Report for the Hearing in Case C-405/92

I — The relevant provisions, facts and procedure

(a) The relevant Community provisions

1. In order to ensure the protection of fishing grounds, the conservation of the biological resources of the sea 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 (OJ 1983 L 24, p. 1).

2. On the basis of Article 11 of Regulation No 170/83, the Council adopted Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources (OJ 1983 L 24, p. 14). Those measures relate inter alia, to mesh sizes, by-catch rates, fish sizes and the limitation of fishing within certain areas and periods and with certain gear.

3. Regulation No 171/83 was repealed and replaced by Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (OJ 1986 L 288, p. 1).

4. Council Regulation (EEC) No 345/92 of 27 January 1992 (OJ 1992 L 42, p. 15) amended Regulation No 3094/86 for the 11th time.

5. Article 1(8) of Regulation No 345/92 inserted a new Article 9a into Regulation No 3094/86, establishing the principle that a certain type of driftnet was prohibited, subject to a temporary derogation.

6. The reasons for this new provision are set out in the 14th to 22nd recitals of the preamble to Regulation No 345/92, which read as follows:

(b) Facts of the case and procedure before the national court

1. On 1 August 1991, Armement Islais SARL, of L'Ile d'Yeu (France), (hereinafter Armement Islais), placed an order with Établissements Armand Mondiet SA, of Gujan Mestras (France), (hereinafter Mondiet) for 200 driftnets for tuna fishing for a sum of FF 330000. The goods were to be delivered to L'Ile d'Yeu on 15 January 1992.

2. By letter of 25 November 1991, Armement Islais cancelled that order in view of the adoption by the Council of the European Communities of Regulation No 345/92, limiting the length of driftnets to 2.5 km (except for a derogation allowing the use of nets five km long until 31 December 1993). Armement Islais had hitherto been using driftnets approximately seven km long to fish for tuna in the North-East Atlantic.

3. On 5 August 1992, Mondiet brought an action against Armement Islais, before the Tribunal de Commerce (Commercial Court), La Roche-sur-Yon, for payment of the sum of FF 330000 in settlement of its order of 1 August 1991.

4. The Tribunal de Commerce, La Roche-sur-Yon, considered that Regulation No 345/92 was capable of constituting fait du prince (an act of a public authority), which would have the characteristics of force majeure and would release Armement Islais from its obligation if it was not unlawful.

5. Considering that the validity of Regulation No 345/92 would therefore have to be examined in connection with the case, the Tribunal de Commerce, La Roche-sur-Yon, decided by judgment of 24 November 1992 to stay the proceedings, pursuant to Article 177 of the EEC Treaty, pending a preliminary ruling by the Court of Justice on the following questions:

(c) Procedure before the Court

1. The judgment of the Tribunal de Commerce, La Roche-sur-Yon, was received at the Court Registry on 3 December 1992.

2. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted, on 8 March 1993 by the Council of the European Communities, represented by Jean Paul Jacque, Director of the Legal Service, and John Carbery, a Legal Adviser in that Service, acting as Agents, on 11 March 1993 by the Commission of the European Communities, represented by Gérard Rozet, Legal Adviser, acting as Agent, and on 15 March 1993 by Armement Islais, represented by Béatrice Ghelber, of the Paris Bar.

3. 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.

4. By decision of 24 May 1993, pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court assigned the case to the Sixth Chamber.

II — Written observations submitted to the Court

(a) The Community's competence to regulate conservation of the biological resources of the high seas (Questions 1.1. and 1.2.)

1. Armement Islais, the defendant in the main proceedings, claims that neither Regulation No 170/83 nor Regulation No 171/83 confer on the Community authorities the power to modify technical measures for the conservation of fishery resources in maritime waters that are not under the sovereignty or jurisdiction of the Member States. Moreover, the defendant points out that the third recital in the preamble to Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19) refers expressly to maritime waters coming under the sovereignty or within the jurisdiction of Member States.

2. The Council contends that the Community was justified, under both international and Community law, in adopting Regulation No 345/92. It points out that Article 117 of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982 and signed by the Community on 7 December 1984, provides that States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources on the high seas. And it adds that the Court has held that the rulemaking authority of the Community ratione matériáé also extends — in so far as the Member States have similar authority under public international law — to fishing on the high seas (Joined Cases 3/76, 4/76 and 6/76 Kramer [1976] ECR 1279, paragraph 31) and has recognized that the Community may legislate for the purpose of conserving the resources of the high seas (Case C-258/89 Commission v Spain [1991] ECR I-3977).

3. The Commission considers that, to achieve the objectives of the common fisheries policy laid down in Article 39 of the Treaty, the system for the conservation of fishery resources must apply both within the Community fishing zone and outside it. Thus, it contends that the Community's competence in this matter extends, ratione materiae, to the biological resources of the sea and to all fishing in waters under the sovereignty or jurisdiction of the Member States and, ratione personae, to all fishing by fishermen and vessels of the Member States, whether within the Community fishing zone, on the high seas, or within the fishing zones of third countries, in accordance with the rules of international law.

(b) The adoption of the prohibition in the light of the available scientific advice (Questions 2.1., 2.2. and 2.3.)

1. Armement Islais claims that Regulation No 345/92 does not refer to any scientific data or to any scientific report and that neither the prohibition of driftnets more than 2.5 km long nor the temporary derogation were adopted in the light of the available scientific advice. Thus, it appears that there is a scientific report drawn up by IFREMER which is not consistent with the regulation. According to the report, there is apparently no threat to the biological resources of albacore tuna in the North-East Atlantic and the driftnet is the most selective appliance for fishing, leading to only minimal by-catches. It also appears that the scientific report of the Standing Committee for Research and Statistics of the International Commission for the Conservation of Atlantic Tunas confirms that albacore tuna are under-fished in the North-Atlantic and no management measure is required.

2. The Council, while denying that it adopted Regulation No 345/92 without taking the advice of the Scientific and Technical Committee for Fisheries, contends that the phrase in the light of the available scientific advice in Article 2(1) of Regulation No 170/83 means that, on the one hand, the conservation measures adopted by the Community need not be completely consistent with such advice and, on the other, the absence of such advice or the fact that it is inconclusive cannot, without altering the institutional balance sought by the Treaty, prevent the Council from taking such measures as it deems necessary to implement the common fisheries policy.

3. According to the Commission, the Scientific and Technical Committee for Fisheries is a purely advisory body and the Community legislature has not delegated any of its powers with respect to the conservation of fishery resources to the scientific community or made the exercise of its powers subject to strict observance of the available scientific advice. It points out, moreover, that some of the objectives of conservation measures, such as the balanced exploitation of the biological resources of the sea on a lasting basis and in appropriate economic and social conditions, are not examined or are only partly examined in the scientific advice.

(c) The limitation of the derogation from the prohibition (Questions 2.4. and 2.5.)

1. Armement lslais claims that the sole purpose of the regulation at issue is to combat the uncontrolled expansion and growth of driftnetting and that it would therefore have been sufficient to provide a derogation for vessels fishing in that way, without, however, restricting the length of the net and setting a time limit on the exemption.

2. The Council and the Commission take the view that the Community legislature has the power to waive the application of a measure to certain persons for a limited period provided that it is acting for legitimate reasons and that it complies with the Treaty and the general principles of law. They contend that it follows from the 20th recital in the preamble to Regulation No 345/92 that the derogation at issue must be temporary. Moreover, as the fishermen concerned have agreed to limit the length of nets to five nautical miles, the limit of five km, far from being arbitrary, represents a first step towards the ultimate objective of 2.5 km.

(d) The compatibility of Regulation No 345/92 with the prinaple of relative stability and the objectives of the common fisheries policy (Question 3.)

1. Armement Islais considers that the regulation at issue is not compatible either with the objectives of the common agricultural policy, as set out in Article 39 (l)(a) and (b) of the Treaty, or with the principle of relative stability, which can be challenged only on very precise scientific grounds. The answer to Question 3. should therefore be in the negative.

2. The Council and the Commission contend that the principle of relative stability applies only to the distribution of total catches among the Member States and has nothing to do with technical fishery measures. The principle docs not preclude the conservation measures at issue, since vessels could continue to fish for tuna with means that are less destructive of other species of marine animal. As regards the allegation that the regulation at issue is incompatible with the objectives of the common agricultural policy, the Commission points out that the Court has ruled that in pursuing the various objectives of that policy set out in Article 39 of the Treaty, the Community institutions must secure the permanent harmonization made necessary by any conflicts between those objectives taken individually and, where necessary, allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions arc made (Case 29/77 Roquette [1977] ECR 1835, paragraph 30).

(e) The basis of Regulation No 345/92 (questions 4.1., 4.2. and 5.)

1. Armement Islais claims that Regulation No 345/92 is invalid because it was adopted not in order to preserve resources but for ecological reasons and the decision to adopt it should therefore have been taken unanimously on the basis of Articles 13 Or and 130s of the Treaty. The only people who are pleased with the regulation are Spanish tuna fishermen, who are prohibited from using driftnets and do not intend to allow other Community fishermen to fish with this type of net.

2. The Council contends that it is clear from the 18th recital in the preamble to Regulation No 345/92 that this is a measure designed to conserve the biological resources of the sea. While ecological organizations may have shown an interest in the problem of the conservation of species, that is not a sufficient reason for deciding that Article 130s is the correct legal basis for the regulation. The reference in the 19th recital to the concern expressed by ecological organizations and many fishermen, including those of the Community was, it claims, merely intended to show that there was wide agreement in the international community concerning the prohibition of driftnets. Moreover, the regulation cannot be covered by Article 130s merely because it also pursues objectives of environmental protection (Case C-300/89 Commission v Council (titanium dioxide) [1991] ECR I-2867, paragraph 22), since pursuant to the second sentence of Article 130r(2), environmental protection requirements shall be a component of the Community's other policies.

3. According to the Commission, while the Community legislature may have been impelled by ecological considerations, among others, when it adopted the regulation, it does not necessarily follow that the measures it provides cannot be adopted under the common fisheries policy alone.

(f) Discrimination between fishermen (Question 6.)

1. According to Armement Islais, the fact that the prohibition of large-scale driftnets does not extend to the Baltic Sea means that there is discrimination between fishermen in the North-East Atlantic and those in the Baltic, who may use nets up to 21 km long.

2. The Council and the Commission contend that the provision at issue docs not apply to the Baltic because of that area's special legal status, as stated in the 22nd recital. They point out that the International Baltic Sea Fishery Commission has jurisdiction over all species occurring in that sea and the Community, as a party to the Baltic Convention, is required to recognize that Commission's jurisdiction. The same considerations do not apply to the North-Atlantic, since the Community is not yet a party to the Convention for the Conservation of Atlantic Tunas. Moreover, the scope of Regulation No 345/92 is wider than that of that convention, in that it prohibits the use of large-scale driftnets irrespective of the species of fish. Thus, the situations are not comparable and there can therefore be no discrimination.

(g) The inconsistency of the 14th, 16th and 18th reatais (Questions 7.1., 7.2. and 7.3.)

1. Armement Islais claims, first, that Résolu tion 44/225 adopted by the General Assembly of the United Nations on 22 December 1989 cannot validly be cited in support of the regulation at issue, since that resolution relates only to large-scale pelagic driftnets whose length can reach or exceed 50 km, whereas Community fishermen have agreed to limit the length of nets to five nautical miles and the nets they use are in fact no more than seven km long.

2. On Question 7.1., the Council and the Commission contend that UN Resolution 44/225 expresses the international community's attitude towards the use of large-scale driftnets and that, although the resolution refers to nets that can be more than 50 km long, that does not mean that it docs not also cover nets more than 2.5 km long.

1 Language of the case: French.