Opinion of Mr advocate general Reischl delivered

Mr President,

Members of the Court,

The case on which I am giving an opinion today arises from a number of criminal proceedings against Netherlands fishing groups and fishermen, who are claimed to have infringed certain restrictions on catches of fish in the North Sea imposed by the Netherlands authorities. During those proceedings the question was raised whether the fixing of catch quotas is compatible with Community law, either as regards the division of competence between the Community and its Member States, or as regards the prohibition of discrimination which is enshrined in Community law. The Court has already dealt with this area of uncertainty to some extent in Joined Cases 3, 4 and 6/76 Kramer and Others [1976] 2 ECR 1279 (judgment of 14 July 1976), in Case 61/77 Commission v Ireland [1978] ECR 417 (judgment of 16 February 1978) and in Case 88/77 Minister for Fisheries v Schonenberg [1978] ECR 473 (judgment of 16 February 1978).

I do not really need to emphasize, therefore, that the Community is competent to take measures regulating the fishing sector, and that this competence extends to measures for the conservation of fish stocks. As the Court pointed out in the Kramer case, this competence is based on the general body of provisions concerning agriculture in the EEC Treaty, Regulation of the Council No 2141/70 of 20 October 1970 laying down a common structural policy for the fishing industry and Regulation of the Council No 2142/70 of 20 October 1970 on the common organization of the market in fishery products (Official Journal, English Special Edition 1970 (HI), p. 703 and p. 704 respectively), which were replaced by Regulations Nos 100/76 and 101/76 of 19 January 1976 (Official Journal, L 20 of 28 January 1976, p. 1 and p. 19 respectively), and on Article 102 of the Act of Accession of 22 January 1972, which provides that from the sixth year after accession at the latest, the Council, acting on a proposal from the Commission, shall determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea.

However, the system of Community rules in the fishing sector has, as you know, remained incomplete up to now, since the Council, failing in its duty, has been unable so far to agree on a comprehensive set of rules for the protection of fish stocks. Instead, Member States were empowered to adopt appropriate interim measures, in collaboration with the Commission, pending the implementation of a system of Community rules (see Annex VI to the decision of the Council of 3 November 1976 on the Conference held in The Hague on 30 October 1976), or to limit the catches of their fishing fleets in accordance with international undertakings entered into or to be entered into (see, for example, Regulation (EEC) No 811/76 of the Council of 6 April 1976 temporarily authorizing certain systems of catch quotas in the fisheries sector, Official Journal, L 94 of 9 April 1976, p. 1).

EEC Member States which until the end of 1977 were parties to the North-East Atlantic Fisheries Convention of 24 January 1959 (United Nations Treaty Series, Vol. 486, 1964 No 7078) which came into force on 27 June 1963, that is to say, all except the Grand Duchy of Luxembourg and Italy, had entered into such international undertakings. According to the terms of this Convention the North-East Atlantic Fisheries Commission — a joint body set up under the Convention — could make binding recommendations to the Contracting States for, among other things, limiting catches to ensure the conservation of fish stocks in the waters specified. In Recommendation No 15 A of 25 November 1976 the Fisheries Commission laid down global quotas for catches of sole and plaice — the types of fish at issue in the main proceedings — in the North Sea for the year 1977 and divided this into individual quotas for the coastal states. The quotas allocated to the Netherlands amounted to 9200 tonnes for sole and 47000 tonnes for plaice.

After this Convention was denounced at the end of 1977 by the Netherlands and the other Member States following the decision adopted at The Hague on 3 November 1976 which is referred to above, no new international agreement, to which the Community should have been a party, was made.

When it became clear at the meeting held on 5, 6 and 7 December 1977 that the Member States in the Council were unable to agree on a set of Community rules for the conservation and management of fish stocks the Council decided to extend the validity of all the Community law provisions on the subject, which did not in fact concern sole and plaice, until 31 January 1978. At the same time it was agreed that the relevant national protective measures which were due to lapse at the year's end would also be extended until that date.

On 29 December 1977 the Netherlands Minister of Agriculture and Fisheries issued two decrees under Articles 3, 4 and 6 of the Regulation concerning Sea and Coastal Fishing 1977 (Staatsblad No 666), which enabled him inter alia to adopt measures implementing international agreements or resulting from the decisions of international organizations. These two decrees came into force on 1 January 1978.

By virtue of Article 2 of the Beschikking Voorlopige Regeling Vangsteperking Tong en Schol 1978 [Decree provisionally laying down restrictions on catches of sole and plaice, 1978] it was prohibited once the provision came into force to fish in certain maritime zones, in particular the North Sea, which is under the jurisdiction not only of the Netherlands but also of Belgium, Denmark, the Federal Republic of Germany, the United Kingdom and Norway. By way of exception to this prohibition Netherlands fishermen were permitted under Article 3 (1) of the decree to fish for sole up to a maximum of 765 tonnes and for plaice up to a maximum of 2950 tonnes in the North Sea. In implementation of this article the Beschikking Voorlopige Regeling Contingentering Tong en Schol Noordzee 1978 [Decree provisionally laying down quotas for North Sea sole and plaice, 1978] then determined in more detail the monthly catch quotas to be allocated to individual Netherlands fishing vessels.

The fishermen accused in the main proceedings are charged with having infringed the provisions mentioned above by landing from their fishing vessels a larger quantity of sole and/or plaice from the North Sea than was allowed according to the quota fixed for those vessels. When they claimed that the provisions in question were incompatible with Community law, the Economische Politierechter [magistrate in commercial matters] of the Arrondissementsrechtbank [District Court], Rotterdam, made an interim judgment on 18 July 1978 referring the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

My opinion on these questions is as follows:

The Court of Justice has already made it clear in the Kramer judgment that the Community has power to take conservation measures in the fisheries sector. In Case 61/77 (Commission v Ireland) it went further and decided that in so far as this power has been exercised by the Community, the provisions adopted by it preclude any conflicting provisions by the Member States. So long as the transitional period laid down in Article 102 of the Act of Accession has expired and the Community has not yet exercised its power in the matter, however, Member States are entitled, according to the judgment mentioned above, to take conservation measures within their own jurisdiction, subject to certain conditions.

1. As to the first question, the accused in the original proceedings infer from the judgments in the cases of Kramer, and Commission v Ireland, that the Community had exclusive competence, from the end of the period mentioned in the relevant provision at the latest, to adopt conservation measures for fish stocks. Since the accession of the new Member States took place on 1 January 1973, the measures provided for in the article referred to above had to have been taken by the Council on 1 January 1978 at the latest, with the consequence that the Member States must have lost their powers from that moment on. The accused contend that according to the ordinary use of language the period came to an end not later than the beginning of the sixth year. They also point out that the Act of Accession generally provides for transitional periods of five years, or sometimes ten years, but not six years.

2. In the judgment to which I have referred however, the Court expressly stated — and here I come to the difficulty broached, in the second preliminary question — that the residual powers left to the Member States are purely transitional in character and Member States are bound by Community obligations. Accordingly measures adopted by Member States are only permissible if they are necessary or at least appropriate and not unilateral, but taken in consultation with the Commission and the other Member States. Lastly, their content must not conflict with the prohibition of discrimination enshrined in Community law.

3. I can now turn to examination of the third question. It appears from the arguments put forward by the accused in the main action that this question depends on the interpretation of Article 7 of the EEC Treaty and Article 2 of Regulation No 101/76. It is to enable the national court to assess the compatibility of the content of the Netherlands measures in question with the principle of equal treatment laid down in the above-mentioned provisions. Article 7 of the EEC Treaty prohibits in principle any discrimination on the ground of nationality, whilst Article 2 of Regulation No 101/76 provides that rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States and that equal conditions of access to and use of the fishing grounds situated in the territorial waters of the Member States must be granted to the fishing vessels of Member States.

I propose, therefore, that the reply to the questions put by the Economische Politierechter of the Arrondissementsrechtbank, Rotterdam, be as follows:

1 Translated from the German.