake horse-power.

3. The file shows that on 29 April 1977 ten trawlers registered in the Netherlands, all of which exceeded the registered dimension and brake horse-power authorized by the Irish orders, fished within the area reserved by those orders.

4. One of the Dutch trawlers, the Master of which was C. A. Schonenberg, was boarded by a boarding party from an Irish Naval Sea Fisheries Protection vessel and brought to Cork Harbour, where it was followed by the nine other trawlers in the same group.

5. The Masters of the ten Netherlands trawlers in question are at present being prosecuted before the Cork Distria Court for having violated the orders of 16 February 1977.

6. As the compatibility of those orders with Community law was contested in the course of those proceedings the District Court referred three questions to the Court of Justice for a preliminary ruling.

7. The first question, which concerns the interpretation of Article 7 of the EEC Treaty and of Article 2 of Regulation No 101/76, in conjunction with Articles 100 and 101 of the Act of Accession, seeks to enable the national court to assess the compatibility of the Irish orders of 16 February 1977 with the principle of equality of treatment guaranteed by the aforementioned provisions to all fishing boats flying the flag of one of the Member States and registered within the territory of the Community.

8. The second question, which relates to the interpretation of Articles 102 and 103 of the Act of Accession and Article 4 of Regulation No 101/76, asks whether, at the period in question, the Member States were still entitled to adopt conservation measures in the maritime waters under their jurisdiction or whether the power to do so was reserved to the Council.

9. Finally, by the third question the Distria Court asks whether it is possible to convia in criminal proceedings if, as a result of the reply to either of the first two questions, it finds that the orders of 16 February 1977 are incompatible with certain provisions of Community law.

10. The orders made by the Irish Minister for Fisheries on 16 February 1977 have resulted in an application by the Commission under Article 169 of the EEC Treaty for a declaration that Ireland has failed to fulfil one of its obligations under the Treaty; this application forms the subject of Case 61/77.

11. In fact, the questions of law considered within the context of Case 61/77 are identical to those which are raised by the questions referred by the Distria Court.

12. By judgment given this day the Court has found that by bringing into force the orders made by the Irish Minister for Fisheries on 16 February 1977 Ireland failed to fulfil its obligations under the Treaty.

13. It is therefore sufficient to refer to the judgment given in Case 61/77, the text of which is annexed to the present judgment.

14. Having regard to the grounds set out in that judgment it is appropriate to reply first to the second question that in the absence of the adoption by the Community of adequate conservation measures under Article 102 of the Act of Accession and Article 4 of Regulation No 101/76, the Member States were, at the period in question, entitled to adopt interim measures as regards the waters under their jurisdiction, provided that such measures are in accordance with the requirements of Community law.

15. The reply to the first question must be that Article 7 of the EEC Treaty, Article 2 of Regulation No 101/76 and, in so far as they have a bearing on the problem, Articles 100 and 101 of the Act of Accession preclude a Member State from adopting measures such as are set out in the Sea Fisheries (Conservation and Rational Exploitation) Order 1977 and the Sea Fisheries (Conservation and Rational Exploitation) (No 2) Order 1977.

16. Finally, as the Court has already held in its judgment of 21 March 1972 in Case 82/71, Pubblico Ministero della Repubblica Italiana v Società Agricola Industria Latte (SAIL) ([1972] I ECR 119), where criminal proceeding are brought by virtue of a national legislative measure which is held to be contrary to Community law, a conviction in those proceedings is also incompatible with that law.

17. The costs incurred by the Government of the Kingdom of the Netherlands, the Government of the French Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

18. As these proceeding are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the District Court for the Distria Court Area of Cork City, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Distria Court for the Distria Court Area of Cork City by order of 7 July 1977, hereby rules:

1 In the absence of the adoption by the Community of adequate conservation measures under Article 102 of the Act of Accession and Article 4 of Regulation No 101/76, the Member States were, at the period in question, entitled to adopt interim measures as regards the maritime waters coming within their jurisdiction, provided that such measures are in accordance with the requirements of Community law;

2 Article 7 of the EEC Treaty, Article 2 of Regulation No 101/76 and, in so far as they have a bearing on the problem, Articles 100 and 101 of the Act of Accession, preclude a Member State from adopting measures such as are set out in the Sea Fisheries (Conservation and Rational Exploitation) Order 1977 and the Sea Fisheries (Conservation and Rational Exploitation) (No 2) Order 1977;

3 Where criminal proceedings are brought by virtue of a national legislative measure which is held to be contrary to Community law a conviction in those proceedings is also incompatible with that law.