61980J0180

FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - COMMUNITY PROVISIONS APPLICABLE TO SPANISH VESSELS - INTERIM REGIME FALLING WITHIN THE FRAMEWORK OF RELATIONS BETWEEN THE COMMUNITY AND SPAIN - SUPERSEDES THE PREVIOUS REGIME - EFFECTS

( COUNCIL REGULATIONS NOS 1744/78 AND 1719/80 ; AGREEMENT BETWEEN THE EEC AND SPAIN OF 15 APRIL 1980 )

THE INTERIM REGIME ESTABLISHED BY THE COMMUNITY UNDER ITS OWN RULES FALLS WITHIN THE FRAMEWORK OF THE RELATIONS ESTABLISHED BETWEEN THE COMMUNITY AND SPAIN IN ORDER TO RESOLVE THE PROBLEMS INHERENT IN CONSERVATION MEASURES AND THE EXTENSION OF FISHERY LIMITS AND IN ORDER TO ENSURE RECIPROCAL ACCESS BY FISHERMEN TO THE WATERS SUBJECT TO SUCH MEASURES . THOSE RELATIONS WERE SUBSTITUTED FOR THE REGIME WHICH PREVIOUSLY APPLIED IN THOSE ZONES IN ORDER TO TAKE ACCOUNT OF THE GENERAL DEVELOPMENT OF INTERNATIONAL LAW IN RELATION TO FISHING ON THE HIGH SEAS AND THE INCREASINGLY URGENT NEED TO CONSERVE THE LIVING RESOURCES OF THE SEA .

ACCORDINGLY , SPANISH FISHERMEN MAY NOT RELY ON PRIOR INTERNATIONAL AGREEMENTS BETWEEN FRANCE AND SPAIN IN ORDER TO PREVENT THE APPLICATION OF THE INTERIM REGULATIONS ADOPTED BY THE COMMUNITY IN THE EVENT OF ANY INCOMPATIBILITY BETWEEN THE TWO CATEGORIES OF PROVISIONS .

IN JOINED CASES 180 AND 266/80

REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FRENCH COUR DE CASSATION ( COURT OF CASSATION ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

JOSE CRUJEIRAS TOME

AND

THE PROCUREUR DE LA REPUBLIQUE ( PUBLIC PROSECUTOR ) ( CASE 180/80 ),

AND BY THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), ST NAZAIRE , IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

THE PROCUREUR DE LA REPUBLIQUE

AND

ANTON YURRITA ( CASE 266/80 ),

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

1 BY JUDGMENTS OF 7 JULY 1980 AND 24 OCTOBER 1980 , WHICH WERE RECEIVED AT THE COURT ON 25 AUGUST 1980 AND 1 DECEMBER 1980 RESPECTIVELY , THE FRENCH COUR DE CASSATION ( COURT OF CASSATION ) ( CASE 180/80 ) AND THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), ST NAZAIRE , ( CASE 266/80 ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION AS TO WHETHER , HAVING REGARD TO PRIOR INTERNATIONAL OBLIGATIONS , THE REGULATIONS OF THE COUNCIL OF THE EUROPEAN 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 CRIMINAL PROCEEDINGS AGAINST THE MASTERS OF TWO FISHING VESSELS REGISTERED IN SPAIN , WHO WERE CHARGED WITH FISHING , IN AN UNSPECIFIED MANNER , IN WATERS WITHIN THE FRENCH ECONOMIC ZONE , WITHOUT BEING IN POSSESSION OF A FISHING LICENCE .

3 JOSE CRUJEIRAS TOME , THE DEFENDANT IN THE MAIN PROCEEDINGS IN CASE 180/80 , WAS DISCOVERED FISHING ON 16 SEPTEMBER 1978 IN THE ZONE BETWEEN 12 AND 200 NAUTICAL MILES FROM THE BASELINES . AT THAT TIME THE PROHIBITION ON FISHING IN THAT ZONE WITHOUT A LICENCE ISSUED BY THE COMMISSION ON BEHALF OF THE COMMUNITY WAS LAID DOWN IN COUNCIL REGULATION ( EEC ) NO 1744/78 OF 24 JULY 1978 , EXTENDING CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN TO 30 SEPTEMBER 1978 ( OFFICIAL JOURNAL 1978 , L 203 , P . 1 ).

4 ANTON YURRITA , THE DEFENDANT IN THE MAIN PROCEEDINGS IN CASE 266/80 , WAS FISHING IN THE SAME ZONE ON 17 OCTOBER 1980 ; AT THAT TIME THE PROHIBITION ON FISHING IN THAT ZONE WITHOUT A COMMUNITY LICENCE WAS CONTAINED IN COUNCIL REGULATION ( EEC ) NO 1719/80 OF 30 JUNE 1980 LAYING DOWN FOR 1980 CERTAIN MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL 1980 , L 168 , P . 27 ).

5 IN BOTH CASES THE DEFENDANTS IN THE MAIN PROCEEDINGS MAINTAIN THAT THE COMMUNITY REGULATIONS WHICH THEY ARE ALLEGED TO HAVE CONTRAVENED ARE INVALID OR IN ANY EVENT INAPPLICABLE AS AGAINST THEM , BEING INCOMPATIBLE WITH THE RIGHTS UPON WHICH THEY MAY RELY IN CONSEQUENCE OF INTERNATIONAL COMMITMENTS PREVIOUSLY ENTERED INTO BETWEEN FRANCE AND SPAIN .

6 FOR THAT PURPOSE , THEY RELY , FIRST , UPON THE LONDON FISHERIES CONVENTION OF 9 MARCH 1964 ( UNITED NATIONS TREATY SERIES , VOL . 581 , NO 8432 ), WHICH , SINCE IT RECOGNIZED TRADITIONAL FISHING RIGHTS IN THE 6 TO 12-MILE ZONE , MUST , ACCORDING TO THE DEFENDANTS , BE UNDERSTOOD AS MEANING THAT , AFTER THE EXTENSION OF FISHERY LIMITS , THE SAME REGIME EXTENDS UP TO 200 MILES ; SECONDLY , THEY RELY 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 ), ACCORDING TO WHICH UNILATERAL CONSERVATION MEASURES MAY NOT BE ADOPTED WITHOUT PRIOR CONSULTATION AND MUST NOT BE DISCRIMINATORY IN CHARACTER .

7 IT WAS IN ORDER TO DEAL WITH THOSE ARGUMENTS THAT THE NATIONAL COURTS REFERRED TO THE COURT OF JUSTICE THE QUESTION OF THE VALIDITY OF REGULATIONS NOS 1744/78 AND 1719/80 AND THE ENFORCEABILITY THEREOF AGAINST SPANISH NATIONALS .

8 THE SCHEME FOR THE CONSERVATION OF THE RESOURCES OF THE SEA WAS ESTABLISHED BY THE COMMUNITY AT A TIME WHEN INTERNATIONAL LAW IN RELATION TO FISHING WAS UNDERGOING PROFOUND CHANGES . IT WAS IN ORDER TO TAKE INTO ACCOUNT THE GENERAL DEVELOPMENT OF INTERNATIONAL LAW AT THAT TIME THAT THE MEMBER STATES DECIDED , BY CONCERTED ACTION AGREED UPON WITHIN THE COUNCIL , TO EXTEND THEIR FISHING LIMITS TO 20 MILES FROM THE BASELINES . BY A RESOLUTION OF 3 NOVEMBER 1976 ON CERTAIN EXTERNAL ASPECTS OF THE CREATION OF A 200-MILE FISHING ZONE IN THE COMMUNITY WITH EFFECT FROM 1 JANUARY 1977 ( PUBLISHED IN OFFICIAL JOURNAL 1981 , C 105 , P . 1 ), THE COUNCIL , HAVING STRESSED THE NEED FOR IMMEDIATE ACTION BY THE COMMUNITY TO PROTECT THE LEGITIMATE INTERESTS IN THE SEA AREAS MOST THREATENED AS A RESULT OF THE EXTENSION OF FISHING LIMITS BY NON-MEMBER COUNTRIES , DECIDED THAT AS FROM 1 JANUARY 1977 THE EXPLOITATION OF FISHERY RESOURCES IN THOSE AREAS BY FISHING VESSELS OF NON-MEMBER COUNTRIES WAS TO BE GOVERNED BY AGREEMENTS BETWEEN THE COMMUNITY AND THE NON-MEMBER COUNTRIES CONCERNED .

9 IN THE SAME RESOLUTION , THE COUNCIL INSTRUCTED THE COMMISSION TO START NEGOTIATIONS IMMEDIATELY WITH THE NON-MEMBER COUNTRIES AFFECTED BY THE COMMUNITY CONSERVATION WITH THE INTERESTS OF FISHERMEN TRADITIONALLY OPERATING IN THE WATERS IN QUESTION . NEGOTIATIONS BETWEEN THE COMMISSION AND SPAIN WERE COMMENCED ON 3 DECEMBER 1979 . THEY LED TO THE AGREEMENT ON FISHERIES BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND THE GOVERNMENT OF SPAIN , WHICH WAS INITIALLED ON 23 SEPTEMBER 1978 AND SIGNED ON 15 APRIL 1980 ( OFFICIAL JOURNAL 1980 , C 263 , P . 1 ).

10 PENDING THE OUTCOME OF THOSE NEGOTIATIONS , AND TO MEET AN URGENT NEED , THE COMMUNITY , AS SOON AS IT HAD DEFINED ITS CONSERVATION POLICY , ADOPTED A NUMBER OF INTERIM PROVISIONS APPLICABLE FOR SHORT PERIODS , EXTENDING THE COMMUNITY SYSTEM OF CATCH QUOTAS TO ALL FISHERMEN OF NON-MEMBER COUNTRIES , INCLUDING THE SPANISH .

11 PURSUANT TO ARTICLE 228 OF THE EEC TREATY , THE AGREEMENT WAS APPROVED ON BEHALF OF THE COMMUNITY BY THE ADOPTION OF COUNCIL REGULATION ( EEC ) NO 3062/80 OF 25 NOVEMBER 1980 ( OFFICIAL JOURNAL 1980 , L 322 , P . 3 ). THE AGREEMENT ENTERED INTO FORCE ON 22 MAY 1981 ( OFFICIAL JOURNAL 1981 , L 204 , P . 34 ); IT WAS APPLIED PROVISIONALLY , PURSUANT TO ARTICLE 12 THEREOF , BY THE COMMUNITY AND SPAIN AS FROM THE DATE OF SIGNATURE .

12 THE AGREEMENT ALLOWS EACH OF THE PARTIES TO ADOPT , WITHIN THE FISHING ZONES UNDER ITS JURISDICTION , THE MEASURES NECESSARY TO ENSURE RATIONAL MANAGEMENT OF THE LIVING RESOURCES OF THE SEA , INCLUDING MEASURES FIXING CATCH QUOTAS AND REQUIRING THAT FISHING BE SUBJECT TO LICENCE .

13 THE JUSTIFICATION FOR THE USE OF THE LICENSING SYSTEM LIES IN THE NEED TO FIX CATCH QUOTAS ; CATCHES TAKEN BY THE FISHING VESSELS OF NON-MEMBER COUNTRIES CANNOT BE CHECKED IN THE ADJACENT COASTAL PORTS SINCE THOSE VESSELS NORMALLY RETURN TO THEIR PORTS OF ORIGIN TO LAND THEIR CATCHES .

14 IT SHOULD BE NOTED THAT REGULATION NO 1719/80 WAS ADOPTED AT A TIME WHEN THE ABOVE-MENTIONED AGREEMENT WAS ALREADY BEING PROVISIONALLY APPLIED BY THE COMMUNITY AND SPAIN . AS MAY BE SEEN FROM THE PREAMBLE TO THE REGULATION , THE COMMUNITY AND SPAIN CONSULTED EACH OTHER UNDER THE PROCEDURE LAID DOWN IN THE AGREEMENT ON THE CONDITIONS FOR FISHING BY THE VESSELS OF EACH OF THE PARTIES IN THE FISHING ZONE OF THE OTHER PARTY DURING 1980 .

15 REGULATION NO 1744/78 , WHICH WAS ADOPTED DURING THE FINAL STAGE OF THE NEGOTIATIONS BETWEEN THE COMMUNITY AND SPAIN ON THE TEXT OF THE AGREEMENT , IS ONE OF A SERIES OF COMMUNITY REGULATIONS WHICH , PENDING CONCLUSION OF THE AGREEMENT WITH SPAIN AND AGREEMENTS WITH OTHER NON-MEMBER COUNTRIES , LAID DOWN CERTAIN INTERIM CONSERVATION MEASURES . THOSE REGULATIONS WERE ADOPTED DURING THE NEGOTIATIONS AND RELATED TO THE SAME MATTER .

16 IT SHOULD BE EMPHASIZED THAT THROUGHOUT THE PERIOD OF APPLICATION OF THE INTERIM MEASURES ADOPTED BY THE COMMUNITY THE SPANISH AUTHORITIES COOPERATED IN ENSURING THEIR IMPLEMENTATION . IN PARTICULAR , AS MAY BE SEEN FROM THE DOCUMENTS BEFORE THE COURT , THEY WERE INVOLVED IN THE ISSUE OF THE COMMUNITY LICENCES AND TOOK PART IN DISCUSSIONS ON PROCEDURES FOR THE APPLICATION OF THE INTERIM MEASURES , INCLUDING RULES GOVERNING THE SUBSTITUTION OF VESSELS AND THE EQUIVALENCE OF LICENCES .

17 IN SUCH CIRCUMSTANCES IT IS NOT NECESSARY TO EXAMINE WHETHER THE PROVISIONS OF THE LONDON CONVENTION , THE LETTER OF WHICH LIMITS ITS TERRITORIAL SCOPE TO THE ZONE EXTENDING 12 MILES FROM THE BASELINES , MAY POSSIBLY APPLY TO THE ZONE EXTENDING FROM 12 TO 200 MILES , OR TO ASCERTAIN WHETHER THE INTERIM CONSERVATION MEASURES ADOPTED BY THE COMMUNITY FULFILLED THE REQUIREMENTS , SUCH AS PRIOR CONSULTATION , LAID DOWN BY THE GENEVA CONVENTION .

18 IT MAY IN FACT BE SEEN FROM THE FOREGOING THAT THE INTERIM REGIME ESTABLISHED BY THE COMMUNITY UNDER ITS OWN RULES FALLS WITHIN THE FRAMEWORK OF THE RELATIONS ESTABLISHED BETWEEN THE COMMUNITY AND SPAIN IN ORDER TO RESOLVE THE PROBLEMS INHERENT IN CONSERVATION MEASURES AND THE EXTENSION OF FISHERY LIMITS AND IN ORDER TO ENSURE RECIPROCAL ACCESS BY FISHERMEN TO THE WATERS SUBJECT TO SUCH MEASURES . THOSE RELATIONS WERE SUBSTITUTED FOR THE REGIME WHICH PREVIOUSLY APPLIED IN THOSE ZONES IN ORDER TO TAKE ACCOUNT OF THE GENERAL DEVELOPMENT OF INTERNATIONAL LAW IN RELATION TO FISHING ON THE HIGH SEAS AND THE INCREASINGLY URGENT NEED TO CONSERVE THE LIVING RESOURCES OF THE SEA .

19 IN THOSE CIRCUMSTANCES , THE PROVISIONS OF REGULATIONS NOS 1744/78 AND 1719/80 , IN SO FAR AS THEY APPLIED TO THE FISHING ZONE EXTENDING FROM 12 TO 200 MILES FROM THE BASELINES , WERE PART TO OF THE PROGRESSIVE CREATION OF NEW RECIPROCAL RELATIONS BETWEEN THE COMMUNITY AND SPAIN IN THE FIELD OF SEA-FISHING WHICH WERE SUBSTITUTED FOR THE REGIME PREVIOUSLY APPLICABLE TO FISHING ON THE HIGH SEAS .

20 ACCORDINGLY , SPANISH FISHERMEN MAY NOT RELY ON PRIOR INTERNATIONAL AGREEMENTS BETWEEN FRANCE AND SPAIN IN ORDER TO PREVENT THE APPLICATION OF THE INTERIM REGULATIONS ADOPTED BY THE COMMUNITY IN THE EVENT OF ANY INCOMPATIBILITY BETWEEN THE TWO CATEGORIES OF PROVISIONS .

21 IT FOLLOWS FROM THE FOREGOING THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF REGULATIONS NOS 1744/78 AND 1719/80 AND THAT THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH NATIONALS .

22 THE COSTS INCURRED BY THE FRENCH AND BRITISH GOVERNMENTS AND BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH 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 COURTS THE DECISION ON COSTS IS A MATTER FOR THOSE COURTS .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FRENCH COUR DE CASSATION BY JUDGMENT OF 7 JULY 1980 AND BY THE TRIBUNAL DE GRANDE INSTANCE , ST NAZAIRE , BY JUDGMENT OF 24 OCTOBER 1980 , HEREBY RULES :

CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COUNCIL REGULATION ( EEC ) NO 1744/78 OF 24 JULY 1978 EXTENDING CERTAIN INTERIM MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN TO 30 SEPTEMBER 1978 ( OFFICIAL JOURNAL 1978 , L 203 , P . 1 ) OR COUNCIL REGULATION ( EEC ) NO 1719/80 OF 30 JUNE 1980 LAYING DOWN FOR 1980 CERTAIN MEASURES FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES APPLICABLE TO VESSELS FLYING THE FLAG OF SPAIN ( OFFICIAL JOURNAL 1980 , L 168 , P . 27 ). THE PROVISIONS OF THOSE REGULATIONS ARE ENFORCEABLE AGAINST SPANISH NATIONALS .