Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. On 6 January 1983 Kent Kirk, the master of the Danish vessel the Sandkirk, set out to fish within 12 miles of the British coastline. In so doing he was clearly acting in contravention of the Sea Fish (Specified United Kingdom Waters) (Prohibition of Fishing) Order 1982 (No 1849 of 22 September 1982), clearly and, indeed, deliberately. On board with Mr Kirk, who is a Danish Member of the European Parliament, were a number of journalists. The object of the exercise was, as he again pointed out in the course of argument, to challenge the validity under Community law of the Sea Fish Order 1982.

2. In a recent article published in Cahiers de Droit Européen, Jörn Sack describes the fisheries policy as a new problem for which the Community was ill-prepared.

3. On 11 June 1982 the Commission submitted to the Council a modified proposal for a Council Regulation establishing a Community system for the conservation and management of fishery resources.

4. Those proposals were discussed at the Fisheries Council of 21 December 1982 which, as a result of the opposition of the Danish Government, failed to reach an agreement.

5. The question is therefore whether that objective was achieved by proper means.

6. It remains to consider the substance of the contested order and its conformity with the relevant requirements of Community law. That raises the question of the discriminatory effect alleged both by Mr Kirk and by the Danish and Netherlands Governments. It must be recalled that the Sea Fish Order 1982 prohibited from fishing in British coastal waters only fishing vessels registered in Denmark.

1 Translated from the French.

2 La Nouvelle Politique Commune de la Pêche, Cahiers de Droit Européen, 1983, p. 437 et seq.

3 Article 38 (1) of the EEC Treaty.

4 Official Journal 1970, L 236, p. 1.

5 Official Journal 1976, L 20, p. 19.

6 Official Journal 1982, C 228, p. 1 (a proposal had previously been submitted on 8. 10. 1976 and was published in Official Journal 1976, C 255, p. 3).

7 Official Journal 1982, C 343, p. 2.

8 Official Journal 1983, L 12, p. 50.

9 Loc, cit., p. 444.

10 Judgment of 10. 7. 1980 in Case 32/79 Commission v United Kingdom [1980] ECR 2403, at p. 2434, paragraph 15 of the decision.

11 Judgment of 5. 5. 1981 in Case 804/79 [1981] ECR 1045, at pp. 1075 and 1076, paragraphs 27 to 31 of the decision.

12 Sixth recital in the preamble to Council Regulation (EEC) No 170/83 of 25. 1. 1983.