Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

As in Case 269/80 Robert Tymen [1982] ECR (non-published), on which I have recently delivered my opinion, this reference for a preliminary ruling from a Belgian court arises out of criminal proceedings, brought as a result of a fishing incident, the outcome of which depends on whether Member States still had power at the relevant time to adopt measures to limit fishing in their territorial waters.

On 7 May 1980 the Netherlands fishing vessel, K.67 Christina having a tonnage of 67 gross registered tonnes (GRT) and equipped with an engine of 300 bhp was fishing by boom trawl for sole, plaice and cod in Belgian coastal waters with nets having an average mesh-size of 79 mm. The vessel was arrested and tied up in the harbour at Ostend. The vessel was released again after an amount of BFR 300000 had been paid by way of security. The vessel's catch was auctioned and the nets were seized.

Daniël Bout, the Netherlands captain of the vessel, was charged, before the Rechtbank van Eerste Aanleg [Court of First Instance] Bruges, with offences against Belgian fishery rules. He was charged with having used in Belgian coastal waters a fishing vessel having a tonnage of more than 50 GRT and an engine in excess of 300 bhp and nets made of double twine having a minimum mesh-size smaller than 80 mm, contrary to the Koninklijke Besluit van 23 April 1979 houdende maatregelen om de visstand en de schaaldieren- en weekdierenstand in de Belgische visserijzone te beschermen [Royal Decree of 23 April 1979 laying down measures for the protection of resources in fish, crustaceans and molluscs in the Belgian fishing zone] (Belgisch Staatsblad [Belgian Gazette] No 93 of 15 May 1979) as amended by the Koninklijke Besluit houdende tijdelijke maatregeien om de visstand en de schaaldieren- en weekdierenstand in de Nordzee te beschermen [Royal Decree of 20 December 1979 laying down interim measures for the protection of resources in fish, crustaceans and molluscs in the North Sea (Belgisch Staatsblad [Belgian Gazette] of 29 February 1980) and of de Wet van 10 October 1979 houdende vastelling van een Belgische Visserijzone [Law of 10 October 1978 laying down a Belgian fishing zone].

The Third Chamber of the Rechtbank van Eerste Aanleg [Court of First Instance], Bruges, considered that it was questionable whether at the time of the alleged offences the Kingdom of Belgium still retained the power to adopt such measures. In addition, the accused relied on Council Regulation (EEC) No 2527/80 of 30 September 1980 (Official Journal 1980 L 258, p. 1) laying down technical measures for the conservation of fishery resources since that regulation contains provisions more favourable to him than the Belgian provisions. The Third Chamber of the Rechtbank van Eerste Aanleg therefore stayed the proceedings by interlocutory judgment of 19 January 1981 and, pursuant to Article 177 of the EEC Treaty, referred the following questions to the Court of Justice for a preliminary ruling:

My opinion on those questions is as follows:

1. The first question mentions expressly only the Royal Decree of 23 April 1979 laving down measures for the protection of resources in fish, crustaceans and molluscs in the Belgian fishing zone. If those measures, expressly referred to by the court making the reference, are examined in the light of the ludgments of the Court in Cases 84/79 dudgmeni of 5 May 1981 in Commission v UK [1981] ECR 1045) and 124/80 (judgment of 2 June 1981 in Firma ]. Van Dam Zonen [1981] ECR 1447) there is, as the Belgian Government and the Commission, which have submitted observations on the case, have rightly pointed out, nothing which mav give rise to doubts as to their compatibihtv with Community ¡aw. The Commission had been consulted in good time and had in fact expressly approved the measures, as mav be seen from the communication from the Commission relating to the publication of national fishery conservation measures (Official Journal 1980, C 133, p. 2)

2. By us second question the cojri making the reterence seeks to asiertain whether Council Regulation EEC 2527/80, which was adopted atter tne occurrences in question, or other relevant rules of Community law m.n have retroactive effect.

I thus propose that, in reply to the questions raised by the national court, the following answers should be given:

1. Measures adopted by a Member State to preserve the biological resources of the sea, such as the measures taken by the Kingdom of Belgium to restrict catches in 1979, are compatible with Community law only if they have been adopted by reason of the inaction of the Council and if the Commission had an opportunity to examine the measures adequately and has formulated no objections, reservations or conditions in regard to the entry into force of those measures, or has expressly approved such measures.

2. An examination of Council Regulation (EEC) No 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources or of any subsequent Community measures relating to this matter does not disclose any factor of such a nature as to indicate that the Council intended to endow such measures with retroactive effect.

1 Translated from the German