61979J0032

1 . FISHING - CONSERVATION OF MARITIME RESOURCES - POWERS OF THE EEC NOT EXERCISED - PROVISIONAL POWERS OF THE MEMBER STATES - DUTY OF CO-OPERATION

( ACT OF ACCESSION , ART . 102 ; EEC TREATY , ART . 5 )

2 . FISHING - CONSERVATION OF MARITIME RESOURCES - COMMUNITY CONSERVATION MEASURES NOT EXTENDED - EFFECTS THEREOF - FREEDOM TO ACT AT WILL NOT RESTORED TO THE MEMBER STATES - DUTY OF MEMBER STATES TO TAKE THE NECESSARY CONSERVATION MEASURES - RULES

3 . FISHING - CONSERVATION OF MARITIME RESOURCES - IMPOSSIBLE TO ADOPT NECESSARY MEASURES AT COMMUNITY LEVEL - DUTY OF MEMBER STATES TO ACT IN THE INTERESTS OF THE COMMUNITY

( ACT OF ACCESSION , ART . 102 ; COUNCIL REGULATION NO 101/76 , ART . 4 ; COUNCIL RESOLUTIONS OF 3 NOVEMBER 1976 , ANNEX VI ; COUNCIL DECLARATION OF 31 JANUARY 1978 )

4 . FISHING - CONSERVATION OF MARITIME RESOURCES - PROVISIONAL POWERS OF THE MEMBER STATES - CONDITIONS FOR THE EXERCISE THEREOF - DUTY OF CONSULTATION - SCOPE

( COUNCIL RESOLUTIONS OF 3 NOVEMBER 1976 , ANNEX VI )

5 . FISHING - CONSERVATION OF MARITIME RESOURCES - PROVISIONAL POWERS OF THE MEMBER STATES - CONDITIONS FOR THE EXERCISE THEREOF - DUTIES OF CONSULTATION AND NOTIFICATION - SCOPE - APPLICATION TO NATIONAL MEASURES ADOPTED IN IMPLEMENTATION OF A COMMUNITY REGULATION

( COUNCIL REGULATION NO 101/76 , ARTS 2 AND 3 ; COUNCIL RESOLUTIONS OF 3 NOVEMBER 1976 , ANNEX VI )

6 . FISHING - CONSERVATION OF MARITIME RESOURCES - COMMUNITY CONSERVATION AND MANAGEMENT MEASURES - NATIONAL IMPLEMENTING PROVISIONS - CONDITIONS FOR COMPATIBILITY WITH COMMUNITY LAW

( EEC TREATY , ART . 7 ; COUNCIL REGULATION NO 101/76 , ART . 2 )

1 . PURSUANT TO THE OBLIGATIONS ARISING BOTH FROM THE EEC TREATY AND FROM THE ACT OF ACCESSION , THE COMMUNITY HAS POWER TO INTRODUCE FISHERY CONSERVATION MEASURES IN THE WATERS WITHIN THE JURISDICTION OF THE MEMBER STATES . IN SO FAR AS THIS POWER HAS BEEN EXERCISED BY THE COMMUNITY , THE PROVISIONS ADOPTED BY IT PRECLUDE ANY CONFLICTING PROVISIONS BY THE MEMBER STATES . ON THE OTHER HAND , SO LONG AS THE TRANSITIONAL PERIOD LAID DOWN IN ARTICLE 102 OF THE ACT OF ACCESSION HAS NOT EXPIRED AND THE COMMUNITY HAS NOT YET FULLY EXERCISED ITS POWER IN THE MATTER , THE MEMBER STATES ARE ENTITLED , WITHIN THEIR OWN JURISDICTION , TO TAKE APPROPRIATE CONSERVATION MEASURES WITHOUT PREJUDICE , HOWEVER , TO THE OBLIGATION TO COOPERATE IMPOSED UPON THEM BY THE TREATY , IN PARTICULAR ARTICLE 5 THEREOF .

2 . THE EFFECT OF THE COUNCIL ' S INABILITY TO REACH A DECISION TO EXTEND THE FISHERY CONSERVATION MEASURES WHICH IT HAD PREVIOUSLY ADOPTED HAS NOT BEEN TO DEPRIVE THE COMMUNITY OF ITS POWERS IN THIS RESPECT AND THUS TO RESTORE TO THE MEMBER STATES FREEDOM TO ACT AT WILL IN THE FIELD IN QUESTION . IN SUCH A SITUATION , IT IS FOR THE MEMBER STATES , AS REGARDS THE MARITIME ZONES COMING WITHIN THEIR JURISDICTION , TO TAKE THE NECESSARY CONSERVATION MEASURES IN THE COMMON INTEREST AND IN ACCORDANCE WITH BOTH THE SUBSTANTIVE AND THE PROCEDURAL RULES ARISING FROM COMMUNITY LAW .

3 . BOTH ARTICLE 102 OF THE ACT OF ACCESSION AND COUNCIL REGULATION ( EEC ) NO 101/76 , LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY , IN PARTICULAR ARTICLE 4 THEREOF , IN THE SAME WAY AS ANNEX VI TO THE HAGUE RESOLUTION ADOPTED BY THE COUNCIL ON 3 NOVEMBER 1976 AND THE COUNCIL DECLARATION OF 31 JANUARY 1978 CONCERNING FISHERIES , ARE BASED ON THE TWOFOLD ASSUMPTION THAT MEASURES MUST BE ADOPTED IN THE MARITIME WATERS FOR WHICH THE COMMUNITY IS RESPONSIBLE SO AS TO MEET ESTABLISHED CONSERVATION NEEDS AND THAT IF THOSE MEASURES CANNOT BE INTRODUCED IN GOOD TIME ON A COMMUNITY BASIS THE MEMBER STATES NOT ONLY HAVE THE RIGHT BUT ARE ALSO UNDER A DUTY TO ACT IN THE INTERESTS OF THE COMMUNITY . ALTHOUGH THE RESOLUTIONS AND THE DECLARATION MENTIONED ABOVE EMPHASIZE ABOVE ALL THE REQUIREMENT THAT NATIONAL CONSERVATION MEASURES SHOULD NOT GO BEYOND WHAT IS STRICTLY NECESSARY , AT THE SAME TIME THEY IMPLY RECOGNITION OF THE NEED FOR AND THE LAWFULNESS OF CONSERVATION MEASURES JUSTIFIED FROM THE BIOLOGICAL POINT OF VIEW AND DESIGNED SO AS TO BE NOT ONLY TO THE PARTICULAR ADVANTAGE FOR THE MEMBER STATE CONCERNED BUT IN THE COLLECTIVE INTERESTS OF THE COMMUNITY .

4 . THE FACT THAT A DRAFT CONSERVATION MEASURE IS SUBMITTED TO THE COMMISSION AT A DAY ' S NOTICE AFTER A LONG PERIOD DURING WHICH A MEMBER STATE HAS FAILED TO ACT CANNOT BE CONSIDERED AS BEING IN ACCORDANCE WITH THE DUTIES LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION WHICH REQUIRES THAT THE COMMISSION SHOULD BE CONSULTED AT ALL STAGES OF THE DRAWING-UP OF PROPOSED MEASURES , ALLOWING FOR THE NECESSARY TIME TO STUDY THOSE MEASURES AND TO GIVE ITS OPINION IN GOOD TIME .

5 . THE DUTY TO CONSULT THE COMMISSION AND TO SEEK ITS APPROVAL , FLOWING FROM ANNEX VI TO THE HAGUE RESOLUTION , IS GENERAL AND APPLIES TO ANY MEASURES OF CONSERVATION EMANATING FROM THE MEMBER STATES AND NOT FROM THE COMMUNITY AUTHORITIES . CONSEQUENTLY , THE MEASURES ADOPTED BY A MEMBER STATE IN IMPLEMENTATION OF A COMMUNITY REGULATION ARE NOT EXEMPTED FROM THAT DUTY OR FROM THE DUTY OF NOTIFICATION LAID DOWN IN ARTICLES 2 AND 3 OF REGULATION NO 101/76 .

6 . IN ORDER TO SAFEGUARD THE RIGHTS AND INTERESTS PROTECTED BY COMMUNITY LAW FOR OTHER MEMBER STATES AND THEIR NATIONALS IT IS NECESSARY TO LAY DOWN AND PUBLISH , IN A FORM BINDING UPON THE MEMBER STATE CONCERNED , ALL THE DETAILED RULES OF THE SYSTEM CHOSEN BY THE AUTHORITIES OF THAT MEMBER STATE FOR THE IMPLEMENTATION OF A COMMUNITY REGULATION LAYING DOWN MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERIES , SO AS TO ENABLE ALL OTHER MEMBER STATES AND ALL PERSONS CONCERNED , IN THE SAME WAY AS THE COMMUNITY AUTHORITIES , TO SEE WHETHER THE SYSTEM PUT INTO OPERATION FULFILS BOTH THE PARTICULAR OBLIGATIONS OF THE MEMBER STATE IN QUESTION UNDER THE RELEVANT REGULATION AND THE GENERAL REQUIREMENTS OF NON-DISCRIMINATION AND EQUALITY AS REGARDS THE CONDITIONS OF ACCESS TO THE FISHING GROUNDS ENSHRINED IN ARTICLE 2 OF REGULATION NO 101/76 AND ARTICLE 7 OF THE EEC TREATY . THIS OBLIGATION TO INTRODUCE IMPLEMENTING MEASURES WHICH ARE EFFECTIVE IN LAW AND WITH WHICH THOSE CONCERNED MAY READILY ACQUAINT THEMSELVES IS PARTICULARLY NECESSARY WHERE SEA FISHERIES ARE CONCERNED , WHICH MUST BE PLANNED AND ORGANIZED IN ADVANCE ; THE REQUIREMENT OF LEGAL CLARITY IS INDEED IMPERATIVE IN A SECTOR IN WHICH ANY UNCERTAINTY MAY WELL LEAD TO INCIDENTS AND THE APPLICATION OF PARTICULARLY SERIOUS SANCTIONS .

IN CASE 32/79

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISERS , DONALD W . ALLEN AND JOHN TEMPLE LANG , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

SUPPORTED BY

KINGDOM OF DENMARK , REPRESENTED BY PER LACHMANN , HEAD OF THE SECRETARIAT OF THE COMMON MARKET DIVISION AT THE MINISTRY FOR FOREIGN AFFAIRS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE KINGDOM OF DENMARK ,

FRENCH REPUBLIC , REPRESENTED , FOR THE PURPOSES OF THE WRITTEN PROCEDURE , BY GUY LADREIT DE LACHARRIERE , DIRECTOR , AND , FOR THE PURPOSES OF THE ORAL PROCEDURE , BY PHILIPPE MOREAU DEFARGES , ADVISER AT THE DIRECTORATE FOR LEGAL AFFAIRS AT THE MINISTRY FOR FOREIGN AFFAIRS , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY ,

IRELAND , REPRESENTED , FOR THE PURPOSES OF THE WRITTEN PROCEDURE , BY LOUIS J . DOCKERY , CHIEF STATE SOLICITOR , ACTING AS AGENT , AND , FOR THE PURPOSES OF THE ORAL PROCEDURE , BY D.N.C . BUDD , BARRISTER AT THE DUBLIN BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY ,

KINGDOM OF THE NETHERLANDS , REPRESENTED BY A . BOS , ASSISTANT LEGAL ADVISER AT THE MINISTRY FOR FOREIGN AFFAIRS , ACTING AS AGENT , ASSISTED BY C . J . HERINGA , LEGAL ADVISER AT THE MINISTRY FOR AGRICULTURE AND FISHERIES , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE NETHERLANDS EMBASSY ,

INTERVENERS ,

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND , REPRESENTED , FOR THE PURPOSES OF THE WRITTEN PROCEDURE , BY R . D . MUNROW , ASSISTANT TREASURY SOLICITOR , ACTING AS AGENT , ASSISTED BY T . H . BINGHAM , QC , GRAY ' S INN , AND P . G . LANGDON-DAVIES , BARRISTER OF THE INNER TEMPLE , AND , FOR THE PURPOSES OF THE ORAL PROCEDURE , BY THE LORD ADVOCATE , LORD MACKAY OF CLASHFERN , QC , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BRITISH EMBASSY ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT , BY APPLYING UNILATERAL SEA FISHERIES MEASURES IN CERTAIN FISHERIES OFF ITS COASTS , THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ,

1 BY APPLICATION OF 27 FEBRUARY 1979 THE COMMISSION BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY BY APPLYING UNILATERAL SEA FISHERIES MEASURES REGARDING :

- HERRING FISHING IN THE MOURNE FISHERY SITUATED OFF THE EAST COAST OF IRELAND AND NORTHERN IRELAND ;

- HERRING FISHING IN THE ISLE OF MAN AND NORTHERN IRISH SEA FISHERY ;

- FISHING FOR NORWAY POUT IN THE ZONE KNOWN AS ' ' THE NORWAY POUT BOX ' ' ADJOINING THE EAST AND NORTH COASTS OF SCOTLAND .

THE BACKGROUND TO THE DISPUTES

2 IT SHOULD BE RECALLED THAT DURING 1977 THE THREE FISHING ZONES IN QUESTION WERE GOVERNED BY REGULATIONS ADOPTED BY THE COUNCIL AS INDICATED BELOW WITH REGARD TO EACH OF THE THREE HEADS OF THE DISPUTE . THE COMMISSION HAD DULY SUBMITTED TO THE COUNCIL PROPOSALS TO EXTEND THE PERIOD OF VALIDITY OF THOSE MEASURES , WITH CERTAIN AMENDMENTS , TO 1978 . HOWEVER , BECAUSE OF THE CONTINUED DIFFERENCES OF OPINION WITHIN THE COUNCIL , IT BECAME EVIDENT THAT IT WAS IMPOSSIBLE TO BRING INTO FORCE COMMUNITY CONSERVATION MEASURES FOR 1978 . DURING THE MEETING ON 30 AND 31 JANUARY 1978 IT BECAME CLEAR THAT ATTEMPTS TO REACH A SOLUTION WITHIN THE COUNCIL HAD FINALLY FAILED .

3 IN VIEW OF THIS SITUATION , THE COUNCIL , ON 31 JANUARY 1978 , ISSUED THE FOLLOWING STATEMENT :

' ' THE COUNCIL FAILED TO REACH AGREEMENT AT THIS MEETING ON THE DEFINITION OF A NEW COMMON FISHERIES POLICY BUT AGREED TO RESUME EXAMINATION OF THESE MATTERS AT A LATER DATE . PENDING THE INTRODUCTION OF A COMMON SYSTEM FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES , ALL THE DELEGATIONS UNDERTOOK TO APPLY NATIONAL MEASURES ONLY WHERE THEY WERE STRICTLY NECESSARY , TO SEEK THE APPROVAL OF THE COMMISSION FOR THEM AND TO ENSURE THAT THEY WERE NON-DISCRIMINATORY AND IN CONFORMITY WITH THE TREATY ' ' .

4 BY LETTER OF 2 FEBRUARY 1978 , THE GOVERNMENT OF THE UNITED KINGDOM INFORMED THE COMMISSION THAT IN THE LIGHT OF THE OUTCOME OF THE COUNCIL MEETING ON 30 AND 31 JANUARY 1978 IT PROPOSED TO MAINTAIN ON A NATIONAL BASIS THE CONSERVATION MEASURES IN FORCE ON 31 JANUARY 1978 IN WATERS WITHIN THE UNITED KINGDOM ' S FISHERY LIMITS . AT THE REQUEST OF THE COMMISSION , THE GOVERNMENT OF THE UNITED KINGDOM SENT A LIST OF THOSE MEASURES ON 13 FEBRUARY 1978 . IN THAT LIST TWO MEASURES RELATING TO THE ISLE OF MAN AND NORTHERN IRISH SEA FISHERY AND A MEASURE RELATING TO THE NORWAY POUT BOX ARE MENTIONED ; THE LIST CONTAINS NO MEASURES RELATING TO THE MOURNE FISHERY .

5 IN JULY 1978 , THE GOVERNMENT OF THE UNITED KINGDOM GAVE NOTICE TO THE COMMISSION THAT IT INTENDED TO AMEND THE MEASURE RELATING TO THE NORWAY POUT BOX ; IN AUGUST , IT SOUGHT THE COMMISSION ' S APPROVAL FOR AN AMENDMENT TO THE ARRANGEMENTS APPLICABLE IN THE IRISH SEA ; FINALLY , IN SEPTEMBER , IT INFORMED THE COMMISSION OF THE DRAFT CONSERVATION MEASURES FOR THE MOURNE FISHERY . THE MEASURES ANNOUNCED BY THE BRITISH GOVERNMENT WERE IN FACT BROUGHT INTO FORCE IN SEPTEMBER 1978 . THE DETAILS OF THOSE PROVISIONS ARE SET OUT BELOW WITH REGARD TO EACH OF THE ZONES IN QUESTION .

6 BY LETTER OF 27 OCTOBER 1978 , THE COMMISSION INFORMED THE GOVERNMENT OF THE UNITED KINGDOM THAT IT CONSIDERED THAT THE MEASURES ADOPTED IN RESPECT OF THE THREE AREAS WERE IN BREACH OF COMMUNITY LAW IN VARIOUS RESPECTS . AFTER RECEIVING THE OBSERVATIONS OF THE UNITED KINGDOM , IT DELIVERED ON 17 JANUARY 1979 THE REASONED OPINION PROVIDED FOR IN ARTICLE 169 OF THE TREATY .

7 THE COMPLAINTS PUT FORWARD BY THE COMMISSION MAY BE SUMMARIZED AS FOLLOWS :

( A ) WITH REGARD TO THE MOURNE FISHERY , THE COMMISSION COMPLAINS THAT THE UNITED KINGDOM LEFT UNPROTECTED FOR MOST OF 1978 A HERRING STOCK IN DANGER OF EXTINCTION , FAILED IN ITS DUTIES OF CONSULTATION LAID DOWN BY COMMUNITY LAW IN RESPECT OF THE PROTECTIVE MEASURES ADOPTED , BELATEDLY , IN SEPTEMBER 1978 , AND COUPLED THOSE MEASURES WITH AN EXCEPTION FOR COASTAL FISHING IN A ZONE OF NORTHERN IRELAND WHICH WAS DIRECTLY CONTRARY TO CONSERVATION NEEDS AND WAS , MOREOVER , GRANTED IN CONDITIONS DISCRIMINATING AGAINST THE FISHERMEN OF THE OTHER MEMBER STATES ;

( B ) WITH REGARD TO THE ISLE OF MAN AND NORTHERN IRISH SEA FISHERY , THE COMMISSION COMPLAINS THAT THE UNITED KINGDOM APPLIED UNILATERALLY , BOTH IN 1977 AND 1978 , A SYSTEM OF FISHING LICENCES WITH REGARD TO WHICH THERE WAS NO APPROPRIATE CONSULTATION AND THE DETAILED RULES FOR THE APPLICATION OF WHICH WERE SUCH AS TO EXCLUDE FROM THE FISHING ZONE IN QUESTION FISHERMEN FROM THE OTHER MEMBER STATES AND , MORE PARTICULARLY , IRISH FISHERMEN WHO TRADITIONALLY FISHED IN THOSE WATERS ;

( C ) WITH REGARD TO THE NORWAY POUT BOX , THE COMMISSION COMPLAINS THAT THE UNITED KINGDOM UNILATERALLY EXTENDED THE EASTERN LIMITS OF THAT BOX BY 2* LONGITUDE WITHOUT HAVING SHOWN THE JUSTIFICATION FOR THAT MEASURE AS A NECESSARY AND URGENT CONSERVATION MEASURE , THUS CAUSING CONSIDERABLE DAMAGE TO THE INDUSTRIAL FISHERY TRADITIONALLY CARRIED ON IN THAT ZONE BY THE DANISH FISHING FLEET .

THE APPLICABLE LAW AND THE DISTRIBUTION OF POWERS

8 THE COURT HAS HAD OCCASION TO INDICATE IN DETAIL THE RULES OF COMMUNITY LAW APPLICABLE IN THIS RESPECT IN ITS JUDGEMENTS OF 14 JULY 1976 IN JOINED CASES 3 , 4 AND 6/76 , CORNELIS KRAMER AND OTHERS ( 1976 ) ECR 1279 AND 16 FEBRUARY 1978 IN CASE 61/77 , COMMISSION OF THE EUROPEAN COMMUNITIES V IRELAND ( 1978 ) ECR 417 . AT THE TIME OF THE FACTS WHICH HAVE GIVEN RISE TO THIS DISPUTE , THE CONSTITUENT ELEMENTS OF THE LEGAL SITUATION WERE IN ESSENCE THE SAME .

9 IT IS SUFFICIENT TO RECALL IN THIS CONTEXT THAT THE COMMON FISHERIES POLICY IS BASED ON ARTICLES 3 ( D ) AND 38 OF THE EEC TREATY . ARTICLE 102 OF THE ACT OF ACCESSION RECOGNIZED THAT PROTECTION OF THE FISHING GROUNDS AND CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA FORMED PART OF THAT POLICY BY INSTRUCTING THE COUNCIL TO ADOPT , WITHIN A SPECIFIC PERIOD AND ON A PROPOSAL FROM THE COMMISSION , APPROPRIATE MEASURES FOR THIS PURPOSE . THE ESSENTIAL GUIDELINES IN THIS RESPECT WERE ESTABLISHED BY COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( OFFICIAL JOURNAL L 20 , P . 19 ), ARTICLES 2 , 3 AND 4 OF WHICH ARE OF PARTICULAR IMPORTANCE FOR THIS CASE .

10 IN THE ABOVE-MENTIONED JUDGMENTS , THE COURT EMPHASIZED IN ADDITION THAT THE COMMUNITY HAS THE POWER TO TAKE CONSERVATION MEASURES AND THAT IN SO FAR AS THIS POWER HAS BEEN EXERCISED BY THE COMMUNITY THE PROVISIONS ADOPTED BY IT PRECLUDE ANY CONFLICTING PROVISIONS BY THE MEMBER STATES ; ON THE OTHER HAND , SO LONG AS THE TRANSITIONAL PERIOD LAID DOWN IN ARTICLE 102 OF THE ACT OF ACCESSION HAS NOT EXPIRED AND THE COMMUNITY HAS NOT YET FULLY EXERCISED ITS POWER IN THE MATTER , THE MEMBER STATES ARE ENTITLED , WITHIN THEIR OWN JURISDICTION , TO TAKE APPROPRIATE CONSERVATION MEASURES WITHOUT PREJUDICE , HOWEVER , TO THE OBLIGATION TO CO-OPERATE IMPOSED UPON THEM BY THE TREATY , IN PARTICULAR ARTICLE 5 THEREOF .

11 IN VIEW OF THE DIFFICULTIES PREVENTING THE IMPLEMENTATION WITHIN THE PRESCRIBED PERIOD OF A COMMON POLICY FOR THE CONSERVATION OF FISHERY RESOURCES , THE COUNCIL ADOPTED ON 3 NOVEMBER 1976 , ON A PROPOSAL BY THE COMMISSION , A RESOLUTION KNOWN AS ' ' ANNEX VI TO THE HAGUE RESOLUTION ' ' ACCORDING TO WHICH IF NO COMMUNITY MEASURES WERE BROUGHT INTO FORCE WITHIN THE PRESCRIBED PERIOD , ' ' THE MEMBER STATES COULD THEN ADOPT , AS AN INTERIM MEASURE AND IN A FORM WHICH AVOIDS DISCRIMINATION , APPROPRIATE MEASURES TO ENSURE THE PROTECTION OF RESOURCES SITUATED IN THE FISHING ZONES OFF THEIR COASTS ' ' . THE RESOLUTION ADDS THAT ' ' BEFORE ADOPTING SUCH MEASURES THE MEMBER STATES CONCERNED WILL SEEK THE APPROVAL OF THE COMMISSION , WHICH MUST BE CONSULTED AT ALL STAGES OF THE PROCEDURES ' ' . IT IS NOT CONTESTED THAT THIS RESOLUTION IS BINDING ON THE MEMBER STATES . IN VIEW OF THE FAILURE OF ITS NEGOTIATIONS AT THE BEGINNING OF 1978 , THE COUNCIL CONFIRMED ONCE MORE THE PROVISIONS OF THE HAGUE RESOLUTION BY THE ABOVE-MENTIONED RESOLUTION OF 31 JANUARY 1978 .

12 ALTHOUGH THE RIGHT OF MEMBER STATES TO TAKE CONSERVATION MEASURES IS THEREFORE NOT CONTESTED WITH REGARD TO THE PERIOD IN QUESTION , A FUNDAMENTAL DIFFERENCE OF OPINION BETWEEN THE PARTIES AS TO THE NATURE AND THE EXTENT OF THAT POWER HAS EMERGED . ACCORDING TO THE UNITED KINGDOM , THE MEMBER STATES HAVE AN INHERENT POWER OF REGULATING FISHING WITHIN THEIR OWN FISHING JURISDICTION , THE EXTENT OF WHICH AT ANY GIVEN TIME DEPENDS ON THE RULES OF INTERNATIONAL LAW . IT ADMITS THAT THAT POWER CAN OF COURSE BE LIMITED BY TREATY . IN THE CASE OF THE MEMBER STATES OF THE EEC IT WAS IN FACT LIMITED BY THE PROVISIONS OF REGULATION NO 101/76 , ANNEX VI TO THE HAGUE RESOLUTION AND THE DECLARATION OF 31 JANUARY 1978 . IN PARTICULAR , ARTICLE 2 ( 2 ) AND ARTICLE 3 OF REGULATION NO 101/76 IMPOSED DUTIES ON MEMBER STATES IN RESPECT OF THE EXERCISE OF THEIR POWERS IN THIS MATTER . ARTICLE 4 OF THE SAME REGULATION CONFERS ON THE COUNCIL POWER TO TAKE CONSERVATION MEASURES . HOWEVER , THE EFFECT OF THIS POWER OF THE COUNCIL IS SAID TO RESTRICT THE POWERS OF THE MEMBER STATES ONLY IF THE COUNCIL HAS EXERCISED ITS POWER BY ADOPTING CONSERVATION MEASURES .

13 IN CONTRAST TO THIS VIEWPOINT , THE COMMISSION CLAIMS THAT THE COUNCIL HAD EXERCISED ITS POWERS WITH REGARD TO THE THREE FISHING ZONES IN QUESTION BY BRINGING INTO FORCE COMMUNITY REGULATIONS AND THAT IT HAD ITSELF TAKEN THE INITIATIVE OF SUBMITTING TO THE COUNCIL PROPOSALS FOR DEFINING THE FISHERIES ARRANGEMENTS APPLICABLE IN 1978 . THIS POINT OF VIEW IS DEVELOPED BY THE FRENCH GOVERNMENT WHICH CLAIMS THAT IF , DURING THE TRANSITIONAL PERIOD LAID DOWN IN ARTICLE 102 OF THE ACT OF ACCESSION , MEMBER STATES OF THE COMMUNITY RETAIN ANY POWER TO REGULATE FISHERIES , SUCH POWER IS RESIDUAL AND TRANSITIONAL . THE UNILATERAL BRITISH MEASURES WHICH FORM THE SUBJECT-MATTER OF THE DISPUTE WERE TAKEN IN SECTORS IN WHICH COMMUNITY REGULATIONS HAD BEEN ADOPTED AND IN WHICH THE COUNCIL WAS CONSIDERING PROPOSALS PUT FORWARD BY THE COMMISSION FOR THE ADOPTION OF FURTHER MEASURES . THE ASSERTION OF A COMMUNITY PRESENCE IN THIS SECTOR WAS THEREFORE VERY CLEAR AND THE EXPIRY OF THE COMMUNITY RULES CANNOT HAVE THE EFFECT OF REMOVING THE SECTOR COVERED BY THOSE RULES FROM THE COMMUNITY ' S JURISDICTION AND DOES NOT THEREFORE BRING THAT COMPETENCE TO AN END .

14 IN THIS CONNEXION THE COURT RECALLS , WHAT IT HAS ALREADY SAID IN THE JUDGMENTS MENTIONED ABOVE , NAMELY THAT PURSUANT TO THE OBLIGATIONS ARISING BOTH FROM THE EEC TREATY AND FROM THE ACT OF ACCESSION , THE COMMUNITY HAS POWER TO INTRODUCE FISHERY CONSERVATION MEASURES IN THE WATERS WITHIN THE JURISDICTION OF THE MEMBER STATES . THE PURPOSE OF ARTICLE 102 OF THE ACT OF ACCESSION , WHICH IS BASED ON THE RECOGNITION OF THE LEGAL SITUATION DESCRIBED ABOVE , IS TO OPEN , FOLLOWING THE CONSIDERABLE INCREASE IN THE MARITIME SECTOR AS A RESULT OF THE ENLARGEMENT OF THE COMMUNITY , A NEW TRANSITIONAL PERIOD WITHIN WHICH THE COUNCIL WAS REQUIRED TO INTRODUCE THE NECESSARY CONSERVATION MEASURES .

15 HOWEVER , IT IS NECESSARY TO EMPHASIZE THAT AS EARLY AS 1977 THE COUNCIL HAD EXERCISED ITS POWERS WITH REGARD TO ALL THE MARITIME ZONES AFFECTED BY THE APPLICATION . THE EFFECT OF THE COUNCIL ' S INABILITY TO REACH A DECISION TO EXTEND THE VALIDITY OF THESE MEASURES IN 1978 HAS NOT BEEN TO DEPRIVE THE COMMUNITY OF ITS POWERS IN THIS RESPECT AND THUS TO RESTORE TO THE MEMBER STATES FREEDOM TO ACT AT WILL IN THE FIELD IN QUESTION . IN SUCH A SITUATION , IT WAS FOR THE MEMBER STATES , AS REGARDS THE MARITIME ZONES COMING WITHIN THEIR JURISDICTION , TO TAKE THE NECESSARY CONSERVATION MEASURES IN THE COMMON INTEREST AND IN ACCORDANCE WITH BOTH THE SUBSTANTIVE AND THE PROCEDURAL RULES ARISING FROM COMMUNITY LAW , THE ESSENTIALS OF WHICH HAVE BEEN RECALLED ABOVE .

16 IT IS AGAINST THIS BACKGROUND THAT ONE MUST EXAMINE THE THREE HEADS OF THE APPLICATION LODGED BY THE COMMISSION .

THE MOURNE FISHERY

17 THE MOURNE FISHERY IS SITUATED IN A ZONE 12 MILES OFF THE EAST COAST OF IRELAND AND NORTHERN IRELAND . IT IS DIVIDED INTO THE UNITED KINGDOM FISHING ZONE AND THE IRISH FISHING ZONE AND HAS TRADITIONALLY BEEN AN AREA TO WHICH FISHERMEN OF BOTH MEMBER STATES HAD ACCESS . IT IS NOT IN DISPUTE THAT THE HERRING STOCKS IN THAT ZONE ARE IN DIRECT DANGER OF EXTINCTION . THIS SITUATION HAS BEEN ASCERTAINED BY THE INTERNATIONAL COUNCIL FOR THE EXPLORATION OF THE SEA AND IS RECOGNIZED BY ALL PARTIES .

18 IN VIEW OF THIS SITUATION , THE COUNCIL , BY ARTICLE 3 OF REGULATION NO 1672/77 OF 25 JULY 1977 LAYING DOWN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF CERTAIN HERRING STOCKS ( OFFICIAL JOURNAL L 186 , P . 27 ), HAD PROHIBITED DIRECT FISHING FOR HERRING IN THAT ZONE . THIS PROHIBITION HAD BEEN EXTENDED UNTIL 31 JANUARY 1978 BY REGULATION NO 2899/77 OF 21 DECEMBER 1977 ( OFFICIAL JOURNAL L 338 , P . 5 ). IN THE PROPOSALS WHICH IT HAD SUBMITTED TO THE COUNCIL FOR 1978 , THE COMMISSION HAD PROPOSED TO EXTEND THAT PROHIBITION THROUGHOUT 1978 . IT IS AN ESTABLISHED FACT THAT IMMEDIATELY AFTER THE FAILURE OF THE NEGOTIATIONS WITHIN THE COUNCIL IRELAND ADOPTED , WITH THE APPROVAL OF THE COMMISSION , PROVISIONS PROHIBITING ALL FISHING FOR HERRING IN THE PART OF THE MOURNE FISHERY COMING WITHIN ITS JURISDICTION ; THIS PROHIBITION WAS EFFECTIVE AS FROM 6 FEBRUARY 1978 .

19 FOR ITS PART , THE UNITED KINGDOM DID NOT ADOPT MEASURES CONCERNING THE PART OF THE MOURNE FISHERY COMING WITHIN ITS JURISDICTION UNTIL SEPTEMBER 1978 . ON 18 SEPTEMBER 1978 THE BRITISH GOVERNMENT NOTIFIED THE COMMISSION PURSUANT TO ANNEX VI TO THE HAGUE RESOLUTION IN ORDER TO OBTAIN THE COMMISSION ' S APPROVAL FOR THE IMMEDIATE CLOSURE OF THE PART OF THE MOURNE FISHERY OFF THE COAST OF NORTHERN IRELAND FOR THE REMAINDER OF 1978 . A DRAFT ORDER WAS ANNEXED TO THAT NOTIFICATION .

20 IN TERMS OF THIS DRAFT THE MEASURE WAS TO TAKE EFFECT AT MIDNIGHT ON 19 SEPTEMBER BUT THE FISHING BAN INCLUDED AN EXEMPTION FOR BOATS OF UNDER 35 FEET REGISTERED LENGTH , APPLICABLE WITHIN A HALF-MILE OFF THE COAST OF COUNTY DOWN IN NORTHERN IRELAND FOR A CATCH OF 400 TONNES OF HERRING DURING A PERIOD FROM 20 SEPTEMBER TO THE DATE OF EXHAUSTION OF THE QUOTA OF 400 TONNES , OR , AT THE LATEST , 27 OCTOBER 1978 . IT SHOULD BE OBSERVED THAT IT HAS BEEN IMPOSSIBLE TO CLARIFY WHETHER THAT QUOTA WAS INTENDED TO BE CAUGHT DURING THE PERIOD THUS DEFINED , AS SEEMS TO FOLLOW FROM THE BRITISH GOVERNMENT ' S NOTIFICATION , OR WHETHER IT IS THE TOTAL QUOTA FOR THE WHOLE FISHING SEASON , AS EXPLAINED AT THE HEARING BY THE UNITED KINGDOM .

21 THE COMMISSION DID NOT GIVE ITS APPROVAL TO THE MEASURE NOTIFIED BY THE UNITED KINGDOM . THAT MEASURE WAS BROUGHT INTO FORCE BY THE HERRING ( RESTRICTION OF FISHING ) REGULATIONS ( NORTHERN IRELAND ) 1978 S.R . 1978 NO 277 , IN ACCORDANCE WITH THE TEXT NOTIFIED TO THE COMMISSION . THE EXCEPTION PROVIDED FOR IN THOSE RULES WAS REVOKED BY THE HERRING ( RESTRICTION OF FISHING ) ( AMENDMENT ) REGULATIONS ( NORTHERN IRELAND ) 1978 , S.R . 1978 NO 286 , WHICH CAME INTO OPERATION ON 26 SEPTEMBER 1978 . IT FOLLOWS FROM THE EXPLANATIONS OF THE UNITED KINGDOM GOVERNMENT THAT AT THAT DATE THE 400-TONNE CATCH QUOTA HAD BEEN EXHAUSTED .

22 THE COMMISSION ' S COMPLAINTS , AS SET OUT IN THE REASONED OPINION AND THE APPLICATION , ESSENTIALLY CONCERN THE PROCEDURE FOLLOWED BY THE UNITED KINGDOM FOR THE PURPOSE OF INTRODUCING THE MEASURE DESCRIBED ABOVE AND THE PROVISIONS OF THAT MEASURE . THE COMMISSION CONSIDERS THAT BY NOTIFYING ON 18 SEPTEMBER A MEASURE INTENDED TO COME INTO OPERATION THE FOLLOWING DAY THE GOVERNMENT OF THE UNITED KINGDOM CANNOT BE CONSIDERED SERIOUSLY TO HAVE SOUGHT THE COMMISSION ' S APPROVAL IN ACCORDANCE WITH ANNEX VI TO THE HAGUE RESOLUTION . IT CLAIMS THAT THIS CONDUCT IS ALL THE MORE UNACCEPTABLE SINCE IT IS COMMON KNOWLEDGE THAT ON 7 JULY 1978 THE MINISTER FOR FISHERIES MADE A STATEMENT TO THE HOUSE OF COMMONS FROM WHICH IT EMERGES THAT AT THAT DATE THE MEASURE NOTIFIED ON 18 SEPTEMBER 1978 WAS ALREADY IN PREPARATION . WITH REGARD TO THE DETAILS OF THE MEASURE ADOPTED , THE COMMISSION CONSIDERS THAT AN EXEMPTION FOR A SPECIFIC REGION OF THE COAST OF NORTHERN IRELAND , EVEN IF LIMITED TO A TOTAL CATCH OF 400 TONNES , WAS DIRECTLY CONTRARY TO CONSERVATION NEEDS AND THAT , MOREOVER , THE REFERENCE IN THE HERRING ( RESTRICTION OF FISHING ) REGULATIONS ( NORTHERN IRELAND ) 1978 , S.R . 1978 NO 277 , TO THE MAXIMUM LENGTH OF THE FISHING BOATS WAS MANIFESTLY DISCRIMINATORY IN THAT THAT EXEMPTION WAS DELIBERATELY DEFINED SO AS TO BENEFIT EXCLUSIVELY THE SMALL BOATS CHARACTERISTIC OF COASTAL FISHING .

23 AS REGARDS THE INTERMEDIATE PERIOD BETWEEN THE EXPIRY OF THE COMMUNITY CONSERVATION MEASURE ON 31 JANUARY 1978 AND THE MEASURE ADOPTED IN SEPTEMBER 1978 BY THE UNITED KINGDOM , THE COMMISSION STATES THAT , ACCORDING TO THE FINDINGS OF THE INTERNATIONAL COUNCIL FOR THE EXPLORATION OF THE SEA , OF A STOCK ESTIMATED AT 6 900 TONNES OF HERRING AT THE BEGINNING OF 1978 , A TOTAL OF 2 350 TONNES , IN OTHER WORDS , MORE THAN ONE-THIRD OF THE STOCK , HAD BEEN CAUGHT BESIDES THE ADDITIONAL CATCH OF 400 TONNES PERMITTED BY THE UNITED KINGDOM GOVERNMENT . IN VIEW OF THESE STATEMENTS , THE COURT ASKED THE COMMISSION TO INDICATE ON EXACTLY WHAT DATE IN 1978 A FISHING BAN IN THAT ZONE SHOULD HAVE BEEN INTRODUCED . IN REPLY TO THAT QUESTION , THE COMMISSION STATED THAT THE ZONE SHOULD HAVE BEEN CLOSED AS SOON AS POSSIBLE AFTER THE EXPIRY OF THE COMMUNITY REGULATION AND THE DIFFERENCE OF OPINION WHICH BECAME CLEAR WITHIN THE COUNCIL , ON 31 JANUARY 1978 . THE FACT THAT ANOTHER MEMBER STATE CONCERNED WAS ABLE TO TAKE SUCH A MEASURE AS EARLY AS 6 FEBRUARY WITH THE AGREEMENT OF THE COMMISSION SHOWS THAT THE UNITED KINGDOM COULD HAVE ACTED IN THE SAME WAY DURING THE MONTH OF FEBRUARY . THE COMMISSION CONSIDERS , AS A RESULT , THAT THE UNITED KINGDOM HAD A LEGAL DUTY UNDER COMMUNITY LAW TO PROHIBIT ALL DIRECT FISHING FOR HERRING IN THE MOURNE FISHERY ON 6 FEBRUARY 1978 AT THE LATEST .

24 THE GOVERNMENT OF THE UNITED KINGDOM DOES NOT CONTEST THE ACTUAL EXISTENCE OF THE CATCHES IN THE MOURNE FISHERY DURING 1978 BUT CLAIMS THAT THE FIGURES GIVEN BY THE COMMISSION RELATE TO THE WHOLE FISHERY SO THAT ONLY PART OF THE TONNAGE GIVEN WAS CAUGHT IN THE PART ALONG THE COAST OF THE UNITED KINGDOM , THE REMAINDER HAVING BEEN CAUGHT OFF THE COAST OF IRELAND AND IN THE NORTH PART OF THE IRISH SEA . AS REGARDS THE MEASURE INTRODUCED IN SEPTEMBER 1978 , THE UNITED KINGDOM EXPLAINS THAT URGENT ACTION WAS NECESSARY BECAUSE AT THAT TIME THE BRITISH AUTHORITIES HAD ESTABLISHED THAT TRAWLERS HAD ENTERED THE FISHING ZONE IN QUESTION . THE BRITISH GOVERNMENT CLAIMS , WITH REGARD TO THE EXEMPTION FOR A QUOTA OF 400 TONNES FOR FISHING BOATS UNDER 35 FEET REGISTERED LENGTH , THAT THIS WAS MERELY AN INTERIM MEASURE INTENDED TO PROTECT THE INTERESTS OF SMALL COASTAL FISHERMEN AFFECTED BY THE CONSEQUENCES OF THE TOTAL CLOSURE OF THE FISHERY . IT CLAIMS THAT INTERIM MEASURES OF THIS KIND ARE MOREOVER TO BE FOUND IN THE COMMUNITY REGULATIONS THEMSELVES .

25 THE COURT CONSIDERS THAT THERE ARE SEVERAL FACTORS WHICH , WHEN TAKEN TOGETHER , LEAD TO THE CONCLUSION THAT THE UNITED KINGDOM WAS UNDER A DUTY TO TAKE CONSERVATION MEASURES IN THE ZONE IN QUESTION . SO FAR AS THE FACTS ARE CONCERNED IT IS NOT IN DISPUTE THAT ACCORDING TO THE AVAILABLE SCIENTIFIC OPINIONS RECOGNIZED BY ALL PARTIES A TOTAL BAN ON FISHING WAS REQUIRED FOR THE CONSERVATION OF THE MOURNE STOCK . FROM THE POINT OF VIEW OF LAW THE DUTY OF MEMBER STATES HAVING JURISDICTION IN THIS FISHING ZONE MAY BE DEDUCED FROM THE LEGAL PROVISIONS MENTIONED ABOVE WHEN READ TOGETHER . THUS BOTH ARTICLE 102 OF THE ACT OF ACCESSION AND COUNCIL REGULATION ( EEC ) NO 101/76 , IN PARTICULAR ARTICLE 4 THEREOF , IN THE SAME WAY AS ANNEX VI TO THE HAGUE RESOLUTION AND THE COUNCIL DECLARATION OF 31 JANUARY 1978 , ARE BASED ON THE TWOFOLD ASSUMPTION THAT MEASURES MUST BE ADOPTED IN THE MARITIME WATERS FOR WHICH THE COMMUNITY IS RESPONSIBLE SO AS TO MEET ESTABLISHED CONSERVATION NEEDS AND THAT IF THOSE MEASURES CANNOT BE INTRODUCED IN GOOD TIME ON A COMMUNITY BASIS THE MEMBER STATES NOT ONLY HAVE THE RIGHT BUT ARE ALSO UNDER A DUTY TO ACT IN THE INTERESTS OF THE COMMUNITY . ALTHOUGH THE TWO COUNCIL RESOLUTIONS MENTIONED ABOVE EMPHASIZE ABOVE ALL THE REQUIREMENT THAT NATIONAL CONSERVATION MEASURES SHOULD NOT GO BEYOND WHAT IS STRICTLY NECESSARY , AT THE SAME TIME THEY IMPLY , HAVING REGARD TO THE RULES IN FORCE UNTIL 31 JANUARY 1978 , TO THE OBJECTIVES OF THOSE RULES AND TO THE GENERAL DUTIES LAID DOWN IN ARTICLE 5 OF THE TREATY , RECOGNITION OF THE NEED FOR AND THE LAWFULNESS OF CONSERVATION MEASURES JUSTIFIED FROM THE BIOLOGICAL POINT OF VIEW AND DESIGNED SO AS TO BE NOT ONLY TO THE PARTICULAR ADVANTAGE OF THE MEMBER STATE CONCERNED BUT IN THE COLLECTIVE INTERESTS OF THE COMMUNITY .

26 AS THE COMMISSION HAS NOT SUBMITTED ANY FORMAL CONCLUSIONS ON THE QUESTION FROM WHAT DATE IN 1978 THE CLOSURE OF THE FISHING ZONE IN QUESTION SHOULD HAVE TAKEN EFFECT , THE COURT WILL MERELY EXAMINE THE COMPATIBILITY WITH THE REQUIREMENTS OF COMMUNITY LAW OF THE MEASURE INTRODUCED BY THE UNITED KINGDOM AS FROM 20 SEPTEMBER 1978 . THE PRINCIPLE UNDERLYING THIS MEASURE CANNOT BE CRITICIZED SINCE IT ACKNOWLEDGES , ALBEIT BELATEDLY , THE UNITED KINGDOM ' S DUTY TO INTRODUCE IN THIS FISHING ZONE A CONSERVATION MEASURE APPROPRIATE TO THE SERIOUSNESS OF THE DANGER TO THE EXISTENCE OF THE FISH STOCKS IN QUESTION .

27 ON THE OTHER HAND , THE FACT THAT COASTAL FISHERMEN FROM NORTHERN IRELAND WERE PERMITTED TO TAKE FROM THAT STOCK AN ADDITIONAL CATCH OF 400 TONNES , IRRESPECTIVE OF THE PERIOD AT WHICH THIS WAS DONE , COMPROMISES A CONSERVATION NEED THE ACTUAL EXISTENCE AND SERIOUSNESS OF WHICH ARE BEYOND ALL QUESTION . SINCE THE MEASURE CLOSING THE FISHERY ADOPTED IN SEPTEMBER 1978 WAS ALREADY BELATED , IN VIEW OF THE SITUATION WHICH HAD BEEN ASCERTAINED , THIS ADDITIONAL CONCESSION CANNOT BE JUSTIFIED EITHER AS AN ' ' INTERIM MEASURE ' ' . AS THE COMMISSION HAS CORRECTLY OBSERVED IN THE REASONED OPINION , IT WOULD HAVE BEEN POSSIBLE TO ADOPT INTERIM MEASURES IN FAVOUR OF THE FISHERMEN IN QUESTION , AS FOR OTHER FISHERMEN IN THE COMMUNITY , IF THE UNITED KINGDOM HAD RAISED THIS QUESTION IN DUE TIME WITHIN A COMMUNITY PROCEDURE AND IN ACCORDANCE WITH THE PRINCIPLES RECALLED ABOVE . IN THIS INSTANCE , IT IS CLEAR THAT THE PURPOSE AND EFFECT OF RESERVING THAT CONCESSION TO FISHING BOATS OF UNDER 35 FEET REGISTERED LENGTH WAS TO RESERVE TO THE COASTAL FISHERY OF THE MEMBER STATE IN QUESTION A MEASURE WHICH WAS IN ITSELF INCOMPATIBLE WITH RECOGNIZED CONSERVATION NEEDS . THE COURT WOULD REFER IN THIS CONNEXION TO THE CONSIDERATIONS SET OUT IN PARAGRAPHS 69 TO 80 OF ITS DECISION IN THE JUDGMENT OF 16 FEBRUARY 1978 ( COMMISSION OF THE EUROPEAN COMMUNITIES V IRELAND ), SUPRA , WHICH RELATE TO A SIMILAR MEASURE .

28 FINALLY , IT IS NECESSARY TO OBSERVE THAT THE PROCEDURE USED IN THIS INSTANCE BY THE UNITED KINGDOM WAS NOT IN ACCORDANCE WITH THE REQUIREMENTS LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION . THE FACT THAT A DRAFT MEASURE , THE DETAILS OF WHICH CLEARLY RAISED PROBLEMS FROM THE POINT OF VIEW OF COMMUNITY LAW , WAS SUBMITTED TO THE COMMISSION AT A DAY ' S NOTICE AFTER A LONG PERIOD DURING WHICH THE UNITED KINGDOM HAD FAILED TO ACT CANNOT BE CONSIDERED AS BEING IN ACCORDANCE WITH THE DUTIES LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION WHICH REQUIRES THAT THE COMMISSION SHOULD BE CONSULTED AT ALL STAGES OF THE DRAWING-UP OF PROPOSED MEASURES ALLOWING FOR THE NECESSARY TIME TO STUDY THOSE MEASURES AND TO GIVE ITS OPINION IN GOOD TIME . IN THE CIRCUMSTANCES , THE METHODS ADOPTED BY THE BRITISH GOVERNMENT AMOUNT TO A FAIT ACCOMPLI AND CANNOT THEREFORE BE CONSIDERED TO BE IN ACCORDANCE WITH THE REQUIREMENTS OF COMMUNITY LAW .

29 FOR ALL THESE REASONS , IT IS THEREFORE NECESSARY TO DECLARE THAT BOTH BECAUSE OF THE PROCEDURE USED AND BECAUSE OF THE EXEMPTION ATTACHED TO THE PROHIBITION INTRODUCED ON 20 SEPTEMBER 1978 THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

THE ISLE OF MAN AND NORTHERN IRISH SEA FISHERY

30 THE FISHING ZONE IN QUESTION , WHICH CORRESPONDS TO DIVISION VII ( A ) DEFINED BY THE INTERNATIONAL COUNCIL FOR THE EXPLORATION OF THE SEA , THE EXACT BOUNDARIES OF WHICH ARE IRRELEVANT FOR THE SOLUTION OF THE DISPUTE , IS SITUATED IN THE IRISH SEA MIDWAY BETWEEN GREAT BRITAIN AND IRELAND ; THE ISLE OF MAN FISHERY , WHICH IS SUBJECT TO SPECIAL RULES , IS FORMED BY A 12-MILE BELT AROUND THE ISLAND IN THE IRISH SEA .

31 BY REGULATION NO 1779/77 OF 2 AUGUST 1977 LAYING DOWN INTERIM CONSERVATION AND MANAGEMENT MEASURES FOR HERRING FISHING IN THE IRISH SEA ( OFFICIAL JOURNAL L 196 , P . 4 ), THE COUNCIL HAD LAID DOWN FOR 1977 CERTAIN CONSERVATION AND MANAGEMENT MEASURES FOR THE HERRING STOCKS IN THE ZONE IN QUESTION . THESE MEASURES INCLUDED A SEASONAL PROHIBITION ON FISHING , FROM 1 OCTOBER TO 19 NOVEMBER 1977 , IN ISLE OF MAN WATERS AND IN THOSE WATERS BETWEEN THE ISLE OF MAN AND THE WEST COAST OF THE UNITED KINGDOM ( ARTICLE 1 ), THE FIXING OF A TOTAL FISHING QUOTA OF 13 200 TONNES FOR THE WHOLE OF THE IRISH SEA , DIVIDED BETWEEN FRANCE , IRELAND , THE NETHERLANDS AND THE UNITED KINGDOM ( ARTICLE 2 ), AND A PROVISION RELATING TO BY-CATCHES OF HERRING ( ARTICLE 3 ). UNDER ARTICLE 4 , THE MEMBER STATES WERE TO TAKE ' ' AS FAR AS POSSIBLE , ALL NECESSARY STEPS TO ENSURE COMPLIANCE WITH THE PROVISIONS OF THIS REGULATION ' ' . THE RECITALS OF THE PREAMBLE TO THAT REGULATION RECALL THE SPECIAL CONDITIONS UNDER WHICH THE TREATY APPLIES TO THE ISLE OF MAN UNDER ARTICLE 227 ( 5 ) ( C ) OF THE TREATY AND PROTOCOL 3 OF THE ACT OF ACCESSION .

32 ON 8 AUGUST 1977 , THE UNITED KINGDOM INTRODUCED TWO ORDERS , THE HERRING ( IRISH SEA ) LICENSING ORDER 1977 , S.I . 1977 NO 1388 , AND THE HERRING ( ISLE OF MAN ) LICENSING ORDER 1977 , S.I . 1977 NO 1389 . THESE TWO ORDERS MAY BE CONSIDERED AS IMPLEMENTING REGULATION NO 1779/77 IN THE UNITED KINGDOM . IT SHOULD BE OBSERVED THAT THE TWO ORDERS MENTIONED ARE LISTED AMONG THE MEASURES IN FORCE ON 31 JANUARY 1978 AND MAINTAINED DURING 1978 WHICH WERE NOTIFIED TO THE COMMISSION AFTER THE FAILURE OF THE COUNCIL NEGOTIATIONS ON 30 AND 31 JANUARY 1978 , AS INDICATED ABOVE .

33 THE PURPOSE OF THE TWO ORDERS IS TO PROHIBIT FISHING FOR HERRING IN THE MARITIME ZONES IN QUESTION , EXCEPT FOR FISHERMEN WITH A LICENCE ISSUED , AS REGARDS THE IRISH SEA , BY THE GOVERNMENT OF THE UNITED KINGDOM , AND , AS REGARDS ISLE OF MAN WATERS , BY THE BOARD OF AGRICULTURE AND FISHERIES OF THAT ISLAND . THE TWO ORDERS DO NOT CONTAIN ANY OTHER INDICATIONS AS TO THE CONDITIONS IN WHICH THOSE LICENCES ARE ISSUED , THE RIGHTS WHICH THEY CONFER AND THE DUTIES LINKED TO THEIR ISSUE . THEY THUS LEAVE COMPLETE DISCRETION TO THE COMPETENT AUTHORITIES AS REGARDS THE ISSUE OF THE LICENCES AND THEIR SCOPE . IT FOLLOWS FROM SPECIMEN APPLICATIONS FOR A LICENCE AND LICENCES ISSUED UNDER THE ORDERS MENTIONED ABOVE WHICH HAVE BEEN SUBMITTED BY THE COMMISSION AND WHOSE AUTHENTICITY IS NOT IN DISPUTE THAT THOSE LICENCES CONTAINED RESTRICTIONS AS TO THE PERIOD OF THE FISHING SEASONS AND INDICATED A CERTAIN NUMBER OF PORTS IN WHICH THE CATCHES WERE TO BE LANDED . THOSE LICENCES WERE IN ADDITION MADE SUBJECT TO ANY OTHER CONDITIONS WHICH MIGHT BE NOTIFIED VERBALLY OR IN WRITING BY THE COMPETENT AUTHORITIES .

34 THE APPLICATION OF THIS LICENSING SYSTEM WAS THE SUBJECT-MATTER OF NEGOTIATIONS BETWEEN THE IRISH AUTHORITIES , ON THE ONE HAND , AND THE UNITED KINGDOM AND ISLE OF MAN AUTHORITIES , ON THE OTHER , ACCORDING TO INFORMATION COMMUNICATED BY THE COMMISSION AND IRELAND . THESE NEGOTIATIONS , WHICH WERE LARGELY VERBAL , DID NOT RESULT IN AN ARRANGEMENT SATISFACTORY TO THE IRISH AUTHORITIES . THE RESULT OF THIS WAS , AND THIS FACT DOES NOT SEEM TO BE CONTESTED , THAT NO LICENCES WERE ISSUED IN 1977 OR 1978 TO IRISH FISHERMEN .

35 IN ITS PROPOSALS FOR 1978 , THE COMMISSION HAD PROVIDED WITH REGARD TO THIS ZONE FOR A TOTAL CATCH SOMEWHAT REDUCED BY COMPARISON WITH THAT ALLOWED IN 1977 , WHILST PROPOSING A SLIGHT INCREASE IN THE FRENCH , IRISH AND NETHERLANDS QUOTAS COMPENSATED FOR BY AN EQUIVALENT REDUCTION IN THE UNITED KINGDOM QUOTA .

36 IT IS CLEAR FROM THE FILE THAT IN 1977 THE UNITED KINGDOM HAD NOT GIVEN ANY INFORMATION TO THE COMMISSION ON THE MEASURES ADOPTED FOR THE IMPLEMENTATION OF THE COMMUNITY RULES THEN IN FORCE . DISCUSSIONS TOOK PLACE BETWEEN THE COMMISSION AND THE BRITISH GOVERNMENT DURING THE FIRST HALF OF 1978 , MAINLY ON THE SUBJECT OF A POSSIBLE REDUCTION IN THE TOTAL CATCH QUOTA IN RELATION TO THE PROPOSALS INTRODUCED BY THE COMMISSION , AS THE RESULT OF A RECOMMENDATION MADE BY THE INTERNATIONAL COUNCIL FOR THE EXPLORATION OF THE SEA . ON 17 AUGUST 1978 , THE GOVERNMENT OF THE UNITED KINGDOM SUBMITTED TO THE COMMISSION , PURSUANT TO ANNEX VI TO THE HAGUE RESOLUTION , A DRAFT MEASURE INTENDED TO COME INTO OPERATION ON 21 AUGUST 1978 . ACCORDING TO THAT NOTIFICATION THE BRITISH GOVERNMENT INTENDED TO REDUCE THE TOTAL ALLOWABLE CATCH TO 9 000 TONNES , 8 100 TONNES OF WHICH WOULD BE RESERVED TO UNITED KINGDOM AND ISLE OF MAN FISHERMEN . THE APPLICATION OF THIS RESTRICTION WAS TO BE CONTROLLED BY LICENCES , IT BEING UNDERSTOOD THAT 120 LICENCES WOULD BE GRANTED TO UNITED KINGDOM FISHING BOATS . THE BRITISH GOVERNMENT ANNOUNCED IN ADDITION ITS INTENTION OF CLOSING THE FISHERY FROM 24 SEPTEMBER TO 31 DECEMBER 1978 , OR EVEN BEFORE 24 SEPTEMBER IF THE 9 000-TONNE LIMIT HAD BEEN REACHED BEFORE THAT DATE . THE NOTIFICATION DID NOT CONTAIN ANY INFORMATION AS TO THE RIGHTS OF FISHERMEN OF OTHER MEMBER STATES ; THE ONLY INFORMATION GIVEN IN THIS CONNEXION RELATED TO THE FACT THAT THE BRITISH GOVERNMENT HAD ALREADY CONTACTED THE GOVERNMENTS OF IRELAND , THE NETHERLANDS AND FRANCE ON THIS MATTER WITH A VIEW TO OBTAINING THEIR COOPERATION . THE COMMISSION REPLIED IMMEDIATELY TO THE UNITED KINGDOM THAT IT WAS IMPOSSIBLE FOR IT TO ADOPT A VIEWPOINT IN SUCH A SHORT TIME AND THAT IT REQUESTED ADDITIONAL INFORMATION . IN A SUBSEQUENT COMMUNICATION , IT REQUESTED THAT THE FISHERY SHOULD NOT BE CLOSED BEFORE 1 OCTOBER .

37 ON 20 SEPTEMBER 1978 , THE UNITED KINGDOM INTRODUCED THE IRISH SEA HERRING ( PROHIBITION OF FISHING ) ORDER 1978 , S.I . 1978 NO 1374 , PROHIBITING FISHING FOR HERRING AS FROM 24 SEPTEMBER 1978 THROUGHOUT THE IRISH SEA .

38 THE COMMISSION ' S COMPLAINTS , IN THE LAST STAGE OF THE PROCEDURE , RELATE PRIMARILY TO THE FACT THAT THE COMMISSION AND THE MEMBER STATES CONCERNED WERE NOT DULY INFORMED , EITHER IN 1977 OR IN 1978 , OF THE TRUE EXTENT OF THE SYSTEM OF RESTRICTION AND MANAGEMENT OF FISHING AS RESULTED FROM THE APPLICATION OF THE LICENSING SYSTEM BROUGHT INTO FORCE FROM 1977 . MORE PARTICULARLY , THE COMMISSION CLAIMS THAT THE LICENSING SYSTEM HAS BEEN APPLIED SO THAT IRISH FISHERMEN WISHING TO EXERCISE THEIR HISTORIC RIGHTS IN ISLE OF MAN WATERS WERE SUBJECT TO A RESTRICTION ON THEIR FISHING ACTIVITIES IN UNITED KINGDOM WATERS BY CONDITIONS ATTACHED TO THE ISSUE OF THE LICENCES . THE PRACTICAL RESULT OF THIS SYSTEM WAS TO OUST IRISH FISHERMEN FROM A FISHING ZONE IN WHICH THEY HAD TRADITIONALLY CARRIED ON THEIR ACTIVITIES . THE COMMISSION COMPLAINS IN ADDITION THAT THE UNITED KINGDOM HAS , BY BRINGING FORWARD THE CLOSURE OF THE FISHING SEASON , CAUSED DAMAGE TO THE FISHERMEN OF OTHER MEMBER STATES , IN PARTICULAR FRENCH AND NETHERLANDS FISHERMEN , BY SHORTENING THE PERIOD DURING WHICH THEY TRADITIONALLY FISHED IN THE WATERS IN QUESTION , AND HAS THUS BENEFITED ITS OWN FISHING INDUSTRY IN RESPECT OF THE QUOTA IN QUESTION . FINALLY , THE COMMISSION POINTS OUT THE FACT THAT BY MAKING IT PRACTICALLY IMPOSSIBLE , BY THE LICENSING SYSTEM , TO LAND FISH IN THE ISLE OF MAN , THE UNITED KINGDOM HAS BLOCKED OFF FROM IRISH FISHERMEN A MARKET WHICH IS PARTICULARLY REMUNERATIVE AND HAS THUS VIOLATED THE RULE OF THE FREE MOVEMENT OF GOODS WHICH UNDOUBTEDLY APPLIES ALSO TO THE ISLE OF MAN .

39 THE COMMISSION ' S ARGUMENTS HAVE BEEN SUPPORTED BY THE FRENCH , IRISH AND NETHERLANDS GOVERNMENTS . THE FRENCH GOVERNMENT EMPHASIZES THE DISCRIMINATORY NATURE OF THE MEASURES ADOPTED BY THE UNITED KINGDOM IN THAT IT GAVE ITS OWN FISHERMEN AN EXCESSIVE PROPORTION OF THE TOTAL CATCHES BY BRINGING FORWARD THE PERIOD OF THE BAN FROM 1 OCTOBER TO 24 SEPTEMBER ; THIS MEASURE AFFECTED MORE PARTICULARLY NON-BRITISH FISHERMEN . THE IRISH GOVERNMENT AGREES WITH THE COMMISSION ' S ANALYSIS OF THE EFFECTS OF THE LICENSING SYSTEM ON IRISH FISHERMEN WHO WERE OBLIGED , IF THEY WISHED TO EXERCISE THEIR HISTORIC RIGHTS IN ISLE OF MAN WATERS , TO ACCEPT LICENCES THE EFFECT OF WHICH WAS TO REDUCE TO A MINIMUM THE AMOUNT OF THEIR CATCHES THROUGHOUT THE IRISH SEA . THE THREAT OF SANCTIONS WHICH MIGHT BE APPLIED BY THE UNITED KINGDOM AGAINST FISHERMEN WITHOUT A LICENCE PREVENTED THEM FROM FISHING AT ALL IN THE FISHING ZONE IN QUESTION . FINALLY , THE GOVERNMENT OF THE NETHERLANDS CLAIMS THAT THE INTERESTS OF NETHERLANDS FISHERMEN WERE ADVERSELY AFFECTED BY THE BRITISH MEASURES IN TWO WAYS , ON THE ONE HAND BECAUSE THE FISHING QUOTAS APPLIED UNILATERALLY BY THE UNITED KINGDOM CONSIDERABLY REDUCED THE PROPORTION RESERVED TO MEMBER STATES OTHER THAN THE UNITED KINGDOM , AND ON THE OTHER BECAUSE BRINGING FORWARD THE DATE OF CLOSURE OF THE FISHING SEASON ADVERSELY AFFECTED PRIMARILY NETHERLANDS FISHERMEN WHOSE FISHING IS CONCENTRATED PRECISELY IN THAT SEASON .

40 IN ITS DEFENCE , THE UNITED KINGDOM CLAIMS THAT THE LICENSING SYSTEM CANNOT BE CONTESTED IN ITSELF SINCE IT CONSTITUTES A PARTICULARLY EFFECTIVE MEANS OF ENSURING THAT THE FISHING RESTRICTIONS EXISTING IN THE REGION IN QUESTION ARE BEING OBSERVED . SINCE THE LICENSING ORDERS WERE ADOPTED IN IMPLEMENTATION OF REGULATION NO 1779/77 , THE UNITED KINGDOM WAS UNDER NO OBLIGATION TO NOTIFY THEM UNDER ARTICLES 2 AND 3 OF REGULATION NO 101/76 OR TO SEEK THE COMMISSION ' S APPROVAL OF THEM UNDER ANNEX VI TO THE HAGUE RESOLUTION , SINCE THE TWO NATIONAL MEASURES IN QUESTION WERE ONLY APPLICABLE TO UNITED KINGDOM AND ISLE OF MAN FISHING BOATS . AS FOR THE MEASURES LAID DOWN BY THE COMMISSION FOR 1978 , THE EFFECT OF WHICH WAS TO FIX A TOTAL CATCH HIGHER THAN THAT RECOMMENDED BY THE INTERNATIONAL COUNCIL FOR THE EXPLORATION OF THE SEA AND TO REDUCE RELATIVELY , AS COMPARED WITH THE PREVIOUS YEAR , THE QUOTA RESERVED TO THE UNITED KINGDOM , THE BRITISH GOVERNMENT WAS UNABLE TO GIVE ITS AGREEMENT . THE BRITISH GOVERNMENT CONTESTS THE EXISTENCE OF ANY THREAT TO IRISH FISHERMEN WHO FISHED IN UNITED KINGDOM WATERS WITHOUT LICENCES SINCE THOSE LICENCES WERE ONLY REQUIRED FOR UNITED KINGDOM AND ISLE OF MAN FISHING BOATS . PROCEEDINGS COULD NOT BE BROUGHT AGAINST THE UNITED KINGDOM ONLY BECAUSE OF AN INTENTION ATTRIBUTED TO IT . FINALLY , WITH REGARD TO THE BRINGING FORWARD OF THE DATE OF CLOSURE OF THE FISHING SEASON TO 24 SEPTEMBER 1978 , THE BRITISH GOVERNMENT CLAIMS THAT IT WAS AN APPROPRIATE CONSERVATION MEASURE WHICH WAS STRICTLY NECESSARY AND APPLIED WITHOUT ANY DISCRIMINATION , AND THAT IT HAD BEEN DULY NOTIFIED TO THE COMMISSION WHOSE APPROVAL HAD BEEN SOUGHT .

41 THE GOVERNMENT OF THE UNITED KINGDOM ALSO DRAWS ATTENTION TO THE SPECIAL CONSTITUTIONAL POSITION OF THE ISLE OF MAN , WHICH DOES NOT FORM PART OF THE UNITED KINGDOM PROPERLY SPEAKING . UNDER ARTICLE 227 ( C ) OF THE EEC TREATY , AS AMENDED UPON THE ACCESSION OF THE UNITED KINGDOM , THE PROVISIONS OF THE TREATY APPLY TO THE ISLE OF MAN ONLY TO THE EXTENT NECESSARY TO ENSURE THE IMPLEMENTATION OF THE ARRANGEMENTS SET OUT IN THE ACCESSION TREATY . THE SPECIAL RELATIONSHIP BETWEEN THAT ISLAND AND THE COMMUNITY HAS BEEN DEFINED IN PROTOCOL NO 3 ANNEXED TO THE ACT OF ACCESSION . IT IS CLEAR FROM THAT PROTOCOL THAT ONLY THE PROVISIONS RELATING TO THE FREE MOVEMENT OF GOODS ARE APPLICABLE IN RELATIONS WITH THE ISLE OF MAN SO THAT THE MEASURES ADOPTED BY THE COMMUNITY RELATING TO THE PROTECTION OF FISH STOCKS DO NOT EXTEND TO THAT TERRITORY AND TO THE WATERS UNDER ITS JURISDICTION .

42 THE COMMISSION DOES NOT ACCEPT THIS POINT OF VIEW . IN VIEW OF THE CLOSE LINK AS REGARDS FISHERIES BETWEEN THE ORGANIZATION OF THE MARKET AND STRUCTURAL MEASURES , IT CONSIDERS THAT PROTOCOL NO 3 MUST BE INTERPRETED AS MEANING THAT THE CONSERVATION MEASURES ADOPTED BY THE COMMUNITY ARE ALSO APPLICABLE TO ISLE OF MAN WATERS .

43 IT DOES NOT SEEM NECESSSARY TO CONSIDER THE CONSTITUTIONAL POSITION OF THE ISLE OF MAN AND THE RELATIONSHIP OF THAT TERRITORY TO THE COMMUNITY . IN FACT , IT IS CLEAR FROM THE VERY WORDING OF THE ORDER IN QUESTION THAT IT WAS ADOPTED UNDER THE LEGISLATION OF THE UNITED KINGDOM BY THE BRITISH GOVERNMENT , SO THAT THE UNITED KINGDOM MUST TAKE RESPONSIBILITY FOR THAT MEASURE VIS-A-VIS THE COMMUNITY . HAVING MADE THIS PRELIMINARY REMARK , THE COURT WILL EXAMINE SEPARATELY BELOW THE SITUATION IN 1977 , IN WHICH COMMUNITY CONSERVATION MEASURES EXISTED , AND THE SITUATION IN 1978 , IN WHICH THERE WERE NO SUCH MEASURES .

THE ARRANGEMENTS APPLYING IN 1977

44 DURING 1977 , THE MARITIME ZONE IN QUESTION WAS GOVERNED BY REGULATION NO 1779/77 WHICH , AS RECALLED ABOVE , INVOLVED THE FIXING OF CATCH QUOTAS AND A SEASONAL FISHING BAN FROM 1 OCTOBER TO 19 NOVEMBER 1977 IN A LIMITED ZONE COVERING THE ISLE OF MAN WATERS AND THE WATERS BETWEEN THAT ISLAND AND THE COAST OF GREAT BRITAIN .

45 UNDER ARTICLE 4 OF THAT REGULATION , MEMBER STATES WERE UNDER A DUTY TO TAKE THE MEASURES NECESSARY TO ENSURE THAT THOSE PROVISIONS WERE COMPLIED WITH . THE UNITED KINGDOM HAS RAISED THE QUESTION WHETHER THE DUTY TO CONSULT THE COMMISSION AND TO SEEK ITS APPROVAL APPLIES TO MEASURES OF THAT KIND . AS THE COURT HAS STATED IN PARAGRAPH 11 OF THE DECISION IN ITS JUDGMENT OF 4 OCTOBER 1979 IN CASE 141/78 , FRENCH REPUBLIC V UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND , THAT DUTY IS GENERAL AND APPLIES TO ANY MEASURES OF CONSERVATION EMANATING FROM THE MEMBER STATES AND NOT FROM THE COMMUNITY AUTHORITIES . CONSEQUENTLY , THE MEASURES ADOPTED BY A MEMBER STATE IN IMPLEMENTATION OF A COMMUNITY REGULATION ARE NOT EXEMPTED FROM THE DUTY OF CONSULTATION LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION AS WELL AS FROM THE DUTY OF NOTIFICATION LAID DOWN IN ARTICLES 2 AND 3 OF REGULATION NO 101/76 . THE REASON FOR THIS TWOFOLD DUTY IS PARTICULARLY EVIDENT IN VIEW OF THE MEASURES ADOPTED BY THE UNITED KINGDOM , WHICH CONSISTED IN BRINGING INTO FORCE A LICENSING SYSTEM THE APPLICATION OF WHICH WAS ENTIRELY AT THE DISCRETION OF THE UNITED KINGDOM AND ISLE OF MAN AUTHORITIES .

46 IT APPEARS THEREFORE THAT THE UNITED KINGDOM HAS NOT , BY BRINGING INTO FORCE THAT LICENSING SYSTEM , ENTIRELY FULFILLED ITS OBLIGATIONS UNDER THE ABOVE-MENTIONED PROVISIONS IN CONJUNCTION WITH ARTICLE 4 OF REGULATION NO 1779/77 . IN ORDER TO SAFEGUARD THE RIGHTS AND INTERESTS PROTECTED BY COMMUNITY LAW FOR OTHER MEMBER STATES AND THEIR NATIONALS IT WAS NECESSARY TO LAY DOWN AND PUBLISH ALL THE DETAILED RULES FOR THE IMPLEMENTATION OF THE SYSTEM CHOSEN BY THE BRITISH AUTHORITIES FOR THE IMPLEMENTATION OF REGULATION NO 1779/77 SO AS TO ENABLE ALL MEMBER STATES AND ALL PERSONS CONCERNED , IN THE SAME WAY AS THE COMMUNITY AUTHORITIES , TO SEE WHETHER THE SYSTEM PUT INTO OPERATION FULFILLED BOTH THE UNITED KINGDOM ' S OBLIGATIONS UNDER THE RELEVANT REGULATION , REGULATION NO 1799/77 , AND THE GENERAL REQUIREMENTS OF NON-DISCRIMINATION AND EQUALITY AS REGARDS THE CONDITIONS OF ACCESS TO THE FISHING GROUNDS ENSHRINED IN ARTICLE 2 OF REGULATION NO 101/76 AND ARTICLE 7 OF THE EEC TREATY . THIS OBLIGATION TO INTRODUCE IMPLEMENTING MEASURES WHICH ARE EFFECTIVE IN LAW AND WITH WHICH THOSE CONCERNED MAY READILY ACQUAINT THEMSELVES IS PARTICULARLY NECESSARY WHERE SEA FISHERIES ARE CONCERNED , WHICH MUST BE PLANNED AND ORGANIZED IN ADVANCE ; THE REQUIREMENT OF LEGAL CLARITY IS INDEED IMPERATIVE IN A SECTOR IN WHICH ANY UNCERTAINTY MAY WELL LEAD TO INCIDENTS AND THE APPLICATION OF PARTICULARLY SERIOUS SANCTIONS .

47 IT FOLLOWS FROM THE FOREGOING THAT THE UNITED KINGDOM WAS IN BREACH OF THE RULES OF COMMUNITY LAW AS LONG AGO AS THE 1977 SEASON BY NOT SECURING THE IMPLEMENTATION OF REGULATION NO 1779/77 BY MEANS OF MEASURES LEGALLY DETERMINED AND PUBLISHED AND BY FAILING TO COMMUNICATE ANY INFORMATION OR , AT LEAST , SUFFICIENTLY PRECISE INFORMATION ON ITS ACTIONS IN THIS RESPECT BOTH TO THE COMMISSION AND TO OTHER MEMBER STATES DIRECTLY CONCERNED .

THE ARRANGEMENTS APPLICABLE IN 1978

48 AS REGARDS THE PROVISIONS IN FORCE DURING 1978 , IT IS NECESSARY TO POINT OUT FIRST OF ALL THAT THE UNITED KINGDOM HAS ALLOWED COMPLETE UNCERTAINTY TO CONTINUE TO EXIST AS TO THE SYSTEM OF CONSERVATION MEASURES APPLIED IN THE ZONE IN QUESTION , IN SPITE OF REPEATED REQUESTS BY THE COMMISSION FOR PRECISE INFORMATION BINDING UPON THE UNITED KINGDOM . IN PARTICULAR , THE NOTIFICATION OF 17 AUGUST 1978 BEFORE BRINGING IN FORCE THE IRISH SEA HERRING ( PROHIBITION OF FISHING ) ORDER 1978 , S.I . 1978 NO 1374 ON 20 SEPTEMBER 1978 DID NOT FULFIL THE REQUIREMENTS LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION . IN FACT , IN VIEW OF THE LONG PERIOD OF INACTIVITY BEFORE THAT NOTIFICATION , THE FACT THAT THE COMMISSION WAS SUDDENLY CONSULTED ON 17 AUGUST ABOUT MEASURES INTENDED TO BE BROUGHT INTO FORCE , ACCORDING TO THE COMMUNICATION , FOUR DAYS LATER , CANNOT BE CONSIDERED TO BE A PROCEDURE COMPLYING WITH THAT RESOLUTION . THIS IS ALL THE MORE SO SINCE THE UNITED KINGDOM ' S COMMUNICATION CONTAINS ONLY INCOMPLETE INFORMATION AS TO THE SCOPE OF THE MEASURE ENVISAGED : ITS CONTAINS NO EXPRESS JUSTIFICATION FOR THAT MEASURE IN VIEW OF CONSERVATION NEEDS AND GIVES NO INDICATIONS REGARDING THE SAFEGUARD OF THE INTERESTS OF THE OTHER MEMBER STATES CONCERNED . IN THESE CIRCUMSTANCES , THE COMMISSION WAS ENTITLED TO WITHHOLD ITS APPROVAL FOR A MEASURE WHOSE SCOPE AND JUSTIFICATION IT WAS UNABLE TO ASSESS .

49 THE MEASURE WHICH WAS IN FACT BROUGHT INTO FORCE ON 20 SEPTEMBER 1978 MERELY ORDERS THE CLOSURE OF ALL FISHING GROUNDS IN THE IRISH SEA FROM 24 SEPTEMBER 1978 . IT CONCERNS A GEOGRAPHICAL AREA DIFFERENT FROM THAT TO WHICH THE SEASONAL CLOSURE PROVIDED FOR IN ARTICLE 1 OF REGULATION NO 1779/77 APPLIED . MOREOVER , THE MEASURE ADOPTED CONTAINS NO INDICATIONS AS TO THE QUANTITY OF CATCHES AUTHORIZED OR AS TO THE DISTRIBUTION OF THOSE CATCHES BETWEEN THE FISHERMEN OF THE VARIOUS MEMBER STATES CONCERNED . THE MEASURE INTRODUCED UNILATERALLY BY THE UNITED KINGDOM THEREFORE APPRECIABLY AMENDED THE COMMUNITY CONSERVATION MEASURES IN FORCE DURING 1977 . IT IS THEREFORE CLEAR THAT THE UNITED KINGDOM UNILATERALLY PREJUDICED THE SITUATION ESTABLISHED BY COMMUNITY MEANS FOR 1977 IN THE ZONE IN QUESTION WHEN IT HAD UNDERTAKEN TO MAINTAIN THEM IN ITS COMMUNICATIONS OF 2 AND 13 FEBRUARY 1978 , SUPRA , WITHOUT BEING ABLE EITHER TO GIVE RELIABLE INFORMATION AS TO THE EFFECTS OF THE MEASURES ADOPTED OR TO JUSTIFY CONSERVATION NEEDS WHICH MIGHT WARRANT THE CHANGES INTRODUCED . IT IS THEREFORE ALSO NECESSARY TO DECLARE THAT THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY AS REGARDS THE ARRANGEMENTS APPLIED IN 1978 .

THE NORWAY POUT BOX

50 DURING 1977 , THE COUNCIL HAD THRICE ADOPTED MEASURES PROHIBITING FISHING FOR NORWAY POUT : BY ARTICLE 5 OF REGULATION NO 350/77 OF 18 FEBRUARY 1977 LAYING DOWN CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES ( OFFICIAL JOURNAL L 48 , P . 28 ), FOR THE PERIOD FROM 21 FEBRUARY TO 31 MARCH 1977 , BY REGULATION NO 1673/77 OF 25 JULY 1977 ON THE PROHIBITION ON FISHING FOR NORWAY POUT ( OFFICIAL JOURNAL L 186 , P . 30 ), FOR THE PERIOD FROM 1 SEPTEMBER TO 15 OCTOBER 1977 AND , FINALLY , BY REGULATION NO 2243/77 OF 11 OCTOBER 1977 PROHIBITING FISHING FOR NORWAY POUT ( OFFICIAL JOURNAL L 260 , P . 1 ), FOR AN ADDITIONAL PERIOD FROM 16 TO 31 OCTOBER 1977 . THE ZONE TO WHICH THAT PROHIBITION APPLIED ADJOINS THE EAST AND NORTH COASTS OF SCOTLAND ; THESE LIMITS , AS LAID DOWN IN THE REGULATIONS MENTIONED ABOVE , ARE NOT WHOLLY IDENTICAL BUT THE COMMON FEATURE OF THE MEASURES ADOPTED WAS THAT THEY DID NOT EXTEND FURTHER EAST THAN A LINE REPRESENTED BY 00* 00U LONGITUDE ( OR THE GREENWICH MERIDIAN ).

51 ON 31 OCTOBER 1977 , THE BRITISH GOVERNMENT ADOPTED THE NORWAY POUT ( PROHIBITION OF FISHING ) ( NO 3 ) ORDER 1977 , S.I . 1977 NO 1756 , PROHIBITING FISHING FOR NORWAY POUT FROM 1 NOVEMBER 1977 IN THE SAME ZONE BOUNDED TO THE EAST BY THE GREENWICH MERIDIAN . FOR ITS PART , THE COMMISSION SUBMITTED TO THE COUNCIL AT THE SAME TIME A PROPOSAL WHICH , AFTER CERTAIN AMENDMENTS AND IN ITS FINAL STATE , AIMED AT MAINTAINING THE NORWAY POUT BOX ACCORDING TO ITS FORMER DEFINITION , IN OTHER WORDS BOUNDED TO THE EAST BY 00* 00U LONGITUDE . THIS PROPOSAL SUFFERED THE SAME FATE AS ALL THE MEASURES OF FISHING POLICY PENDING BEFORE THE COUNCIL AT ITS MEETING ON 30 AND 31 JANUARY 1978 , SO THAT THERE WERE NO COMMUNITY CONSERVATION MEASURES FOR THE ZONE IN QUESTION DURING 1978 .

52 ON 3 AND 20 JULY 1978 , THE GOVERNMENT OF THE UNITED KINGDOM SUBMITTED TO THE COMMISSION , REFERRING TO THE PROCEDURE LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION , SEVERAL DRAFT CONSERVATION MEASURES , INCLUDING A PROPOSAL FOR THE SEASONAL EXTENSION , DURING THE PERIOD EVERY YEAR FROM 1 OCTOBER TO 31 MARCH OF THE FOLLOWING YEAR , OF THE NORWAY POUT BOX , EXTENDING THE EASTERN LIMIT OF THAT ZONE TO THE DIVIDING LINE BETWEEN THE UNITED KINGDOM FISHING ZONE AND THE NORWEGIAN FISHING ZONE AND , FROM THE POINTS OF INTERSECTION OF THAT DIVIDING LINE WITH 2* LONGITUDE EAST , ALONG THAT MERIDIAN . THIS INFORMATION WAS ACCOMPANIED BY THE DRAFT MEASURE PROPOSED . THE FILE DOES NOT SHOW WHETHER DENMARK , WHOSE FISHING INDUSTRY WAS DIRECTLY AFFECTED BY THE PROPOSED MEASURE , WAS INFORMED PURSUANT TO REGULATION NO 101/76 .

53 THE COMMISSION DID NOT GIVE ITS APPROVAL TO THE PROPOSED MEASURE . THAT MEASURE WAS NEVERTHELESS BROUGHT INTO FORCE IN ACCORDANCE WITH THE TERMS OF THE DRAFT NOTIFIED TO THE COMMISSION BY THE NORWAY POUT ( PROHIBITION OF FISHING ) ( NO 3 ) ( VARIATION ) ORDER 1978 , S.I . NO 1379 , INTRODUCED ON 20 SEPTEMBER 1978 AND BROUGHT INTO FORCE ON 1 OCTOBER 1978 , THE EFFECT OF WHICH IS TO EXTEND THE AREA TO WHICH THE PROHIBITION ON FISHING FOR NORWAY POUT APPLIES EASTWARDS TO THE LINE DESCRIBED ABOVE FOR A PERIOD FROM 1 OCTOBER IN EACH YEAR TO 31 MARCH OF THE FOLLOWING YEAR .

54 THE COMMISSION CONSIDERS THAT THIS MEASURE IS INCOMPATIBLE WITH COMMUNITY LAW BECAUSE IT IS NOT A TRUE CONSERVATION MEASURE BUT IN REALITY A MEASURE OF ECONOMIC POLICY WHOSE OBJECT IS TO IMPROVE THE CATCHES OF UNITED KINGDOM FISHERMEN , WHO FISH FOR HADDOCK AND WHITING IN THAT REGION , TO THE DETRIMENT OF DANISH FISHERMEN WHO TRADITIONALLY FISH FOR NORWAY POUT FOR INDUSTRIAL PURPOSES IN THE EXTENDED ZONE IN QUESTION . THE DANISH GOVERNMENT , INTERVENING IN THE CASE , HAS DRAWN ATTENTION TO THE SERIOUS DAMAGE CAUSED TO A CONSIDERABLE PROPORTION OF ITS FISHING FLEET WHOSE EXISTENCE IS ENDANGERED BY THE MEASURE ADOPTED UNILATERALLY BY THE UNITED KINGDOM .

55 THE UNITED KINGDOM CONTENDS THAT THE MEASURE ADOPTED IS A GENUINE CONSERVATION MEASURE SINCE FISHING FOR NORWAY POUT WITH SMALL-MESH NETS RESULTS IN LARGE BY-CATCHES OF JUVENILE HADDOCK AND WHITING , REDUCING SUB SEQUENT CATCHES OF THOSE FISH WHEN MATURE FOR HUMAN CONSUMPTION WHILST PREJUDICING THE REPRODUCTION CAPACITY OF THE STOCKS .

56 IT FOLLOWS FROM THE COMMUNITY PROVISIONS MENTIONED ABOVE , ESPECIALLY ANNEX VI TO THE HAGUE RESOLUTION AND THE COUNCIL DECLARATION OF 31 JANUARY 1978 THAT UNILATERAL CONSERVATION MEASURES MAY ONLY BE ADOPTED BY THE MEMBER STATES WHERE THERE IS AN ESTABLISHED NEED . IN THIS RESPECT , IT IS NECESSARY TO POINT OUT FIRST OF ALL THAT THE UNITED KINGDOM HAS NOT COMPLIED WITH THE PROCEDURAL REQUIREMENTS LAID DOWN BY THE HAGUE RESOLUTION . THE LETTERS ADDRESSED TO THE COMMISSION BY THE GOVERNMENT OF THE UNITED KINGDOM WHEN IT WAS SEEKING APPROVAL FOR THE MEASURE ENVISAGED CONTAIN NO INDICATIONS AS TO THE OBJECTIVE AND JUSTIFICATION THEREOF ; THE GOVERNMENT MERELY NOTIFIED THE TEXT OF THE PROPOSED MEASURE AND ANNOUNCED ITS INTENTION OF INTRODUCING IT SHORTLY .

57 THE QUESTION WHETHER THE EXTENSION OF THE NORWAY POUT BOX EASTWARDS MEETS A GENUINE AND URGENT CONSERVATION NEED AND WHETHER , ASSUMING THAT SUCH A NEED HAS BEEN ESTABLISHED , THE GEOGRAPHICAL EXTENSION OF AN ABSOLUTE PROHIBITION ON FISHING FOR NORWAY POUT IS THE MOST APPROPRIATE MEANS TO THAT END REMAINS CONTROVERSIAL . IT IS NECESSARY TO RECALL IN THIS RESPECT THAT DURING 1977 THE COUNCIL WAS ABLE TO REACH A SOLUTION AS REGARDS THE ARRANGEMENTS APPLYING TO FISHING FOR NORWAY POUT WHICH WAS CONSIDERED TO BE SATISFACTORY ON AN INTERIM BASIS BY THE MEMBER STATES CONCERNED . THE RECITALS TO THE PREAMBLES TO REGULATIONS NOS 1673/77 AND 2243/77 STATE THAT THE POUT BOX IS DETERMINED ON THE BASIS OF THE AVAILABLE SCIENTIFIC ESTIMATES , PENDING A RE-EXAMINATION OF THE SITUATION . ALTHOUGH THOSE PROVISIONS CEASED TO BE EFFECTIVE ON 31 OCTOBER 1977 , THE ESTABLISHMENT OF THE EXTENT OF THE NORWAY POUT BOX IN 1977 MAY BE CONSIDERED TO BE A FAIR COMPROMISE BETWEEN THE INTERESTS OF THE FISHERMEN OF THE VARIOUS MEMBER STATES FISHING IN THE ZONE IN QUESTION . BY THE MEASURE ADOPTED ON 31 OCTOBER 1977 AND BY THE NOTIFICATIONS ADDRESSED TO THE COMMISSION ON 2 AND 13 FEBRUARY 1978 , THE GOVERNMENT OF THE UNITED KINGDOM GAVE TO UNDERSTAND THAT IT ACCEPTED THE ESTABLISHED SITUATION . IN THESE CIRCUMSTANCES , IT IS IMPOSSIBLE TO ACCEPT THAT A MEMBER STATE MAY SUDDENLY AMEND THE EXISTING SITUATION BY ADVERSELY AFFECTING THE INTERESTS OF ANOTHER MEMBER STATE IF IT IS NOT IN A POSITION TO SHOW , ON THE BASIS OF APPROPRIATE SCIENTIFIC ESTIMATES , THAT THERE IS A NEED FOR FRESH CONSERVATION MEASURES AND THAT THE MEANS USED ARE APPROPRIATE . AS REGARDS THOSE MEANS IN PARTICULAR THE COMMISSION CONSIDERS THAT A SEASONAL PROHIBITION ON FISHING IN THE ENLARGED ZONE IS EXCESSIVE SINCE THE UNITED KINGDOM ' S OBJECTIVE COULD HAVE BEEN ATTAINED BY WAY OF MORE FLEXIBLE MEASURES RELATING IN PARTICULAR TO A RESTRICTION ON BY-CATCHES . HAVING INTRODUCED THE MEASURE COMPLAINED OF UNILATERALLY , WITHOUT SUPPLYING ANY EXPLANATIONS , THE UNITED KINGDOM HAS NOT BEEN ABLE TO SHOW DURING THIS PROCEDURE THE JUSTIFICATION FOR THE MEASURE ADOPTED AS A STRICTLY NECESSARY CONSERVATION MEASURE .

58 IT IS THEREFORE CLEAR THAT THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY BY HAVING UNILATERALLY ALTERED A SITUATION ESTABLISHED BY MEASURES PREVIOUSLY AGREED WITHIN A COMMUNITY PROCEDURE AND BY THUS HAVING ADVERSELY AFFECTED THE INTERESTS FOR ANOTHER MEMBER STATE , WITHOUT HAVING SHOWN THE NEED FOR AND URGENCY OF ITS ACTION IN ACCORDANCE WITH THE REQUIREMENTS LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION AND ARTICLE 3 OF REGULATION NO 101/76 .

59 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHOULD BE ORDERED TO PAY THE COSTS . AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT IS NECESSARY TO ORDER IT TO PAY THE COSTS INCLUDING THE COSTS OF THE INTERVENERS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY :

( A ) AS REGARDS THE MOURNE FISHERY , BY FAILING TO FULFIL THE DUTIES OF CONSULTATION LAID DOWN BY COMMUNITY LAW IN RESPECT OF THE CONSERVATION MEASURES ADOPTED IN SEPTEMBER 1978 BY THE HERRING ( RESTRICTION OF FISHING ) REGULATIONS ( NORTHERN IRELAND ) 1978 , S.R . 1978 NO 277 , BY COUPLING THOSE MEASURES WITH AN EXCEPTION CONTRARY TO A RECOGNIZED CONSERVATION NEED AND , MOREOVER , GRANTING THAT EXCEPTION IN CONDITIONS SOLELY FAVOURABLE TO CERTAIN UNITED KINGDOM FISHERMEN ;

( B)AS REGARDS THE ISLE OF MAN AND NORTHERN IRISH SEA FISHERY , BY APPLYING IN 1977 , FOR THE PURPOSE OF IMPLEMENTING COUNCIL REGULATION NO 1779/77 OF 2 AUGUST 1977 AND PURSUANT TO THE HERRING ( IRISH SEA ) LICENSING ORDER 1977 , S.I . 1977 NO 1388 , AND THE HERRING ( ISLE OF MAN ) LICENSING ORDER 1977 , S.I . 1977 NO 1389 , A SYSTEM OF FISHING LICENCES WHICH HAD NOT FORMED THE SUBJECT-MATTER OF AN APPROPRIATE CONSULTATION AND THE DETAILED RULES FOR THE IMPLEMENTATION OF WHICH WERE RESERVED WHOLLY TO THE DISCRETION OF THE UNITED KINGDOM AUTHORITIES , WITHOUT ITS BEING POSSIBLE FOR THE COMMUNITY AUTHORITIES , THE OTHER MEMBER STATES AND THOSE CONCERNED TO BE CERTAIN HOW THE SYSTEM WOULD ACTUALLY BE APPLIED IN LAW ; BY MAINTAINING IN 1978 THAT STATE OF UNCERTAINTY IN RELATION TO FISHERMEN OF OTHER MEMBER STATES AND BY , DURING THE SAME YEAR , UNILATERALLY AMENDING THE EXISTING PROTECTIVE MEASURES TO THE DETRIMENT OF FISHERMEN OF OTHER MEMBER STATES BY THE IRISH SEA HERRING ( PROHIBITION OF FISHING ) ORDER 1978 , S.I . 1978 NO 1374 , WITHOUT CONSULTING THE COMMISSION IN ACCORDANCE WITH THE RULES OF COMMUNITY LAW AND WITHOUT SHOWING THAT THE DETAILED RULES FOR THE IMPLEMENTATION OF THE MEASURE ADOPTED MEET A GENUINE AND URGENT CONSERVATION NEED IN THAT FORM ;

( C)AS REGARDS THE NORWAY POUT BOX , BY EXTENDING EASTWARDS TO 2* LONGITUDE EAST , OR TO THE BOUNDARIES OF THE UNITED KINGDOM FISHING ZONE , THE SCOPE OF A SEASONAL PROHIBITION ON FISHING FOR NORWAY POUT BY THE NORWAY POUT ( PROHIBITION OF FISHING ) ( NO 3 ) ( VARIATION ) ORDER 1978 , S.I . 1978 NO 1379 , THUS CAUSING CONSIDERABLE DAMAGE TO THE FISHING OF ANOTHER MEMBER STATE , WITHOUT SEEKING THE COMMISSION ' S APPROVAL FOR THIS IN SATISFACTORY CIRCUMSTANCES AND WITHOUT SHOWING THE JUSTIFICATION FOR THE MEASURE ADOPTED AS A STRICTLY NECESSARY CONSERVATION MEASURE ;

2.ORDERS THE UNITED KINGDOM TO PAY THE COSTS OF THE ACTION INCLUDING THOSE OF THE INTERVENERS .