Opinion of Mr Advocate General Reischl
Mr President,
Members of the Court,
The questions now before the Court arise by way of a reference for a preliminary ruling in criminal proceedings in which Mr Kerr, the captain of a British fishing vessel, is charged with contravening Danish Order No 88 of 10 March 1978 on the limitation of catches for the fishing zone off Greenland.
That order laid down, inter alia, total catch-quotas for various species of fish in various areas of the Greenland fishing zone. Under Article 8 of the Order in conjunction with Annex II thereto, catch-quotas were allocated amongst Greenland, Denmark, France and the Faeroe Islands for shrimp fishing within the 200 nautical mile fishing zone off West Greenland. According to Article 10 of the Order, a breach of its provisions was punishable by a warning or a fine.
On 12 June 1978, Captain Kerr's trawler MV Goth was fishing for shrimps in ICNAF [International Commission for the North-West Atlantic Fisheries] area 1A— IF in Greenland coastal waters at a point west of Holsteinsborg in the fishing zone between 12 and 200 nautical miles from the Greenland base-lines. The captain was in possession of a licence issued on 14 April 1978 by the British Minister for Agriculture, Fisheries and Food permitting the ship to catch 475 tonnes of shrimps after 6 June 1978 in ICNAF sub-area 0 — 1.
Following repeated requests by the Danish fishery authorities to cease fishing the vessel was finally arrested on 16 June 1978. Captain Kerr admitted that he was acting in breach of the Order and agreed under protest to pay a fine of DKR 80000 and to forfeit DKR 41500 corresponding to the value of the catch of shrimps. At Captain Kerr's request, the matter was brought before the Grønlands Landsret [Provincial Coun, Greenland] which by judgment of 14 November 1979 ordered the defendant to pay a fine of DKR 100000, for breach of the provisions of the said order on the limitation of shrimp catches as well as to forfeit DKR 41150.
Both the defendant and the Public Prosecutor appealed against that judgment to the Østre Landsret [Eastern Division of the High Coun].
The defendant contends that Danish Order No 88 constitutes an infringement of Community law in particular inasmuch as it accords different treatment to fishermen from various Member States in the Greenland fishing zone between 12 and 200 nautical miles from Greenland base-lines. Such discrimination on grounds of nationality is contrary to Article 7 of the EEC Treaty, as well as to Articles 1 and 2 (1) of Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (Official Journal 1976, L 20, p. 19); those articles prohibit differences in the treatment of Member States in respect of fishing and expressly guarantee equal access for the fishing vessels of a Member State to fishing grounds under the sovereignty or within the jurisdiction of other Member States. Although in principle it is undeniable that total catch-quotas for the conservation of fish stocks may be fixed by national legislation, quotas cannot be allocated on the basis of what are known as traditional rights that is to say in the light of previous fishing patterns in an area, since such rights are largely abolished by the EEC Treaty. Furthermore, the Order — which the defendant claims is unlawful — could not be legalized by the Commission's approval thereof which was given only on 20 November 1978.
The Public Prosecutor, on the other hand, takes the view that at the time in question the Member States were at liberty to adopt measures for the conservation of fish stocks, and, in connection therewith, to establish a system of quotas in order to fix a ceiling on catches by the individual Member States. Catch-quotas for shrimps were allocated by the Order amongst the Member States on the basis of previous shrimp catches in that area and corresponded to the Commission's proposal for the allocation of fishery resources for 1978. Consideration of the traditional fishing patterns of the Member States in the areas in question was justified on objective grounds also because the purposes of the measures, according to the preamble to Regulation No 101/76, was inter alia to ensure that those who live by the fishing industry are assured of a fair sundard of living. Finally, another factor miliuting in favour of the view that the Order is compatible with Community law is that the measure was notified to and approved by the Commission in accordance with the procedure laid down in Annex VI to the Hague Agreement.
To enable it to decide whether Order No 88 of 10 March 1978 is compatible with Community law, the 16th Chamber of the Østre Landsret suyed the proceedings and by judgment of 29 October 1981 referred to the Court, pursuant to Article 177 of the EEC Treaty, the following questions for a preliminary ruling:
My opinion on those questions is as follows:
1. In the light of the rules on fishing in force in 1978, the court making the reference has, in its questions, deliberately focused on the problem — to which the Court of Justice has not yet expressly addressed itself — whether in 1978 a Member State was entitled to divide a total allowable catch for the conservation of a given species of fish in a specific area of its fishing zone between individual Member States and non-member countries on the basis of traditional fishing patterns.
2. With regard to the substantive provisions of Community law, however, the defendant in the main proceedings as well as the United Kingdom and the Netherlands Governments are doubtful whether the allocation of catch quotas by the Order in question can be reconciled with the principle of equal treatment, as laid down in particular by Article 7 of the EEC Treaty and Article 2 (1) of Regulation No 101/76, which is an overriding principle of Community law.
3. Those considerations in themselves suffice to show that the other objections raised by the United Kingdom, and by the Netherlands and French Governments, to the effect that the fixing of catch-quotas and their allocation amongst the individual States with fishing interests should be regarded not as conservation measures but merely as administrative measures, are unfounded. The Resolution of 31 January 1978, to which I have referred demonstrated that the Council is also of the opinion that the fixing of a total allowable catch is to be viewed in conjuction with the economic exploitation thereof when the national measures concerned are examined in order to determine whether they are compatible with Community law. Moreover, the Convention on Future Multilateral Cooperation in the North-West Atlantic Fisheries (Official Journal 1978, L 378, p. 1), signed by the Community on 24 October 1978, is also based on the assumption that the fixing of total allowable catches is inseparable from their allocation in the form of catch-quotas, whilst the International Fisheries Commission is responsible for the management and conservation of fishery resources. Last but not least, the Commission, too, recognizes that the conservation and management of fishery resources are closely related, as is shown by its proposals thereon: see, for example, the proposal for a Council regulation establishing a Community system for the conservation and management of fishery resources of 8 October 1976 (Official Journal 1976, C 255, p. 3), as most recently amended by the Commission proposal of 6 March 1981 (Official Journal 1981, C 141, p. 6).
4. The inference that the Member States are also empowered to fix catch-quotas can be drawn from the case-law of the Court. Thus it was expressly stated in Joined Cases 3, 4 and 6/76 Kramer, already cited, that: the Community has at its disposal, on the internal level, the power to take any measures for the conservation of the biological resources of the sea, measures which include the fixing of catch-quotas and their allocation between the different Member States. Consequently — and this should be stated in order to meet the objection raised by the French Government — Article 4 of Regulation No 101/76 which empowers the Council to adopt measures for the conservation of fish stocks must be interpreted along the same lines. If, however, the Council has taken no action, as in the present case, that power may, according to the case-law of the Court, be exercised by the Member States.
5. Accordingly, it remains to consider whether the prohibition of discrimination laid down by Community law, as stated in Article 7 of the EEC Treaty and in Article 2 (1) of Regulation No 101/76, was not infringed by the fact that the quotas were allocated on the basis of previous fishing patterns with the result that not all the fishing vessels of the Member States had equal access to the contested fishing grounds.
6. There can be no doubt that the contested Order No 88 of 10 March 1978 on the limitation of catches for the fishing zone off Greenland is, in any event as regards the allocation to Greenland, Denmark, France and the Faeroe Islands of catch-quotas for shrimps in the fishing zone in question, consistent with the proposal laid before the Council by the Commission. Consequently, it is also necessary to proceed on the assumption that those criteria were also taken into account when the national conservation measure was enacted following wide-ranging consultations with the Commission. Since the national measure entered into force before the expiry of the transitional period introduced by Article 102 of the Act of Accession, there was ultimately no need from the procedural point of view for the Commission's prior approval, either express or implied.
7. That the Commission based its proposal to fix catch-quotas for 1978 on fishing carried on in the contested area in 1976, should likewise not be a ground for criticism. It must be borne in mind in that regard that no corresponding recommendations were made by the International Fisheries Commission for the North-West Atlantic for the allocation of the total allowable catch fixed in respect of the shrimp stocks in question, that the fishing of those stocks had only just begun and that 1976 was the most recent year for which reliable figures were available concerning the catches of the various fishing fleets in the contested area.
8. Since it has now also been established that the allocation of quotas set out in the Commission's proposal and in substance incorporated by the Danish Government in its Order No 88 of 10 March 1978 cannot be criticized on the ground that it constitutes an infringement of Community law as it stood at the time, there is no longer any need to consider the question raised by the United Kingdom whether any infringement can be remedied by the subsequent express approval of the Commission.
9. In conclusion, therefore, I propose that the questions raised should be answered as follows:
1 Translated from the German.
2 Judgment of 10 July 1980 in Cue 32/79 Commiision v United Kingdom [1980], p. 2403.
3 Judgment of 14 July 1976 in Joined Cases 3, 4 and 6/76 Kramerand Others [1976] ECR 1279.
4 Judgment of 3 July 1979 in Joined Cases 185/78 to 204/78 van Dam en Zonen and Others [1979] ECR 2345.
5 Judgment of 2 June 1981 in Case 124/80 van Dam en Zonen [1981] ECR 1447.
6 Judgment of 14 July 1976 in Joined Cases 3. 4 and 6/76 Kramer and Others [1976] ECR 1279.
7 Judgment of 16 February 1978 in Case 61/77 Commission v Ireland [1978] ECR417.
8 Judgment of 10 July 1980 in Case 32/79 Commission v United Kingdom [1980] ECR 2403.
9 Judgment of 5 May 1981 in Case 804/79 Commission v United Kingdom [1981] ECR 1045.
10 Judgment of 14 October 1980 in Case 812/79 — Criminal proceedings against Burgoa [1980] ECR 2787.