Keywords
Summary

Keywords

1 . FISHERIES - WATERS WITHIN THE JURISDICTION OF MEMBER STATES - EQUAL CONDITIONS OF ACCESS FOR FISHERMEN FROM THE COMMUNITY - DEROGATION - PERIOD LAID DOWN BY ARTICLE 100 OF THE ACT OF ACCESSION - EXPIRY - POWERS OF THE COMMUNITY - FAILURE TO EXERCISE POWERS - EXTENSION OF THE DEROGATION BY THE MEMBER STATES - NOT PERMISSIBLE

( ACT OF ACCESSION , ARTS 100 AND 103 ; COUNCIL REGULATION NO 101/76 , ART . 2 ( 1 ); COUNCIL REGULATION NO 170/83 , ART . 6 ( 1 ))

2 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - POWERS OF THE MEMBER STATES - PROVISIONAL CONSERVATION MEASURES - LIMITS - PROHIBITION OF ACCESS TO NATIONAL WATERS - NOT PERMISSIBLE

3 . COMMUNITY LAW - GENERAL PRINCIPLES OF LAW - NON-RETROACTIVITY OF PENAL PROVISIONS - OBSERVANCE ENSURED BY THE COURT - RETROACTIVITY OF REGULATION NO 170/83 - SCOPE - NATIONAL PENAL MEASURES INCOMPATIBLE WITH COMMUNITY LAW - VALIDATION - ABSENCE

( EUROPEAN CONVENTION ON HUMAN RIGHTS , ART . 7 ; ACT OF ACCESSION , ART . 100 ; COUNCIL REGULATION NO 170/83 , ART . 6 ( 1 ))

Summary

1 . IT FOLLOWS FROM ARTICLES 100 AND 103 OF THE 1972 ACT OF ACCESSION THAT THE AUTHORIZATION GRANTED TO THE MEMBER STATES TO ADOPT , AS REGARDS FISHING , MEASURES DEROGATING FROM A FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW , NAMELY NON-DISCRIMINATION , WERE LIMITED TO THE TRANSITIONAL PERIOD AND THAT THE POWER TO BRING INTO FORCE ANY PROVISIONS THEREAFTER WAS ENTRUSTED TO THE COMMUNITY AUTHORITIES , IN PARTICULAR TO THE COUNCIL . IT CANNOT BE CONCLUDED FROM THE FACT THAT THE COUNCIL FAILED TO ADOPT SUCH PROVISIONS WITHIN THE PERIOD PROVIDED FOR IN ARTICLE 103 THAT THE MEMBER STATES HAD THE POWER TO ACT IN THE PLACE OF THE COUNCIL , IN PARTICULAR BY EXTENDING THE DEROGATION BEYOND THE PRESCRIBED TIME-LIMITS .

IT FOLLOWS THAT BETWEEN 31 DECEMBER 1982 , THE DATE OF THE EXPIRY OF THE PERIOD LAID DOWN IN ARTICLE 100 OF THE ACT OF ACCESSION , AND THE ADOPTION OF REGULATION NO 170/83 ON 25 JANUARY 1983 , ARTICLE 2 ( 1 ) OF REGULATION NO 101/76 , WHICH PROVIDED FOR EQUAL CONDITIONS OF ACCESS TO WATERS COMING WITHIN THE JURISDICTION OF MEMBER STATES AND , IN CONSEQUENCE , THE ABOLITION OF ALL DISCRIMINATION BASED ON NATIONALITY AGAINST NATIONALS OF MEMBER STATES , WAS FULLY APPLICABLE .

2 . NATIONAL RULES WHICH PROHIBIT ACCESS TO NATIONAL WATERS AND WHICH ARE NOT INTENDED TO ACHIEVE AN OBJECTIVE OF CONSERVATION CANNOT BE COVERED BY THE POWER OF MEMBER STATES , WHERE NO COMMUNITY RULES EXIST , TO TAKE TEMPORARY CONSERVATION MEASURES .

3 . THE PRINCIPLE THAT PENAL PROVISIONS MAY NOT HAVE RETROACTIVE EFFECT IS ONE WHICH IS COMMON TO ALL THE LEGAL ORDERS OF THE MEMBER STATES AND IS ENSHRINED IN ARTICLE 7 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS AS A FUNDAMENTAL RIGHT ; IT TAKES ITS PLACE AMONG THE GENERAL PRINCIPLES OF LAW WHOSE OBSERVANCE IS ENSURED BY THE COURT OF JUSTICE .

CONSEQUENTLY THE RETROACTIVITY PROVIDED FOR IN ARTICLE 6 ( 1 ) OF REGULATION NO 170/83 OF 25 JANUARY 1983 AUTHORIZING , AS FROM 1 JANUARY 1983 , THE RETENTION OF THE DEROGATION REGIME DEFINED IN ARTICLE 100 OF THE 1972 ACT OF ACCESSION CANNOT VALIDATE EX POST FACTO NATIONAL MEASURES OF A PENAL NATURE WHICH AT THE TIME OF THEIR IMPLEMENTATION WERE INCOMPATIBLE WITH COMMUNITY LAW .