Report for the Hearing delivered in Case 46/86

I — Facts

(a) The Community regulations on the conservation of fishery resources

Council Regulation (EEC) No 170/83 of 25 January 1983 (Official Journal 1983, L 24, p. 1) establishes a Community system for the conservation and management of fishery resources.

Article 3 of that regulation provides that, where it appears necessary to conserve a particular species of fish, the Council is to fix the total allowable catch (TAC). TACs are established each year for each species.

Article 4 (1) of Regulation No 170/83 provides that the volume of the catches available to the Community... shall be distributed between the Member States in a manner which assures each Member State relative stability of fishing activities for each of the stocks considered. In accordance with that principle, each Member State is allocated a certain percentage of the available catches each year. Those percentages have remained unchanged since 1983. The total quantity of fish which may be caught by the fishermen of a particular Member State is not fixed, however, since the TACs, and therefore the volume of catches available to the Community, change each year.

Finally, Article 5 (1) of Regulation No 170/83 allows the Member States to exchange all or part of the quotas in respect of a species allocated to them under Article 4 provided that prior notice is given to the Commission.

Individual regulations are adopted each year establishing the TACs and the conditions under which the various species of protected fish may be caught. Council Regulation No 1/85 fixing, for certain fish stocks and groups of fish stocks, provisional total allowable catches for 1985 and certain conditions under which they may be fished (Official Journal 1985, L 1, p. 1) concerns in particular the fixing and allocation of the 1985 TAC for plaice caught in ICES divisions IIa and IV (the North Sea). That regulation allowed the Community fishing fleet as a whole to catch 186000 tonnes of plaice in the North Sea in 1985. Of that quantity the Netherlands was allocated a quota of 71540 tonnes.

(b) The main proceedings

Regulation No 1/85 was implemented in the Netherlands by the Beschikking Regeling Contingentering Tong en Schol Noordzee (Quota Rules for Plaice and Sole (North Sea) Order) 1985 which divided between Netherlands fishermen the quota for plaice allocated to the Netherlands. In 1985 the order was amended in order to allow the allocation of collective quotas managed by associations of fishermen.

Mr Romkes is a professional fisherman whose home port is Urk. He is a member of the Producentenorganisatie Oost (Eastern Producers' Organization) which in 1985 was allocated a quota of 20000 tonnes from the Netherlands plaice quota.

Like other members of the Producentenorganisatie Oost, by 12 October 1985 Mr Romkes had exhausted the quota share which the association had allocated to him but he still continued fishing for plaice after that date.

On 2 November 1985 Mr Romkes was served with a proces-verbaal for contravening Article 7 (1) and Article 8 (2) of the 1985 Order. Nevertheless, he continued fishing. Then, on 14 November 1985, a provisional measure, within the meaning of Article 28 of the Wet op de Economische Delicten (Law on economic offences) was issued against him by the Officier van Justitie, Zwolle, requiring him to refrain from fishing for plaice in the North Sea for the rest of 1985.

On 29 November 1985, all the quota allocated to the Netherlands had been exhausted. From 30 November 1985 all Netherlands fishermen were ordered to cease fishing for plaice.

On 5 December 1985 Mr Romkes made an application to the Arrondissementsrechtbank (District Court), Zwolle, for the annulment of the provisional measure of 14 November 1985.

(c) The preliminary question

By an order received at the Court Registry on 18 February 1986, the Arrondissementsrechtbank, Zwolle, requested the Court to give a preliminary ruling on the question whether

In its order the Arrondissementsrechtbank explains the reasons for which that regulation might be considered invalid.

It first mentions the argument put forward by Mr Romkes that Regulation No 1/85 is contrary to the United Nations Convention of 10 December 1982 on the Law of the Sea, more particularly Article 62 (2), which provides that a State which cannot use all of the quota allocated to it shall allow other States access to the unused quota. However, the Arrondissementsrechtbank does not consider that the Community regulation is incompatible with Article 62 since, in its view, that article does not impose an unconditional obligation upon the States.

The Arrondissementsrechtbank then states that Council Regulation No 1/85 might be incompatible with Article 4 (1) of Council Regulation No 170/83, which provides that the TACs are to be distributed between the Member States in a manner which assures each Member State relative stability of fishing activities. It is unsure whether the allocation of quotas between the Member States should remain the same when a certain number of Member States do not exhaust their quotas. The Arrondissementsrechtbank, which considers that the guarantee of relative stability cannot be interpreted as a guarantee for each fleet that they will always have a sufficient quota, points out that, according to the preamble to Regulation No 170/83, that stability must safeguard the particular needs of regions, having regard to the temporary biological situation of stocks. However, the biological situation has changed so much that the TAC for plaice was increased considerably in 1985. The Arrondissementsrechtbank therefore inquires whether it is necessary to keep the same formula for distributing the volume of catches. available to the Community when it appears that the needs of the Member States are different.

Finally, the Arrondissementsrechtbank raises the more general question whether Regulation No 1/85 is fundamentally incompatible with the aims of the common agricultural and fisheries policy and contrary to the prohibition of discrimination. For several years the Community quota for plaice has not been used up whereas the quota share allocated to the Netherlands has always been exhausted. The Arrondissementsrechtbank therefore inquires whether Regulation No 1/85 contains restrictions on Netherlands fishermen which obstruct trade and are not necessary for the conservation of the biological resources of the sea.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 23 May 1986 by the Commission of the European Communities, represented by its Legal Adviser, R. C. Fischer, on 26 May 1986 by the Council of the European Communities, represented by J. Delmoly, on 29 May 1986 by A. Romkes, the applicant in the main proceedings, represented by H. J. Bronkhorst, on 30 May 1986 by the Netherlands Government, represented by G. Borchardt, and on 30 May 1986 by the United Kingdom, represented by S. Richards and R. N. Ricks.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations submitted to the Court

The applicant in the main proceedings points out first of all that the United Nations Convention on the Law of the Sea was signed by the Community on 7 December 1984 and that it therefore forms a binding rule of law for the Community. Regulation No 1/85 is contrary to that Convention because it did not provide for an effective mechanism for adjusting the existing quota allocation system when it was foreseeable that a large proportion of the plaice quota allocated to the Community would not be used. The unused quantities ought to have been allocated to the Member States whose quota was known to be insufficient.

Regulation No 1/85 is also incompatible with Article 4 of Regulation No 170/83. The stability of fishing activities in the Netherlands is already affected on account of the fact that the plaice quota allocated to the Netherlands was totally exhausted by 30 November 1985. This is especially true in a region like Urk, where a premature end to plaice-fishing, which is the only possible form of fishing for Urk fisherman, may lead to a reduction in the fleet and to a reduction in other activities related to fishing.

Finally, the applicant submits that various rules of Community law have been infringed. The first provision he alleges to have been infringed is Article 1 of Regulation No 170/83 which provides that the Community system for the conservation and management of fishery resources is to be established in order to ensure the protection of fishing grounds. The experience of the previous years has shown that the biological situation of plaice did not justify the introduction of a TAC and the allocation of such a small quota share to the Netherlands. In the second place, Article 7 of the Treaty has been infringed inasmuch as the Netherlands quota for plaice was insufficient whereas other Member States were allocated a larger quota than they needed. Thirdly, Article 30 of the Treaty has been infringed because the system of quotas prevents Netherlands fishermen from having free access to the fish stocks of other Member States more than is necessary. Finally, it is contended that the quota system does not help to attain any of the aims of the common agricultural and fisheries policy laid down in Article 39 of the EEC Treaty.

The Netherlands Government does not deal with the question whether Regulation No 1/85 may be incompatible with the United Nations Convention on the Law of the Sea.

As regards the principle of relative stability, the Netherlands Government argues that it means that each Member State should have an identical percentage of the TAC for a specific species of fish and therefore relative certainty as regards the volume of its catches. However, that does not mean that the quotas allocated to it must correspond in full with the fleet's fishing capacity. Regulation No 1/85 is therefore compatible with that principle since it allocates to the Netherlands the same share in the volume of available catches for plaice as in previous years. The fact that certain States do not use all their quota is therefore irrelevant. The exchange of quotas, made possible by Article 5 (1) of Regulation No 170/83, is the solution to that problem.

Finally, as regards the third reason mentioned by the national court as a possible ground of invalidity of the regulation in question, the Netherlands Government argues that if there are no restrictions on catches, fish stocks are not conserved and without conservation future fishing is not guaranteed. Even if Regulation No 1/85 may restrict the freedom of production, such a restriction is compatible with Articles 30 to 34 of the Treaty since without it the conservation of the biological resources of the sea is impossible.

In conclusion the Netherlands Government states that the situation in which certain Member States do not use up their quotas whilst others exhaust theirs very quickly is unsatisfactory. However, this is a problem for which a political solution must be found in the Council.

The United Kingdom states first of all that the United Nations Convention on the Law of the Sea is not yet in force and that it cannot therefore be binding upon the Community. In any event, in signing the Treaty the Community made a reservation making it clear that Article 62 of the Convention would not apply to the Community's fishery conservation and management measures.

As regards the expression relative stability, the United Kingdom considers that a system of fixed percentage allocations of the TAC leads to balanced, stable exploitation of fishing activity in each Member State and is therefore compatible with Regulation No 170/83. Even though the actual volume of catches may vary from year to year according to the changes in the sizes of the stocks, that system is the only one which leads to a satisfactory result without being too inflexible since it provides for adjustments and for exchanges of quotas. As for the specific percentages accorded to each Member State, they are fixed on the basis of objective criteria and are therefore also in accordance with the basic regulation.

Finally, as regards the possibility that the scheme concerned may be incompatible with Articles 7 and 39 of the Treaty, the United Kingdom points out that the aim of the system is to ensure a stable and balanced exploitation of the resources of the sea. Consequently, the long term must be taken into consideration and not the situation existing at any given time; the important thing, therefore, is that the allocation of the shares of available fish between the Member States contributes in the long term to maximum production.

The Council of the European Communities considers it unnecessary to examine the validity of the regulation in question with reference to the United Nations Convention on the Law of the Sea because none of the conditions laid down in the case-law of the Court in order for the validity of measures adopted by the institutions to be assessed in the light of a provision of international law is fulfilled in this case. In the first place, that Convention is not yet in force. In the second place, the Council has not yet ratified it on behalf of the Community. Finally, Article 62 (2) has no direct effect, if only because it certainly does not have the required unconditional character; it makes access for foreign States to Community waters subject to the conclusion of agreements or other arrangements and to the observance of the laws and regulations of the coastal States.

As regards the possibility that Regulation No 1/85 is incompatible with Article 4 (1) of Regulation No 170/83, the Council points out that relative stability is a complex and variable concept which cannot be defined once and for all time. In any event, it cannot mean that each fleet is always to be guaranteed a sufficient quota. Referring to the case-law of the Court, in particular the judgment of 21 February 1979 in Case 138/78 (Stölting v Hauptzollamt Hamburg-Jonas [1979] ECR 713) and the judgment of 29 October 1980 in Case 138/79 (Roquette Frères SA v Council [1980] ECR 3333), the Council also takes the view that in matters concerning the conservation and management of fisheries resources it has a wide power of assessment owing to the complexity of the economic situations which it must take into consideration and the diversity of the aims which Article 39 of the Treaty requires it to pursue and which are often difficult to reconcile. The validity of a Council measure cannot therefore be called in question in this field except in the case of manifest error or misuse of power.

Finally, as regards the alleged infringement of Articles 7 and 39 of the Treaty, the Council points out first of all that the quotas allocated to the Member States must not necessarily be exhausted. It then points out that Member States may exchange all or part of their quotas and that in practice use is made of that possibility. Consequently, the system is sufficiently flexible to prevent any discrimination in the allocation of quotas between the Member States.

The Commission of the European Communities points out first of all that the United Nations Convention on the Law of the Sea is not yet in force and that therefore it is still not binding on the Community. In any event, that Convention will apply only to relations between the Community as a whole and non-member countries but not to relations between the Member States themselves which will continue to be governed by the common fisheries policy.

As regards the compatibility of Regulation No 1/85 with the principle of relative stability, the Commission points out first of all that that principle cannot be interpreted as providing a guarantee that each fleet will always have a sufficient quota. On the question whether it is right to continue to divide the TAC between the Member States in the same way when it appears that they have different needs, the Commission points out that economic and social criteria are also taken into consideration in the fixing of the TAC. The different situations of the fishermen are therefore taken into account. Finally, the Commission points out that the basic regulation does not contain any provision requiring the Council to adjust the quotas allocated to a Member State if it is apparent or likely that they no longer meet the present needs of the various fishing fleets. The Commission also points out that the TAC fixed for plaice in 1985 was in fact fixed at a level far above the level required from the biological point of view in order in particular to enable the Netherlands quota to be increased because it was quite foreseeable that certain Member States would not exhaust their quotas. It is wrong to assume that the complete exhaustion of a TAC, possibly through the transfer of unused quotas, is neutral from the point of view of the conservation of fish stocks. Economic and social requirements play a part in the fixing of the TAC so that it is often fixed at a level higher than is required from the biological point of view.

Finally, as regards the compatibility of the system with the EEC Treaty, the Commission considers that it follows from the considerations set out above that the system introduced by Regulation No 170/83 is not incompatible with the EEC Treaty. In establishing that system the Community legislature acted within the limits of its powers under Article 39 et seq. of the Treaty.

1 Language of the Case: Dutch.