‘1.

On what date did the period referred to in Article 102 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties expire?

2.

Are the measures pursuant to the Reglement Zee- en Kustvisserij 1977 (Regulation concerning sea and coastal fishing, 1977 — Staatsblad 1977, 666) as set out in the Beschikking Voorlopige Regeling Vangstbeperking Tong en Schol 1978 (Decree provisionally laying down restrictions on catches of sole and plaice, 1978) and the Beschikking Voorlopige Regeling Contingentering Tong en Schol Noordzee 1978 (Decree provisionally laying down quotas for North Sea sole and plaice, 1978 — Staatscourant 1977, 255) based on decisions of the Community or on obligations imposed by the Community on the Member States by treaty as referred to in Article 5 of the EEC Treaty or on powers conferred on the Member States by the Community?

3.

Is the content of the aforesaid measures compatible with Community law?’

1.

As to the first question, the accused in the original proceedings infer from the judgments in the cases of Kramer, and Commission v Ireland, that the Community had exclusive competence, from the end of the period mentioned in the relevant provision at the latest, to adopt conservation measures for fish stocks. Since the accession of the new Member States took place on 1 January 1973, the measures provided for in the article referred to above had to have been taken by the Council on 1 January 1978 at the latest, with the consequence that the Member States must have lost their powers from that moment on. The accused contend that according to the ordinary use of language the period came to an end not later than the beginning of the sixth year. They also point out that the Act of Accession generally provides for transitional periods of five years, or sometimes ten years, but not six years.

Opposing that interpretation, the Governments of Denmark, France, the Netherlands and the United Kingdom, which are taking part in the proceedings, and also the Commission, consider that the period laid down in Article 102 of the Act of Accession did not expire until 31 December 1978.

I share this view. It cannot be denied that the meaning of this provision is obscure in all the Treaty languages. This obscurity arises from the fact that the point at which a period ceases to run is defined by a time-limit which itself spans a year. Consequently a literal interpretation on grammatical principles does not help to make lit clear whether the period laid down in Article 102 of the Act of Accession expires at the beginning or only at the end of the sixth year. All that one can conclude with certainty from the wording is that the period referred to expires at the latest on 31 December 1978.

In that case it is surprising, however, that those who. drafted the Treaty, contrary to the normal practice, did not provide for a time-limit, by giving an exact date. This seems to me — and the Commissions stresses the point — too strange to be treated as a mere oversight on the part of the'draftsmen.

I find a further indication that the period should only expire at the end of the sixth year in the positioning of the provision in relation to the. structural scheme of the Act of Accession. The article in question is in; Part Four of the Act of Accession, which bears the title ‘Transitional Measures’. It is thus governed by the. basic principle in Article 9 (2) of the Act of Accession, according to which the application of the transitional measures shall terminate at the end of 1977, but ‘subject to the dates, time-limits and special provisions provided for in this Act’.

It is quite obvious that the Act of Accession provides for transitional measures in order to make adaptation to the rules in force within the Community easier for the new Member States.

In principle it is the Member States which are given a duty to perform after the end of the year 1977, but in fact Article 102 of the Act of Accession is directed, not to the Member States, but to the Community institutions. That is enough to show that it is a special provision within the meaning of Article 9 (2), to which the transitional period mentioned therein does not apply. Besides, the parties to the Treaty would surely have referred to the expiry of the transitional period if they had had 31 December 1977 in mind. From the fact that instead of this being done express mention was made of the sixth year after accession I conclude that the period referred to in Article 102 did not expire until 31 December 1978.

It follows, in the light of the case-law of the Court of Justice, that at the time in question the Netherlands still had power to adopt measures for the conservation of fish stocks, since the Community had not yet fully exercised the powers given to it.

2.

In the judgment to which I have referred however, the Court expressly stated — and here I come to the difficulty broached, in the second preliminary question — that the residual powers left to the Member States are purely transitional in character and Member States are bound by Community obligations. Accordingly measures adopted by Member States are only permissible if they are necessary or at least appropriate and not unilateral, but taken in consultation with the Commission and the other Member States. Lastly, their content must not conflict with the prohibition of discrimination enshrined in Community law.

If we judge the Netherlands measures in dispute by the yardstick of these criteria, which are also to be found in Annex VI to The Hague Resolution of 3 November 1976 mentioned above, the first thing we find is that the disputed Netherlands measures expressly emphasize their transitional character and that none of the parties disputes the necessity or appropriateness of the measures.

However, the accused in the main proceedings contend that the duty to conserve fish stocks which existed until 1977 under the North-East Atlantic Fisheries Convention could only be extended by an official Council decision. The agreement made at the Council meeting on 5, 6 and 7 December 1977 to extend national conservation measures too was purely a political agreement which, although the result of a Council meeting, had nothing to do with the EEC as such. Nor do the agreements in question meet the requirements of form laid down in the EEC Treaty. Admittedly the Council endorsed a declaration by the Commission at its meeting on 30 and 31 January 1978, which stated that national measures adopted in the absence of a common fisheries policy could only be taken if they fulfilled the conditions listed above. But this endorsement, which was unpublished, cannot be taken as retrospective approval of the measures taken by the Netherlands.

As I have already explained, the case-law of the Court shows clearly that before the expiry of the period referred to in Article 102 of the Act of Accession a formal authorization from the Council was not required for adopting national conservation measures in the fisheries sector. Moreover, no other interpretation is possible of Annex VI to the Resolution of The Hague adopted by the Council on 3 November 1976, which the Council merely reconfirmed at its meeting on 30 and 31 January 1978. But even the accused in the main proceedings do not deny that the Member States came to an agreement in consultation with the Commission during the Council meeting in December 1977. Hence the Netherlands was empowered on that basis, before expiry of the transitional period prescribed by Article 102 of the Act of Accession, to adopt the conservation measures in dispute.

Quite apart from that, however, we have heard from the participating Member States and from the Commission that the Council decided at the meeting it held at the time that besides the Community conservation measures, the national measures would also have their validity extended to 31 January 1978. Since fisheries policy, as already explained, is within the competence of the Community and the Council is expressly empowered by Article 4 of Regulation No 101/76 in conjunction with Article 102 of the Act of Accession to adopt the necessary measures for the conservation of fish stocks, I have no difficulty in concluding that the agreement described is a Council decision, which imposed a formal obligation on Member States to extend the period of validity of national conservation measures. I do not need to stress the point that the Council is not necessarily bound in the performance of its duties to observe the requirements of form laid down by Article 189 of the EEC Treaty. There is no question of failure to publish or state the reasons for the decision in the present case, for the decision imposed duties only on the participating Member States and the Community institutions, not on individuals.

Accordingly, the conservation measures taken by the Netherlands met the requirements of Community law.

3.

I can now turn to examination of the third question. It appears from the arguments put forward by the accused in the main action that this question depends on the interpretation of Article 7 of the EEC Treaty and Article 2 of Regulation No 101/76. It is to enable the national court to assess the compatibility of the content of the Netherlands measures in question with the principle of equal treatment laid down in the above-mentioned provisions. Article 7 of the EEC Treaty prohibits in principle any discrimination on the ground of nationality, whilst Article 2 of Regulation No 101/76 provides that rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States and that equal conditions of access to and use of the fishing grounds situated in the territorial waters of the Member States must be granted to the fishing vessels of Member States.

The accused in the main action contend that independently of whether or not there was a duty in Community law to take the measures in question it is certain that the other Member States took no corresponding conservation measures at the time in question, which in itself places the Netherlands fishermen at a disadvantage. In addition to that, however, the disputed Netherlands decrees themselves conflict with the prohibition against discrimination.

For if the prohibition applies to all fishermen, only Netherlands fishermen are exempt up to the limit of the quotas allocated, and they are thus placed in a better position than fishermen from the other Member States. If the prohibition applies only to Netherlands fishermen, however, it means that fishermen from the other Member States are free to fish as they please, whilst Netherlands fishermen are restricted to the quotas and therefore at a disadvantage. In effect, though, the Netherlands rules refer only to Netherlands fishermen, since the Netherlands authorities have no jurisdiction over fishing vessels from other Member States outside the fishing zone of 200 miles, and even within the 200-mile zone the rules are only applied to Netherlands fishermen.

The Governments taking pan in the proceedings and the Commission refute this argument as in their opinion the rules in question constitute discrimination, if any, ‘in reverse’, which is not prohibited by Article 7 of the EEC Treaty.

I, too, do not see in the measures in question any infringement of Community law's requirement of equal treatment.

I have already mentioned that the Member States were bound by the Council decision taken at the meeting on 5, 6 and 7 December 1977 to extend until 1 February 1978 the protective measures adopted for the year 1977 under Recommendation No 15 A of the Fisheries Commission of 25 November 1976. In doing so the Council was acting on the assumption that the conservation of the biological resources of the sea can only be effectively and properly ensured by a system of control which so far as possible is binding on all the States concerned.

The conservation measures taken on the basis of Recommendation No 15 A divided the yearly global quotas for catches of sole and plaice in the North Sea into individual quotas for the countries with coast-lines on the North Sea. The geographical sphere of application of the recommendation covers maritime waters subject to the jurisdiction of Member States and also of Norway. Within this zone it is immaterial where the relevant quotas are caught; all that matters is that the level should not be exceeded, and this is to be guaranteed by the States parties to the agreement. In this connexion I need not emphasize that rules fixing quotas cannot in themselves infringe the prohibition of discrimination if, as has been shown, they are expressly allowed for in Community law.

After the Netherlands had followed the recommendation of the Fisheries Commission by issuing the Beschikking Vangstbeperking Tong en Schol 1977 (Decree laying down restrictions on catches of sole and plaice, Staatscourant 1976, No 251) and to implement it had published the Beschikking Contingentering Tong en Schol Noordzee 1977 [Decree laying down quotas for North Sea sole and plaice, Staatscourant 1976, No 251], they extended the period of validity of these measures, in accordance with the Council decision of December 1977, as the representative of the Netherlands Government has told us, by means of the decrees of 29 December 1978 and at the same time, in view of the provisional nature of their validity, replaced the yearly quotas by monthly catch quotas, which were roughly equal to one twelfth of the yearly quota.

From the disputed measures themselves it is not hard to see that, even if they do not expressly say so, they only apply to Netherlands fishermen. For the prohibition in Article 2 of the Decree provisionally laying down restrictions on catches of sole and plaice, 1978 applies not only to the North sea, but also to the English Channel, the Bristol Channel and the Irish Sea, that is to say, to waters which are either not at all, or are only to a small extent, under Netherlands jurisdiction. Owing to territorial sovereignty, a prohibition against all fishing vessels could only be made for maritime waters within Netherlands jurisdiction, whereas the sovereignty exercisable over a State's own nationals made it posible to prohibit fishing by them even in waters outside the 200-mile fishing zone. But in any case there was no occasion to extend the application of the disputed regulations to non-Netherlands fishing vessels. It is obvious that the Netherlands authorities have no power to make rules governing foreign fishing vessels in maritime waters outside Netherlands jurisdiction. As regards the waters within their jurisdiction there is already, however, a general prohibition against fishing by foreign fishing vessels by virtue of Article 5 (1) of the Netherlands Fisheries Law of 1963 (Staatsblad No 312). According to paragraph (2) of that article this prohibition does not apply, however, if anything to the contrary is adopted by international agreement or by decisions of. organizations recognized by international law. The Council decision taken in December 1977 to the effect that national conservation measures based on the quota restrictions of the North-East Atlantic Fisheries Convention should be extended constitutes such a legal act. Consequently fishing vessels belonging to other Member States are not subject to the prohibition in paragraph (1), or at least only in so far as the quota allocated to the Member State concerned is not exceeded, whilst Netherlands fishermen, so long as they comply with the quota restrictions, are exempt under Article 3 of the Decree provisionally laying down restrictions on catches of sole and plaice, 1978.

This being the law, it is clear that by virtue of the disputed Netherlands measures for conservation of sole and plaice stocks Netherlands fishing vessels, which without this control would be favoured, are treated equally with vessels flying the flag of another Member State. That is, of course, assuming that the other Member States have also extended their national quota restrictions in compliance with the Council decision in question.

Should it be that the other Member States have failed to comply fully with the Council decision of December 1977, the result could well be that Netherlands fishermen are at a disadvantage. But the fact that other Member States act against the interests of the Community must not expose the Netherlands, which acted in accordance with the Treaty, to a charge of infringing the prohibition of discrimination in Article 7 of the Treaty or Article 2 of Regulation No 101/76.

To close my examination, permit me to make a brief comment on the complaint about discrimination in prosecution practice. As you know, each party to the North-East Atlantic Fisheries Convention has to guarantee by legislation that the catch quotas allocated will not be exceeded. So it is possible in principle for the prosecuting authorities in the Netherlands to take proceedings against both Netherlands fishermen and fishermen of other nationalities if catch quotas are exceeded. But it would be difficult to prosecute foreign nationals in that case owing to the difficulty of ascertaining whether the national quotas had been exceeded. The difference in treatment results therefore from a difference in actual circumstances and as such does not infringe the prohibition of discrimination in Community law.

1.

The period referred to in Article 102 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties expired at the end of the year 1978. Therefore at the time of the events to be ruled upon by the court making the reference the Netherlands had the power to adopt measures for restricting fishing activities for the purpose of conserving the resources of the sea such as those contained in the Beschikking Voorlopige Regeling Contingentering Tong en Schol Noordzee 1978.

2.

These measures do not conflict with either Article 7 of the EEC Treaty, which prohibits discrimination on the ground of nationality, or Article 2 (1) of Regulation No 101/76, under which rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States.