61977J0088

1 . SEA FISHING - COMMON POLICY - RESOURCES OF THE SEA - CONSERVATION - ABSENCE OF COMMUNITY MEASURES - ENTITLEMENT OF THE MEMBER STATES TO ADOPT INTERIM MEASURES - CONDITIONS

( ACT OF ACCESSION , ARTICLE 102 ; COUNCIL REGULATION NO 101/76 , ARTICLE 4 )

2 . SEA FISHING - PURSUIT - NATIONAL MEASURES - ACCESS TO FISHING AREAS - LIMITATION - CRITERIA - DISCRIMINATION - PROHIBITION

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

3 . COMMUNITY LAW - EFFECTS IN NATIONAL LAW - NATIONAL LEGISLATIVE MEASURE CONTRARY TO COMMUNITY LAW - CONVICTION - INCOMPATIBILITY WITH COMMUNITY LAW

1 . IN THE ABSENCE OF THE ADOPTION BY THE COMMUNITY OF ADEQUATE CONSERVATION MEASURES UNDER ARTICLE 102 OF THE ACT OF ACCESSION AND ARTICLE 4 OF REGULATION NO 101/76 , THE MEMBER STATES WERE ENTITLED , DURING THE TRANSITIONAL STAGE FOR WHICH PROVISION IS MADE IN ARTICLE 102 OF THE ACT OF ACCESSION , TO ADOPT INTERIM MEASURES AS REGARDS THE MARITIME WATERS COMING WITHIN THEIR JURISDICTION , PROVIDED THAT SUCH MEASURES ARE IN ACCORDANCE WITH THE REQUIREMENTS OF COMMUNITY LAW .

2 . ARTICLE 7 OF THE EEC TREATY , ARTICLE 2 OF REGULATION NO 101/76 AND , IN SO FAR AS THEY HAVE A BEARING ON THE PROBLEM , ARTICLES 100 AND 101 OF THE TREATY OF ACCESSION , PRECLUDE A MEMBER STATE FROM ADOPTING MEASURES WHICH , BY SELECTING A CRITERION BASED ON THE SIZE AND ENGINE POWER OF THE BOATS , HAVE THE EFFECT OF KEEPING OUT OF THE FISHING AREAS COMING UNDER ITS SOVEREIGNTY OR WITHIN ITS JURISDICTION A PART OF THE FLEETS OF OTHER MEMBER STATES WHEN BY THOSE SAME MEASURES NO COMPARABLE OBLIGATION IS IMPOSED ON ITS OWN NATIONALS .

3 . WHERE CRIMINAL PROCEEDINGS ARE BROUGHT BY VIRTUE OF A NATIONAL MEASURE WHICH IS HELD TO BE CONTRARY TO COMMUNITY LAW A CONVICTION IN THOSE PROCEEDINGS IS ALSO INCOMPATIBLE WITH THAT LAW .

IN CASE 88/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE DISTRICT COURT FOR THE DISTRICT COURT AREA OF CORK CITY ( IRELAND ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

THE MINISTER FOR FISHERIES

AND

C . A . SCHONENBERG , PETER STAM , NICO DE NIET , ARIE HOFLAND , J . V . RIJN , J . M . PLUG , HUIBERIUS R . PLUG , J . M . BAL , C . ZWAN AND PETER C . HAASNOOT , MASTERS OF NETHERLANDS TRAWLERS ,

ON THE INTERPRETATION OF ARTICLE 7 OF THE EEC TREATY , OF ARTICLES 2 AND 4 OF COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY AND OF ARTICLES 100 TO 103 OF THE TREATY , KNOWN AS THE TREATY OF ACCESSION , OF 22 JANUARY 1972 , WITH , REGARD TO TWO ORDERS MADE BY THE IRISH MINISTER FOR FISHERIES ON 16 FEBRUARY 1977 IN RELATION TO SEA FISHING ( SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ORDERS 1977 ),

1BY ORDER OF 7 JULY 1977 , RECEIVED AT THE COURT OF JUSTICE ON 12 JULY , THE DISTRICT COURT FOR THE DISTRICT COURT AREA OF CORK CITY ( IRELAND ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 7 OF THE TREATY , ARTICLES 100 TO 103 OF THE ACT OF ACCESSION AND ARTICLES 2 AND 4 OF COUNCIL REGULATION NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( OJ L 20 , P . 19 ), THE ANSWERS TO WHICH WILL ENABLE IT TO ASSESS THE COMPATIBILITY WITH COMMUNITY LAW OF TWO ORDERS MADE BY THE IRISH MINISTER FOR FISHERIES ON 16 FEBRUARY 1977 IN RELATION TO SEA FISHING ( SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ORDERS 1977 ).

2THE COMBINED EFFECT OF THE TWO ORDERS WAS TO PROHIBIT FISHING WITHIN A MARITIME AREA SITUATED WITHIN THE EXCLUSIVE FISHERY LIMITS OF THE IRISH STATE WHICH LIE SOUTH OF THE PARALLEL 56* 30 ' NORTH LATITUDE , EAST OF THE MERIDIAN OF 12* WEST LONGITUDE AND NORTH OF THE PARALLEL OF 50* 30 ' NORTH LATITUDE BY ALL FISHING BOATS EXCEEDING 33 METRES IN REGISTERED LENGTH AND WHOSE ENGINE POWER EXCEEDS 1 100 BRAKE HORSE-POWER .

3THE FILE SHOWS THAT ON 29 APRIL 1977 TEN TRAWLERS REGISTERED IN THE NETHERLANDS , ALL OF WHICH EXCEEDED THE REGISTERED DIMENSION AND BRAKE HORSE-POWER AUTHORIZED BY THE IRISH ORDERS , FISHED WITHIN THE AREA RESERVED BY THOSE ORDERS .

4ONE OF THE DUTCH TRAWLERS , THE MASTER OF WHICH WAS C . A . SCHONENBERG , WAS BOARDED BY A BOARDING PARTY FROM AN IRISH NAVAL SEA FISHERIES PROTECTION VESSEL AND BROUGHT TO CORK HARBOUR , WHERE IT WAS FOLLOWED BY THE NINE OTHER TRAWLERS IN THE SAME GROUP .

5THE MASTERS OF THE TEN NETHERLANDS TRAWLERS IN QUESTION ARE AT PRESENT BEING PROSECUTED BEFORE THE CORK DISTRICT COURT FOR HAVING VIOLATED THE ORDERS OF 16 FEBRUARY 1977 .

6AS THE COMPATIBILITY OF THOSE ORDERS WITH COMMUNITY LAW WAS CONTESTED IN THE COURSE OF THOSE PROCEEDINGS THE DISTRICT COURT REFERRED THREE QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING .

7THE FIRST QUESTION , WHICH CONCERNS THE INTERPRETATION OF ARTICLE 7 OF THE EEC TREATY AND OF ARTICLE 2 OF REGULATION NO 101/76 , IN CONJUNCTION WITH ARTICLES 100 AND 101 OF THE ACT OF ACCESSION , SEEKS TO ENABLE THE NATIONAL COURT TO ASSESS THE COMPATIBILITY OF THE IRISH ORDERS OF 16 FEBRUARY 1977 WITH THE PRINCIPLE OF EQUALITY OF TREATMENT GUARANTEED BY THE AFOREMENTIONED PROVISIONS TO ALL FISHING BOATS FLYING THE FLAG OF ONE OF THE MEMBER STATES AND REGISTERED WITHIN THE TERRITORY OF THE COMMUNITY .

8THE SECOND QUESTION , WHICH RELATES TO THE INTERPRETATION OF ARTICLES 102 AND 103 OF THE ACT OF ACCESSION AND ARTICLE 4 OF REGULATION NO 101/76 , ASKS WHETHER , AT THE PERIOD IN QUESTION , THE MEMBER STATES WERE STILL ENTITLED TO ADOPT CONSERVATION MEASURES IN THE MARITIME WATERS UNDER THEIR JURISDICTION OR WHETHER THE POWER TO DO SO WAS RESERVED TO THE COUNCIL .

9FINALLY , BY THE THIRD QUESTION THE DISTRICT COURT ASKS WHETHER IT IS POSSIBLE TO CONVICT IN CRIMINAL PROCEEDINGS IF , AS A RESULT OF THE REPLY TO EITHER OF THE FIRST TWO QUESTIONS , IT FINDS THAT THE ORDERS OF 16 FEBRUARY 1977 ARE INCOMPATIBLE WITH CERTAIN PROVISIONS OF COMMUNITY LAW .

10THE ORDERS MADE BY THE IRISH MINISTER FOR FISHERIES ON 16 FEBRUARY 1977 HAVE RESULTED IN AN APPLICATION BY THE COMMISSION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT IRELAND HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY ; THIS APPLICATION FORMS THE SUBJECT OF CASE 61/77 .

11IN FACT , THE QUESTIONS OF LAW CONSIDERED WITHIN THE CONTEXT OF CASE 61/77 ARE IDENTICAL TO THOSE WHICH ARE RAISED BY THE QUESTIONS REFERRED BY THE DISTRICT COURT .

12BY JUDGMENT GIVEN THIS DAY THE COURT HAS FOUND THAT BY BRINGING INTO FORCE THE ORDERS MADE BY THE IRISH MINISTER FOR FISHERIES ON 16 FEBRUARY 1977 IRELAND FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

13IT IS THEREFORE SUFFICIENT TO REFER TO THE JUDGMENT GIVEN IN CASE 61/77 , THE TEXT OF WHICH IS ANNEXED TO THE PRESENT JUDGMENT .

14HAVING REGARD TO THE GROUNDS SET OUT IN THAT JUDGMENT IT IS APPROPRIATE TO REPLY FIRST TO THE SECOND QUESTION THAT IN THE ABSENCE OF THE ADOPTION BY THE COMMUNITY OF ADEQUATE CONSERVATION MEASURES UNDER ARTICLE 102 OF THE ACT OF ACCESSION AND ARTICLE 4 OF REGULATION NO 101/76 , THE MEMBER STATES WERE , AT THE PERIOD IN QUESTION , ENTITLED TO ADOPT INTERIM MEASURES AS REGARDS THE WATERS UNDER THEIR JURISDICTION , PROVIDED THAT SUCH MEASURES ARE IN ACCORDANCE WITH THE REQUIREMENTS OF COMMUNITY LAW .

15THE REPLY TO THE FIRST QUESTION MUST BE THAT ARTICLE 7 OF THE EEC TREATY , ARTICLE 2 OF REGULATION NO 101/76 AND , IN SO FAR AS THEY HAVE A BEARING ON THE PROBLEM , ARTICLES 100 AND 101 OF THE ACT OF ACCESSION PRECLUDE A MEMBER STATE FROM ADOPTING MEASURES SUCH AS ARE SET OUT IN THE SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ORDER 1977 AND THE SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ( NO 2 ) ORDER 1977 .

16FINALLY , AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 21 MARCH 1972 IN CASE 82/71 , PUBBLICO MINISTERO DELLA REPUBBLICA ITALIANA V SOCIETA AGRICOLA INDUSTRIA LATTE ( SAIL ) (( 1972 ) I ECR 119 ), WHERE CRIMINAL PROCEEDING ARE BROUGHT BY VIRTUE OF A NATIONAL LEGISLATIVE MEASURE WHICH IS HELD TO BE CONTRARY TO COMMUNITY LAW , A CONVICTION IN THOSE PROCEEDINGS IS ALSO INCOMPATIBLE WITH THAT LAW .

COSTS

17THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS , THE GOVERNMENT OF THE FRENCH REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

18AS THESE PROCEEDING ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE DISTRICT COURT FOR THE DISTRICT COURT AREA OF CORK CITY , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE DISTRICT COURT FOR THE DISTRICT COURT AREA OF CORK CITY BY ORDER OF 7 JULY 1977 , HEREBY RULES :

1 . IN THE ABSENCE OF THE ADOPTION BY THE COMMUNITY OF ADEQUATE CONSERVATION MEASURES UNDER ARTICLE 102 OF THE ACT OF ACCESSION AND ARTICLE 4 OF REGULATION NO 101/76 , THE MEMBER STATES WERE , AT THE PERIOD IN QUESTION , ENTITLED TO ADOPT INTERIM MEASURES AS REGARDS THE MARITIME WATERS COMING WITHIN THEIR JURISDICTION , PROVIDED THAT SUCH MEASURES ARE IN ACCORDANCE WITH THE REQUIREMENTS OF COMMUNITY LAW ;

2 . ARTICLE 7 OF THE EEC TREATY , ARTICLE 2 OF REGULATION NO 101/76 AND , IN SO FAR AS THEY HAVE A BEARING ON THE PROBLEM , ARTICLES 100 AND 101 OF THE ACT OF ACCESSION , PRECLUDE A MEMBER STATE FROM ADOPTING MEASURES SUCH AS ARE SET OUT IN THE SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ORDER 1977 AND THE SEA FISHERIES ( CONSERVATION AND RATIONAL EXPLOITATION ) ( NO 2 ) ORDER 1977 ;

3 . WHERE CRIMINAL PROCEEDINGS ARE BROUGHT BY VIRTUE OF A NATIONAL LEGISLATIVE MEASURE WHICH IS HELD TO BE CONTRARY TO COMMUNITY LAW A CONVICTION IN THOSE PROCEEDINGS IS ALSO INCOMPATIBLE WITH THAT LAW .