JUDGMENT OF 2. 6. 1981 — CASE 124/80 OFFICIER VAN JUSTITIE v VAN DAM

In Case 124/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the Economische Politierechter of the Arrondissementsrechbank, Rotterdam, for a preliminary ruling in the proceedings pending before it between

THE COURT composed of: J. Mertens de Wilmars, President, P. Pescatore, Lord Mackenzie Stuart and T. Koopmans (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due and U. Everling, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations submitted by the Netherlands Government

B — Observations submitted by the Government of the United Kingdom

C — Observations submitted by the Commission of the European Communities

D — Observations submitted by the French Government

E — Observations submitted by the accused in the main proceedings

III — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations submitted by the Netherlands Government

B —. Observations submitted by the Government of the United Kingdom

C —. Observations submitted by the Commission of the European Communities

D —. Observations submitted by the French Government

E —. Observations submitted by the accused in the main proceedings

III —. Oral procedure

1. By judgment of 4 March 1980, which was received at the Court on 22 May 1980, the Economische Politierechter [Magistrate dealing with commercial offences] of the Arrondissementsrechtbank [District Court], Rotterdam referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question as to the interpretation of the Community provisions on the conservation of fishery resources for the year 1979 in order to ascertain whether measures enacted by the Netherlands Government for 1979 laying down limitations on catches of sea fish other than sole and plaice are compatible with Community law.

2. At the beginning of 1979 the Council, to which the Commission, in pursuance of Article 102 of the Act of Accession, had proposed the adoption of a series of measures for the conservation of fishery resources in the waters under the jurisdiction of the Member States, failed to adopt the necessary provisions. In the circumstances the Council adopted interim measures which, applied for limited periods, were extended from time to time. These decisions, the wording of which is similar, are dated 19 December 1978 (not published), 9 April 1979, No 79/383 (Official Journal L 93, p. 40) and 25 June 1979, No 79/590 (Official Journal L 161, p. 46) and 29 October 1979, No 79/905 (Official Journal L 277, p. 10). The decision of 25 June 1979, which was applicable at the time of the events which gave rise to this case, is worded as follows :

3. By a Decision [Beschikking] No J 4569 (Nederlandse Staatscourant [Netherlands Official Journal] 1978-253) of 28 December 1978, the Netherlands Minister of Agriculture and Fisheries laid down for 1979 interim measures on the limitation of catches of sea fish other than sole and plaice. These arrangements, which were extended by Decision No J 23451 of 27 June 1979 (Nederlandse Staatscourant, 1979-124), were amended by Decision No J 3247 of 27 August 1979 (Nederlandse Staatscourant, 1979-167) prohibiting the catching and unloading of cod in a specified zone. On 25 July 1979 the Commission found that the interim measures thereby laid down by the Netherlands authorities were in conformity with the Council Decisions of December 1978 and of April and June 1979 (Official Journal 1980 C 133, p. 4). On 22 November 1979 it found those measures were in conformity with the Council Decision of October 1979 (Official Journal C 133, p. 5).

4. In October 1979 a boat belonging to the van Dam undertaking caught and unloaded cod in the port of Stellendam (Netherlands) in breach of the Decision of 27 August 1979. Van Dam, against which proceedings were instituted on that count before the Economische Politierechter, contended that the Netherlands measures were contrary to Community law. Before giving final judgment the Economische Politierechter decided to submit the following preliminary question to the Court of Justice:

5. According to the defendant in the main proceedings, at the end of the transitional period provided for in Article 102 of the Act of Accession there was a legal vacuum regarding the policy of conservation of the biological resources of the sea which the decisions of the Council did not make good. Furthermore, even if it is supposed that such was their objective they should have been adopted in the form prescribed in Article 4 of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (Official Journal L 20, p. 19). Since the procedure prescribed by that article was not followed the decisions of the Council are in any case void.

6. The Council does not dispute that the decisions in question were not in the form provided for in Article 4 of Regulation No 101/76 but claims that the regulation does not apply to those decisions. Those decisions are ad hoc measures taken by the Council in order to preserve, in a way not provided for by Regulation No 101/76, the biological resources of the sea; they crystallize certain situations and, at the same time, entail a limited restoration of certain powers to the Member States. Regulation No 101/76 is in fact obsolete and is no longer sufficient to meet problems the scope of which was not envisaged at the time when it was drafted.

7. The French Government recalls that fisheries and more precisely the conservation of marine species are covered by the powers expressly transferred to the Community and stresses that on 31 December 1978 all national powers in the matter of conservation measures disappeared totally and irreversibly. A fundamental distinction must therefore be made, in accordance with the existing case-law of the Court, between the period which expired on 31 December 1978 and the ensuing period. Henceforth the power to adopt measures for the protection of the biological resources of the sea comes within the competence of the Community alone and more precisely of the Council. The Council cannot, without disregarding the provisions of Article 102 of the Act of Accession, restore to the Member States a power which they have definitively lost. Having regard to these legal facts, the decisions adopted by the Council must be understood as decisions crystallizing and fixing the conservation measures as they existed at the expiration of that transitional period and not as decisions delegating or transferring power to the Member States. The new measures adopted by the Netherlands Government thus emanate from an authority which is not empowered to adopt them.

8. Although the Commission, the Netherlands Government and the Government of the United Kingdom place a different interpretation upon the decisions of the Council, they do not, however, doubt their lawfulness. With regard to the measures adopted by the Netherlands Government for the year 1979, they consider that, since they were formally approved by the Commission, they are in any case in conformity with the decisions of the Council and accordingly with Community law.

9. It should be recalled in this connexion that the Court, in its judgment of 5 May 1981 (Commission v United Kingdom Case 804/79), whilst emphasizing that since the end of the transitional period provided for in Article 102 of the Act of Accession there has been a total transfer of powers to the Community, stated in its judgment that, it is not possible, on the basis of the failure of the Council to act in that matter 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. It added that such amendments would be of a limited scope only and could not involve a new conservation policy on the part of a Member State, since the power to lay down such a policy belongs henceforth to the Community institutions.

10. With regard to the conditions under which national conservation measures may be taken, the Court took the following view:

11. Consideration in the light of the state of the law thus defined of the measures which have been referred to by the national court and which were taken in the circumstances described above, discloses no factor of such a kind as to cast doubts upon their conformity with Community law in view of the fact that they were formally approved by the Commission.

12. The reply to the question submitted must accordingly be that national measures concerning the conservation of the biological resources of the sea such as those enacted by the Netherlands Government for the year 1979 concerning the limitation of catches of sea fish other than sole and plaice are in accordance with Community law to the extent to which, having been enacted by reason of a failure to act on the part of the Council, they have received, following consultation, the formal approval of the Commission.

13. The costs incurred by the Government of the Netherlands, the Government of the French Republic, the Government of the United Kingdom, the Commission and the Council, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT, in answer to the questions referred to it by the Economische Politierechter of the Arrondissementsrechtbank, Rotterdam, by judgment of 4 March 1980, hereby rules: