Report for the Hearing in Case C-258/89

I — Facts and written procedure

1. Legal framework

1. In order to ensure the protection of fish stocks, the conservation of the biological resources of the seas and their balanced exploitation on a lasting basis and in appropriate economic and social conditions, the Council adopted Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (Official Journal 1983 L 24, p. 1). Article 3 of the regulation provides, inter alia, that where, in the case of one species or a group of related species, it becomes necessary to limit the catch, the total allowable catch for each stock or group of stocks (hereinafter TAC) and the shares available to the Community are to be fixed each year. Pursuant to Article 4, the volume of catches available to the Community is to 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 (hereinafter quota).

2. The system of TACs and quotas is accompanied by certain control measures. The relevant provisions were set out in Articles 6 to 9 of Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (Official Journal 1982 L 220, p. 1). That regulation was superseded by Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (Official Journal 1987 L 207, p. 1).

2. Background to the dispute

3. In the course of assignments carried out in Spain in 1986 and 1987, the Commission's inspectors found that during those two years the Spanish authorities failed to record catches of species subject to TACs or quotas fished in certain ICES sub-zones outside the 200-mile limit of the Community fishing zone. Furthermore, they noted that certain species had been unlawfully landed and declared as having been caught in ICES sub-zones VI and VII, but outside the 200-mile zone, even though Spain has no quota for the species concerned in those zones. However, the Spanish authorities did not take penal or administrative action in respect of those landings.

4. The Commission did not accept the Spanish authorities' argument. In its view, the regulations which fix the TACs and quotas do so, in the absence of any indication to the contrary, for the whole of the ICES divisions or sub-zones. In those circumstances, the Commission took the view that Spain had not complied with the relevant provisions of Regulations Nos 2057/82 and 2241/87. Accordingly, by letter of 28 September 1987, and in accordance with Article 169 of the Treaty, the Commission gave the Spanish Government formal notice to submit its observations.

5. In the light of that reply, the Commission issued a reasoned opinion on 26 October 1988. It requested the Kingdom of Spain to take the necessary measures to comply therewith within one month of notification.

3. Written procedure

6. The Commission's application was lodged at the Court Registry on 14 August 1989.

II — Forms of order sought by the parties

7. The Commission, the applicant, claims that the Court should:

III — Pleas in law and arguments of the parties

8. First of all, the Commission points out that the arguments put forward by the Kingdom of Spain are centred on the powers of the Community to adopt provisions on the conservation of fishery resources, consisting in particular in limiting catches in maritime waters outside the Community fishing zone.

9. Pursuant to Article 38(4) of the Treaty, the operation and development of the common market for fishery products must be accompanied by the establishment of a common fisheries policy. The objectives of this policy are, in particular (Article 39 of the Treaty), to ensure the rational development of fishing production and the optimum utilization of the factors of production, and to assure the availability of supplies. In order to achieve those objectives, Article 43(2) of the Treaty empowers the Council to make regulations, issue directives or take decisions.

10. With regard to the case-law, the Commission refers in the first place to the judgment in Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279, in which the Court held that:

11. With regard to legislative practice, the Commission distinguishes three broad categories of measures.

12. In the second place, the Commission refers to the numerous international agreements on fisheries to which the Community is a party. The Commission considers that the Community's exclusive authority to conclude such agreements constitutes additional proof that the authority of the Community extends beyond the Community fishing zone. If the Community has authority to adopt measures by entering into agreements, it is difficult to see on what grounds it should be denied authority to adopt such measures independently.

13. In the third place, the Commission refers to the well-established legislative practice of adopting independent measures the scope of which extends to the high seas. Those measures include the regulations adopted pursuant to the basic regulation, No 170/83, which limit catches by fixing TACs and quotas. The reasons behind such legislation are obvious. The main objective of those protective measures is the conservation of fishery resources exploited by Community fishermen. Besides, they are also adopted to implement the series of international rules on the conservation of the resources of the sea. Fishery resources represent biological stocks which move, in whole or in part, inside or outside the demarcation line of the Community fishing zone. In order to be effective, the measures limiting catches must apply to the stock as a whole, no matter where it is to be found. Furthermore, the extension of TACs and quotas to the high seas is also justified by monitoring requirements and by the need to reduce the risk of catches made in the Community zone being fraudulently declared as taken on the high seas.

14. Finally, the Commission emphasizes that the measures limiting catches are the only ones available to the Community to ensure the proper functioning of the Community system of conservation and management of fishery resources. Any other system would be unworkable.

15. The United Kingdom fully endorses the Commission's reasoning. In its observations, it lays particular emphasis on the serious practical difficulties which would arise for the common fisheries policy if the Spanish Government's argument, according to which the Community's powers relating to conservation measures are limited to the Community fishing zone, were accepted.

16. The Spanish Government first of all disputes the interpretation which the Commission puts on the judgment in Kramer. In its view, that judgment recognizes only the Community's authority to enter into international commitments regarding the conservation of the resources of the sea. It cannot be interpreted as conferring authority to regulate fishing on the high seas independently.

17. Next, the Spanish Government submits that it does not follow from the regulations analysed by the Commission that the Community's power to lay down rules may be exercised outside Community waters. Instead, Article 5 of Regulation No 2141/70, for example, expressly refers to fishing ... in the maritime waters of the Member States. According to the Spanish Government, the Commission draws from those provisions certain conclusions which overestimate the powers of the Community. In support of its point of view, the Spanish Government refers to the Opinion of Mr Advocate General Tesauro in Joined Cases 6 and 7/88, in which he considered, inter alia, that the Community rules for conservation and management were conceived as a set of measures intended essentially to operate in Community waters, subject to any specific provisions regarding fishing rights, in particular bilateral or multilateral agreements. In his view, the subsequent application in certain cases of the system of limiting catches in the form of TACs or quotas on the high seas does not mean that there was any departure from the initial concept, but simply that account was being taken of the results of specific bilateral and multilateral consultations.

18. As for the Commission's argument based on the power of the Community to conclude international agreements, the Spanish Government takes the view that it is irrelevant. The Spanish Government does not dispute, and never has disputed, the Community's power to conclude international agreements on fisheries.

19. With regard to the Act of Accession, the Spanish Government points out that Spain did not negotiate access to international waters, but to Community waters, as is apparent from Article 156 of the Act of Accession. In its view, therefore, the Spanish fleet has freedom of access to the high seas and to the resources thereof. Such freedom of access to the resources of the high seas may equally be inferred from Article 161 of the Act of Accession. According to the Spanish Government, that article applies only to Community waters.

20. Finally, the Spanish Government does not believe that the independent restriction of the fishing activities of Community vessels outside their fishing zone is a suitable means of achieving the objective of conserving fishery resources. If the Community imposes independent restrictions to that end, while the fleets of nonmember countries may operate freely, the objective of conserving the resources of the sea will not be promoted; instead, the fishing vessels of nonmember countries will benefit, to the detriment of the Community fleet.

1 Language of the case: Spanish.