Opinion of Mr Advocate General Reischl
Mr President,
Members of the Court,
The procedure for a declaration that a Member Sute has failed to fulfil its obligations under the Treaty on which I am giving my opinion today concerns serverai fisheries measures unilaterally adopted by the Government of the United Kingdom. I shall, therefore, before describing the measures in detail, briefly recall once more the relevant provisions of Community law on fishery products, the scope of which has already been defined in some instances by the Court of Justice in Joined Cases 3, 4 and 6/76 (Comelis Kramer and Others, judgment of 14 July 1976 [1976] ECR 1279), Case 61/77 (Commission of the European Communitiei v Ireland, judgment of 16 February 1978 [1978] ECR 417). Joined Cases 185 to 204/78 (Criminal proceedings against Firma J. van Dam en Zonen and Others, judgment of 3 July 1979 [1979] ECR 2345) and Case 141/78 (French Republic v United Kingdom of Great Britain and Northern Ireland, judgment of 4 October 1979).
The powers of the Community to adopt Community rules on the conservation and management of fishery resources are based on Articles 3 and 38 et seq. including Annex II to the EEC Treaty.
Articles 98 to 103 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties annexed to the Accession Treaty of 22 January 1972 contain additional provisions on fishery products. In particular, Article 102 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties provides that, from the sixth year after accession at the latest, the Council, acting on a proposa] from the Commission, must determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea.
On 19 January 1976 the Council adopted Regulation (EEC) No 100/76 on the common organization of the market in fishery products (Official Journal L 20 of 28 January 1976, p. 1) and Regulation (EEC) No 101/76 laying down a common structural policy for the fishing industry (Official Journal L 20 of 28 January 1976, p. 19), which repealed the corresponding regulations, Regulation (EEC) No 2142/70 (Official Journal, English Special Edition 1970 (III), p. 707) and Regulation (EEC) No 2141/70 (Official Journal, English Special Edition 1970 (III), p. 703).
The provisions of Regulation No 101/76 which are relevant to this case provide as follows:
In connexion with the extension of the fishing zones in the North Sea and the North Atlantic to 200 miles as from 1 January 1977, the Council agreed in The Hague on 30 October 1976, or rather on 3 November 1976, to a Commission declaration which forms Annex VI to the Hague Resolution and is worded as follows:
On 18 February 1977 the Council subsequently adopted Regulation (EEC) No 350/77 laying down certain interim measures for the conservation and management of fishery resources (Official Journal L 48 of 19 February 1977, p. 28), which remained in force until the end of 1977.
After the negotiations in the Council on further intra-Community rules on the conservation and management of fishery resources had failed the Council agreed at its meeting on 30 and 31 January 1978 to a Commission declaration worded as follows:
The individual fisheries measures adopted by the Government of the United Kingdom must be considered against this background.
The Commission's first complaint is directed against a restriction on fishing for herring in what is known as the Mourne Fishery. This area lies within Division VII (a) of the Irish Sea defined by the International Council for the Exploration of the Sea and extends for 12 miles from the baselines off the east coast of Northern Ireland and Ireland between 53o and 55o latitude North. In this area what is known as collective fishing was carried on, in that Irish fishermen could fish in British waters and vice versa.
Article 3 of Council Regulation (EEC) No 1672/77 of 25 July 1977 laying down interim measures for the conservation and management of certain herring stocks (Official Journal L 186 of 26 July 1977, p. 27) laid down a prohibition on direct fishing for herring for the remainder of 1977 for the area in question between 53o 20' latitude North and 54o 40' latitude North. Article 7 of that regulation provided that the Member States shall take, as far as is possible, all necessary steps to ensure compliance with the provisions of this regulation within the maritime waters under their sovereignty or jurisdiction and covered by the Community rules on fisheries.
These provisions were extended until 31 January 1978 by Regulation (EEC) No 2899/77 (Official Journal L 338 of 28 December 1977, p. 5).
In addition, the Commission, starting on 17 October 1977, submitted to the Council a series of proposals for regulations which likewise provided for a total allowable catch of 0 tonnes for the area in question but which were not adopted by the Council (see COM 77/524 of 17 October 1977; COM 78/6 of 18 April 1978, Official Journal C 144 of 19 June 1978, p. 1, and of 15 June 1978, Official Journal C 167 of 12 July 1978, p. 1). Article 3 of the last Commission proposal in this connexion (COM 78/206, Official Journal C 160 of 6 July 1978, p. 3) contains the same rules for 1978 as those laid down for 1977 in Article 3 of Regulation (EEC) No 1672/77.
By letter of 18 September 1978 the Government of the United Kingdom sought the approval of the Commission for conservation measures in the area described, in accordance with Annex VI to the Hague Resolution. The Herring (Restriction of Fishing) Regulations (Northern Ireland) 1978 (Statutory Rules of Northern Ireland No 277), which were adopted on 18 September 1978 and came into force on 20 September 1978, provided for a total ban on herring fishing for the rest of 1978 in the Mourne Fisheiy within British fishery limits between 55o latitude North and 54o latitude North. Only boats of under 35 feet in length were exempted from that prohibition and could until 27 October fish a maximum of 400 tonnes of herring in a half-mile wide coastal strip between 54o 10' latitude North and 54o latitude North off the Northern Irish coast of County Down. In addition it was provided that fishing was to be closed to all fishing boats before 27 October when 400 tonnes of herring had been landed by the small boats. After this catch quota had been prematurely filled, the Government of the United Kingdom repealed the exemption described as from 26 September 1978 by the Herring (Restriction of Fishing) (Amendment) Regulations (Northern Ireland) 1978 (Statutory Rules of Northern Ireland No 286).
The second complaint of the Commission is directed against the introduction of a licensing system, the temporary closure and the introduction of catch quotas in the Isle of Man and the waters off the west coast of the United Kingdom in Division VII (a) defined by the International Council for the Exploration of the Sea.
Article 1 of Council Regulation (EEC) No 1779/77 of 2 August 1977 laying down interim conservation and management measures for herring fishing in the North Sea (Official Journal L 196 of 3 August 1977, p. 4), which was also extended until 31 January 1978 by Regulation (EEC) No 2899/77, prohibited direct fishing for herring from 1 October to 19 November 1977 in the area defined therein. Article 2 of that regulation provided for catch quotas for France, Ireland, the Netherlands and the United Kingdom for the remainder of 1977.
The Government of the United Kingdom issued on 8 August and brought into force on 12 August 1977 the Herring (Irish Sea) Licensing Order 1977 (Statutory Instrument No 1388) and the Herring (Isle of Man) Licensing Order 1977 (Statutory Instrument No 1389). The first of those orders prohibited fishing for herring by British boats in the Irish Sea, whilst the second introduced a prohibition on fishing for herring in various parts of the fishery around the Isle of Man for British fishing boats, fishing boats registered in the Isle of Man and Irish fishing boats. The Irish fishermen were mentioned because they possess historic fishing rights recognized in the London Fisheries Convention of 1964 within the 12-mile limits of the Isle of Man in an area south-west of the Isle of Man between 6 and 12 miles. Both orders provided for the issue of fishing licences by the competent British ministries or the Isle of Man authorities.
The Commission was notified of those orders, together with a series of other measures, in a letter of. 13 February 1978 containing no express request for approval in accordance with Annex VI to the Hague Resolution.
Only on 17 August 1978 did the British Government seek the Commission's approval for measures which were to come into force on 21 August in agreement with the Government of the Isle of Man and which were intended to control fishing in the waters in question. In this connexion the catch quota for British and Isle of Man fishing gear was to be restricted to a total of 8100 tonnes including herring caught before 21 August. In addition, under those orders fishing by United Kingdom and Isle of Man boats was to be controlled by the issue of licences. 120 licences were to be issued to United Kingdom fishing boats on the basis of the historic exercise of fishing rights. Moreover, it was announced that the Government of the United Kingdom would also issue licences for those boats which fished in waters other than those off the coast of the Isle of Man and which possessed a licence for the waters off the Isle of Man. The licence system was in addition to provide for a daily catch quota, for the notification of all catches upon landing in certain ports. Finally, the telex message also contained the announcement that fishing would be closed from 24 September to 31 December 1978. The ban on fishing was then imposed, as regards the United Kingdom fisheries in the zone described, by the Irish Sea Herring (Prohibition of Fishing) Order 1978 (Statutory Instrument No 1374) of 20 September 1978; in this connexion the territorial waters around the Isle of Man were not affected.
These measures adopted by the United Kingdom were not approved by the Commission.
Finally, the Commission's third complaint is directed against the unilateral extension of what is known as the Norway Pout Box by the Government of the United Kingdom. In this fishery, which lies off the north coast of the United Kingdom, there is, inter alia, industrial fishing for pout. In this connexion a large proportion of immature fish of other species of fish which live on the sea bottom and are fit for human consumption are caught as by-catches. Council Regulation (EEC) No 350/77 of 18 February 1977 laying down certain interim measures for the conservation and management of fishery resources (Official Journal No L 48 of 19 February 1977, p. 28) for that reason prohibited fishing for Norway pout from 21 February 1977 to 31 March 1977 in the part of the North Sea described in that regulation. The area, which lies between 56o and 60o latitude North, was thereby restricted to the east by the Greenwich meridian. By Regulation (EEC) No 1673/77 of 25 July 1977 amending Regulation (EEC) No 350/77 as regards the prohibition of fishing for Norwegian pout (Official Journal L 186 of 26 July 1977, p. 30) the Council then provided for a ban on fishing in respect of the same area from 1 September to 15 October 1977, which was extended until 31 October 1977 for part of that area by Council Regulation (EEC) No 2243/77 of 11 October 1977 prohibiting fishing for Norway pout (Official Journal L 260 of 13 October 1977, p. 1).
When this period expired the Government of the United Kingdom issued on 31 October 1977 the Norway Pout (Prohibition of Fishing) (No 3) Order 1977 (Statutory Instrument No 1756) which came into force on 1 November 1977 and prohibited all fishing for Norway pout in the area described.
For 1978 the Commission submitted to the Council on 14 October 1977 a proposal for a regulation laying down technical measures for the conservation of fishery resources (Official Journal C 278 of 18 November 1977, p. 8), which provided, in the version amended by the Commission proposal of 1 December 1977 (COM 77/646 Final), for an extension of the Norway Pout Box to 1o longitude East in the first and last quarters of 1978. This proposal was, however, replaced as early as 16 January 1978 by a further proposal (COM 78/7 Final) which was intended to lead to a reduction in by-catches by other measures.
When this proposal was not adopted by the Council, the Government of the United Kingdom sought by letters of 3 and 20 July 1978 the Commission's approval of a conservation measure which provided that the area in question was to be extended at its eastern limits, so far as the British fisheries extended, to 2o longitude East from 1 October to 31 March of each year. Although approval was not granted, the Government of the United Kingdom issued on 20 September 1978 the Norway Pout (Prohibition of Fishing) (No 3) (Variation) Order 1978 which came into force on 1 October 1978 and laid down the measures which had been notified.
By letter of 27 October 1978 the Commission then initiated against the United Kingdom the procedure laid down in Article 169 of the EEC Treaty and found that the United Kingdom had failed to fulfil its obligations under the EEC Treaty by adopting the unilateral fisheries measures described. The Government of the United Kingdom however rejected this complaint by letters of 8 December 1978 and 2 January 1979, taking the view that none of the measures complained of were incompatible with Community law. The Commission subsequently delivered to the United Kingdom on 17 January 1979 a reasoned opinion under the first paragraph of Article 169 of the EEC Treaty which was served on 22 January 1979 and in which the United Kingdom was requested to take all necessary measures to comply with the opinion within 14 days.
When the United Kingdom had refused to comply with the opinion the Commission brought the matter before the Court of Justice on 27 February 1979 and applied for a declaration that the United Kingdom had failed to fulfil its obligations under the EEC Treaty in the ways described in the application and for an order that the United Kingdom should pay the costs.
The Kingdom of Denmark, the French Republic, Ireland and the Kingdom of the Netherlands intervened in the procedure in support of the Commission.
I adopt the following viewpoint on the measures which form, for practical purposes, three separate procedures:
I — The Mourne Fishery
The Commission, supported in particular by the French Republic, is of the opinion that the United Kingdom has, by adopting the Herring (Restriction of Fishing) Regulations (Northern Ireland) 1978, failed from several points of view to fulfil its obligations under the EEC Treaty. In its view only a total ban on fishing for herring in the Mourne Fishery would have constituted a measure appropriate and thus also permissible under Community law for the protection of the herring stock in that area. The catch quota of 400 tonnes which was permitted after 19 September and which at any rate accounted for 6% of the total estimated herring stock there at the beginning of the year is incompatible with the conservation measures recommended by the International Council for the Exploration of the Sea which were moreover also reflected in the Commission's proposals.
The Commission claims that the fact that the Commission was informed of the intended measures only less than 36 hours before they came into force, without giving reasons for the 400-tonne exemption provided for, must be regarded as a further infringement. Finally, the restriction to small boats which were the only ones able to make use of the exemption at all led to discrimination against fishermen of other Member States who could hardly reach the fishing grounds in question in corresponding small boats.
Regardless of these objections, the Commission takes the view in addition that the fishery in question should have been closed as soon as possible after the International Council for the Exploration of the Sea had recommended this and when, after the expiry of the relevant Council regulation on 31 January 1978, no further agreement was reached within the Council. For this reason the United Kingdom was under a duty under Community law to prohibit direct fishing for herring in the Mourne Fishery from 6 February 1978 at the latest, the date on which Ireland closed its own waters pursuant to a Commission proposal and with the Commission's approval.
The Government of the United Kingdom on the other hand justifies its actions by stating that the International Council for the Exploration of the Sea proposed that a total prohibition on fishing for herring should be adopted in the area in question in 1978 and 1979. The United Kingdom complied with this recommendation by totally prohibiting direct fishing for herring in the Mourne Fishery within its fishing limits from 26 September 1978. The exemption permitting boats of under 35 feet in length to fish up to 400 tonnes of herring within half a mile of the County Down coast until 27 October 1978 at the latest was merely an interim measure introduced to reduce the economic and social hardships which would have arisen for the coastal fishermen owing to the fishing ban.
Moreover, the ban on fishing and the exemption were applied equally to all fishermen.
As a result of the appearance of several British trawlers in the area in question the United Kingdom Government was forced to act quickly and could for this reason seek the Commission's approval of the measures which it had proposed anyway only two days before those measures came into force.
The Governement of the United Kingdom states that it must also concede to the Commission that it is possible that the fishery in question should have been closed earlier but the damage which has occurred cannot be attributed to the delay in closure.
1. In appraising these submissions it seems to me to be appropriate first to deal with the claim that the conservation measures were introduced belatedly. In this connexion it is necessary first of all to bear in mind that this situation comes within the transitional period laid down in Article 102 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties which, as the Commission established in Joined Cases 185 to 204/78, Firma J. van Dam en Zonen and Others, judgment of 3 July 1979 [1979] ECR 2345, only expired on 31 December 1978. In addition it is necessary to take into consideration the fact that the Council had already adopted in July 1976 by means of Regulation (EEC) No 1672/77 the protective measures provided for in Article 102 of the Act concerning the Conditions of Accession and the Adjustment to the Treaties and Article 4 of Regulation (EEC) No 101/76 and that no further agreement was reached on further Community protective measures with regard to the period after 31 January 1978. Whereas the question involved in the previous case-law of the Court of Justice in fisheries cases was always whether and under what conditions the Member States might adopt unilateral protective measures as long as the Community had not exercised its powers to adopt such measures, the Court of Justice must decide in this case whether and under what conditions the Member States must adopt conservation measures when the Council had exercised its power to adopt such measures and was prevented from adopting further Community rules because no agreement was reached.
2. This statement enables me to be relatively brief in the appraisal of the further objections relating to the framing and effects of the Herring (Restriction of Fishing) Regulations (Northern Ireland) 1978 which came into force on 20 September 1978. In this connexion it is solely necessary to decide whether and to what extent the measures adopted unilaterally by the Government of the United Kingdom in September 1978, in other words during the transitional period laid down in Article 102 of the Act of Accession, are compatible with the requirements laid down in Community law. In solving this problem I can base myself on case-law which has already been established.
3. Finally, the Commission and the other interveners regard the exemption which reserved fishing for herring only to boats of under 35 ft in length as discrimination against other Member States which is not permissible under Community law.
4. Finally, thus, a word remains to be said with regard to the complaint that there was no due consultation. The British Government concedes that the consultation, barely two days before the measure in question came into force, was rather belated but wishes the delayed consultation to be excused owing to the urgency as a result of the appearance of British trawlers. In addition it claims that no practical importance may be attached to the short space of time since all those concerned were convinced of the need for a ban on fishing.
II — Northern Irish Sea and Isle of Man Fishery
The Commisson complains that the British Government has, by its conduct in this area in 1977 and 1978, failed in several respects in its obligations under Community law.
1. First, the British Government omitted, at the time when the Community rules were still in force, to inform the Commission and other Member States of the precise details of the application of the licensing system introduced by the Herring (Irish Sea) Licensing Order 1977 and the Herring (Isle of Man) Licensing Order 1977. Apart from the agreement of 23 July 1977 between the British Government, the Irish Government and the Isle of Man authorities, no document relating to the proposed system was submitted to the Commission. However, that agreement, to which Ireland in the end did not give its consent, envisaged inter alia that the Isle of Man authorities should issue 24 licences for fishing within the Isle of Man 12-mile zone. Moreover, except as otherwise provided, no boat was to be allowed to fish for herring in the whole zone in question unless it held a licence to fish within the Isle of Man 12-mile zone. Finally, the Isle of Man licences were to impose on the owners of the boats the obligation of landing all catches, for the purposes of supervision, at specified ports. From that agreement and a series of other indications the Commission draws the conclusion that, if they had wished to avail themselves in 1977 of their historic rights of fishing within the Isle of Man 12-mile zone, Irish boats were also made subject to a licensing system in the waters within the sovereignty of the United Kingdom, over which, in regard to fisheries policy, Community powers were at any event established. To that extent, Irish boats were at a disadvantage compared with French and Dutch boats which fished in the same zone and were not subject to any licensing system. Finally, the Commission points out that while both 1977 orders, approval of which was moreover not sought, authorized the authorities to issue licences, they contained no indication of the policy to be followed in so doing.
2. Having made these observations, which related to the procedure provided for under Community law, I am now able to turn to the complaints which relate to the content of the measures adopted by the Government of the United Kingdom.
III — Extension of the Norway Pout Box
In this case the Court must decide whether, and if so, subject to what conditions, the United Kingdom was entitled, by means of the Norway Pout (Prohibition of Fishing) (No 3) (Variation) Order 1978, unilaterally to extend, for specified periods, the so-called Norway Pout Box, within wh_ch fishing for the species in question was temporarily prohibited, eastwards by two degrees of longitude within the waters subject to its sovereignty.
In the area under discussion British fishermen fish predominantly for haddock and whiting which are intended for human consumption. On the other hand, the Norway pout, a small fish which is not suitable for human consumption, is fished for in this zone predominantly by the Danish fishing fleet, using small-mesh nets, for the purposes of industrial processing. Fishing with small-mesh nets has the result that considerable quantities of juvenile haddock and whiting are also landed as by-catches, which leads to a reduction in the species caught predominantly by British fishermen.
The Commission and the Dutch and French Governments therefore take the view that the unilateral extension of the so-called Norway Pout Box, in which fishing for that fish is prohibited for certain periods, is not a conservation measure since none of the stocks under discussion is truly in danger. In the end result, advantages are conferred by the measure in question on British fishermen and their customers at the expense of the Danish fishing fleet. It is submitted that the reconciling of the various interests of the Member States involved is, however, a question of economic policy, which is exclusively a matter for the Community. By adopting the measure in question the United Kingdom unilaterally pre-empted an important decision which could only have been taken at Community level on the basis of a Commission proposal. The British measure, moreover, had a disruptive effect upon the Community's external relations in that the Community was obliged to re-negotiate agreements relevant to this matter with Norway and the Faeroes. However, even if the extension of the Norway Pout Box were to be regarded as a measure for the protection of the biological resources of the sea, the conditions for the validity of such a measure laid down in Annex VI to the Hague Resolution and the Council declaration of 30 and 31 January 1978, and elaborated in the case-law of the Court, were not satisfied.
On the other hand, in the view of the Government of the United Kingdom, the extension of the Norway Pout Box represents a genuine conservation measure. Such a measure is not dependent upon a particular species' being threatened with extinction but is, rather, to be taken in order to ensure the greatest possible exploitation of a stock. However, the restriction on industrial pout fishing has the result that a greater number of haddock and whiting reach the age of reproduction and that a greater total allowable catch may therefore be achieved in future years. The measure is also based on scientific recommendations for the protection of the fish stocks in question, in particular on the reports by the International Council for the Exploration of the Sea. It does not follow from the fact that a restriction on fishing may affect one particular fishing industry more than another that it is not, on that account, a conservation measure. On the contrary, every real conservation measure is, in its nature, an economic measure at the same time. Moreover, the extension of the pout box caused no appreciable difficulties in external relations since the relevant agreements with Norway and the Faeroes have not yet been formally adopted by the Council.
In judging the lawfulness of the extension of the pout box I would again point out, under reference to my remarks on the Mourne Fishery, that at the time when the measure in question came into force, in September 1978, fisheries policy within the 200-mile zone was fundamentally a matter for the Community. During the transitional period provided for in Article 102 of the Act of Accession, the Member States had merely the power, and in some cases possibly the duty, derived from Community law, to adopt protective measures for the conservation of the biological resources of the sea so long as the Community has not acted or can_act no further. As the Court stressed in the Kramer case, measures for the limitation of catches of fish, and the possibility of taking such -measures, form an integral part of the system of a common organization of the market in fishery products established by the relevant regulations, but the effect of those measures, having been accepted from the outset by the Community rules themselves, cannot be equated with the disruptive effects, which are contrary to Community law, of national measures which are unrelated to the objectives of Community rules and are thus unlawful. According to that judgment, permissible measures of protection are only such measures as in the long term ... are necessary to ensure a steady, optimum yield from fishing and the effects of which on the functioning of the common organization of the market are kept to a minimum.
According to the judgment in the Kramer case, the answer to the question whether a measure limiting agricultural production impedes trade between Member States depends on the global system established by the basic Community rules in the sector concerned and on the objectives of those rules, in which connexion the nature and circumstances of production of the product in question should also be taken into consideration. I have already set forth the basic Community rules, which are expressed, in particular, in Regulation No 101/76, Annex VI to the Hague Resolution, the Council Resolution of 30 and 31 January 1978 and the case-law of the Court which I have already cited. If the substantive conditions there mentioned are satisfied, the Member State concerned must, in addition, seek the approval of the Commission, which must be consulted at all stages of the procedures. Those procedural requirements are to ensure that no material point is overlooked and that there are no additional impermissible matters in the national rules. If, however, the substantive requirements of the basic Community rules are not satisfied, a restriction on trade between Member States exists, which may not be adopted unilaterally but, at most, with the express approval of the Commission. In such a case, the consulting State is barred from putting the proposal submitted into force without the approval of the Commission. That obligation, as the Commission and the said interveners point out, arises from the second paragraph of Article 5 of the EEC Treaty in terms of which Member States shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.
If the requirements under Community law are regarded separately, it is not necessary, in my opinion, to decide whether the extension of the pout box is to be considered as a conservation measure or as an economic one. All parties are agreed that at the time of the extension the species under discussion in the said zone were not threatened with the danger of extinction. It is likewise not in dispute that at the time in question there was over-fishing in this zone in the sense that an excessive quantity of juvenile fish of the species suitable for human consumption was being caught as by-catches. To that extent it must be conceded in favour of the British Government that the rules in question reduced the catch of juvenile fish of the said species and, to that extent, served to ensure in the long term an optimum yield of fish intended for human consumption. That is not to say, however, that the extension of the zone in question is to be regarded as a permissible conservation measure under Community law.
Unilateral measures are permitted only when they are strictly necessary and appropriate in the sense that, in the absence of the specific protective measures, there is a threat to the reproduction of particular species of fish, and thus to supplies to consumers. That was not however the case at the time when the British measures were adopted. First, none of the species of fish under disc_ssion was threatened with extinction. While the relevant 1977 report of the International Council for the Exploration of the Sea contains an examination of the possible effects of various extensions of the Norway Pout Box it does not make any recommendation in favour of the adoption of a prohibition on fishing for Norway pout. Nor, contrary to the view of the British Government, does a clear recommendation to that effect emerge from the 1978 report of the Advisory Committee on Fishery Management of the International Council for the Exploration of the. Sea in which no reference was made to the Norway Pout Box. Finally, in its 1979 report, the International Council for the Exploration of the Sea states quite clearly that it is not empowered to make recommendations relating to the Norway Pout Box so long as there is no serious conservation problem in regard to the stocks of haddock and whiting in the area.
However, the relevant proposals which the Commission submitted to the Council demonstrate that the extension of the pout box was also not in accordance with Community interests either. In none of those proposals was an extension of the pout box alone envisaged. In order, as it is put in the recitals of the preambles to the proposals, to prevent discrimination and distortion of competition between Member States, the Commission envisaged inter alia in the last proposal made by it on 16 January 1978 (COM (78) 7 final) three different measures for preventing the over-fishing of haddock and whiting stocks, namely, a prohibition on catching Norway pout with small-mesh nets, the fixing of a maximum by-catch of 10% of the total quantity of fish as well as a total allowable catch and the allocation of quotas for haddock and whiting. As may be inferred from the proposals themselves, and as the Commission has also assured the Court, those measures were to have been introduced in order to harmonize so far as possible the economic interests of the fishing industries of the various Member States concerned in a balanced fashion. However, as I have already pointed out, that problem may only be resolved in the context of action by the Community, taking account of the economic and social interests of all Member States concerned, and not by way of a unilateral national measure.
The extension of the pout box not only leads to an increase in the yield of one fishing industry but at the same time to the exclusion of another fishing industry from a particular zone for particular seasons by promoting the commercial interests of fishermen who catch fish for human consumption at the expense of those who fish for industrial purposes. Finally, the fact that this measure is one of economic policy is particularly illustrated by the fact that, without my wishing to enter into the details of the calculations, both the British and Danish governments have presented comprehensive calculations of the profits and losses for the fishing industries concerned.
Contrary to the view of the Government of the United Kingdom, a different inference may not be drawn from the fact that the Commission approved the Norway Pout (Prohibition of Fishing) (No 3) Order 1977. That national measure merely continued for a short period until the end of 1977 the preceding Community measure which provided for a pout box up to 0o (see Regulation No 2243/77). Such a continuation was, furthermore, proposed by the Commission on 24 October 1977 (COM 77/546), but likewise without an extension to 2o.
The absolute necessity for an extension of the pout box as a measure for conserving the haddock and whiting stocks in that zone is called in question moreover by a series of further facts. Mention may be made only that at the Council meeting in January 1978 eight Member States were in favour of an enlargement of mesh sizes in order to counter the danger of over-fishing whilst the United Kingdom — for whatever reasons — voted against that measure. If, however, the Government of the United Kingdom had been convinced of the absolute necessity for a protective measure, it could at least have agreed to that solution even if, in its opinion, the proposed mesh size would not have contributed to complete protection of the fish stocks in question.
Mention may also be made that since the said Council meeting the eight other Member States reduced their rules on by-catches in industrial fishing from 20 to 10 % in accordance with the Commission's proposals. Without waiting for the results of that measure, that is, without the need for a further measure having already been established, the United Kingdom announced as early as July of that year the introduction of an even more drastic measure.
It being thus established that the unilateral extension of the pout box was neither appropriate nor absolutely essential, in order for it lawfully to come into force, it would, having regard to what has already been said, have required to have the express approval of the Commission. Since, as is widely known, that was not given, it may be held that a finding of an infringement of Community law is justified on' that ground alone.
I may therefore be brief in considering the further grounds of complaint.
Thus the criticism, in particular, that by extending the pout box the United Kingdom thereby failed to fulfil its obligations under Community law in respect that, in practical terms, it forced the Community to re-negotiate the fishery agreements with Norway and the Faeroes, might well also be justified. On that point it is sufficient to mention that in the field of fisheries policy the Community alone is in a position to assume and carry out contractual obligations affecting the whole sphere of application of the Community legal system (see the judgment of the Court of 31 March 1971 in Case 22/70 Commission v Council [1971] ECR 263). Under the second paragraph of Article 5 of the EEC Treaty Member States are under a duty to abstain from any measure which could jeopardize the attainment of the objectives of that Treaty. As the Court has heard from the Commission, the Community was constrained to re-negotiate the agreements which had been entered into at that time with Norway and the Faeroes. Contrary to the opinion held by the British Government, this matter does not depend on whether the agreements had already been formally adopted by the Council; what is alone decisive is that agreement to put the agreements into effect existed between the contracting parties.
It further remains to be stated, together with the Commission and the Danish Government, that, since the measure in question is in essence unwarranted, it constitutes unlawful discrimination against the Danish fishing fleet. As has been seen, by the extension of the zone in question Danish pout fishing boats are excluded from their traditional fishing grounds within waters subject to British sovereignty, whereas the measure does not have the same effect on British fishing vessels which, in that area, mainly fish for haddock and whiting. Nor are such covert forms of discrimination which, by the application of other distinguishing criteria, in fact lead to the same result as overt discrimination, permissible under the rules regarding equality of treatment enshrined in Community law.
Finally, it should also be mentioned, for the sake of completeness, that the Norway Pout (Prohibition of Fishing) (No 3) (Variation) Order 1978, which brought about the extension of the zone in question, is not limited as regards time and may not therefore be regarded as an interim measure. According to the British Government, the measure none the less satisfies that test since, in the event of a relevant Community measure being adopted, national law would in any case become inapplicable by reason of the pre-eminence of Community law.
Were that argument to be followed, all national measures adopted in the field of the Community's powers and not limi_ed in time would have to be categorized as interim measures since they are valid only until Community rules are adopted.
On that interpretation the requirement of Community law that national rules be limited in time or characterized as interim would be pointless. For that reason, as well as for reasons of legal certainty, it must be held, in my opinion, that national measures adopted in the field of fisheries policy, which in principle comes within the powers of the Community, must be expressly limited in time or characterized as interim measures.
Since, accordingly, the requirements of Community law were not satisfied, the unilateral extension of the Norway Pout Box should only have taken place with the express approval of the Commission. A finding of an infringement of Community law on the above-mentioned ground is thus called for already, without its being necessary to enter into the further question whether the United Kingdom duly consulted the Commission at all stages of the planned introduction of the measure in question.
The application lodged by the Commission is therefore well founded. I therefore conclude that the Court should declare, for the reasons set out in detail above, that the Government of the United Kingdom has failed to fulfil its obligations under Community law:
1. In the Mourne Fishery:
2. In the Northern Irish Sea and Isle of Man Fishery:
3. By unilaterally and without the Commission's approval extending the Norway Pout Box to 2o longitude East by the adoption of the Norway Pout (Prohibition of Fishing) (No 3) (Variation) Order 1978 which came into force on 1 October 1978.
1 Translated from the German