Opinion of Advocate General Lenz delivered on 6 May 1992

1 Original language: German.

2 OJ 1989 L 389, p. 65.

3 OJ 1989 L 389, p. 63.

4 OJ 1989 L 389, p. 78.

5 OJ 1989 L 389, p. 53.

6 OJ 1989 L 389, p. 78.

7 Council Regulation of 25 January 1983 fixing for certain fish stocks and groups of fish stocks occurring in the Community's fishing zone, total allowable catches for 1982, the share of these catches available to the Community, the allocation of that share between the Member States and the conditions under which the total allowable catches may be fished, OJ 1983 L 24, p. 30.

8 OJ 1983 L 24, pp. 68, 70, 72, 75 and 77.

9 Council Regulation establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1).

10 The judgment of the Court of Justice in Case C-258/89 Commission v Spain [1991] ECR I-3977 makes it clear that these rules also apply in part to resources in international waters.

11 The provisions also cover the rights of access of the original Member States to the waters and resources of the new Member States and the reciprocal rights of access of the acceding Member States.

12 See Articles 167 and 354 of the Act of Accession.

13 Judgment in Joined Cases 31/86 and 35/86 LAISA v Council [1988] ECR 2285, at paragraphs 14 and 18.

14 See Article 8 of Section XV of Annex I to the Act of Accession.

15 Judgment in Case 46/86 Romkes v Officier van Justitie [1987] ECR 2671.

16 See the judgment in Case C-258/89 Commission v Kingdom of Spain [1991] ECR I-3977, at paragraph 16.

17 Academic writing on this point would suggest that the allocation specified corresponds approximately to that which Spain enjoyed prior to its accession: see Churchill, EEC Fiskenes Law, Dordrecht, 1987, at p. 161.

18 On this point, see below at paragraph 73 et seq.

19 Even though according to their unambiguous wording they also apply to resources which are not subject to any catch limitations.

20 Aliter, for example, Articles 60 and 220 of the Act of Accession which link the expiry of the transitional period provided for therein to the adoption of provisions of secondary law; on this point, see the judgment in Case C-99/89 Yañez Campoy v Bundesanstalt für Arbeit [1990] ECR I-4097, in particular at paragraph 16.

21 See footnote 18.

22 Case C-71/90.

23 Cf. Article 3(1) Regulation No 2057/82, (OJ 1982 L 220, p.l).

24 See paragraph 3 above.

25 See the fourth recital in the preamble to Regulation No 172/83.

26 See previous footnote; judgment in Case C-3/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Agegate [1989] ECR 4459, at paragraph 24; also the judgment in Case C-216/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Jaderow Ltd [1989] ECR 4509, at paragraph 23.

27 See Section 2 of the Report for the Hearing.

28 See above at paragraphs 40 and 41.

29 Regulation No 223/85, OJ 1985 L 29, p. 8.

30 Regulation No 224/85, OJ 1985 L 29, p. 13.

31 Council Decision 89/650, OJ 1989 L 389, p. 80.

32 Cf. Regulations No 3982/87 (OJ 1987 L 375, p. 53) and No 2963/88 (OJ 1988 L 269, p. 3).

33 Cf. Regulation No 1578/89, OJ 1989 L 156, p. 3.

34 The (undisputed) figures for the years up to 1989 are contained in the annex to the statement of defence. In 1982 the Community did not yet hold catch quotas for mackerel.

35 Treaty on Spitzbergen, signed on 9 February 1920, LNTS volume 2, p. 7.

36 Regulation No 2214/80, OJ 1980 L 226, p. 47.

37 Annex II to the application in Case C-71/90.

38 Council Decision 86/557 of 15 September 1986, OJ 1986 L 328, p. 76.

39 Regulation No 2214/80, OJ 1980 L 226, p. 47.

40 Regulation No 2209/80, OJ 1980 L 226, p. 1.

41 See Regulation No 297/89, OJ 1989 L 33, p. 42.

42 See paragraph 43 above.

43 1989: 6000 tonnes, cf. footnote 2 of Regulation No 297/89; 1990: 5000 tonnes, cf. footnote 2 of Regulation No 4051/89.

44 See paragraph 50 above.

45 Denmark: 90%; Germany: 10%; cf. footnotes 3, 6 and 7 of Regulation No 297/89 and Reguládon No 4057/89.

46 Council Decision 86/558 of 15 September 1986, OJ 1986 L 328, p. 89.

47 OJ 1990 L 155, p. 3.

48 See for example the judgment in Case C-69/89 Nakajima v Council [1991] ECR I-2069, at paragraph 134.

49 See paragraph 3 above.

50 These two issues are not properly distinguished, just as the Spanish Government has railed in its submissions properly to distinguish between the internal and external relations of the Community. However, it is not, for the purposes of resolving the present cases, necessary to examine this matter.

51 See paragraph 30 et seq. above.

52 See in particular Article 161; Advocate General Mischo (Opinion in Case C-3/87 [1989] ECR 4459, (see above at footnote 25) beginning at p. 4474) has even expressed the view that the Act of Accession gives treaty status to quotas under the basic regulation (final sentence of point 69) and that the quota system has treaty status (final sentence of point 91).

53 Paragraph 23 of the judgment.

54 See Paragraph 36 above.

55 See Paragraph 52 above.

56 It also follows from the Order of the President of the Court of Justice (Case C-246/89R, Commission v United Kingdom [1989] ECR 3125, at paragraphs 26 and 27) that the system of quotas under the basic regulation constitutes a derogation from the principle of equal access for Community fishermen to fishing grounds and to the exploitation thereof in waters coming within the jurisdiction of the Member Sutes (cf. Article 2(1) of Regulation No 101/76, OJ 1976 L 20, p. 19) (also the judgment in Case C-216/87 (above at footnote 25), at paragraph 24), a principle which is itself a specific expression of the principle of nondiscrimination laid down in Article 40(3) of the EEC Treaty. As the Order makes clear, however, that derogation is justified, according to the recitals in the preamble to the basic regulation, by the need, in a situation where there is a dearth of fishery resources, to ensure a relative stability in regard to fishing activities. These considerations, which of course refer to the internal resources of the Community, also argue against a finding that there has been a breach of Article 40(3) in so far as the system referred to affects external resources.

57 It is unnecessary here to examine the question arising in regard to the above complaint made by Spain as to whether there is in fact a connection between the opening of the Spanish market and the size of the catch share in question; cf. paragraph 80 et seą. and paragraph 91.

58 Portugal submitted a similar argument in Case C-63/90, but dealt with it from the point of view of Community solidarity; on this see paragraph 131 et seq. below.

59 The three elements underlined together make up the requirement of proportionality: judgment in Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, at paragraph 21.

60 Judgment in Case 118/76 [1977] ECR 1177.

61 Judgment in Case 299/84 [1985] ECR 3663.

62 Judgment in Case C-174/89 [1990] ECR I-2681, at paragraph 31.

63 Paragraphs 33 and 34 of the judgment.

64 Paragraphs 34, 35 and 36 of the judgment.

65 Bottom of p. 26.

66 Order in Case C-2/88 Imm. Zwartfeld and Other [1990] ECR I-3365, at paragraph 17.

67 It ought to be mentioned as an ancillary point that the second protocol and the disputed regulation provide for a smaller amount of redfish, and not a larger amount, than the first protocol.

68 Judgment in Case 250/84 Eridania and Others v Cassa Conguaglia Zucchero and Others [1986] ECR 117, at paragraph 37.

69 Judgment in Case 125/77 Koninklijke Scholten-Honig and Others v Hoofdproduktschap voor Akkerbouwprodukten [1978] ECR 1991, at paragraph 19.

70 ...To ensure efficient management of the catch possibilities available, they should be shared out among the Member States by means of quotas in accordance with Article 4 of Regulation (EEC) No 170/83 ....

71 Judgment in Case 250/84, cited above, at paragraph 38.

72 Cf in this context the judgment in Joined Cases C-240, 241, 242, 261, 262, 268 and 269/82 Stichting Sigarettenindustrie and Others v Commission [1985] ECR 3831, at paragraphs 86, 87 and 88.

73 Cf. Regulation No 2/85, OJ 1985 L 1, p. 36.