Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. This opinion relates to three cases submitted for preliminary rulings and heard together at the sitting on 24 June this year. The common feature of these cases is that they raise the problem of the validity of Community provisions on fishing applicable to Spanish vessels, having regard to a number of earlier international obligations. But, it should first be pointed out that Joined Cases 180/80 (Crujeiras Tomé v Procureur de la Republique) and 266/80 (Procureur de la République v Yurrita) originate from criminal proceedings pending against Spanish fishermen who fished without a licence in the so-called exclusive economic zone of France, that is to say in the band of sea between 12 and 200 miles from the French coast; whilst Case 181/80 (Procureur Géneral près la Cour d'Appel de Pau and Others v Arbelaiz-Emazabel) relates to preceedings pending against another Spanish fisherman charged with fishing without a licence in French territorial waters, in the area between 6 and 12 miles from the coast. This difference is important, as we shall see, with regard to the contents of the earlier international obligations which have to be taken into consideration. I would also mention that the Court has already had occasion to deal with a problem similar to that which arises in Joined Cases 180/80 and 266/80 in its judgment of 14 October 1980 in Case 812/79 Burgoa to which I shall refer on numerous occasions.

2. I shall deal in the first place with Joined Cases 180 and 266/80. Both national courts, by means of questions in substantially the same form, seek the Court's view on whether, having regard to prior international obligations, the regulations of the Council of the European Communities laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain are valid, in so far as they have laid down certain conditions for fishing operations carried out by Spanish nationals in the economic zone established by Decree No 77-1130 of 11 February 1977 and whether, if valid, those regulations are enforceable against Spanish nationals.

3. With regard to the Community regulations involved in this case, it should be remembered that they took the form of interim measures for the conservation and management of fishery resources (applicable specifically to vessels flying the Spanish flag) because they were adopted after the extension to 200 miles of the limits of the Member States' fishing zones in the North Sea and North Atlantic (which took place on 1 January 1977), pending the conclusion of agreements between the Community and the nonmember countries involved in order to regulate the exploitation of fishery resources in those areas by the fishermen of those countries. The Agreement between the EEC and Spain was initialled on 23 September 1978, was signed on 15 April 1980 and entered into force on 22 May 1981; the provisional regime thus came to an end.

4. With regard to the question of the validity of the regulations on fishing in the light of earlier international obligations, it is necessary to ask first of all in what circumstances and on the basis of what criteria might the breach of international obligations entail the invalidity of legislative measures adopted by the Community. It seems to me that the answer is as follows: either the enactment of such measures would have to conflict with the Community institutions' obligation not to obstruct the implementation of the commitments of the Member States under agreements entered into before the Treaty, in accordance with Article 234, or the supposed breach would have to relate to international commitments of the Community itself under an agreement which gives individuals who are nationals of a Member State the right to enforce observance thereof by legal proceedings. In fact the Court has recognized, in its judgment of 14 October 1980 in the Burgoa case, that Article 234 imposes the negative obligation described above on the Community institutions; and the Court had previously made it clear that the validity of the acts of the Community institutions for the purposes of Article 177 of the EEC Treaty, may be affected by a provision of international law only where that provision is binding on the Community and has direct effect in relation to individuals (judgments of 12 December 1972 in Joined Cases 21 to 24/72 International Fruit [1972] ECR 1219 and of 24 October 1973 in Case 9/73 Schlüter [1973] ECR 1135). Accordingly, it is essential to ascertain whether the international obligations which are to be used as a basis for testing the validity of the regulations relating to fishing were assumed before or after the entry into force of the EEC Treaty and whether or not they are binding on the Community.

5. It has been seen that the French courts, besides raising the question of the validity of the regulations which laid down interim measures for the conservation and management of fishery resources applicable to Spanish vessels, also ask, in the alternative (this is to say, in the event of those measures being held valid), whether those regulations can be enforced against Spanish nationals. It can be seen from the grounds set forth in the order for reference made by the French Cour de Cassation that the doubt on this point is connected with the consideration that Spain is not a party to the Treaty establishing the EEC; it is inferred therefrom that the provisions in question should not affect the rights acquired by the Spanish under the London Convention and the Franco-Spanish Agreement of 20 March 1967. But that idea is surely incorrect. Community regulations are not intended to be effective only against nationals of the Member States; on the contrary, the regulations whose applicability is under discussion sought to establish conditions to be applied to Spanish vessels within the 200 mile band of sea adjacent to the coasts of Member States and were therefore principally addressed to the individuals on board those vessels, irrespective of their nationality. It is indisputable that, as it is a question of ensuring the conservation and management of fishery resources in the exclusive economic zones of the Member States, the Community was empowered to adopt regulations, since the matter was one of those for which it was given responsibility by the Treaty of Rome (this matter, of course, falls within the area of the common agricultural policy). With regard therefore to the fact that a number of Member States, pursuant to agreements entered into with nonmember countries, had assumed obligations towards such countries which might be incompatible with rules laid down by the Community, I would observe that, if the validity of those rules is recognized (for the reasons which I have endeavoured to clarify), the normal effectiveness thereof, as regards determination of the persons to whom they are addressed, cannot be called in question. Thus the regulations concerned, which are valid despite the prior international obligations of one or more Member States, must be regarded as enforceable against Spanish fishermen.

6. I shall now go on to Case 181/80. In that case the French Cour de Cassation wishes to know whether, having regard to prior international obligations, Regulations Nos 353/77 (373/77 is meant) of 24 February 1977, 746/77 of 5 April 1977, 1416/77 of 28 June 1977, 1709/77 of 26 July 1977 and 2160/77 of 30 September 1977 are valid, in so far as they lay down new detailed rules for fishing operations carried out by Spanish vessels in the reserved fishing zone from 6 to 12 nautical miles and whether, if valid, those regulations are enforceable against Spanish nationals. The structure of this question is very similar to that of the question which I have examined above; but there are two differences. In the first place, this question specifically mentions five regulations which nevertheless are included amongst the interim measures on fisheries applicable to Spanish vessels; they are all the regulations which existed before the disputed fishing activity took place. In the second place, the examination of their validity (and of their enforceability against Spanish nationals) is requested because the regulations are at variance with the prior international obligations concerning the fishing zone from 6 to 12 miles from the French coast. In this case the only international obligations under consideration are those created by the London Convention of 9 March 1964 and by the Franco-Spanish Agreement on Fishing of 20 March 1967; no reference, however, was made to the Geneva Convention of 29 April 1958 on Fishing and Conservation of the Living Resources of the High Seas and it seems to me irrelevant to ask whether the view is thereby implied that that international instrument is not applicable to this case.

7. It was contended in Mr Arbelaiz-Emazabel's defence, inter alia, that the Franco-Spanish Agreement on Fishing of 1967 was recognized by the Commission in 1977 as being applicable notwithstanding the Community provisions. In this regard the defendant referred to a Note Verbale of 4 July 1977 in which the Commission, in reply to a note from the Spanish Ministry of Foreign Affairs, stated that the fishing rights granted to Spanish fishing vessels within the framework of the transitional regime laid down by EEC Regulation No 746/77 — which would be extended by means of a further regulation — were confined to the waters beyond the 12-mile limit without prejudice to the rights conferred by the General Agreement on Fishing between France and Spain of 20 March 1967; within the said zones, Spanish vessels are therefore not permitted to engage in fishing activity, with the exception of the zone referred to in the abovementioned Agreement. For its part, the Commission stated that that passage in its Note Verbale of 4 July 1977 referred exclusively to the frontier coastal zone (extending three miles from the shore) referred to in paragraph III of the Franco-Spanish Agreement; in fact, this was clarified by a Note Verbale of 29 July 1977 which stated that the new regulation (No 1709/77), like the earlier regulations, applies to all the fishing zones under the jurisdiction or sovereignty of the Member States of the Community, including the zone referred to in paragraph 1 of the exchange of letters constituting the Franco-Spanish Agreement of 20 March 1967, but excluding the coastal fishing zone referred to in paragraph III of the said exchange of letters.

8. In the course of the proceedings the parties discussed at length a number of problems relating to the provisions of the London Convention — problems which, in view of the line of reasoning followed by me, it would be totally superfluous to examine. It think it is nevertheless relevant to point out that there are valid arguments, of which a brief summary will suffice, against the view that the abovementioned Convention and the interim fisheries regime set up by the Community as from 1977 are incompatible.

9. In Case 181/80, as in the other cases, the court making the reference wishes to know whether the Community regulations mentioned in the question, if found to be valid, are enforceable against Spanish nationals. In this regard there is no difference between the case now under consideration and the other two; I therefore refer back to the considerations set out above, which I believe demonstrate that the regulations in question, if valid, are without any doubt effective to an extent which enables them to be applied to Spanish fishermen in waters under the jurisdiction of the Member States.

10. In conclusion, I would suggest that the Court, in answer to the questions submitted to it by the French Cour de Cassation in the two judgments of 7 July 1980 referred to at the beginning of this opinion, and by the Tribunal de Grande Instance, Saint-Nazaire, by its judgment of 24 October 1980, should declare that:

1 Translated from the Italian.