Report for the Hearing in Joined Cases C-251/90 C-252/90

Legal background

A — National legal context

1. Section 4 of the Sea Fish (Conservation) Act 1967, as amended by the Fishery Limits Act 1976, Section 3, confers a power on the Secretary of State for Scotland to prohibit fishing in the sea by British fishing vessels, unless authorized by a licence. Paragraphs 5 and 6 of Section 4, as amended, confer powers on the Secretary of State to issue licences and to include conditions in such licences. It is an offence to break a condition included in such a Učence.

2. Pursuant to Section 4 the Secretary of State made the Sea Fish Licensing Order 1983 (SI 1983 No 1206) (hereinafter the Order). Article 3(1) and Schedule 2 thereof prohibit fishing without a Učence for certain species of fish in ICES Area IV (the North Sea) and ICES Area VI (Rockall and West of Scotland).

3. It appears from the documents before the Court that in those areas the species of fish referred to in the abovementioned provisions include herring, cod, haddock, saithe, whiting, hake, plaice, sole and megrim, species concerning which catch limits were introduced pursuant to the Community system of quotas set up under Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1). For 1989 the United Kingdom quotas concerning those species in ICES Areas IV and VI were fixed by Council Regulation (EEC) No 4194/88 of 21 December 1988 (OJ 1988 L 369, p. 3).

4. Since March 1989 licences granted to British vessels in accordance with the said Order, in particular those in respect of white fish pressure stock, include a requirement (paragraph 5.5 of the licences) that fishing vessels crossing between ICES Areas IV and VI must contact the Department of Agriculture and Fisheries for Scotland by calling Wick Radio before they cross the 4 degrees west line, which divides the two areas, in either direction.

5. It is common ground that that condition was imposed in order to enable the United Kingdom authorities to police the quota system more effectively, by preventing fish caught in one of the two areas being counted against the quota allocated for the other of those areas.

B — Relevant provisions in the Community rules

6. Article 2 of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry is worded as follows:

7. Article 3 of the same regulation states:

8. Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources provides in Article 5(2) that Member States shall determine, in accordance with the applicable Community provisions, the detailed rules for the utilisation of the quotas allocated to them.

9. Finally, Article 15 of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1) provides as follows:

Facts and questions referred to the Court

10. The Procurator Fiscal at Elgin brought criminal proceedings against Kenneth Gordon Wood, of Buckie, Banffshire, the master of the British fishing vessel Scarlet Thread II (Case C-251/90) and James Cowie, also of Buckie, Banffshire, the master of the British fishing vessel Crystal River (Case C-252/90).

11. The accused, who are fishermen and nationals of the United Kingdom, were charged on summary complaint that between 7 and 9 April 1989 (in Mr Wood's case) and on 31 March 1989 (in Mr Cowie's case), they broke a condition of their licences by failing to call Wick Radio before crossing the 4o west Une.

12. On 2 November 1989 the complaints called in the Sheriff Court of Grampian, Highland and Islands at Elgin. During the trials the accused challenged the validity of the condition in question, maintaining that it was contrary to Community law on two grounds.

13. First, they claimed that the licence condition was discriminatory and therefore contrary to Article 7 of the EEC Treaty and Article 2 of Regulation No 101/76, cited above, inasmuch as it applied only to UK registered vessels and not to vessels of other Member States fishing for the same species in the same areas.

14. Secondly, the accused claimed that the said condition was also contrary to Article 3 of Regulation No 101/76, cited above, because adoption of the condition (in March 1989) had not been notified to the other Member States and to the Commission, although it constituted an alteration to the fishery rules hitherto applied.

15. The Procurator Fiscal disputed the contentions advanced by the accused.

16. Since it considered that the cases called for an assessment of the Community provisions involved, by orders of 26 January 1990 the Sheriff Court of Grampian, Highland and Islands at Elgin decided, pursuant to Article 177 of the EEC Treaty, to stay proceedings until the Court of Justice had given a preliminary ruling on the following questions, which were in identical terms in each case:

17. Meanwhile the Commission, which had learnt of the reporting-in conditions from the British national press, in a telex of 24 November 1989 reminded the UK Government that under Articles 2 and 3 of Regulation No 101/76 it was under an obligation to notify the Commission of any measure concerning the imposition of a reporting-in procedure for fishing vessels.

18. The United Kingdom replied by letter of 21 December 1989, enclosing a copy of the White Fish Pressure Stock Licence, which included the reporting-in procedure at paragraph 5.5 thereof.

19. By letter of 23 February 1990 the Commission acknowledged the adoption of the new condition and did not raise any objection to its having been applied by the United Kingdom since March 1989.

20. In the meantime those facts had been ascertained by the parties to the main proceedings and brought to the attention of the Sheriff Court of Grampian, Highland and Islands at Elgin, who, by two orders of 12 November 1990, referred a supplementary question to the Court, identical in each case, in the following terms:

Procedure before the Court

21. The two original orders from the Sheriff Court of Grampian, Highland and Islands at Elgin were received at the Court Registry on 20 August 1990.

22. The orders in which the national court referred a supplementary question to the Court were received at the Court Registry on 15 November 1990.

23. By Order of 20 September 1990 the President of the Court joined the two cases for the purpose of the written and oral procedure and the judgment.

24. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 10 December 1990 and 15 February 1991 by the Commission of the European Communities, represented by Robert Fischer, Legal Adviser, and Christopher Docksey, of the Commission's Legal Service, acting as Agents, and on 19 February 1991 by the United Kingdom, represented by J.E. Collins, Treasury Solicitor, acting as Agent, assisted by Ronald D. Mackay QC, and Christopher Vajda, Barrister.

25. 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 and assigned the case to the Sixth Chamber.

Written observations

First question

26. The United Kingdom points out that Article 7 of the EEC Treaty is not breached merely by the fact that a Member State applies to those carrying on an enterprise under its jurisdiction rules which are not applied by other Member States, even if those rules put persons in that Member State at a commercial disadvantage. It follows from the case-law of the Court (in particular, Case 223/86 Pesca Valentia v Ministry of Fisheries and Forestry [1988] ECR 83, at paragraph 18 of the judgment) that such differences or disparities do not per se constitute discrimination which is contrary to Article 7.

27. Further, the fact that a Member State does not require fishing vessels from other Member States to obtain from its authorities a licence to fish in its waters or require such boats to fulfil a condition such as that in question in the main proceedings does not constitute unlawful discrimination. First, the common fisheries policy and, in particular, the quota system are applicable to maritime areas beyond the territorial or fishery limits of any one Member State. Secondly, the Community system of national quotas links those quotas to the flag State of fishing vessels. The jurisdiction of Member States in the matter of granting of quota licences and in particular the jurisdiction of that State to attach conditions to those licences is thus restricted to vessels registered in its territory or flying its flag.

28. Lastly, there is no discrimination contrary to Article 2 of Regulation No 101/76 since that provision does not amount to anything more than a specific enunciation of the general principle of nondiscrimination laid down in Article 7 of the EEC Treaty. That submission is supported by the judgment in Case 223/86, Pesca Valentia, cited above, in which the Court of Justice did not draw any distinction between the two articles.

29. The Commission states that it is settled law that Article 7 of the Treaty is not concerned with disparities of treatment arising from divergences between the laws of the Member States (Case 14/68 Wilhelm v Bundeskartellamt [1969] ECR 1) or with rules applied by one Member State which are stricter than those applied in the same sphere by other Member States (judgment in Joined Cases 185 to 204/78 Van Dam [1979] ECR 2345), so long as they affect equally all persons under the jurisdiction of that State. That case-law has been reaffirmed by the Court with regard to national conditions laid down under the Community fisheries regulations (judgments in Case 223/86 Pesca Valentia, cited above, and Case 370/88 Marshall [1990] ECR I-4071).

30. The condition that is challenged in the main proceedings satisfies the foregoing criteria. Consequently there is no breach of Article 7 of the Treaty.

31. With regard to the question whether there is a breach of Article 2(1) of Regulation No 101/76, the Commission points out that the provisions of that regulation were supplemented by those of Regulation No 170/83, which established the fishing quota system.

32. Under that system only fishing vessels flying the flag of or registered in a Member State are authorized to fish against the quota of that Member State (Article 11 of Council Regulation No 2241/87 cited above and judgments in Case C-3/87 Agegate [1989] ECR 4459 and Case C-216/87 Jaderow [1989] ECR 4509). In Jaderow (at paragraph 24) the Court pointed out that the system of national quotas constituted a derogation from the general rule of equal conditions of access to fishery resources laid down in Article 2(1) of Regulation No 101/76.

33. Article 11a of Council Regulation No 2241/87 (introduced by Article 1(2) of Regulation (EEC) No 3483/88 of 7 November 1988, OJ 1988 L 306, p. 2) acknowledges the use of licences in the management by Member States of their national quotas. Furthermore, it follows from the judgment in Jaderow (cited above, at paragraphs 45 to 47) that Member States may impose certain conditions in the licences granted to their fishing vessels and also make changes in licensing systems and introduce new conditions in order to respond to the constant changes taking place within the fishing sector.

34. The first paragraph of Article 15 of Council Regulation No 2241/87 cited above confirms the validity of national quota control measures which go beyond the minimum requirements laid down by that regulation so long as they comply with Community law and are in conformity with the common fisheries policy.

35. The Commission takes the view that a condition of the type in question in the main proceedings constitutes a control measure within the meaning of Article 15 of Regulation No 2241/87. To derogate lawfully from the general access rule laid down in Article 2(1) of Regulation No 101/76 it must, according to the Commission, satisfy the two requirements laid down in the first paragraph of Article 15 of Regulation No 2241/87.

36. The condition being examined does satisfy those requirements. It is not contrary to Article 7 of the Treaty and, given that it facilitates the prevention of fraud with regard to quotas, it complements the requirements of the common fisheries policy without being disproportionate to the objective pursued.

The second question

37. According to the United Kingdom, the term fishery rules in Article 3 of Regulation No 101/76 refers only to the substantive rules concerning access to and use of fishing grounds and not rules intended to police the application of those substantive rules such as the condition challenged in the main proceedings. With regard to control measures there is no obligation of notification under Article 3 of Regulation No 101/76.

38. In support of that argument, the United Kingdom relies on the actual wording of Article 3 which refers to alterations ... to fishery rules laid down pursuant to Article 2; it is those provisions which govern the conditions of access to and use of fishing grounds.

39. That interpretation of Article 3 of Regulation No 101/76 is also supported by the terms of the second paragraph of Article 15 of Regulation No 2241/87. If all rules of whatever nature relating to fisheries including policing or control measures fell within the scope of fishery rules under Article 3 of Regulation No 101/76, there would be no need for the second paragraph of Article 15 of Regulation No 2241/87. Moreover, the latter provision cannot be seen as a simple repetition of Article 3 of Regulation No 101/76 since it stipulates only for communication to the Commission and not for communication to other Member States.

40. In the alternative, the United Kingdom considers that the condition at issue in the main proceedings constitutes a national control measure within the meaning of Article 15 of Regulation No 2241/87 notifiable to the Commission alone.

41. The Commission assumes that the condition in question is a national control measure within the meaning of Article 15 of Regulation No 2241/87.

42. It maintains that the second paragraph of Article 15, which specifically refers to Article 2(2) of Regulation No 101/76, imposes on Member States a specific duty to notify which complements the general notification obligations laid down by Articles 2 and 3 of Regulation No 101/76. Under those articles each Member State must notify other Member States and the Commission of all fishing measures already in force and of all intended measures.

43. In consequence the Commission considers that where a Member State intends to introduce a licence condition such as that at issue in the main proceedings that Member State is required by Article 3 of Council Regulation No 101/76 to notify other Member States and the Commission of that intention.

The supplementary question

44. The United Kingdom observes that, since the Commission did not raise any objection to the licence condition having been applied since March 1989, the question which arises is whether such a condition should be held invalid and unenforceable solely because it was not communicated at the proper time to the Commission, despite its substantive compatibility with Community law.

45. In that connection the United Kingdom considers that notification of such a measure to the Commission does not require to be prior and that in any event notification is not a condition precedent to the validity or enforceability of the national measure. In support of that submission it puts forward the following arguments.

46. First, the national measure in question was adopted in an area which is within the competence of the Member States.

47. Secondly, Regulations Nos 101/76 and 2241/87 lay down an obligation merely to communicate such a measure without requiring that prior consent or approval be obtained from the Commission or the other Member States. That obligation is satisfied by notification of the measure either before or after its introduction.

48. In any event the duty of notification (whether prior or subsequent) owed by a Member State to the Commission and other Member States, or to the Commission alone, as the case may be, is concerned solely with the institutional relationship between Member States and the Commission. Consequently, disregard of the duty does not confer any individual rights on persons affected by the national measure. On this point the United Kingdom cites the judgments in Case 174/84 Bulk Oil [1986] ECR 559, at paragraph 62, and Case 6/64 Costa v Enel [1964] ECR 585, at p. 595.

49. On the basis of the foregoing submissions, no question of retroactive validity arises. However, should it be necessary for the Court to examine whether any invalidity may be cured retrospectively, the United Kingdom considers that there is no reason why retroactive validity should not be conferred by late notification since the measure is in substantive conformity with Community law.

50. The Commission considers that in the second paragraph of Article 15 of Regulation No 2241/87 the Community legislator did not intend to impose any more than a simple notification obligation upon Member States with regard to national control measures. It finds support for that view in the wording of that provision, which does not specify the consequences of late notification or failure to notify and does not require any authorization by the Commission, whether prior or subsequent. It points out that its reply to the United Kingdom concerning the condition in question was merely an opinion.

51. In support of its argument, the Commission also puts forward an argument a contrario drawn from Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down technical measures for the conservation of fishery resources (OJ 1986 L 288, p. 1). That regulation lays down a more detailed notification procedure concerning national technical measures, including a standstill clause under Article 14(2) which empowers the Commission to delay or prevent the entry into force of measures notified to it.

52. The Commission concludes that the absence of notification pursuant to the second paragraph of Article 15 of Regulation No 2241/87 or late notification by a Member State and the Commission's reaction to that notification do not affect the validity of a national control measure. That must be assessed purely in relation to its conformity with Community law and the common fisheries policy.

1 Language of the case: English.