Opinion of Mr advocate general Reischl

Mr President,

Members of the Court,

On 9 March 1977 the Fishing Nets (North-East Atlantic) Order 1977 was issued in the United Kingdom. Designed to protect certain species of fish and brought into force on 1 April 1977, the order contains provisions governing the mesh size of fishing nets to be used for certain species of fish and the size of what are known as by-catches, that is to say catches of species of fish which in themselves are protected but which are unintentionally taken up together with unprotected species when authorized nets are used.

In autumn 1977 the Cap Caval, a French ship, infringed these provisions whilst fishing, mainly for prawns it seems, in English territorial waters. The ship was intercepted on the edge of a prawn-fishing area and its owner was sentenced to a fine by a British court because the ship was using nets whose mesh did not comply with the requirements — only small-mesh nets were aboard — and because the limit authorized for by-catches had been exceeded: on the master's estimate they amounted to 61 % of the total catch, whereas 20 % is the amount permitted by the British order mentioned above.

This resulted in an action against the United Kingdom under Article 170 of the EEC Treaty by the French Government, which considers that the British order is incompatible with Community law, for various reasons which I shall discuss presently.

In accordance with the third paragraph of Article 170, the Commission gave the British Government the opportunity to submit its observations on the complaints made against it. As justification the latter relied on the decision in Joined Cases 3, 4 and 6/76 (Kramer and Others, judgment of 14 July 1976, [1976] ECR 1279), according to which Member States are fully entitled to take measures for conservation of fishery stocks. It also pointed out that the order had been adopted to implement Recommendation No 5 of the Commission set up under the North-East Atlantic Fisheries Convention, hence in application of a measure which was binding on the Member States. It was not, therefore, a unilateral measure within the meaning of Annex VI to the Hague Resolution of 3 November 1976, which reads as follows:

According to the British Government's interpretation of this decision, there was no reason for the Commission's approval to be sought and the United Kingdom claims that, last but not least, it must be conceded that the measures in question are not discriminatory and above all they may be regarded as reasonable since they are certainly appropriate in the light of Article 6 of Council Regulation No 350/77 laying down certain interim measures for the conservation and management of fishery resources (Official Journal L 48, 19 February 1977, p 28), which provides as follows:

Opposing that view, the Commission maintained in a reasoned opinion which it gave on 22 March 1978 that in fact the Hague Resolution imposed an obligation on the British Government to seek the approval of the Commission because the disputed order was not limited to implementing Recommendation No 5 but — quite apart from the question of the purpose of the catch — had exceeded the terms thereof. Moreover, it had a duty under Article 3 of Council Regulation No 101/76 (Official Journal L 20, 28 January 1976, p. 19) to notify other Member States and the Commission of the measures it intended to adopt. Since it did neither, it must be declared that the United Kingdom had failed to observe the rules of Community law.

On those grounds, the French Government brought the matter before the Court of Justice. In the application it asked the Court to declare that the British Order of 9 March 1977 was not a measure which the British Government was legally bound to take under the terms of the North-East Atlantic Fisheries Convention, and to declare also that the order was illegal under Community law.

The British Government opposed the submissions outlined above in the proceedings before the Court, in which the Commission was participating as intervener on behalf of the French Government. During a hearing by the Commission on 2 February 1978 the British representative unsuccessfully sought approval of the order. The Commission, however, insisted that the order should be amended to comply with the recommendation it had made restricting by-catches to 40 % and the British Government submitted an official request to the Commission on 3 July 1978 to approve an amendment of the disputed order. This amendment was then made in the Fishery Nets (North-East Atlantic) (Variation) Order 1978 dated 7 July 1978, to the effect that no restriction was to apply to by-catches in prawn-fishing.

My opinion on the dispute is as follows:

1. First, the doubts cast by the British Government on the application as it was formulated in the written procedure must be examined.

2. Two objections are made against the British Government:

3. Before I examine the dispute in more detail, I think it would be advisable to recall the relevant case-law up to the present date together with a few fundamental observations which are pertinent to the case in hand.

4. The crucial question in this dispute — to which L shall now turn my attention — is clearly to decide what duties arise for the Contracting States under Annex VI to the Hague Resolution. Even the British Government has no difficulty in agreeing that it created legal obligations. According to the submissions we have heard up to now, what remains to be decided is whether the procedure set out in the Hague Resolution, which the British Government, as it agrees, did not observe, had also to be followed when national measures were adopted in execution of obligations under the North-East Atlantic Fisheries Convention.

5. The British Government is also reproached on the ground that it has infringed Article 3 of Regulation No 101/76, which gives each Member State a duty to notify other Member States and the Commission of any alterations they intend to make to fishery rules laid down pursuant to Article 2 — that is to say, to national rules covering fishing in sea-waters under the sovereignty of that State. This, too, does not require further comment in the light of the results of the foregoing examination. However, I do not wish to conceal my opinion that this complaint is also justified.

6. Now all that remains are the complaints attacking the content of the order. I think this is another point which need not be examined after all that I have said. If the questions raised are not to be completely ignored, however, the following brief remarks may be made:

7. Permit me to conclude my remarks by repeating that the complaint brought by the French Government is well-founded. It is also clear, on the basis of the claim as last formulated, that the Government of the United Kingdom has failed to fulfil its obligations under Community law in unilaterally making the Fishing Nets (North-East Atlantic) Order 1977. As the applicant has succeeded in its claim, the United Kingdom must be ordered to pay the costs of the proceedings as requested in the application; it remains only to say that each party must bear its own costs incurred by the intervention, as no claim has been submitted with regard to them.

1 Translated from the German.