61976J0003

1 . EEC - EXTERNAL RELATIONS - INTERNATIONAL COMMITMENTS - AUTHORITY OF THE COMMUNITY

( EEC TREATY , ARTICLE 210 )

2 . SEA - RESOURCES - CONSERVATION - FISHING - MEASURES - AUTHORITY OF THE EEC

3 . SEA-FISHING - INTERNATIONAL AGREEMENTS - PARTICIPATION AND TASKS OF THE EEC - OBLIGATIONS OF THE MEMBER STATES

( ACT OF ACCESSION , ARTICLE 102 )

4 . SEA-FISHING - FISHING ACTIVITIES - LIMITATION BY A MEMBER STATE - CONSERVATION OF RESOURCES - INFRINGEMENT OF ARTICLE 30 ET SEQ . OF THE TREATY AND OF REGULATIONS NOS 2141/70 AND 2142/70 - NONE

1 . ARTICLE 210 OF THE EEC TREATY MEANS THAT IN ITS EXTERNAL RELATIONS THE COMMUNITY ENJOYS THE CAPACITY TO ENTER INTO INTERNATIONAL COMMITMENTS OVER THE WHOLE FIELD OF OBJECTIVES DEFINED IN PART ONE OF THE TREATY . SUCH AUTHORITY ARISES NOT ONLY FROM AN EXPRESS CONFERMENT BY THE TREATY , BUT MAY EQUALLY FLOW IMPLICITLY FROM OTHER PROVISIONS OF THE TREATY , FROM THE ACT OF ACCESSION AND FROM MEASURES ADOPTED , WITHIN THE FRAMEWORK OF THOSE PROVISIONS , BY THE COMMUNITY INSTITUTIONS .

2 . IT FOLLOWS FROM THE VERY DUTIES AND POWERS WHICH COMMUNITY LAW HAS ESTABLISHED AND ASSIGNED TO THE INSTITUTIONS OF THE COMMUNITY ON THE INTERNAL LEVEL THAT THE COMMUNITY HAS AUTHORITY TO TAKE ANY MEASURES FOR THE CONSERVATION OF THE DIFFERENT MEMBER STATES . THE RULE-MAKING AUTHORITY OF THE COMMUNITY RATIONE MATERIALE ALSO EXTENDS - IN SO FAR AS THE MEMBER STATES HAVE SIMILAR AUTHORITY UNDER PUBLIC INTERNATIONAL LAW - TO FISHING ON THE HIGH SEAS .

3 . MEMBER STATES PARTICIPATING IN THE NORTH-EAST ATLANTIC FISHERIES CON- VENTION AND IN OTHER SIMILAR AGREEMENTS ARE NOW NOT ONLY UNDER A DUTY NOT TO ENTER INTO ANY COMMITMENT WITHIN THE FRAMEWORK OF THOSE CONVENTIONS WHICH COULD HINDER THE COMMUNITY IN CARRYING OUT THE TASKS ENTRUSTED TO IT BY ARTICLE 102 OF THE ACT OF ACCESSION , BUT ALSO UNDER A DUTY TO PROCEED BY COMMON ACTION WITHIN THE FISHERIES COMMISSION .

FURTHER , AS SOON AS THE COMMUNITY INSTITUTIONS HAVE INITIATED THE PROCEDURE FOR IMPLEMENTING THE PROVISIONS OF THE SAID ARTICLE 102 , AND AT THE LATEST WITHIN THE PERIOD LAID DOWN BY THAT ARTICLE , THOSE INSTITUTIONS AND THE MEMBER STATES WILL BE UNDER A DUTY TO USE ALL THE POLITICAL AND LEGAL MEANS AT THEIR DISPOSAL IN ORDER TO ENSURE THE PARTICIPATION OF THE COMMUNITY IN THE CONVENTION AND IN OTHER SIMILAR AGREEMENTS .

4 . A MEMBER STATE DOES NOT JEOPARDIZE THE OBJECTIVES OR THE PROPER FUNCTIONING OF THE SYSTEM ESTABLISHED BY REGULATIONS NOS 2141/70 AND 2142/70 , RESPECTIVELY LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY AND ON THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS , IF IT ADOPTS MEASURES INVOLVING A LIMITATION OF FISHING ACTIVITIES WITH A VIEW TO CONSERVING THE RESOURCES OF THE SEA . NEITHER DO SUCH MEASURES CONSTITUTE MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON INTRA-COMMUNITY TRADE WHICH ARE PROHIBITED UNDER ARTICLE 30 ET SEQ . OF THE TREATY .

IN JOINED CASES 3/76 , 4/76 AND 6/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARRONDISSEMENTSRECHTSBANKEN ( DISTRICT COURTS ) OF ZWOLLE ( CASES 3/76 AND 4/76 ) AND ALKMAAR ( CASE 6/76 ) RESPECTIVELY FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THESE COURTS AGAINST

CORNELIUS KRAMER ( CASE 3/76 )

HENDRIK VAN DEN BERG ( CASE 4/76 )

VENNOOTSCHAP ONDER FIRMA ( A PARTNERSHIP ) KRAMER EN BAIS ( CASE 6/76 )

ON THE INTERPRETATION OF ARTICLES 30 , 31 , 34 , 38 TO 47 OF THE SAID TREATY , OF ARTICLE 102 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES AND , FINALLY , REGULATION ( EEC ) NO 2141/70 OF 20 OCTOBER 1970 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY AND REGULATION NO 2142/70 OF 20 OCTOBER 1970 ON THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS ( OJ , ENGLISH SPECIAL EDITION 1970 ( III ), PP . 703 AND 707 RESPECTIVELY )

1 BY JUDGMENTS OF 24 DECEMBER 1975 ( CASES 3/76 AND 4/76 ) AND 2 JANUARY 1976 ( CASE 6/76 ), RECEIVED AT THE COURT REGISTRY ON 12 AND 23 JANUARY 1976 , THE ARRONDISSEMENTSRECHTBANKEN ( DISTRICT COURTS ) OF ZWOLLE AND OF ALMAAR RESPECTIVELY ASKED THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , A SERIES OF QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 30 , 31 , 34 AND 38 TO 47 TO THAT TREATY , OF ARTICLE 102 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES - HEREINAFTER REFERRED TO AS ' THE ACT OF ACCESSION ' - AS WELL AS OF REGULATIONS NOS 2141/70 AND 2142/70 OF THE COUNCIL OF 20 OCTOBER 1970 , LAYING DOWN RESPECTIVELY A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY AND ON THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS ( OJ , ENGLISH SPECIAL EDITION 1970 ( III ), PP . 703 AND 707 ).

2 THESE QUESTIONS WERE RAISED WITHIN THE FRAMEWORK OF CRIMINAL PROSECUTIONS BROUGHT AGAINST CERTAIN NETHERLANDS FISHERMEN WHO ARE ACCUSED OF HAVING INFRINGED , EITHER IN MAY OR IN AUGUST 1975 , DEPENDING ON THE CASE , CERTAIN PROVISIONS ENACTED DURING THAT YEAR BY THE AUTHORITIES OF THEIR STATE , WHICH PROVISIONS WERE AIMED AT ENSURING THE CONSERVATION OF THE STOCKS OF SOLE AND PLAICE IN THE NORTH-EAST ATLANTIC .

3 THESE PROVISIONS WERE ADOPTED IN PERFORMANCE OF COMMITMENTS WHICH HAD BEEN ENTERED INTO BY THE NETHERLANDS WITHIN THE FRAMEWORK OF THE NORTH-EAST ATLANTIC FISHERIES CONVENTION , SIGNED AT LONDON ON 24 JANUARY 1959 , TO ' ENSURE THE CONSERVATION OF THE FISH STOCKS AND THE RATIONAL EXPLOITATION OF THE FISHERIES OF THE NORTH-EAST ATLANTIC OCEAN AND ADJACENT WATERS , WHICH ARE OF COMMON CONCERN ' . ALL THE PRESENT MEMBER STATES OF THE EEC EXCEPT ITALY AND THE GRAND DUCHY OF LUXEMBOURG , AS WELL AS SEVEN NON-MEMBER COUNTRIES , ARE PARTIES TO THIS CONVENTION .

4 ARTICLE 7 ( 1 ) ( A)-(F ) OF THE CONVENTION PROVIDES THAT THE NORTH-EAST ATLANTIC FISHERIES COMMISSION , ESTABLISHED BY THE CONVENTION AS A COMMON BODY OF THE CONTRACTING STATES , MAY MAKE RECOMMENDATIONS TO THE CONTRACTING STATES ON A SERIES OF MEASURES COMING WITHIN THE PURPOSES OF THE CONVENTION .

5 BY A DECISION ADOPTED IN MAY 1970 AND WHICH ENTERED INTO FORCE ON 4 JUNE 1974 IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 7 ( 2 ), THERE WERE ADDED TO THESE PROVISIONS SUBPARAGRAPHS ( G ) AND ( H ) AUTHORIZING THE SAID COMMISSION TO RECOMMEND MEASURES FOR REGULATING IN ANY PERIOD , FIRST , THE AMOUNT OF TOTAL CATCH AND THE AMOUNT OF FISHING EFFORT AND , SECONDLY , THE ALLOCATION OF THOSE AMOUNTS TO CONTRACTING STATES .

6 UNDER ARTICLE 8 OF THE CONVENTION , THE CONTRACTING STATES ARE OBLIGED TO GIVE EFFECT TO SUCH RECOMMENDATIONS WHEN THEY HAVE BEEN ADOPTED BY NOT LESS THAN A TWO-THIRDS MAJORITY OF THE DELEGATIONS PRESENT AND VOTING , SUBJECT HOWEVER TO THE RIGHT OF ANY CONTRACTING STATE TO RELEASE ITSELF FROM THIS OBLIGATION BY OBJECTING TO THE RECOMMENDATION WITHIN A SET PERIOD .

7 PURSUANT TO ARTICLE 7 ( 1 ) ( G ) AND ( H ) THE SAID COMMISSION ISSUED A RECOMMENDATION CONCERNING FISHING FOR SOLE AND PLAICE IN THE MARITIME WATERS COVERED BY THE CONVENTION . THIS RECOMMENDATION BECAME OBLIGATORY IN NOVEMBER 1974 IN ACCORDANCE WITH THE SAID ARTICLE 8 . FIRST , IT FIXED THE TOTAL CATCH QUOTAS FOR 1975 AND THE ALLOCATION THEREOF BETWEEN THE DIFFERENT CONTRACTING STATES AND , SECONDLY , IT PROHIBITED FISHING WITH VESSELS OVER A CERTAIN TONNAGE AND A CERTAIN POWER WITHIN A TWELVE-MILE ' COASTAL ' AREA .

8 THE FISHERMEN , THE ACCUSED IN THE MAIN PROCEEDINGS , ARE CHARGED WITH HAVING CONTRAVENED THE NETHERLANDS RULES , ADOPTED IN IMPLEMENTATION OF THIS RECOMMENDATION , WHICH PROHIBIT FOR CERTAIN PERIODS :

- EITHER LANDING MORE THAN A CERTAIN MAXIMUM AMOUNT OF SOLE USING VESSELS BEARING CERTAIN REGISTRATION NUMBERS ;

- OR FISHING FOR SOLE OR PLAICE IN THE ABOVEMENTIONED TWELVE-MILE AREA , USING VESSELS OVER A CERTAIN TONNAGE AND A CERTAIN ENGINE RATING .

9 BY THEIR FIRST THREE QUESTIONS , THE NATIONAL COURTS ASK THE COURT TO RULE , ESSENTIALLY :

- ON THE INTERNATIONAL LEVEL , WHETHER THE COMMUNITY ALONE HAS AUTHORITY TO ENTER INTO COMMITMENTS SUCH AS HAVE JUST BEEN DESCRIBED ;

- ON THE INTERNAL COMMUNITY LEVEL , WHETHER NATIONAL MEASURES SUCH AS THOSE ADOPTED BY THE NETHERLANDS , WHICH MEASURES WILL HEREINAFTER BE REFERRED TO AS ' FIXING OF CATCH QUOTAS ' , ARE COMPATIBLE WITH COMMUNITY LAW EITHER AS REGARDS THE ALLOCATION OF AUTHORITY BETWEEN THE COMMUNITY AND ITS MEMBER STATES , OR AS REGARDS THE PROHIBITION ON JEOPARDIZING THE OBJECTIVES OR THE FUNCTIONING OF THE COMMUNITY RULES ON THE FISHING INDUSTRY , OR FINALLY AS REGARDS THE PROHIBITION ON MEASURES HAVING AN EFFECT EQUIVALENT TO THAT OF A QUANTITATIVE RESTRICTION IN TRADE BETWEEN MEMBER STATES .

10 THE FOURTH QUESTION ASKS WHETHER ARTICLES 30 , 31 AND 34 OF THE TREATY , LAYING DOWN THE LATTER PROHIBITION , ARE DIRECTLY APPLICABLE IN THE MEMBER STATES .

11 THESE DIFFERENT QUESTIONS SHOULD BE APPROACHED IN THE ORDER INDICATED ABOVE .

I - THE EXTERNAL AUTHORITY OF THE COMMUNITY AND OF THE MEMBER STATES RESPECTIVELY

12 THE SECOND QUESTION ASKED BY THE NATIONAL COURTS RELATES TO ' THE POWER TO CONCLUDE AGREEMENTS ' .

13 IT SHOULD HOWEVER BE MADE CLEAR THAT THE NATIONAL MEASURES IN DISPUTE WERE ADOPTED WITH THE AIM OF CARRYING OUT OBLIGATIONS ARISING FROM A BINDING RECOMMENDATION OF THE FISHERIES COMMISSION , THUS FROM AN INSTRUMENT ENACTED BY AN INTERNATIONAL BODY .

14 HENCE , THIS QUESTION MUST BE UNDERSTOOD AS RELATING TO THE AUTHORITY OF THE COMMUNITY AND OF THE MEMBER STATES , IN THE AREA OF THE FIXING OF CATCH QUOTAS , TO PARTICIPATE IN THE WORKING OUT OF DECISIONS BY SUCH A BODY AND TO ASSUME INTERNATIONAL COMMITMENTS WITHIN SUCH A FRAMEWORK .

15 ( 1 ) FOR THE PURPOSES OF THE ANSWER TO BE GIVEN TO THE NATIONAL COURTS , IT SHOULD FIRST BE CONSIDERED WHETHER THE COMMUNITY HAS AUTHORITY TO ENTER INTO SUCH INTERNATIONAL COMMITMENTS .

16 IN THE ABSENCE OF SPECIFIC PROVISIONS OF THE TREATY AUTHORIZING THE COMMUNITY TO ENTER INTO INTERNATIONAL COMMITMENTS IN THE SPHERE OF CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , ONE MUST TURN TO THE GENERAL SYSTEM OF COMMUNITY LAW IN THE SPHERE OF THE EXTERNAL RELATIONS OF THE COMMUNITY .

17/18 ARTICLE 210 PROVIDES THAT ' THE COMMUNITY SHALL HAVE LEGAL PERSONALITY ' . THIS PROVISION , PLACED AT THE HEAD OF PART SIX OF THE TREATY , DEVOTED TO ' GENERAL AND FINAL PROVISIONS ' , MEANS THAT IN ITS EXTERNAL RELATIONS THE COMMUNITY ENJOYS THE CAPACITY TO ENTER INTO INTERNATIONAL COMMITMENTS OVER THE WHOLE FIELD OF OBJECTIVES DEFINED IN PART ONE OF THE TREATY , WHICH PART SIX SUPPLEMENTS .

19/20 TO ESTABLISH IN A PARTICULAR CASE WHETHER THE COMMUNITY HAS AUTHORITY TO ENTER INTO INTERNATIONAL COMMITMENTS , REGARD MUST BE HAD TO THE WHOLE SCHEME OF COMMUNITY LAW NO LESS THAN TO ITS SUBSTANTIVE PROVISIONS . SUCH AUTHORITY ARISES NOT ONLY FROM AN EXPRESS CONFERMENT BY THE TREATY , BUT MAY EQUALLY FLOW IMPLICITLY FROM OTHER PROVISIONS OF THE TREATY , FROM THE ACT OF ACCESSION AND FROM MEASURES ADOPTED , WITHIN THE FRAMEWORK OF THOSE PROVISIONS , BY THE COMMUNITY INSTITUTIONS .

21/25 UNDER ARTICLE 3 ( D ), THE ADOPTION OF A COMMON POLICY IN THE SPHERE OF AGRICULTURE IS SPECIALLY MENTIONED AMONGST THE OBJECTIVES OF THE COMMUNITY . UNDER THE COMBINED PROVISIONS OF ARTICLE 38 ( 3 ) AND ANNEX II TO THE TREATY , FISHERY PRODUCTS ARE SUBJECT TO THE PROVISIONS OF ARTICLES 39 TO 46 CONCERNING AGRICULTURE . ARTICLE 39 SPECIFIES , AMONG THE OBJECTIVES LAID DOWN FOR THE COMMON AGRICULTURAL POLICY , THOSE OF ENSURING THE RATIONAL DEVELOPMENT OF PRODUCTION AND OF ASSURING THE AVAILABILITY OF SUPPLIES . UNDER THE COMBINED PROVISIONS OF THE FIRST THREE PARAGRAPHS OF ARTICLE 40 , THE COMMUNITY MUST ESTABLISH , BY THE END OF THE TRANSITIONAL PERIOD AT THE LATEST , A COMMON ORGANIZATION OF AGRICULTURAL MARKETS , ABLE TO INCLUDE ALL MEASURES REQUIRED TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 39 . TO THAT END , ARTICLE 43 ( 2 ) CONFERS ON THE COUNCIL THE POWER , AND IMPOSES ON IT THE DUTY , TO MAKE REGULATIONS , ISSUE DIRECTIVES OR TAKE DECISIONS .

26 PURSUANT , INTER ALIA , TO ARTICLE 43 OF THE TREATY , THE COUNCIL ADOPTED THE REGULATIONS NOS 2141/70 AND 2142/70 REFERRED TO ABOVE .

27 AS STATED IN ARTICLE 1 OF REGULATION NO 2141/70 , THE COMMON STRUCTURAL POLICY LAID DOWN BY THAT REGULATION PURSUES , INTER ALIA , THE AIM OF ' ENCOURAGING RATIONAL USE OF THE BIOLOGICAL RESOURCES OF THE SEA AND OF INLAND WATERS ' .

28 PURSUANT TO THE FOURTH RECITAL OF THE REGULATION , ACCORDING TO WHICH ' THE COMMUNITY MUST BE ABLE TO ADOPT MEASURES TO SAFEGUARD THE STOCKS OF FISH PRESENT IN THE WATERS IN QUESTION ' - AN INTEREST WHICH IS ALSO NOTED IN THE PENULTIMATE RECITAL OF REGULATION NO 2142/70 - THE COUNCIL IS AUTHORIZED IN CASES WHERE ' THERE IS A RISK OF OVER-FISHING OF CERTAIN STOCKS IN THE MARITIME WATERS REFERRED TO IN ARTICLE 2 , OF ONE OR OTHER MEMBER STATE ' , - THAT IS TO SAY , THE WATERS COMING UNDER THE SOVEREIGNTY OR WITHIN THE JURISDICTION OF ONE OR OTHER MEMBER STATE - TO ' ADOPT THE NECESSARY CONSERVATION MEASURES ' .

29 FINALLY , ARTICLE 102 OF THE ACT OF ACCESSION PROVIDES THAT FROM THE SIXTH YEAR AFTER ACCESSION AT THE LATEST , THE COUNCIL ' SHALL DETERMINE CONDITIONS FOR FISHING WITH A VIEW TO ENSURING PROTECTION OF THE FISHING GROUNDS AND CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA ' .

30/33 IT FOLLOWS FROM THESE PROVISIONS TAKEN AS A WHOLE THAT THE COMMUNITY HAS AT ITS DISPOSAL , ON THE INTERNAL LEVEL , THE POWER TO TAKE ANY MEASURES FOR THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , MEASURES WHICH INCLUDE THE FIXING OF CATCH QUOTAS AND THEIR ALLOCATION BETWEEN THE DIFFERENT MEMBER STATES . IT SHOULD BE MADE CLEAR THAT , ALTHOUGH ARTICLE 5 OF REGULATION NO 2141/70 IS APPLICABLE ONLY TO A GEOGRAPHICALLY LIMITED FISHING AREA , IT NONE THE LESS FOLLOWS ARTICLE 102 OF THE ACT OF ACCESSION , FROM ARTICLE 1 OF THE SAID REGULATION AND MOREOVER FROM THE VERY NATURE OF THINGS THAT THE RULE-MAKING AUTHORITY OF THE COMMUNITY RATIONE MATERIAE ALSO EXTENDS - IN SO FAR AS THE MEMBER STATES HAVE SIMILAR AUTHORITY UNDER PUBLIC INTERNATIONAL LAW - TO FISHING ON THE HIGH SEAS . THE ONLY WAY TO ENSURE THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA BOTH EFFECTIVELY AND EQUITABLY IS THROUGH A SYSTEM OF RULES BINDING ON ALL THE STATES CONCERNED , INCLUDING NON-MEMBER COUNTRIES . IN THESE CIRCUMSTANCES IT FOLLOWS FROM THE VERY DUTIES AND POWERS WHICH COMMUNITY LAW HAS ESTABLISHED AND ASSIGNED TO THE INSTITUTIONS OF THE COMMUNITY ON THE INTERNAL LEVEL THAT THE COMMUNITY HAS AUTHORITY TO ENTER INTO INTERNATIONAL COMMITMENTS FOR THE CONSERVATION OF THE RESOURCES OF THE SEA .

34 ( 2 ) GIVEN THAT THE AUTHORITY OF THE COMMUNITY IN THE MATTER IS ESTABLISHED , IT SHOULD NOW BE CONSIDERED WHETHER THE COMMUNITY INSTITUTIONS IN FACT ASSUMED THE FUNCTIONS AND OBLIGATIONS ARISING FROM THE CONVENTION AND FROM THE DECISIONS TAKEN THEREUNDER .

35/38 IN THIS CONNEXION , IT SHOULD BE OBSERVED , FIRST , THAT NOTHING DECISIVE WAS DONE WITHIN THE FRAMEWORK OF THE CONVENTION ITSELF , CONCLUDED AS IT WAS AT A TIME WHEN THE COMMUNITY HAD NOT YET MADE ANY REGULATIONS RELATING TO THE SEA-FISHING INDUSTRY . ANY ADJUSTMENTS TO THE DECISION-MAKING MACHINERY INSTITUTED BY THE CONVENTION ARE , EXCEPT FOR ACTION BY THE COMMUNITY ITSELF AND BY ITS MEMBER STATES , A MATTER FOR NEGOTIATION WITH THE OTHER CONTRACTING PARTIES . SECONDLY , THE TEXTS OF THE REGULATIONS BROUGHT INTO FORCE WITHIN THE COMMUNITY LIMIT THEMSELVES TO PROVIDING THE COMMUNITY INSTITUTIONS WITH THE POWER TO TAKE MEASURES SIMILAR TO THOSE WHICH THE MEMBER STATES CONCERNED COMMITTED THEMSELVES TO TAKING - AND DID TAKE - WITHIN THE FRAMEWORK OF THE CONVENTION ; AND SO FAR THE INSTITUTIONS HAVE NOT MADE USE OF THAT POWER . THIS STATE OF AFFAIRS IS AT THE ORIGIN OF ARTICLE 102 OF THE ACT OF ACCESSION , WHICH TAKES UP AGAIN THE PROBLEM OF PROTECTION OF THE FISHING GROUNDS AND OF CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , FROM THE POINT OF VIEW OF ITS OVERALL SOLUTION , WITH THE PARTICIPATION OF THE NEW MEMBER STATES WHICH , BY REASON OF THEIR GEOGRAPHICAL SITUATION , HAVE A MAJOR INTEREST IN THE FISHING INDUSTRY .

39 THIS BEING SO , AND THE COMMUNITY NOT YET HAVING FULLY EXERCISED ITS FUNCTIONS IN THE MATTER , THE ANSWER WHICH SHOULD BE GIVEN TO THE QUESTIONS ASKED IS THAT AT THE TIME WHEN THE MATTERS BEFORE THE NATIONAL COURTS AROSE , THE MEMBER STATES HAD THE POWER TO ASSUME COMMITMENTS , WITHIN THE FRAMEWORK OF THE NORTH-EAST ATLANTIC FISHERIES CONVENTION , IN RESPECT OF THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , AND THAT CONSEQUENTLY THEY HAD THE RIGHT TO ENSURE THE APPLICATION OF THOSE COMMITMENTS WITHIN THE AREA OF THEIR JURISDICTION .

40 HOWEVER , IT SHOULD BE STATED FIRST THAT THIS AUTHORITY WHICH THE MEMBER STATES HAVE IS ONLY OF A TRANSITIONAL NATURE AND SECONDLY THAT THE MEMBER STATES CONCERNED ARE NOW BOUND BY COMMUNITY OBLIGATIONS IN THEIR NEGOTIATIONS WITHIN THE FRAMEWORK OF THE CONVENTION AND OF OTHER COMPARABLE AGREEMENTS .

41 AS TO THE TRANSITIONAL NATURE OF THE ABOVEMENTIONED AUTHORITY , IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THIS AUTHORITY WILL COME TO AN END ' FROM THE SIXTH YEAR AFTER ACCESSION AT THE LATEST ' , SINCE THE COUNCIL MUST BY THEN HAVE ADOPTED , IN ACCORDANCE WITH THE OBLIGATION IMPOSED ON IT BY ARTICLE 102 OF THE ACT OF ACCESSION , MEASURES FOR THE CONSERVATION OF THE RESOURCES OF THE SEA .

42/43 AS TO THE OBLIGATIONS NOW INCUMBENT ON THE MEMBER STATES CONCERNED , IT SHOULD BE STRESSED FIRST THAT UNDER ARTICLE 5 OF THE TREATY , ' MEMBER STATES SHALL TAKE ALL APPROPRIATE MEASURES , WHETHER GENERAL OR PARTICULAR , TO ENSURE FULFILMENT OF THE OBLIGATIONS ARISING OUT OF THIS TREATY OR RESULTING FROM ACTION TAKEN BY THE INSTITUTIONS OF THE COMMUNITY ' , AND ' SHALL FACILITATE THE ACHIEVEMENT OF THE COMMUNITY ' S TASKS ' . UNDER ARTICLE 116 OF THE TREATY , ' FROM THE END OF THE TRANSITIONAL PERIOD ONWARDS , MEMBER STATES SHALL , IN RESPECT OF ALL MATTERS OF PARTICULAR INTEREST TO THE COMMON MARKET , PROCEED WITHIN THE FRAMEWORK OF INTERNATIONAL ORGANIZATIONS OF AN ECONOMIC CHARACTER ONLY BY COMMON ACTION ' , THE COMMISSION BEING UNDER A DUTY TO SUBMIT PROPOSALS IN THIS CONNEXION TO THE COUNCIL AND THE COUNCIL BEING UNDER A DUTY TO ACT ON THESE PROPOSALS .

44/45 IT FOLLOWS FROM ALL THESE FACTORS THAT MEMBER STATES PARTICIPATING IN THE CONVENTION AND IN OTHER SIMILAR AGREEMENTS ARE NOW NOT ONLY UNDER A DUTY NOT TO ENTER INTO ANY COMMITMENT WITHIN THE FRAMEWORK OF THOSE CONVENTIONS WHICH COULD HINDER THE COMMUNITY IN CARRYING OUT THE TASKS ENTRUSTED TO IT BY ARTICLE 102 OF THE ACT OF ACCESSION , BUT ALSO UNDER A DUTY TO PROCEED BY COMMON ACTION WITHIN THE FISHERIES COMMISSION . IT FURTHER FOLLOWS THEREFROM THAT AS SOON AS THE COMMUNITY INSTITUTIONS HAVE INITIATED THE PROCEDURE FOR IMPLEMENTING THE PROVISIONS OF THE SAID ARTICLE 102 , AND AT THE LATEST WITHIN THE PERIOD LAID DOWN BY THAT ARTICLE , THOSE INSTITUTIONS AND THE MEMBER STATES WILL BE UNDER A DUTY TO USE ALL THE POLITICAL AND LEGAL MEANS AT THEIR DISPOSAL IN ORDER TO ENSURE THE PARTICIPATION OF THE COMMUNITY IN THE CONVENTION AND IN OTHER SIMILAR AGREEMENTS .

II - THE INTERNAL POWER OF MEMBER STATES TO FIX CATCH QUOTAS

46 ON THE ISSUE WHETHER MEASURES SUCH AS THOSE ADOPTED BY THE NETHERLANDS ARE INCOMPATIBLE WITH COMMUNITY LAW , IT SHOULD BE CONSIDERED FIRST WHETHER THEY JEOPARDIZE THE OBJECTIVES OR THE FUNCTIONING OF THE SYSTEM ESTABLISHED BY REGULATIONS NOS 2141/70 AND 2142/70 AND SECONDLY WHETHER THEY CONSTITUTE A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON INTRA-COMMUNITY TRADE .

47/49 ( 1 ) AS TO THE FIRST OF THESE QUESTIONS , IT SHOULD FIRST BE POINTED OUT THAT THE SAID REGULATIONS , AS WELL AS ARTICLE 102 OF THE ACT OF ACCESSION , THEMSELVES PROVIDE FOR THE ADOPTION OF COMPARABLE MEASURES .

NEXT , UNDER ITS REGULATION NO 811/76 , ADOPTED AFTER THE QUESTIONS HAD BEEN REFERRED TO THE COURT , THE COUNCIL HAS EXPRESSLY AUTHORIZED THE MEMBER STATES ' TO LIMIT THE CATCHES OF THEIR FISHING FLEETS ' . IN SO DOING IT DID NOT CONSIDER IT NECESSARY TO MODIFY THE RULES RELATING TO THE STRUCTURAL POLICY AND TO THE ORGANIZATION OF THE MARKET , ESTABLISHED BY REGULATIONS NOS 2141/70 AND 2142/70 . THIS BEING SO , MEASURES FOR THE LIMITATION OF CATCHES OF FISH , AND THE POSSIBILITY OF TAKING SUCH MEASURES , FORM AN INTEGRAL PART OF THE GENERAL SYSTEM ESTABLISHED BY THE SAID REGULATIONS .

50 ALTHOUGH SUCH MEASURES MAY AFFECT THE FUNCTIONING OF OTHER PARTS OF THIS SYSTEM , AND IN PARTICULAR OF ITS PRICE SYSTEM , SUCH AN EFFECT , HAVING BEEN ACCEPTED FROM THE OUTSET BY THE COMMUNITY REGULATIONS THEMSELVES , CANNOT BE EQUATED WITH THE DISRUPTIVE EFFECTS , PROHIBITED BY COMMUNITY LAW , OF NATIONAL MEASURES UNRELATED TO THE AIM OF COMMUNITY RULES .

51 NONE THE LESS THE EXISTENCE OF THE COMMON ORGANIZATION OF THE MARKET INVOLVES AN OBLIGATION ON THE PART OF THE MEMBER STATES TO ENSURE THAT CATCHES SHOULD BE LIMITED IN SUCH A WAY AS TO KEEP THE EFFECTS ON THE FUNCTIONING OF THAT ORGANIZATION TO A MINIMUM .

52 THUS THE REPLY TO THE NATIONAL COURTS SHOULD BE THAT A MEMBER STATE DOES NOT JEOPARDIZE THE OBJECTIVES OR THE PROPER FUNCTIONING OF THE SYSTEM ESTABLISHED BY REGULATIONS NOS 2141/70 AND 2142/70 IF IT ADOPTS MEASURES INVOLVING A LIMITATION OF FISHING ACTIVITIES WITH A VIEW TO CONSERVING THE RESOURCES OF THE SEA .

53/54 ( 2 ) FINALLY , ON THE ISSUE WHETHER MEASURES SUCH AS THOSE ADOPTED BY THE NETHERLANDS ARE PROHIBITED AS BEING MEASURES HAVING AN EFFECT EQUIVALENT TO THAT OF A QUANTITATIVE RESTRICTION , THE PROVISIONS OF REGULATION NO 2142/70 DO NOT EXPRESSLY LAY DOWN SUCH A PROHIBITION IN REGARD TO INTRA-COMMUNITY TRADE . HOWEVER , IT FOLLOWS FROM THE COMBINED PROVISIONS OF ARTICLES 38 TO 46 AND 8 ( 7 ) OF THE TREATY THAT THIS PROHIBITION ARISES OUT OF THE TREATY PROVISIONS AUTOMATICALLY , FROM THE EXPIRY OF THE TRANSITIONAL PERIOD AT THE LATEST , AS WAS STRESSED MOREOVER IN THE TWENTIETH RECITAL OF REGULATION NO 2142/70 .

55 NATIONAL REGULATIONS SUCH AS THOSE FORMING THE SUBJECT-MATTER OF THE PRESENT PROCEEDINGS ON THE ONE HAND AND THE PROHIBITION LAID DOWN IN ARTICLE 30 ET SEQ . OF THE TREATY ON THE OTHER HAND RELATE TO DIFFERENT STAGES OF THE ECONOMIC PROCESS , THAT IS TO SAY , TO PRODUCTION AND TO MARKETING RESPECTIVELY .

56/59 THE ANSWER TO THE QUESTION WHETHER A MEASURE LIMITING AGRICULTURAL PRODUCTION IMPEDES TRADE BETWEEN MEMBER STATES DEPENDS ON THE GLOBAL SYSTEM ESTABLISHED BY THE BASIC COMMUNITY RULES IN THE SECTOR CONCERNED AND ON THE OBJECTIVES OF THOSE RULES . IN THIS CONNEXION , THE NATURE AND THE CIRCUMSTANCES OF ' PRODUCTION ' OF THE PRODUCT IN QUESTION , FISH IN THE PRESENT CASE , SHOULD ALSO BE TAKEN INTO CONSIDERATION . MEASURES FOR THE CONSERVATION OF THE RESOURCES OF THE SEA THROUGH FIXING CATCH QUOTAS AND LIMITING THE FISHING EFFORT , WHILST RESTRICTING ' PRODUCTION ' IN THE SHORT TERM , ARE AIMED PRECISELY AT PREVENTING SUCH ' PRODUCTION ' FROM BEING MARKED BY A FALL WHICH WOULD SERIOUSLY JEOPARDIZE SUPPLIES TO CONSUMERS . THEREFORE , THE FACT THAT SUCH MEASURES HAVE THE EFFECT , FOR A SHORT TIME , OF REDUCING THE QUANTITIES THAT THE STATES CONCERNED ARE ABLE TO EXCHANGE BETWEEN THEMSELVES , CANNOT LEAD TO THESE MEASURES BEING CLASSIFIED AMONG THOSE PROHIBITED BY THE TREATY , THE DECISIVE FACTOR BEING THAT IN THE LONG TERM THESE MEASURES ARE NECESSARY TO ENSURE A STEADY , OPTIMUM YIELD FROM FISHING .

60 THUS THE ANSWER TO BE GIVEN TO THE ARRONDISSEMENTSRECHTBANKEN OF ZWOLLE AND OF ALKMAAR IS THAT NATIONAL MEASURES INVOLVING LIMITATION OF FISHING ACTIVITIES WITH A VIEW TO CONSERVING THE RESOURCES OF THE SEA , DO NOT CONSTITUTE MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON INTRA-COMMUNITY TRADE WHICH ARE PROHIBITED UNDER ARTICLE 30 ET SEQ . OF THE TREATY .

61 THE FOURTH QUESTION NO LONGER CALLS FOR AN ANSWER .

COSTS

62/63 THE COSTS INCURRED BY THE BRITISH , DANISH , ITALIAN AND NETHERLANDS GOVERNMENTS AS WELL AS BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE , AND AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTIONS BEFORE THE NATIONAL COURTS , THE DECISION AS TO COSTS IS A MATTER FOR THOSE COURTS .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE ARRONDISSEMENTSRECHTBANKEN OF ZWOLLE AND OF ALKMAAR BY JUDGMENTS OF 24 DECEMBER 1975 AND 2 JANUARY 1976 HEREBY RULES :

1 . AT THE TIME WHEN THE MATTERS BEFORE THE NATIONAL COURTS AROSE , THE MEMBER STATES HAD THE POWER TO ASSUME COMMITMENTS , WITHIN THE FRAMEWORK OF THE NORTH-EAST ATLANTIC FISHERIES CONVENTION , IN RESPECT OF THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , AND CONSEQUENTLY HAD THE RIGHT TO ENSURE THE APPLICATION OF THOSE COMMITMENTS WITHIN THE AREA OF THEIR JURISDICTION .

2 . A MEMBER STATE DOES NOT JEOPARDIZE THE OBJECTIVES OR THE PROPER FUNCTIONING OF THE SYSTEM ESTABLISHED BY REGULATIONS NOS 2141/70 AND 2142/70 IF IT ADOPTS MEASURES INVOLVING A LIMITATION OF FISHING ACTIVITIES WITH A VIEW TO CONSERVING THE RESOURCES OF THE SEA .

3 . SUCH MEASURES DO NOT CONSTITUTE MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON INTRA-COMMUNITY TRADE WHICH ARE PROHIBITED UNDER ARTICLE 30 ET SEQ . OF THE TREATY .