Opinion of Advocate General Gulmann delivered on 28 September 1993

1 Original language: Danish.

2 OJ 1992 L 42, p 15.

3 The case before the national court concerns a dispute between Établissements Armand Mondici, a French manu facturer of driftncts, and Armement Islais, a French shipowner fishing for tuna with driftncts, arising from the fact that, following the adoption of the abovementioned prohibition by the Council, Armement Islais cancelled an order for 200 driftncts which it had placed with MondicL The national court has staled, and this docs not appear to be contested by the parties, that the regulation may constitute fail da prince (an act of a public authority), which in French law has the characteristics oí force majeure and would release Armement Islais from its obligations unless the regulation is unlawful.

4 I lowcvcr, according to the resolution, such a measure will not be imposed or can be lifted should effective conservation and management measures be taken based upon statistically sound analysis to be jointly made by concerned parties of the international community with an interest in the fishery resources of the region, to prevent unacceptable impact of such fishing practices on that region and to ensure the conservation of the living marine resources of that region.

5 Sec Articles 117 and 118 of the Convention, which has been signed, but not ratified, by the European Community and has not yet entered into force. There is no need, for present purposes, to consider whether the provision in question may fiossibly embody the current state of international customary aw.

6 The Commission has observed that the prohibition also affected, among others, an Italian fishing fleet of 700 vessels that fished with driftnets and did not fall within the derogation.

7 33 undertakings belonging to this group brought before the Court an action against the Council for the annulment of the derogation at issue (Case C-131/92). The Court, by Order of 24 May 1993, dismissed their application as inadmissible.

8 OJ 1983 L 24, p. 1.

9 OJ 1983 L 24. p. 14.

10 OJ 1986 L 288. p. 1.

11 As I have already pointed out, Article 117 of the United Nations Convention on the Law of the Sea imposes a duty on States to take such measures for their respective nationals as may be necessary for the conservation of the fishery resources of the high seas. See also, in this connection, the Court's judgment in Case C-286/90 Poulsen [1990] ECR I-6019, paragraph 22, which assumes that Member States arc entitled to regulate fishing on the high seas by their own vessels.

12 See Joined Cases 3/76, 4/76 and 6/76 Kramer [1976] ECR 1279, paragraph 31. The Community's authority to adopt measures for the conservation of fishery resources on the high seas, applicable to vessels of the Member States, was last confirmed in Case C-258/89 Commission v Spain [1991] ECR I-3977, paragraph 9, in which the Court rejected the Spanish Government's argument that the only authority the Community has, outside waters falling under the sovereignty or within the jurisdiction of the Member States, is to negotiate and implement international agreements. The Court observed that the Community has the power to take conservation measures both independently and in the form of contractual commitments with nonmember countries or under the auspices of international organizations.

13 The defendant in the main proceedings claims that the basic regulation does not confer on the Community the authority to limit free access to fishing grounds on the high seas but is on the contrary explicitly concerned with the 200-mile fishing zones and the extension of territorial waters to 12 miles. It is true that the basic regulation was adopted after the extension of those waters. But that cannot in itself justify the view that the regulation can provide a basis only for measures relating to those waters.

14 The defendant in the main proceedings observes that Council Regulation (EEC) No 101/76 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19) — which the basic regulation purports to supplement — refers expressly to maritime waters coming under the sovereignty or within the jurisdiction of Member States and thai Regulation No 171/83, adopted on the same day as the basic regulation and replaced by Regulation No 3094/86, stated that it applied to ... the taking and landing of biological resources occurring in all maritime waters under the sovereignty or jurisdiction of the Member States .... It will be noted that Article 1(1) of Regulation No 171/83 corresponds to Article 1(1) of Regulation No 3094/86 and that that provision merely states a general rule (sec note 14).

15 In its initial version, Regulation No 3094/86 also included a rule of this kind, sec Article 6(l)(b), which prohibits fishing for salmon and sea trout outside the waters under the sovereignty or jurisdiction of the Member States. That provision was the subject of the questions submitted for a preliminary ruling in Poulsen, sec note 10. It is highly relevant that the question of the Council's competence to adopt the contested prohibition on salmon fishing on the high seas, in so far as it applied to fishing by vessels registered in one of the Member States, was not raised in that case.

16 It follows indirectly from the Court's judgment in Case C-258/89 (sec note II) that the basic regulation confers that authority on the Community. In that judgment, the Court ruled that, by failing to apply the control measures laid down by Council Regulation (EEC) No 2057/82 (OJ 1982 L 220, p. 1) and by Council Regulation (EEC) No 2241/87 (OJ 1987 L 207, p. 1), which consolidates and replaces Regulation No 2057/82, to catches made outside the Community fishing zone, the Kingdom of Spain had failed to fulfil its obligations under Community law. Regulation No 2241/87 was expressly adopted under the basic regulation. The Court rejected the Spanish Government's contention that the measures did not apply to fishing on the high seas, and held that the rules had been adopted in the exercise of the independent power of the Community. Sec also the Court's judgment in Joined Cases 6/88 and 7/88 Spam and france v Commission [1989] ECR 3639.

17 Question 4.2. really seeks to ascertain both whether the prohibition on driftnets under the basic regulation can validly be adopted on the basis of ecological considerations and also whether there is a sufficient scientific basis for considering the prohibition to be necessary for the purposes of those ecological considerations. I shall deal only with the first problem under this point, as the question of the scientific foundation will be addressed later.

18 In support of its claim that the regulation was actually adopted on the basis of ecological considerations to do with protection of dolphins, the undertaking has pointed out that the preamble to the regulation is concerned primarily with the environment, in that it refers to United Nations Resolution 44/225, the Berne Convention and the United Nations Convention on the Law of the Sea and only subsequently mentions that the uncontrolled expansion and growth of driftnetting may entail serious disadvantages in terms of increased fishing effort, the 19th recital in the preamble to the regulation refers to the concern expressed by ecological organizations, the derogation clause at issue provides for the derogation to be extended if there is scientific evidence showing the absence of any ecological risk — thus not for the biological resources of the sea, and various circumstances connected with the drafting of the regulation show that its real aim was to protect dolphins. Thus, a working document submitted by the Council and issued by the Scientific and Technical Committee for Fisheries accorded overriding importance to the question of dolphins. Moreover, the responsible member of the Commission stated in an interview given to the magazine France-Ecopêche in September 1991 that the problem of driftnets had become symbolic and it was no longer important whether one was right or wrong about the effects of French tuna fishing on the mortality of marine mammals, since a general feeling had taken hold in public opinion and the Community would have to bow to it.

19 [1991] ECR I-2867.

20 Sec in this connection the 10th recital in the preamble to Regulation No 345/92, according to which discards cur rcntly account for unacceptable wastage on a large scale; ... a ban on fishing using insufficiently selective teenniqucs ... [constitutes] a first step towards the final elimination of practices which arc incompatible with conservation and the proper use of resources; ... it is necessary to introduce a coherent system of management and exploitation which reduces discards to a minimum.

21 There arc two possible reasons for this. On the one band, it may be considered that the concept of fishery resources applies only to species that can be exploited by the fishing industry, sec inter aha, the first recital in the preamble to the basic regulation and the third recital in the preamble to Regulation No 345/92, which refers to the need for conservation measures in order to safeguard the economic sector which depends on fishery resources. According to the information provided in the present case, dolphins were hunted with harpoons in the 50's and 60's with a view to exploiting them and it is estimated that some 5 to 15000 dolphins a year were caught during that period. Ī Iowcvcr, as wc know, it became necessary to prohibit the deliberate catching of dolphins and there is therefore some doubt as to whether it could be said that the fishing sector depends on that activity. On the other hand, dolphins arc mammals and it could therefore be considered that, for that reason alone, the concept of fishery resources docs not apply to them.

22 Case C-62/88 Greece v Council [1990] ECR I-1527, in which the Court ruled in paragraph 19 of the judgment that Articles 130r and 130s arc intended to confer powers on the Community to undertake specific action on environmental matters. However, those articles leave intact the powers held by the Community under other provisions of the Treaty, even if the measures to be taken under the latter provisions pursue at the same time any of the objectives of environmental protection. Sec also, in this connection, the Court's judgment of 17 March 1993 in Case C-155/91 Commission v Council (Directive on waste) ([1993] ECR I-939).

23 Sec Article 12 of the basic regulation, which reads as follows: The Commission shall set up under its auspices a Scientific and Technical Committee for Fisheries. The Committee shall be consulted at regular intervals and shall draw up an annual report on the situation with regard to fishery resources, on the ways and means of conserving fishing grounds and stocks and on the scientific and technical facilities available within the Community.

24 The national court points out in this connection that the verb may is used in the 18th recital in the preamble to the regulation (the uncontrolled expansion and growth of driftnetting may entail serious disadvantages ...), that the 20th recital in the preamble states that provision should be made for analysing the ecological impact of corresponding fishing, and that the provision at issue provides that the derogation may be extended in the light of scientific evidence showing the absence of any ecological risk linked thereto.

25 Sec noie 17 above.

26 The undertaking points out thai the minutes of a meeting on 12 November 1992, produced by the Council and including inter aim the statement that the SCRS considered that the slock of North Atlantic long finned albacore tuna was close to a situation of high exploitation, appeared after the adoption of Regulation No 345/92 and that u docs nol mean that the stock of tuna is noi being renewed faster than it is reduced by fishing.

27 The Council notes that ICCAT invited all its Member States, including France, to support United Nations Resolution 44/225.

28 See inter alia the judgment in Case C-331/88 Fedesa [1990] ECR I-4023, paragraph 8, in which the Court upheld that principle, despite the fact that it had been argued during the proceedings that the directive at issue lacked any scientific basis justifying the public health considerations and consumer anxiety which underlay its adoption.

29 Sec, in this connection, Advocate General Mischo's review of the case-law in his Opinion in Case C-331/88.

30 The fact that the Commission itself commissioned the IFREMER/IEO report and that Article 2(1) of the basic regulation makes a particular point of mentioning the Scientific and Technical Committee for Fisheries, set up by the Commission, docs not prove that the Council must, in the exercise of its discretionary power, abide by the scientific recommendations of those bodies.

31 This working document is dated 11 December 1990 and point 12 of the document gives the latest information on the use of large-scale driftnets and the various measures adopted by certain States or recommended by international organizations.

32 The Commission has pointed out in this connection that when the total allowable catch (TAC) is fixed each year, pursuant to Article 3 of the basic regulation, a TAC is fixed as a precaution in certain cases for stocks of fish where it is necessary to limit and monitor the total catch in the interest of conservation but where there arc not yet sufficient scientific data to decide on a final TAC.

33 This view is confirmed by the judgment in Case C-331/88 fedem [1990] ECK. I-4023. In paragraph 9 of that judgment, the Court rejected the claim based on the existence of scientific evidence demonstrating the safety of the five hormones in question in that case on the ground that the Council had remained within the limits of its discretionary power in deciding to adopt the solution of prohibiting the hormones in question, and responding in that way to the concerns expressed by the European Parliament, the Economic and Social Committee and by several consumer organizations. The Court continued as follows, in paragraph 10: Nor did the directive frustrate the legitimate expectations of traders affected by the prohibition of the use of the hormones in question. It is true that Council Directive 8Î/602/EEC ... refers to the fact that the harmless or harmful effects of the substances in question have yet to be examined in detail (fourth recital), and requires the Commission to take account of scientific developments (Article 8). However, that directive does not preempt the conclusions which may be drawn therefrom by the Council in the exercise of its discretion. Moreover, in view of the divergent appraisals which had been made, traders were not entitled to expect that a prohibition on administering the substances in question to animals could be based on scientific data alone.

34 According to the information supplied to the Court, the Comité Interprofessionnel dit Thon Blanc Germon, a French body responsible for laying down rules on tuna, decided on 2 May 1990 to limit to five nautical miles the length of driftnets that may be used.

35 Sec Council Decision 82/72/EEC concerning the conclusion of the Convention on the conservation of European wildlife and natural habitats (OJ 1982 L 38, p 1).

36 See the Court's judgment in Case C-331/88 Vedem [1990] ECR I-4023, paragraph 8.

37 Sec paragraph 15 of the judgments in Cases C-70/90 and C-71/90 [1992] ECR I-5153 and I-5175, and paragraph 16 of the judgment in Case C-73/90 [1992) ECR I-5151.

38 Case 29/77 Roqitellc [1977] ECR 1835. paragraph 30.

39 Council Regulation laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound (Ol 1986 L. 162. p. 1). The regulation was adopted in accordance with the recommendations of the International Baltic Sea Fishery Commission.

40 Sec Information on the entry into force, for the European Economic Community, of the Convention on fishing and conservation of the living resources in the Baltic Sea and the Belts (OJ 1984 L 96. p 42).

41 The Council decided on the Community's accession to the Convention on 9 June 1986 (OJ 1986 L 162. p. 33).