Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. These proceedings are concerned with a reference for a preliminary ruling made under Article 177 of the Treaty by the High Court of Justiciary (Scotland) in proceedings pending before that court between the Procurator Fiscal, Stranraer, and Mr Andrew Marshall.
2. The legislative background to the proceedings is relatively straightforward.
3. On 14 January 1986 the Secretary of State for Scotland, having obtained the requisite agreement of the Commission, made an order prohibiting the carriage of monofilament gill nets in British fishing boats in the sea area adjacent to the coast of Scotland and within a limit of six miles from the baseline.
4. The facts which gave rise to these proceedings can readily be summarized.
5. The Procurator Fiscal appealed to the High Court of Justiciary, which stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
6. I shall first consider the question concerning the validity of Article 19 of the regulation in question.
7. As we have seen, Article 19 of Regulation No 171/83 authorizes Member States to take measures for the conservation and management of strictly local stocks or to lay down conditions or detailed arrangements — of a local nature and applying to national fishermen only — designed to limit catches.
8. As the Council has rightly pointed out in its written observations, the situation is one in which the Community has in principle legislative competence but has decided, within certain limits and subject to certain conditions, to give Member States the possibility of adopting more stringent measures of a local nature in the light of specific situations.
9. Moreover, a delegation of legislative powers, of the type in this case, is all the more easy to understand bearing in mind that the reproduction of the various species may have characteristics which differ considerably from one biological area to another and, in addition, that fish stocks are not an inexhaustible resource.
10. As for the argument that the national measures taken may have the effect of subjecting fisherman operating on vessels subject to the jurisdiction of the State in question to more stringent measures than those applying to fishermen operating on vessels subject to the jurisdiction of other Member States, it is sufficient to observe that, as the Court has repeatedly stated, the fact that the rules applied by one Member State are stricter than those applied in the same sphere by other Member States does not constitute a breach of the principle of non-discrimination laid down in Article 7 of the Treaty, as long as the provisions in question, which are moreover compatible with Community law, are applied equally to every person under the jurisdiction of that State.
11. In view of the foregoing I take the view that consideration of the question submitted to the Court has disclosed no factor of such a kind as to cast doubt on the validity of Article 19 of Regulation No 171/83.
12. In Question 1 the High Court of Justiciary asks the Court whether the provisions of Article 7 or Article 40(3) of the EEC Treaty, or any other provision of Community law, prevent a Member State from adopting, with the prior valid approval of the Commission, a measure of the kind described above and, if so, in what circumstances.
13. Before considering the substance of the question, it is necessary in my view to clarify a number of matters relating to the actual nature of the measure in question.
14. Having said that, I shall consider the substance of the question submitted to the Court.
15. In contrast, the assessment of the order in the light of Article 40(3) of the Treaty, which provides that the common organization of the agricultural markets must exclude any discrimination between producers or consumers within the Community, is a more delicate matter.
16. The Court has also made it clear that different treatment may not be regarded as discrimination prohibited by Article 40(3) of the Treaty unless it appears to be arbitrary, or in other words devoid of adequate justification and not based on objective criteria.
17. The problem arising for a measure of this type is therefore not so much one of discrimination as one of proportionality.
18. Now, even though the request for a preliminary ruling casts but little light on the question whether those circumstances actually obtain, I consider that I should make the following remarks in the light of the facts which have emerged in the course of the proceedings.
19. As regards the possibility of ensuring that the ban on salmon fishing is complied with simply by stepping up checks and thus without prohibiting the carriage of the nets in question, it must be borne in mind that the Scottish coastline — which is moreover thinly populated — is so extensive that it is difficult in practice to check that a vessel carrying such a net does not subsequently use it for unlawful purposes.
20. As far as the actual interest in using that type of net for permitted purposes is concerned, the United Kingdom stated that, according to a survey carried out by the competent Scottish authorities, in 1985 the value of British fishing boats' annual landings in Scottish ports was UKL 215 million, whilst the value of the fish caught legitimately using monofilament nets and landed in those ports in the same period was only UKL 25 000.
21. In the light of those considerations I consider that I can reach the conclusion that consideration of the question has disclosed no factor of such a kind as to suggest that the measure at issue conflicts in this case with the principle of proportionality.
22. However, it is clear that should the national court find that different circumstances or new factors exist compared with those set out above, it could refer the question back to the Court of Justice; indeed, given that the measures adopted pursuant to Article 19 of Regulation No 171/83 are supported by a Commission decision holding that they are compatible with Community law, I take the view that in any event the national court could not refrain from applying them without the prior intervention of the Court of Justice.
23. As for the question of a possible infringement of fundamental rights, I shall confine myself to pointing out that, according to the case-law of the Court, it is legitimate to subject the freedom to pursue a trade, occupation or profession to limits justified by the general objectives pursued by the Community, on condition that the substance of those rights is left untouched.
24. In its last question the national court asks the Court whether such a measure falls within the scope of Article 19 of Regulation No 171/83.
25. In the light of the considerations set out above, I therefore propose that the Court should answer the questions put by the High Court of Justiciary as follows:
1 Original language: Italian.
2 OJ 1983 L 24, p. 14.
3 Judgment in Case 804/79 Commission v United Kingdom [1981] ECR 1045, paragraphs 17 and 22.
4 Judgments in Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279, paragraph 58 and in Case 46/86 Romkes v Officier van Justitie [1987] ECR 2681, paragraph 22.
5 Judgments in Case 223/86 Pesca Valentia v Minister for Fisheries and Forestry [1988] ECR 83, paragraph 18 and in Joined Cases 185 to 204/78 van Dam and Others [1979] ECR 2345, paragraph 10.
6 Judgments in Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 23, and in Joined Cases 201 and 202/85 Klenschz v Secrétaire d'Etat (1986] ECR 3477, paragraph 8.
7 Judgments in Case 84/87 Erpelding v Secrétaire d'Etat [1988] ECR 2647, paragraph 29, in Klensch, cited above, paragraph 9, in Case 117/76 Ruckdeschel[1977] ECR 1753, paragraph 7 and in Joined Cases 124/76 and 20/77 Moulins Pont-a-Mousson [1977] ECR 1795, paragraph 16
8 Judgments in Case 106/81 Kind v EEC [1982] ECR 2885, paragraph 22 and in Case 139/77 Denkavit [1978] ECR 1317, paragraph 15.
9 Judgments in Case 234/85 Staatsanwalt v Keller [1986] F.CR 2897, paragraph 8 and in Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14.