Opinion of Mr Advocate General Darmon delivered on 29 May 1991

1 Original language: French.

2 Council Regulation of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member Sutes (OJ 1982 L 220, p. 1).

3 Council Regulation of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1).

4 Article 9 in both regulations.

5 Article 10 of Regulation No 2057/82, Article 11 of Regulation No 2241/87.

6 Anieles 3, 6, 7 ind 8 of Regulation No 2057/82 and Anieles 5, 6, 7 and 8 of Regulation No 2241/87.

7 Council Regulation of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. I).

8 Council Regulation (EEC) No 3777/85 of 31 October 1985 amending Regulation (EEC) No 3721/85 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1986 and certain conditions under which they can be fished (OJ 1985 L 363, p. 1) and Council Regulation (EEC) No 4034/86 of 22 December 1986 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1987 and certain conditions under which they may be fished (OJ 1986 L 376, p. 39).

9 See, in particular, Annex I to Regulation No 3777/85 (OJ 1985 L 363, p. 3 et seq.), Annex I, columns 2 and 3, and Annex II to Regulation No 4034/86 (OJ 1986 L 376, p. 43 et seq.).

10 Emphasis added; see, for example, Regulation No 3777/85 (OJ 1985 L 363, p. 6, notes 1 and 2) and Regulation No 4034/86 (OJ 1986 L 376, p. 54, note 1).

11 Judgment in Case 32/65 [1966] ECR 389.

12 Joliét, R. : Le droit institutionnel des Communautés européennes. Le contentieux. Université de Liège, 1981, pp. 132-133.

13 Judgment in Case 116/82 [1986] ECR 2519.

14 Judgment in Case 156/77 [1978] ECR 1881.

15 Paragraph 21.

16 Judgment in Case 92/78 [1979] ECR 777.

17 Paragraph 39.

18 Joliet, R.: op. cit.

19 Joliet, R.: op. cit., p. 134.

20 Barav, A.: The exception of illegality in Community Law; A Critical Analysis', CML Revino, 1974, p. 366; Megret, J., Waelbroeck, M., Louis, J.-V., Vignes, D., Vandersanden, G.: Le droit de L CEĶ Vol. 10, p. 359; Dubois, P.: L'exception d'illégalité devant la Cour de Justice des Communautés européennes, CDE 1978, p. 411 et seq.: Louis, J.-V.: De l'exception d'illégalité dans la jurisprudence de la Cour des Communautés européennes, Revista de derecho y jurisprudencia de Administración (Montevideo), 1965, pp. 119-120; contra, see, in particular, Joliét, R. : op. cit., and Bebr, G. : Judicial Remedy of Private Parties against Normative Acts of the European Communities: The Role of the Exception of Illegality, CML Review, 1966-1967, pp. 7, II-13.

21 Opinion of Mr Advocate General Roemer in Case 32/65 Italy v Commission and Council (cited above) ; Opinion of Advocate General Sir Gordon Slynn in Case 181/85 France v Commission [1987] ECR 689; Opinion of Mr Advocate General Mancini in Case 204/86 Greece v Commission [1988] ECR 5323; those Opinions were delivered in proceedings brought by Member States and not in proceedings for failure by a Member State to fulfil its obligations; in my view, however, the positions taken in those Opinions also apply to an objection of illegality raised against a regulation by a Member State defending an action for failure to fulfil its obligations.

22 See the judgment in Case 25/62 Plaumann v Commission [1963] ECR 95, and the Opinion of Mr Advocate General Mancini in Case 204/86, cited above.

23 Sec Barav, op. cit., p. 384.

24 A similar solution was arrived at in proceedings brought by the Commission on the basis of Article 93(2) (see the judgment in Joined Cases 6 and 11/69 Commission v France [1969] ECR 523 and in Case 156/77, supra) and Article 169 (judgment in Case 226/87 Commission v Greece [1988] ECR 3611): it should be borne in mind in that respect, however, that the Court (in Joined Cases 6 and 11/69) made a reservation in cases where the decisions were taken in an area falling within the jurisdiction of the Member States and thus lack any legal basis in the Community legal order; compare, in that respect, as regards directives, the judgments in Cases 91/79 and 92/79 Commission v Italy [1980] ECR 1099 and 1115, and the Opinion of Mr Advocate General Mavras; in those cases the Italian Government, against which proceedings were brought for failure to comply with certain directives, had stated that the matters governed by those measures lay at the fringe of Community powers, and thus amounted to a convention drawn up in the form of a directive, while pointing out that it was not raising an objection of illegality, and the Court examined the defendant State's arguments.

25 See lhe Opinion of Mr Advocate General Roemer, cited above, in Case 32/65, which emphasizes that the defects appertaining to a general regulation often do not clearly emerge until the regulation is applied to a particular case.

26 Sec Bebr, op. cit., p. 12.

27 Judgment in Joined Cases 3, 4 and 6/76 [1976] ECR 1279.

28 Paragraph 33.

29 Paragraph 30.

30 Paragraph 31, emphasis added.

31 Isaac, G. : Droit communautaire général, Masson 1990, 3rd Ed., p. 95, emphasized by the author.

32 Ibid., emphasis added.

33 Judgment in Case 61/77 [1978] ECR 417.

34 Paragraph 63.

35 Judgment in Joined Cases 185 to 204/78 [1979] ECR 2345.

36 Judgment in Joined Cases 6 and 7/88 [1989] ECR 3639; Opinion of Mr Advocate General Tesauro.

37 Paragraph 23, emphasis added.

38 Joined Cases 3, 4 and 6/76, tupra.

39 Fleischer, C: La pêche in Dupuy, R.-J. and Vignes, D.: Traiti du Nouveau Droit de la Mer, Bruylant 1985, p. 942.

40 Ibid.

41 Ibid., p. 942. In practice, this legal system of sharing powers has often given way to a de facto freedom for the individual operator. Sutes are reluctant to adopt effective rules on the conservation of stocks or measures for their implementation if those rules and those measures apply only to their own vessels.