Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . FISHING - CONSERVATION OF THE RESOURCES OF THE SEA - POWERS OF THE EEC - NOT EXERCISED - INTERIM POWERS OF THE MEMBER STATES - PERIOD LAID DOWN IN ARTICLE 102 OF THE ACT OF ACCESSION - DATE OF EXPIRY
( ACT OF ACCESSION , ART . 102 )
2 . COMMUNITY LAW - PRINCIPLES - EQUALITY OF TREATMENT - DISCRIMINATION ON GROUNDS OF NATIONALITY - CONCEPT - NATIONAL MEASURES APPLICABLE TO ALL WHO ARE SUBJECT TO THE JURISDICTION OF A MEMBER STATE - EXCLUSION
( EEC TREATY , ART . 7 )
Summary
1 . THE TRANSITIONAL PERIOD REFERRED TO IN ARTICLE 102 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES EXPIRED ON 31 DECEMBER 1978 . SINCE THE COUNCIL HAD NOT IMPLEMENTED PRIOR TO THAT DATE THE PROTECTIVE MEASURES ENVISAGED BY THAT PROVISION , MEMBER STATES HAD , DURING THE YEAR 1978 , THE RIGHT AND THE DUTY TO ADOPT , WITHIN THEIR RESPECTIVE SPHERES OF JURISDICTION , ANY MEASURES COMPATIBLE WITH COMMUNITY LAW TO PROTECT THE BIOLOGICAL RESOURCES OF THE SEA AND , IN PARTICULAR , TO FIX FISHING QUOTAS FOR THE UNDERTAKINGS AND FISHERMEN SUBJECT TO THEIR CONTROL .
2 . THE APPLICATION BY A MEMBER STATE OF RULES WHICH , WHILST COMPATIBLE WITH COMMUNITY LAW , ARE MORE STRICT THAN THOSE APPLIED IN THE SAME SPHERE BY OTHER MEMBER STATES IS NOT CONTRARY TO THE PRINCIPLE OF NON-DISCRIMINATION ENSHRINED IN ARTICLE 7 OF THE TREATY , SO LONG AS SUCH RULES ARE APPLIED EQUALLY TO ALL WHO ARE SUBJECT TO THE JURISDICTION OF THAT MEMBER STATE . THUS NATIONAL RULES FIXING FISHING QUOTAS ARE NOT TO BE CONSIDERED AS DISCRIMINATORY IF THEY ARE APPLIED UNIFORMLY TO ALL THE FISHERMEN UNDER THE JURISDICTION OF THE MEMBER STATE CONCERNED .
Parties
IN JOINED CASES 185 TO 204/78
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ECONOMISCHE POLITIERECHTER ( MAGISTRATE IN COMMERCIAL MATTERS ) OF THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), ROTTERDAM , FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT AGAINST :
FIRMA J . VAN DAM EN ZONEN ( CASES 185 AND 186/78 ),
FIRMA J . EN W . LOKKER CORNELISZONEN ( CASES 187 AND 188/78 ),
REDERIJ DELTA B.V . ( CASE 189/78 ),
FIRMA GEBR . J . EN W . MELISSANT ( CASES 190 AND 191/78 ),
FIRMA C . TANIS JACZN EN ZONEN ( CASE 192/78 ),
JAN TANIS , FISHERMAN ( CASE 193/78 ),
FIRMA GEBR . VAN DER KLOOSTER ( CASE 194/78 ),
FIRMA JAC . VAN DER KLOOSTER EN ZOON ( CASE 195/78 ),
JAC . TANIS , KMRSZN EN ZONEN ( CASE 196/78 ),
JAN GRINWIS , FISHERMAN ( CASE 197/78 )
ANTHONIJ REDERT , FISHERMAN ( CASE 198/78 )
FIRMA A . REDERT EN G . TANIS ( CASE 199/78 ),
FIRMA JOH . EN KR . ORGERS GERRITZONEN ( CASE 200/78 )
VISSERIJBEDRIJF WISSELVALLIGHEID B.V . ( CASE 201/78 ),
JOHANNES TANIS , FISHERMAN ( CASE 202/78 ),
JOHANNES GRINWIS , FISHERMAN ( CASE 203/78 ),
ADAM ' T MANNETJE , FISHERMAN ( CASE 204/78 ),
ALL HAVING THEIR PLACE OF BUSINESS OR RESIDENCE IN GOEDEREEDE ,
Subject of the case
ON THE INTERPRETATION OF ARTICLE 102 OF THE ACT OF 22 JANUARY 1972 CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES , AND OF CERTAIN RULES OF COMMUNITY LAW , WITH REGARD TO NATIONAL MEASURES RELATING TO QUOTA RESTRICTIONS ON CATCHES OF SOLE AND PLAICE IN THE NORTH SEA ,
Grounds
1 IN A SERIES OF 20 JUDGMENTS , GIVEN ON 18 JULY 1978 AND RECEIVED AT THE COURT THE FOLLOWING 14 SEPTEMBER , THE ECONOMISCHE POLITIERECHTER ( MAGISTRATE IN COMMERCIAL MATTERS ) OF THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), ROTTERDAM , REFERRED CERTAIN QUESTIONS TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLE 5 OF THE EEC TREATY AND ARTICLE 102 OF THE ACT OF ACCESSION SO AS TO ENABLE IT TO ASSESS THE COMPATIBILITY WITH COMMUNITY LAW OF MEASURES LAID DOWN BY REGULATION , ADOPTED BY THE NETHERLANDS GOVERNMENT TO RESTRICT CATCHES OF SOLE AND PLAICE IN THE NORTH SEA .
2 FROM THE FILE ON THE CASE IT APPEARS THAT CRIMINAL PROCEEDINGS WERE INSTITUTED BEFORE THE ECONOMISCHE POLITIERECHTER AGAINST 20 FISHING UNDERTAKINGS OF FISHERMEN FOR INFRINGING THE PROVISIONS OF THE NETHERLANDS REGULATIONS FIXING FOR THE YEAR 1978 QUOTAS FOR CATCHES OF SOLE AND PLAICE IN THE NORTH SEA AREA , NAMELY THE ' ' DECREE PROVISIONALLY LAYING DOWN RESTRICTIONS ON CATCHES OF SOLE AND PLAICE , 1978 ' ' AND THE ' ' DECREE PROVISIONALLY LAYING DOWN QUOTAS FOR NORTH SEA SOLE AND PLAICE , 1978 ' ' . IN THE NATIONAL COURT THE ACCUSED CLAIMED IN THEIR DEFENCE THAT SINCE THE TRANSITIONAL PERIOD LAID DOWN IN ARTICLE 102 OF THE ACT OF ACCESSION EXPIRED ON 1 JANUARY 1978 , THE MEASURES TO BE TAKEN FOR PROTECTING THE BIOLOGICAL RESOURCES OF THE SEA WERE UNDER THE COMMUNITY ' S JURISDICTION . CONSEQUENTLY THE NETHERLANDS STATE WAS NO LONGER AUTHORIZED TO ENACT THE REGULATIONS WHICH GAVE RISE TO THE PROCEEDINGS . THE ACCUSED ALSO CLAIM THAT EVEN IF THE NETHERLANDS PROVISIONS WERE LEGALLY ENACTED , THEY ARE INCOMPATIBLE WITH COMMUNITY LAW BECAUSE THEY CONSTITUTE DISCRIMINATION AGAINST NETHERLANDS FISHERMEN IN VIEW OF THE FACT THAT THE PROVISIONS APPLIED BY THE OTHER MEMBER STATES IN THE SAME MARITIME ZONE ARE LESS STRICT .
3 TO ENABLE HIM TO SETTLE THIS DISPUTE THE ECONOMISCHE POLITIERECHTER HAS REFERRED THREE QUESTIONS TO THE COURT , WHICH ARE WORDED AS FOLLOWS :
( 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 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 - STAATSBLAD 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?
FIRST QUESTION ( INTERPRETATION OF ARTICLE 102 OF THE ACT OF ACCESSION )
4 ACCORDING TO ARTICLE 102 OF THE ACT OF ACCESSION , ' ' FROM THE SIXTH YEAR AFTER ACCESSION AT THE LATEST , THE COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION , SHALL DETERMINE CONDITIONS FOR FISHING WITH A VIEW TO ENSURING PROTECTION OF THE FISHING GROUNDS AND CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA ' ' . THE DEFINITION OF THE TIME-LIMIT PRESCRIBED BY THIS PROVISION PRESENTS A DIFFICULTY OWING TO THE FACT THAT THE TEXT DOES NOT REFER TO A PRECISE MOMENT BUT TO A PERIOD , DESIGNATED BY THE PHRASE ' ' THE SIXTH YEAR AFTER ACCESSION ' ' . THIS PHRASE CAN BE UNDERSTOOD AS REFERRING EITHER TO THE BEGINNING OR TO THE END OF THAT YEAR , THAT IS TO SAY 1 JANUARY OR 31 DECEMBER 1978 . IT IS POSSIBLE , HOWEVER , TO RESOLVE THIS DIFFICULTY BY LOOKING AT THE GENERAL CLAUSE IN ARTICLE 9 OF THE ACT OF ACCESSION , PARAGRAPH ( 2 ) OF WHICH PROVIDES THAT ' ' SUBJECT TO THE DATES , TIME-LIMITS AND SPECIAL PROVISIONS PROVIDED FOR IN THIS ACT , THE APPLICATION OF THE TRANSITIONAL MEASURES SHALL TERMINATE AT THE END OF 1977 ' ' . A COMPARISON WITH THIS PROVISION SHOWS THAT THE FIXING OF A PARTICULAR TIME-LIMIT IN ARTICLE 102 WOULD HAVE NO PRACTICAL SIGNIFICANCE IF THE END OF THE PERIOD SPECIFIED COINCIDED WITH THE END OF THE PERIOD , OF GENERAL APPLICATION , FIXED BY ARTICLE 9 ( 2 ), THAT IS TO SAY , 31 DECEMBER 1977 . ACCORDINGLY , THE TIME-LIMIT LAID DOWN BY ARTICLE 102 CAN HAVE NO REAL MEANING UNLESS THE PHRASE ' ' FROM THE SIXTH YEAR AFTER ACCESSION AT THE LATEST ' ' IS INTERPRETED AS REFERRING NOT TO THE BEGINNING , BUT TO THE END OF THE SIXTH YEAR , THAT IS TO SAY , 31 DECEMBER 1978 .
5 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT THE PERIOD REFERRED TO IN ARTICLE 102 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES EXPIRED ON 31 DECEMBER 1978 .
SECOND QUESTION ( COMPETENCE )
6 IT FOLLOWS FROM THE FOREGOING THAT THE EVENTS WHICH GAVE RISE TO THE PROCEEDINGS PENDING BEFORE THE ECONOMISCHE POLITIERECHTER OCCURRED AT A TIME WHEN THE TRANSITIONAL PERIOD UNDER ARTICLE 102 HAD NOT YET EXPIRED .
7 IT SHOULD ALSO BE BORNE IN MIND , HOWEVER , THAT AT THE TIME IN QUESTION THE COUNCIL HAD NOT IMPLEMENTED THE PROTECTIVE MEASURES ENVISAGED BY ARTICLE 102 . THIS LED TO UNCERTAINTY IN THE LAW , BUT IT DID NOT ACTUALLY ENTAIL A LEGAL VACUUM FROM THE POINT OF VIEW OF COMMUNITY LAW . THE COURT HAS SHOWN IN ITS JUDGMENT OF 16 FEBRUARY 1978 ( CASE 61/77 COMMISSION V IRELAND ( 1978 ) ECR 417 , PARAGRAPHS 28 TO 37 AND 56 TO 68 ), WHAT THE LAW IS APPLICABLE IN THE CIRCUMSTANCES AND HOW POWERS ARE DIVIDED BETWEEN THE COMMUNITY AND THE MEMBER STATES . IT FOLLOWS THAT DURING THE YEAR 1978 THE MEMBER STATES HAD THE RIGHT AND THE DUTY TO ADOPT , WITHIN THEIR RESPECTIVE SPHERES OF JURISDICTION , ANY MEASURE COMPATIBLE WITHIN COMMUNITY LAW TO PROTECT THE BIOLOGICAL RESOURCES OF THE SEA AND , IN PARTICULAR , TO FIX FISHING QUOTAS FOR FISHING UNDERTAKINGS AND FISHERMEN SUBJECT TO THEIR CONTROL .
8 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT MEASURES SUCH AS THOSE COVERED BY THE PROVISIONS OF THE NATIONAL REGULATIONS MENTIONED BY THE COURT MAKING THE REFERENCE WERE , AT THE TIME IN QUESTION , WITHIN THE POWERS OF THE MEMBER STATES .
THIRD QUESTION ( SUBSTANTIVE REQUIREMENTS OF COMMUNITY LAW )
9 ACCORDING TO THE DOCUMENTS ON THE FILE AND THE ARGUMENTS PRESENTED BY THE PERSONS PROSECUTED IN THE NATIONAL COURT , THE PROTECTIVE MEASURES INTRODUCED IN THE NETHERLANDS FOR THE YEAR 1978 ARE CRITICIZED ON THE GROUND THAT THEY DISCRIMINATE AGAINST NETHERLANDS FISHERMEN , BECAUSE THE PROVISIONS APPLIED BY OTHER MEMBER STATES IN THIS SPHERE ARE LESS STRICT . THE RESULT IS THAT FISHERMEN WHO ARE NOT SUBJECT TO THE JURISDICTION OF THE NETHERLANDS AUTHORITIES CAN , EVEN IN WATERS WITHIN THE NETHERLANDS ' FISHING ZONE , MAKE MORE REWARDING CATCHES THAN THE NETHERLANDS FISHERMEN . IN THE OPINION OF THE ACCUSED , THEREFORE , THE NETHERLANDS REGULATIONS ARE CONTRARY TO THE PRINCIPLE IN ARTICLE 7 OF THE EEC TREATY WHICH , THEY SAY , REQUIRES EQUAL TREATMENT BETWEEN THE NATIONALS OF ALL THE MEMBER STATES .
10 IN THIS CONNEXION IT SHOULD BE REMEMBERED THAT PROTECTIVE MEASURES AGREED ON WITHIN THE COMMUNITY , IN CONSULTATION WITH THE COMMISSION , ARE BASED ON RESPONSIBILITY SHARED BETWEEN THE MEMBER STATES , IN THE SENSE THAT AT PRESENT EACH STATE REGULATES IN ACCORDANCE WITH THE PROVISIONS OF ITS OWN NATIONAL LEGISLATION CONCERNING FISHING QUOTAS , THE CATCHES LANDED IN ITS OWN PORTS . IT CANNOT BE HELD CONTRARY TO THE PRINCIPLE OF NON-DISCRIMINATION TO APPLY NATIONAL LEGISLATION , THE COMPATIBILITY OF WHICH WITH COMMUNITY LAW IS MOREOVER NOT CONTESTED , BECAUSE OTHER MEMBER STATES ALLEGEDLY APPLY LESS STRICT RULES . INEQUALITIES OF THIS KIND , IF THEY EXIST , MUST BE ELIMINATED BY MEANS OF THE CONSULTATIONS PROVIDED FOR BY ANNEX VI TO THE HAGUE RESOLUTION , QUOTED IN THE JUDGMENT REFERRED TO ABOVE , BUT THEY CANNOT BE THE FOUNDATION OF A CHARGE OF DISCRIMINATION WITH REGARD TO THE PROVISIONS MADE BY A MEMBER STATE WHICH APPLIES EQUALLY TO ANY PERSON UNDER ITS JURISDICTION , THE REGULATIONS WHICH IT HAD ADOPTED FOR FISHING QUOTAS .
11 THE ANSWER TO THE THIRD QUESTION MUST THEREFORE BE THAT NATIONAL PROVISIONS , SUCH AS THOSE IN THE NETHERLANDS REGULATIONS CONCERNING FISHING QUOTAS TO WHICH THE NATIONAL COURT HAS REFERRED , CANNOT BE CONSIDERED AS DISCRIMINATORY AS LONG AS THEY ARE APPLIED UNIFORMLY TO ALL THE FISHERMEN UNDER THE JURISDICTION OF THE MEMBER STATE CONCERNED .
Decision on costs
COSTS
12 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS , THE GOVERNMENT OF THE KINGDOM OF DENMARK , THE GOVERNMENT OF THE FRENCH REPUBLIC , THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE 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 ECONOMISCHE POLITIERECHTER OF THE ARRONDISSEMENTSRECHTBANK , ROTTERDAM , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE ECONOMISCHE POLITIERECHTER OF THE ARRONDISSEMENTSRECHTBANK , ROTTERDAM , BY JUDGMENTS OF 18 JULY 1978 , HEREBY RULES :
1 . THE PERIOD REFERRED TO IN ARTICLE 102 OF THE ACT OF 22 JANUARY 1972 CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES EXPIRED ON 31 DECEMBER 1978 .
2 . MEASURES SUCH AS THOSE COVERED BY 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 ), BOTH DATED 29 DECEMBER 1977 , WERE , AT THE TIME IN QUESTION , WITHIN THE POWERS OF THE MEMBER STATES .
3 . NATIONAL LAWS SUCH AS THOSE IN THE NETHERLANDS REGULATIONS RELATING TO FISHING QUOTAS DATED 29 DECEMBER 1977 CANNOT BE CONSIDERED DISCRIMINATORY AS LONG AS THEY ARE APPLIED UNIFORMLY TO ALL THE FISHERMEN UNDER THE JURISDICTION OF THE MEMBER STATE CONCERNED .
Full & Egal Universal Law Academy