Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The main action, which gave rise to the reference for a preliminary ruling which is to be considered today, concerns the point whether the United Kingdom Fishing Nets (North-East Atlantic) Order 1977, as amended by the Fishing Nets (North-East Atlantic) (Variation) Order 1979, is compatible with the provisions of Community law. Both the United Kingdom measures, which concern the conservation of fishing stocks, have already formed the subject-matter of proceedings for breach of Treaty obligations in which the Court of Justice was able to consider in detail the orders in question together with the relevant provisions of Community law. In its judgment of 4 October 1979 in Case 141/78, French Republic v United Kingdom of Great Britain and Northern Ireland, ([1979] ECR 2923) it ruled that the United Kingdom, by bringing into force on 1 April 1977 the Fishing Nets (North-East Atlantic) Order 1977 without notifying in advance the Member States and the Commission of these provisions and thereby failing to seek the approval of the Commission, failed to fulfil its obligations under the EEC Treaty. In its judgment of 5 May 1981 in Case 804/79, Commission v United Kingdom, ([1981] ECR 1045) it ruled that the United Kingdom failed to fulfil its obligations under the EEC Treaty by enacting on 1 July 1979 inter alia the Fishing Nets (North-East Atlantic) Variation Order 1979, which prescribed an increase in the minimum mesh-size of the nets provided for in the abovementioned 1977 Order, without appropriate prior consultation with the Commission and despite the objections of the latter.

On 16 October 1979 Mr Robert Tymen, a French national, the captain of a French trawler, was arrested by the Royal Navy for fishing for nephrops some 50 miles southwest of the Pembrokeshire coast in the fishing area of the United Kingdom and for having nets on board the meshes of which were less than the size permitted by Article 5 of and Schedule I to the said Order of 1977, as amended by the Order of 1979.

Prosecuted for this reason, Mr Tymen argued that the British provisions were contrary to Community law. The Cardiff Crown Court finally imposed a fine of £ 250, ordered the accused to pay £ 100 towards the costs of the case and ordered the forfeiture of the nets used in committing the offence.

Upon appeal to the Court of Appeal, Criminal Division, that court, by order of 14 November, stayed the proceedings and referred to the Court of Justice for a preliminary ruling under Article 17 of the EEC Treaty the following questions :

As the court making the reference, the appellant, the British and the French Governments and the Commission, which submitted observations on the case, properly emphasize, the answer to these questions may be given only in the light of the judgment of the Court of Justice which has been delivered in the meantime in Case 804/79 in which it was also necessary to settle the question whether and under what conditions the Member States were empowered after the expiry of the period mentioned in Article 102 of the Act of Accession to take measures like the provisions in question.

1. It is thus appropriate once again to recall the essential points of that judgment, which also appeared in the judgment of the Court of 2 June 1981 in Case 124/80 (Officier van Justitie v J. Van Dam & Zonen [1981] ECR 1447). The Court expressly stated in the former judgment inter alia with regard to the Order of 1979 issued by the United Kingdom that since the expiration on 1 January 1979 of the transitional period laid down by Article 102 of the Act of Accession, power to adopt, as part of the common fisheries policy, measures relating to the conservation of the resources of the sea has belonged fully and definitively to the Community, and that the Member States are therefore no longer entitled to exercise any power of their own in the matter of conservation measures in the waters under their jurisdiction. The Court further emphasized that the fact that the Council, which since that time was competent to enact Community measures, had failed to act could not in any case restore to the Member States the power and freedom to act unilaterally in this field since the transfer to the Community of powers in this matter was total and definitive.

2. On the basis of these findings the first question should in principle be answered in the negative. The factual situation brought about by the Council's failure to act prompted the Court however to permit a departure from that principle — and the complete answer to the first question is only to be found through that departure — in that it made clear that ... however, it is not possible to extend that idea to the point of making it entirely impossible for the Member States to amend the existing conservation measures in case of need owing to the development of the relevant biological and technological facts in this sphere. As the judgment shows, however, such measures of amendment may be of a limited scope only and may not result in a new conservation policy on the part of a Member State.

3. With regard to the conditions under which such conservation measures may be taken unilaterally by States — that is the point of the third question — the Court stated as follows :

Placed in this context, there are ultimately, as all the participants in the proceedings point out, in substance two groups of questions to consider which were not expressly examined in the said judgment and which are based on the circumstance that it is not contested that, in principle at least, the Order issued by the United Kingdom on 1 July 1979 corresponded to the proposals made by the Commission to the Council at the same time. However, unlike the United Kingdom measures, those proposed by the Commission were not to enter into force until 1 September 1979.

Thus the first question which arises is whether, as the United Kingdom Government considers, it may be accepted that after that date the national measure must be considered as tacitly approved. Should this not be the case, there is a further question to be examined, namely what consequences arise in criminal law so far as individuals are concerned when, as in this case, the national measure which was not approved is in its essentials the same as the proposal of the Commission.

1. To begin with the first question, in the view of the United Kingdom, the objections of the Commission were primarily directed against the date of the entry into force of the United Kingdom measure but not against its subsequent maintenance in force. The reservations expressed by the Commission accordingly related exclusively to the premature entry into force of the measure in question; the measure was, then, approved subject to the condition that it should not enter into force before 1 September 1979. It has to be said, however, that after that date the national measure and the proposal of the Commission coincide, with the result that in so far as the national measure has regard for the Community interest and national interests it may no longer be regarded as contrary to Community law. Finally the Court stated clearly in its judgment in Case 804/79 that the charge of failure to fulfil obligations under the Treaty related to the premature entry into force of the measure. Experience, however, indicates that national measures are often accorded the approval of the Commission, even ex post. If that view is not accepted the failure of the Commission to grant approval nevertheless constitutes misuse of the law.

2. In view of this conclusion it is accordingly necessary to go on to examine the group of points contained in Questions 2 and 5 regarding the extent to which individuals may claim protection against the application of the measures incompatible with Community law.

In view of this conclusion the fourth question need not be considered. I therefore propose that the questions should be answered as follows:

1. After the expiry of the transitional period laid down in Article 102 of the Act of Accession the Member States are no longer entitled to exercise the unilateral power of enacting measures for the conservation of fish stocks in waters under their sovereignty. If the Council fails to act the Member States may, however, act as trustees of the common interest only if regard is had for the formal and substantive provisions of Community law. Accordingly such measures may in particular be taken only after appropriate consultation with the Commission and on condition that the Commission has not formulated any objections, reservations or conditions.

2. The imposition of penalties under criminal law or other coercive measures on the basis of a provision of national law which has been held to be contrary to Community law is incompatible with that law.

1 Translated from the German