Opinion of Mr Advocate General Reischl
Mr President,
Members of the Court,
Following Cases 141/78 (French Republic v United Kingdom of Great Britain and Northern Ireland, judgment of 4 October 1979, [1979] ECR 2923) and 32/79 (Commission of the European Communities v United Kingdom, judgment of 10 July 1980), this is the third time the Court of Justice has had to deal with the charge that the United Kingdom, by enacting unilateral sea-fisheries measures, has failed to fulfil its obligations under the EEC Treaty.
Since the relevant provisions of Community law upon which the common fisheries policy is based have set out in detail both in those cases and in Joined Cases 3, 4 and 6/76 (Cornells Kramer and Others, judgment of 14 July 1976 [1976] ECR 1279) and in Case 61/77 (Commission v Ireland, judgment of 16 February 1978, [1978] ECR 417) I can take acquaintance with these provisions for granted and refer to the facts in these cases for the details.
The only way in which the legal position forming the basis of this case differs from the previous cases is that, as the Court of Justice ruled in its judgment in Joined Cases 185 to 204/78 (Criminal proceedings against Firma J. Van Dam & Zonen and Others, judgment of 3 July 1979, [1979] ECR 2345), the period referred to in Article 102 of the Act of 22 January 1972 concerning the Conditions of Accession and the Adjustments to the Treaties (hereinafter referred to as the Act of Accession) expired on 31 December 1978.
Since, as the Court is aware, the Council was unable within that period to establish the conditions for the conduct of fishing in relation to the conservation of fishery resources and the maintenance of the living resources of the sea, it enacted, on 19 December 1978, interim measures under the Treaties, concerning fishery activities in waters under the sovereignty or jurisdiction of Member States, taken on a temporary basis pending the adoption of permanent Community measures which applied from 1 January to 31 March 1979. After the expiry of that period similar interim measures, the essential passages of which have the same wording, were adopted in the form of the Council Decisions 79/383 of 9 April 1979 (Official Journal 1979, L 93, p. 40), 79/590 of 25 June 1979 (Official Journal 1979, L 161 of 29 June 1979, p. 46) and 79/905 of 29 October 1979 (Official Journal 1979, L 277 of 6 November 1979, p. 10).
The provisions of the interim measures adopted on 25 June 1979 which are relevant to this case are as follows :
Even before that decision was adopted the Government of the United Kingdom informed the Commission in a letter dated 21 March 1979, that in the absence of a measure by the Community the United Kingdom intended to adopt various national measures relating to sea fisheries with effect from 1 June of that year. Essentially it was envisaged that in certain fishing areas the mesh size for white fish and nephrops fishing would be increased, a minimum landing size for certain species of fish would be fixed and a maximum proportion of by-catches in nephrops fishing would be specified.
Ultimately, after extensive correspondence and various consultations, the Government of the United Kingdom officially submitted to the Commission on 19 June 1979 five draft statutory instruments containing measures concerning sea fisheries which it intended to bring into force on 1 July 1979 despite the objections of the Commission. The statutory instruments comprised the following orders, for details of which I refer to the report for the hearing :
Furthermore, the Commission was officially notified of difficulties arising from the issue of licences and other measures concerning herring fisheries in the waters round the Isle of Man and in the northern part of the Irish Sea. These measures are based on the Herring (Irish Sea) Licensing Order 1977, Statutory Instrument No 1388, and on the Herring (Isle of Man) Licensing Order 1977, Statutory Instrument No 1389, which were the subject of the proceedings in Case 32/79.
After a further exchange of letters and more consultations the Commission, by a letter dated 6 July 1979, initiated against the United Kingdom the procedure laid down in Article 169 of the EEC Treaty and stated that the United Kingdom had failed to fulfil its obligations under the Treaty in that, without the approval of the Commission and without cooperation with or consulting it, it had enacted the said fisheries measures, the content of which was furthermore incompatible with Community law. That charge was rejected by the Government of the United Kingdom in a letter dated 31 July 1979. The Commission responded by delivering, on 3 August 1979, a reasoned opinion pursuant to the first paragraph of Article 169 of the EEC Treaty, calling on the Government of the United Kingdom to take within 45 days the necessary steps to put an end to the said infringement of Community law. At the same time the Commission reserved the right shortly to take a final position concerning the management of the herring fisheries in the waters round the Isle of Man and the northern part of the Irish Sea. After further negotiations such a second reasoned opinion was delivered on 2 October 1979; in that opinion the Government of the United Kingdom was requested to put an end to the interference, contrary to Community law, with the herring fisheries in the waters round the Isle of Man and in the northern part of the Irish Sea.
When the United Kingdom failed to comply with those requests the Commission, on 13 November 1979, brought the matter before the Court of Justice under the second paragraph of Article 169 of the EEC Treaty and sought a ruling that the United Kingdom, by enacting the said measures in 1979 or by applying them, had failed to fulfil its obligations under the EEC Treaty and the Hague Resolution. In, addition the Commission asked that the United Kingdom be ordered to pay the costs of the proceedings.
I shall now present my views on this case, in which the French Republic and Ireland have intervened on behalf of the Commission:
All the parties to the proceedings consider that the United Kingdom has in many respects failed to fulfil its obligations under the Treaty.
1. The Commission first of all takes the view that after the end of the transitional period laid down in Article 102 of the Act of Accession, that after 1 January 1979, the United Kingdom no longer had any independent competence to enact national conservation measures concerning sea fisheries in the waters under its jurisdiction and that accordingly such measures might be enacted only if they had previously been authorized by the Community authorities. Even if it were assumed that, after the expiry of the said period, the Member States retained power to enact appropriate conservation measures because the Community has not exercised its powers, the Government of the United Kingdom could only exercise that power for the purposes of Article 5 of the EEC Treaty, that is in close cooperation with the Community authorities and with their approval. Should the Court not agree with these considerations, the Commission would also wish it to find that the measures enacted by the United Kingdom were also incompatible with the procedural requirements of Community law and, albeit to a lesser extent, its substantive requirements.
2. In the view of the Government of the French Republic, after the expiry of the said transitional period the Member States under no circumstances continue to be competent to enact unilateral measures for the conservation of fisheries. If the Court of Justice were not to concur in that view of the law it should at least find that the measures adopted by the United Kingdom which brought about an increase in the mesh size of the nets for nephrops fishing were premature, unnecessary, excessive and discriminatory.
3. The Government of Ireland points out that the enactment of the measures in question was not in accordance with the obligations of the Member States arising from the Hague Resolution and that the administration of the fisheries measures in the waters round the Isle of Man and in the northern part of the Irish Sea entail particular discrimination against Ireland.
4. On the other hand the Government of the United Kingdom essentially takes the view that, so long as the Community has not exercised its powers, the Member States remain entitled, even after the transitional period laid down in Article 102 of the Act of Accession, to enact national measures in the fisheries sector and such measures accordingly do not require the approval of the Commission. Last but not least, the measures in question were enacted in accordance with the relevant provisions of Community law.
It emerges clearly from these submissions that the first question to be considered is whether and, as the case may be, on what conditions the United Kingdom was entitled, even after the expiry of the transitional period mentioned in Article 102 of the Act of Accession, to take the measures at issue.
1. In considering this question it is impossible to disregard the fact that, as the Commission and the French Government have rightly indicated, it is plainly to be inferred from the previous decisions of the Court of Justice on the question of a common fisheries policy, that after the expiry of the transitional period mentioned in Article 102 of the Act of Accession it is in principle the Community alone which is competent to enact conservation measures regarding sea fisheries. This finding is furthermore not invalidated by the circumstance that at the time when the facts which gave rise to those decisions occurred the transitional period had not yet expired.
2. The further question now arises whether the Member States, in the period after 31 December 1978, were entirely precluded from taking protective measures after the Council's failure, for lack of unanimity, to comply with the obligation imposed upon it by Article 102 of the Act of Accession.
3. The final question is which Community institution must approve the measures enacted by the Member States.
4. This applies in particular to the fisheries measures adopted concerning the Irish Sea and the waters round the Isle of Man in relation to the Herring (Irish Sea) Licensing Order 1977 and the Herring (Isle of Man) Licensing Order 1977. As we know from Case 32/79 Commission v United Kingdom, the subject-matter of both orders concerns the prohibition of herring catches in the sea zones in question. An exception is made in the case of fishermen holding a licence for the Irish Sea from the Government of the United Kingdom and for the waters round the Isle of Man by the Board of Agriculture and Fisheries of that island. The two orders, which were still in force in 1979, do not contain any other indications as to the conditions in which those licences are issued, the rights which they confer and the duties linked to their issue. They thus leave complete discretion to the competent authorities as regards the issue of the licences and their scope. In connexion with the complaints submitted by the Commission in that case to the effect that the Commission and the Member States concerned were not duly informed, either in 1977 or in 1978, of the true extent of the system of restriction and management of fishing resulting from the application of the licensing system, the Court of Justice found in its judgment of 10 July 1980 inter alia that the United Kingdom had failed to fulfil its obligations under the Treaty in that, in 1977, on the basis of these orders, it applied a system of fishing licences which had not formed the subject-matter of an appropriate consultation and the detailed rules for the implementation of which were reserved wholly to the United Kingdom authorities, without its being possible for the Community authorities, and the other Member States and those concerned to be certain how that system would actually apply in law. There was a further breach of the Treaty in that in 1978 too that state of uncertainty had been maintained, to the detriment of the fishermen of other Member States.
Since this result appears to me to establish beyond doubt that the United Kingdom, by adopting the said conservation measures and applying them, has exceeded its powers — regardless of whether the Court agrees with my views or prefers the solution proposed by the French Government — there is no longer any need to go into the other procedural and substantive objections raised by the Commission and the parties to the proceedings, the more so as the Commission gave an express assurance that, if it were found that the United Kingdom did not have the powers in question, it would not wish any further consideration of the objections.
I accordingly submit that the Court should find that the United Kingdom has failed to fulfil its obligations under the EEC Treaty by issuing and applying in 1979, without the approval of the Commission, the Fishing Nets (North-East Atlantic) (Variation) Order 1979, the Immature Sea Fish Order 1979, the Immature Nephrops Order 1979, the Nephrops Tails (Restriction on Landing) Order 1979 together with the Sea Fish (Minimum Size) Order (Northern Ireland) 1979 and, on the basis of the Herring (Irish Sea) Licensing Order 1977, SI 1977 No 1388 and the Herring (Isle of Man) Licensing Order 1977, SI 1977 No 1389, established a system of fishing licences or general conditions for herring fisheries in the water of the Irish Sea and round the Isle of Man.
Since the application is successful the United Kingdom should also be ordered to pay the costs, including those of the interveners.
1 Translated from the German.