Opinion of MR Advocate General Capotorti

Mr President,

Members of the Court,

1. The questions which have given rise to the present case have been submitted for a preliminary ruling by the Circuit Court, County of Cork, Ireland, in the context of criminal proceedings pending against the master of a Spanish fishing vessel, Mr Burgoa. The principal charge against him is that of having contravened provisions of Irish law which prohibit any person on board a foreign sea-fishing boat from fishing or attempting to fish while the ship is within the exclusive fishery limits of the State. The acts alleged against Mr Burgoa took place on 10 July 1978 when his vessel was 20 miles off the west coast of Ireland and thus within the 200-mile zone which, under the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976, constitutes as from 1 January 1977 the exclusive fishery zone of Ireland.

2. The first paragraph of Article 234 stipulates that the rights and obligations arising from agreements concluded before the entry into force of this Treaty between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty. This part of the provision is in accordance with the general principle of the law of treaties regarding the relationships between two successive agreements concerning the same subject-matter, whereby the rights and obligations created by the first agreement remain unaltered as respects all States which do not take part in the second agreement. In that regard it is appropriate to cite Article 30 (4) (b) of the 1969 Vienna Convention on the Law of Treaties which provides that when the parties to the later treaty do not include all the parties to the earlier one: ... as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. I would add that in the Decision in its judgment of 27 February 1962 in Case 10/61 Commission of the European Communities v The Italian Republic [1962] ECR 1 this Court recognized inter alia that Article 234 refers both to rights conferred on non-member countries by previous agreements and to the obligations of Member States which logically correspond to those rights.

3. In its second question the Irish court seeks to establish whether Article 234, or any other rule of Community law, maintains or upholds rights of the beneficiaries of treaties to which Articles 234 applies, which the national courts must uphold. The manner in which this question is framed leads it to be supposed that the Irish court intended to refer to treaties capable of conferring personal rights on individuals and that by referring to the beneficiaries of such treaties it had in mind in this respect individuals instead of the States which are parties thereto and the addressees thereof. However that may be, the crux of the problem still remains the function of Article 234. It serves to maintain the effects of the earlier agreements to which it refers only in the sense that it declares them to be unaffected by the EEC Treaty (thus any possible direct effects as regards individuals, which are produced by an earlier agreement, also remain in being), but at the same time, in relations with non-member States, it does not alter in any way the nature or standing of pre-existing obligations or rights.

4. In the third question the Irish court asks whether the 1964 London Fisheries Convention is a treaty of the kind to which Article 234, as adapted in relation to Ireland, the United Kingdom and Denmark by Article 5 of the Act of Accession, applies.

5. There remains to be considered the fourth question, in which the Irish court asks whether a conviction of the defendant in this case under Section 222 (a), Subsection (1) of the Fisheries (Consolidation) Act 1959, as inserted by Section 7 of the Fisheries (Amendment) Act 1978. would be incompatible with Community law.

6. In the course of these proceedings there was also discussed the question of the validity of the rules of Community law previously described from the viewpoint of their possible incompatibility with the London Fisheries Convention of 9 March 1964. In fact, such a question has not been put forward by the court making the reference and that would lead one not to consider it. However, on the other hand, it is undeniable that that court is minded to decide the significance and role of the London Convention as regards the Irish rules which are in accordance with Community rules and which prohibit unauthorized fishing in the 200-mile zone. To that end it would appear useful to explore the topic of the relationship between the London Convention and Community law from all angles.

7. I turn now to a consideration of the other proposition that Regulation No 373/77 and those which extended it successively are invalid, that is to say, that by promulgating those rules the Council infringed the first paragraph of Article 234 by failing in the duty of Community institutions not to hinder the performance of obligations owed by Member States to non-member countries and flowing from earlier agreements. In this case in so far as the performance by Ireland of obligations owed to Spain flowing from the London Convention may be regarded as impeded to that extent it would follow that an infringement of the obligations imposed by that Convention has actually occurred and that observance of Community rules of law was incompatible with the performance of those commitments.

8. A final argument submitted in Mr Burgoa's defence remains to be discussed, namely, that the recognition of the fishing rights of habitual fishermen derives from a generally recognized principle of international law the observance of which is also required of the Community and which prevails over any contrary provisions.

9. For the reasons above set forth I conclude by suggesting that in answer to the questions referred to it for a preliminary ruling by the Circuit Court, County of Cork, by order of 7 December 1979 the Court should declare that:

1 Translated from the Italian.