61982J0050

1 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - AGREEMENT ON FISHERIES BETWEEN THE EEC AND SPAIN - SUBSTITUTION FOR PRIOR INTERNATIONAL COMMITMENTS BETWEEN CERTAIN MEMBER STATES AND SPAIN - EFFECTS - ENFORCEABILITY AGAINST SPANISH FISHERMEN OF THE INTERIM COMMUNITY REGIME

( AGREEMENT BETWEEN THE EEC AND SPAIN OF 15 APRIL 1980 ; COUNCIL REGULATION NO 1569/81 )

2 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - COMMUNITY RULES APPLICABLE TO SPANISH VESSELS LAID DOWN BEFORE THE ENTRY INTO FORCE OF THE AGREEMENT BETWEEN THE EEC AND SPAIN - SUBSTITUTION FOR PRIOR INTERNATIONAL COMMITMENTS BETWEEN CERTAIN MEMBER STATES AND SPAIN - EFFECTS - ENFORCEABILITY AGAINST SPANISH FISHERMEN OF THE INTERIM COMMUNITY REGIME

( COUNCIL REGULATION NO 554/81 ; AGREEMENT BETWEEN THE EEC AND SPAIN OF 15 APRIL 1980 )

3 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - COMMUNITY RULES APPLICABLE TO SPANISH VESSELS - SYSTEM OF LICENCES - DISCRIMINATION AGAINST SPANISH FISHERMEN - ABSENCE

( COUNCIL REGULATIONS NOS 554/81 AND 1569/81 )

1 . SINCE THE AGREEMENT ON FISHERIES BETWEEN THE EEC AND SPAIN HAS SUPERSEDED THE PRIOR INTERNATIONAL OBLIGATIONS WHICH EXISTED IN THIS FIELD BETWEEN FRANCE AND SPAIN , SPANISH FISHERMEN MAY NOT RELY ON SUCH OBLIGATIONS IN ORDER TO PREVENT THE APPLICATION OF THE REGIME ESTABLISHED BY THE AGREEMENT .

2 . SINCE THE COUNCIL REGULATIONS ESTABLISHED FOR SHORT PERIODS , PENDING THE ENTRY INTO FORCE OF THE AGREEMENT BETWEEN THE EEC AND SPAIN , INTERIM PROVISIONS PRESCRIBING CATCH QUOTAS FOR SPANISH FISHERMEN SUCH REGULATIONS ARE ENFORCEABLE AGAINST THEM AND THE VALIDITY OF THE REGULATIONS MAY NOT BE CHALLENGED ON THE BASIS OF PRIOR INTERNATIONAL AGREEMENTS ENTERED INTO BETWEEN FRANCE AND SPAIN .

3 . A SITUATION IN WHICH BOTH SPANISH FISHERMEN AND FISHERMEN OF MEMBER STATES MUST COMPLY WITH A SYSTEM OF CATCH QUOTAS MAY NOT BE CLASSIFIED AS DISCRIMINATORY EVEN THOUGH THE MANNER OF VERIFYING CATCHES IS DIFFERENT . VERIFICATION BY THE USE OF LICENSING SYSTEM , AS PRESCRIBED IN REGULATIONS NOS 554/81 AND 1569/81 , IS INTENDED TO ENSURE THAT THE CATCH QUOTAS LAID DOWN FOR THE FISHING VESSELS OF NON-MEMBER COUNTRIES ARE COMPLIED WITH SINCE , IN THE CASE OF SUCH VESSELS , NO CHECKS CAN BE CARRIED OUT IN THE ADJACENT COASTAL PORTS AS THOSE VESSELS NORMALLY RETURN TO THEIR PORTS OF ORIGIN TO LAND THEIR CATCHES .

IN JOINED CASES 50 TO 58/82

REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), BAYONNE , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ADMINISTRATEUR DES AFFAIRES MARITIMES ( ADMINISTRATOR OF MARITIME AFFAIRS ), BAYONNE , AND PROCUREUR DE LA REPUBLIQUE ( PUBLIC PROSECUTOR )

AND

JOSE DORCA MARINA , PASAJES DE SAN PEDRO , SPAIN , AND OTHERS ,

ON THE VALIDITY OF REGULATIONS OF THE COUNCIL LAYING DOWN CERTAIN TEMPORARY MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ,

1 BY JUDGMENTS OF 17 SEPTEMBER , 22 OCTOBER AND 5 NOVEMBER 1981 , WHICH WERE RECEIVED AT THE COURT ON 11 FEBRUARY 1982 , THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), BAYONNE , REFERRED TO THE COURT FOR PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION AS TO WHETHER , HAVING REGARD TO PRIOR INTERNATIONAL OBLIGATIONS , REGULATIONS OF THE COMMUNITIES LAYING DOWN CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ARE VALID , IN SO FAR AS THEY HAVE LAID DOWN CERTAIN CONDITIONS FOR FISHING OPERATIONS CARRIED OUT BY SPANISH NATIONALS IN THE ECONOMIC ZONE ESTABLISHED BY FRENCH DECREE NO 77-130 OF 11 FEBRUARY 1977 ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 12 FEBRUARY 1977 , P . 864 ) AND WHETHER , IF VALID , THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH NATIONALS .

2 THE QUESTION WAS RAISED IN CRIMIMAL PROCEEDINGS AGAINST CERTAIN MASTERS OF FISHING VESSELS REGISTERED IN SPAIN , WHO WERE CHARGED WITH FISHING WITHIN THE FRENCH ECONOMIC ZONE , WITHOUT BEING IN POSSESSION OF A FISHING LICENCE , OR WITH FAILING TO COMPLY WITH THE CONDITIONS OF THE LICENCE HELD BY THEM OR WITH FISHING OUTSIDE THE ZONE FOR WHICH THE LICENCE WAS ISSUED .

3 THE DEFENDANT IN THE MAIN PROCEEDINGS IN CASE 50/82 WAS DISCOVERED FISHING ON 28 MARCH 1981 IN THE ZONE BETWEEN 12 AND 200 NAUTICAL MILES FROM THE BASELINES . THE FACTS ALLEGED AGAINST THE OTHER DEFENDANTS , WHO WERE DISCOVERED FISHING IN THE SAME ZONE , OCCURRED BETWEEN 28 JULY AND 21 SEPTEMBER 1981 .

4 THE REQUIREMENT THAT SPANISH FISHERMEN SHOULD HOLD A LICENCE IS LAID DOWN IN CERTAIN COMMUNITY REGULATIONS AND IN PARTICULAR , WITH REGARD TO CASE 50/82 , IN COUNCIL REGULATION ( EEC ) NO 554/81 OF 27 FEBRUARY 1981 FIXING CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERIES RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL L 57 , P . 1 ) AND , WITH REGARD TO THE OTHER CASES , IN COUNCIL REGULATION ( EEC ) NO 1569/81 OF 1 JUNE 1981 LAYING DOWN FOR 1981 CERTAIN MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL L 154 , P . 1 ).

5 IN ALL OF THE CASES THE DEFENDANTS IN THE MAIN PROCEEDINGS MAINTAIN THAT THE COMMUNITY REGULATIONS AT ISSUE ARE INVALID OR IN ANY EVENT INAPPLICABLE IN THEIR CASE , ON THE GROUND THAT THEY ARE INCOMPATIBLE WITH THE RIGHTS UPON WHICH THE DEFENDANTS MAY RELY BY VIRTUE OF INTERNATIONAL COMMITMENTS PREVIOUSLY ENTERED INTO BETWEEN FRANCE AND SPAIN . FOR THAT PURPOSE THEY RELY IN PARTICULAR UPON THE GENEVA CONVENTION OF 29 APRIL 1958 ON FISHING AND CONSERVATION OF THE LIVING RESOURCES OF THE HIGH SEAS ( UNITED NATIONS TREATY SERIES , VOL . 559 , NO 8164 ) AND UPON THE LONDON FISHERIES CONVENTION OF 9 MARCH 1964 ( UNITED NATIONS TREATY SERIES , VOL . 581 , NO 8432 ) WHICH , SINCE IT RECOGNIZED FISHING RIGHTS IN THE 6 TO 12-MILE ZONE , MUST , ACCORDING TO THE DEFENDANTS , BE UNDERSTOOD AS MEANING THAT , AFTER THE EXTENSION OF THE FISHERY LIMITS , THE SAME REGIME EXTENDS UP TO 200 MILES .

6 IT MUST BE OBSERVED THAT REGULATION NO 1569/81 WAS ADOPTED AFTER THE ENTRY INTO FORCE ON 22 MAY 1981 OF THE AGREEMENT ON FISHERIES BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND THE GOVERNMENT OF SPAIN OF 15 APRIL 1980 ( OFFICIAL JOURNAL C 263 , P . 1 ) AND ON THE BASIS OF THAT AGREEMENT . SINCE THE AGREEMENT HAS SUPERSEDED THE PRIOR INTERNATIONAL OBLIGATIONS WHICH EXISTED IN THIS FIELD BETWEEN FRANCE AND SPAIN , SPANISH FISHERMEN MAY NOT RELY ON SUCH OBLIGATIONS IN ORDER TO PREVENT THE APPLICATION OF THE REGIME ESTABLISHED BY THE AGREEMENT .

7 REGULATION NO 554/81 FORMS PART OF A SERIES OF COUNCIL REGULATIONS WHICH , PENDING THE ENTRY INTO FORCE OF THE AGREEMENT , ESTABLISHED FOR SHORT PERIODS INTERIM PROVISIONS PRESCRIBING CATCH QUOTAS FOR SPANISH FISHERMEN . THE COURT HAS ALREADY HELD , IN PARTICULAR IN ITS JUDGMENT OF 18 DECEMBER 1981 ( CRUJEIRAS TOME AND YURRITA , JOINED CASES 180/80 AND 266/80 ( 1981 ) ECR 2997 ), THAT THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH FISHERMEN AND THAT SUCH FISHERMEN MAY NOT RELY ON PRIOR INTERNATIONAL OBLIGATIONS ENTERED INTO BY FRANCE AND SPAIN IN ORDER TO CHALLENGE ITS VALIDITY .

8 CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATIONS NO 554/81 AND NO 1569/81 . THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH NATIONALS .

9 IN THE COURSE OF THE PROCEDURE BEFORE THE COURT THE DEFENDANTS IN THE MAIN PROCEEDINGS ALSO RELIED UPON TWO OTHER ARGUMENTS IN SUPPORT OF THEIR CLAIM THAT THE TWO REGULATIONS ARE INVALID .

10 THEY CLAIM FIRST OF ALL THAT THE PROVISIONS OF THOSE REGULATIONS , IN SO FAR AS THEY PRESCRIBE THAT SPANISH FISHERMEN MUST HOLD A FISHING LICENCE AND DO NOT IMPOSE THE SAME REQUIREMENT FOR FISHING BY FISHERMEN OF THE MEMBER STATES , ARE CONTRARY TO THE PRINCIPLES OF NON-DISCRIMINATION SET OUT IN THE VARIOUS CONVENTIONS ON THE PROTECTION OF HUMAN RIGHTS , AND IN PARTICULAR IN ARTICLE 14 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS .

11 EVEN IF IT IS SUPPOSED THAT SUCH PROVISIONS , WHICH GUARANTEE NON-DISCRIMINATION IN THE ENJOYMENT OF THE RIGHTS AND FREEDOMS SET OUT IN THE CONVENTION IN WHICH THEY APPEAR , ARE APPLICABLE TO ECONOMIC ACTIVITIES SUCH AS FISHING IT IS IMPOSSIBLE TO CLASSIFY AS DISCRIMINATORY A SITUATION IN WHICH BOTH SPANISH FISHERMEN AND FISHERMEN OF MEMBER STATES MUST COMPLY WITH A SYSTEM OF CATCH QUOTAS EVEN THOUGH THE MANNER OF VERIFYING CATCHES IS DIFFERENT . VERIFICATION BY THE USE OF A LICENSING SYSTEM IS INTENDED TO ENSURE THAT THE CATCH QUOTAS LAID DOWN FOR THE FISHING VESSELS OF NON-MEMBER COUNTRIES ARE COMPLIED WITH SINCE , IN THE CASE OF SUCH VESSELS NO CHECKS CAN BE CARRIED OUT IN THE ADJACENT COASTAL PORTS AS THOSE VESSELS NORMALLY RETURN TO THEIR PORTS OF ORIGIN TO LAND THEIR CATCHES .

12 THE DEFENDANTS IN THE MAIN PROCEEDINGS THEN CLAIM THAT ARTICLE 13 OF REGULATION NO 1569/81 , WHICH PROVIDES FOR THE PENALTIES OF WITHDRAWAL OF FISHING LICENCES AND THE POSTPONEMENT OF THE GRANTING OF NEW LICENCES WHICH THE COMMISSION MAY IMPOSE FOR FAILURE TO COMPLY WITH THE COMMUNITY RULES ON FISHING , IS INVALID . THAT ARTICLE IS SAID TO CONTITUTE A BREACH OF THE AUDI ALTERAM PARTEM PRINCIPLE SINCE NO PROVISION IS MADE FOR THE RIGHT OF THE FISHERMEN IN QUESTION TO BE HEARD BEFORE A PENALTY IS IMPOSED . IN ADDITION IT IS CONTENDED THAT THE PENALTIES PROVIDED FOR ARE EXCESSIVE SINCE THEY MAY BE EXTENDED TO ALL THE VESSELS OF A SHIP-OWNER WHO IS FOUND TO HAVE CONTRAVENED THE RULES .

13 THESE ARGUMENTS , HOWEVER , CONCERN THE VALIDITY OF REGULATION NO 1569/81 IN RELATION TO SUPERIOR PRINCIPLES OF LAW RECOGNIZED WITHIN THE COMMUNITY LEGAL ORDER , A PROBLEM WHICH DOES NOT COME WITHIN THE CONTEXT OF THE PRELIMINARY QUESTION SUBMITTED TO THE COURT .

COSTS

14 THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE TRIBUNAL DE GRANDE INSTANCE , BAYONNE , BY JUDGMENTS OF 17 SEPTEMBER , 22 OCTOBER AND 5 NOVEMBER 1981 , HEREBY RULES :

CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COUNCIL REGULATIONS ( EEC ) NO 554/81 OF 27 FEBRUARY 1981 ( OFFICIAL JOURNAL L 57 , P . 1 ) AND NO 1569/81 OF 1 JUNE 1981 ( OFFICIAL JOURNAL L 154 , P . 1 ). THE PROVISIONS OF THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH NATIONALS .