Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - POWER OF THE EEC - FAILURE TO EXERCISE THAT POWER DURING THE TRANSITIONAL PERIOD LAID DOWN BY ARTICLE 102 OF THE ACT OF ACCESSION - INTERIM POWER OF THE MEMBER STATES - CONDITIONS GOVERNING THE EXERCISE OF THAT POWER
( ACT OF ACCESSION OF 22 JANUARY 1972 , ART . 102 ; THE HAGUE RESOLUTION OF 3 NOVEMBER 1976 )
2 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - POWER OF THE EEC - FAILURE TO EXERCISE THAT POWER DURING THE TRANSITIONAL PERIOD LAID DOWN BY ARTICLE 102 OF THE ACT OF ACCESSION - INTERIM POWER OF THE MEMBER STATES - MANAGEMENT AND CONSERVATION MEASURES ADOPTED BY A MEMBER STATE IN CONFORMITY WITH THE PROCEDURE ESTABLISHED BY THE HAGUE RESOLUTION - FIXING OF A TOTAL CATCH-QUOTA ALLOCATED AMONGST CERTAIN MEMBER STATES - MEASURE REQUIRED AND JUSTIFIED BY OBJECTIVE CONSIDERATIONS - PRINCIPLE PROHIBITING DISCRIMINATION - BREACH - ABSENCE - CONDITIONS
( EEC TREATY , ART . 7 ; ACT OF ACCESSION , ART . 102 ; COUNCIL REGULATION ( EEC ) NO 101/76 , ARTS 1 AND 2 ; THE HAGUE RESOLUTION OF 3 NOVEMBER 1976 , ANNEX VI )
Summary
1 . THE PURPOSE OF ARTICLE 102 OF THE ACT OF ACCESSION WAS TO INTRODUCE A NEW TRANSITIONAL PERIOD BY THE END OF WHICH THE COUNCIL WAS TO HAVE ADOPTED THE CONSERVATION MEASURES REQUIRED . DURING THAT PERIOD AND IN SO FAR AS THE COUNCIL HAD NOT EXERCISED THAT POWER , IT WAS FOR THE MEMBER STATES TO ADOPT AS REGARDS THE MARITIME WATERS WITHIN THEIR JURISDICTION THE NECESSARY CONSERVATION MEASURES IN THE COMMON INTEREST AND IN COMPLIANCE WITH THE SUBSTANTIVE AND PROCEDURAL RULES OF COMMUNITY LAW , IN PARTICULAR THOSE CONTAINED IN THE HAGUE RESOLUTION OF 3 NOVEMBER 1976 .
2 . AS LONG AS THE COMMUNITY HAD NOT EXERCISED ITS POWER TO TAKE MEASURES FOR THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , A MANAGEMENT AND CONSERVATION MEASURE ADOPTED BY A MEMBER STATE DURING THE TRANSITIONAL PERIOD WHICH EXPIRED ON 31 DECEMBER 1978 AND DECIDED UPON IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR BY THE HAGUE RESOLUTION OF THE COUNCIL OF 3 NOVEMBER 1976 , WHICH HAD AS ITS PURPOSE TO FIX A TOTAL CATCH QUOTA , ALLOCATING IT AMONGST CERTAIN MEMBER STATES , CANNOT BE REGARDED AS CONTRARY TO THE PRINCIPLE PROHIBITING DISCRIMINATION , EMBODIED IN ARTICLE 7 OF THE EEC TREATY AND IN ARTICLES 1 AND 2 ( 1 ) OF REGULATION NO 101/76 , IF IT WAS A CONSERVATION MEASURE TAKEN IN RESPONSE TO A NEED ARISING IN THE ZONE CONCERNED AND IF THE MEASURE WAS JUSTIFIED BY OBJECTIVE CONSIDERATIONS RELATING TO THE PROTECTION OF THE NEEDS OF THE COASTAL POPULATION CONCERNED AND TO THE MAINTENANCE OF A SITUATION TEMPORARILY CREATED IN THE AREA IN QUESTION .
Parties
IN CASE 287/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE OESTRE LANDSRET ( EASTERN DIVISION OF THE HIGH COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
ANKLAGEMYNDIGHEDEN ( PUBLIC PROSECUTOR )
AND
JACK NOBLE KERR
Subject of the case
ON THE INTERPRETATION OF ARTICLE 7 OF THE EEC TREATY AND ARTICLES 1 AND 2 ( 1 ) OF COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( OFFICIAL JOURNAL 1976 , L 20 , P . 19 ),
Grounds
1 BY LETTER OF 29 OCTOBER 1981 , WHICH WAS RECEIVED AT THE COURT ON 5 NOVEMBER 1981 , THE PRESIDENT OF THE 16TH CHAMBER OF THE OESTRE LANDSRET ( EASTERN DIVISION OF THE HIGH COURT ), GIVING EFFECT TO AN ORDER MADE BY THAT CHAMBER ON 16 JUNE 1981 , REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 7 OF THE EEC TREATY AND ARTICLES 1 AND 2 ( 1 ) OF COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( OFFICIAL JOURNAL 1976 , L 20 , P . 19 ).
2 THOSE QUESTIONS WERE RAISED IN CRIMINAL PROCEEDINGS AGAINST THE CAPTAIN OF A BRITISH TRAWLER , MR KERR , FOR BREACH OF DANISH MINISTERIAL ORDER NO 88 OF 10 MARCH 1978 ON THE LIMITATION OF CATCHES FOR THE FISHING ZONE OFF GREENLAND FOR 1978 . THAT ORDER LAYS DOWN CATCH-QUOTAS FOR CERTAIN SPECIES OF FISH IN CERTAIN AREAS OF THE GREENLAND FISHING ZONE .
3 THE ORDER WAS ADOPTED PURSUANT TO GREENLAND LAW NO 413 OF 13 JUNE 1973 CONCERNING COMMERCIAL FISHING AND HUNTING , AS AMENDED BY LAW NO 624 OF 22 DECEMBER 1976 , WHICH PROVIDES IN PARTICULAR THAT SEA FISHING ON A COMMERCIAL BASIS OFF GREENLAND WITHIN THE 200 NAUTICAL MILE LIMIT FROM THE BASE-LINES AS DETERMINED BY THE MINISTER FOR GREENLAND IS TO BE RESERVED TO INDIVIDUALS AND CORPORATIONS HAVING CLOSE AND WELL-DEFINED TIES WITH GREENLAND ( ARTICLE 1 ). HOWEVER , A GENERAL EXCEPTION TO THAT RULE APPLIES IN THE CASE OF FOREIGN NATIONALS WHO ENJOY CERTAIN RIGHTS IN GREENLAND UNDER INTERNATIONAL AGREEMENTS ( ARTICLE 11 ). MOREOVER , THAT RULE MAY BE DEROGATED FROM WHERE THE AUTHORITIES CONSIDER THIS TO BE NECESSARY FOR THE DEVELOPMENT OF THE FISHING INDUSTRY IN GREENLAND OR WHERE IT IS ESSENTIAL THAT INDIVIDUALS AND CORPORATIONS ALREADY COVERED BY EARLIER LEGISLATION BE ENABLED TO PURSUE THEIR FISHING OPERATIONS AND TO USE FOR THAT PURPOSE VESSELS REGISTERED IN OTHER REGIONS OF THE KINGDOM .
4 ARTICLE 4 OF THE LAW PROVIDES THAT THE MINISTER FOR GREENLAND OR THE LOCAL AUTHORITIES SPECIFICALLY AUTHORIZED BY HIM MAY ADOPT MEASURES FOR THE PROTECTION OF CERTAIN SPECIES OF ANIMALS AND FISH . THAT PROVISION CONTAINS EXAMPLES OF SUCH CONSERVATION MEASURES , INCLUDING THE LIMITATION AND ALLOCATION OF CATCHES , IN PARTICULAR THE ALLOCATION OF NATIONAL QUOTAS AND FISHING ACTIVITIES .
5 ARTICLE 5 OF ORDER NO 88 PROVIDES THAT CATCHES OF SHRIMPS IN OPEN WATERS SURROUNDING THE COAST IN SUB-AREAS 0 + 1 , DEFINED BY THE INTERNATIONAL CONVENTION FOR THE NORTH-WEST ATLANTIC FISHERIES ( HEREINAFTER REFERRED TO AS ' ' THE CONVENTION ' ' ) MAY NOT EXCEED 40 000 TONNES AND THAT CATCHES IN THE FISHING ZONE OFF WEST GREENLAND MAY NOT EXCEED 35 000 TONNES .
6 IT IS CLEAR FROM THE PROVISIONS OF ARTICLE 8 OF THE ORDER TAKEN IN CONJUNCTION WITH ANNEX II THERETO , THAT THE QUANTITY OF SHRIMPS WHICH IT WAS PERMISSIBLE TO CATCH IN THE FISHING ZONE OFF GREENLAND WAS DIVIDED INTO CATCH-QUOTAS ALLOCATED TO GREENLAND , DENMARK , FRANCE AND THE FAEROE ISLANDS . ARTICLE 10 PROVIDES , IN THE EVENT OF A BREACH OF THOSE PROVISIONS , FOR THE ADMINISTRATION OF A WARNING OR THE IMPOSITION OF A FINE AS WELL AS FOR THE FORFEITURE OF FISHING GEAR AND CATCHES .
7 AFTER HIS SHIP WAS ARRESTED ON 16 JUNE 1978 IN GREENLAND MARITIME WATERS BETWEEN 12 AND 200 NAUTICAL MILES FROM THE GREENLAND BASE-LINES , MR KERR WAS ORDERED BY THE GROENLANDS LANDSRET ( PROVINCIAL COURT , GREENLAND ) FOR BREACH OF THE SAID DANISH LEGISLATION TO PAY A FINE OF DKR 100 000 AND TO FORFEIT DKR 41 150 CORRESPONDING TO THE VALUE OF THE CATCH OF SHRIMPS . BOTH THE DEFENDANT AND THE PUBLIC PROSECUTOR APPEALED AGAINST THAT JUDGMENT TO THE OESTRE LANDSRET .
8 IT SHOULD BE POINTED OUT THAT CAPTAIN KERR WAS THE HOLDER OF A LICENCE ISSUED ON 14 APRIL 1978 BY THE BRITISH MINISTER FOR AGRICULTURE , FISHERIES AND FOOD AUTHORIZING THE BOAT TO CATCH 475 TONNES OF SHRIMPS AFTER 6 JUNE 1978 IN THE AFOREMENTIONED SUB-AREA 0 - 1 .
9 TAKING THE VIEW THAT IT NEEDED A PRELIMINARY RULING FROM THE COURT OF JUSTICE IN ORDER TO DETERMINE THE COMPATIBILITY WITH COMMUNITY LAW OF DANISH ORDER NO 88 , THE OESTRE LANDSRET REFERRED TO THE COURT THE FOLLOWING QUESTIONS :
' ' 1 . IS IT COMPATIBLE WITH THE PROVISIONS OF THE EEC TREATY , IN PARTICULAR ARTICLE 7 THEREOF , FOR A MEMBER STATE TO HAVE ENACTED IN 1978 NATIONAL MEASURES ON FISHERIES DIVIDING THE TOTAL ALLOWABLE CATCH OF A SPECIFIED KIND OF FISH IN A SPECIFIED , LIMITED AREA OF THE STATE ' S FISHING ZONE ON THE BASIS OF PREVIOUS FISHING OF THE SAME NATURE IN THE AREA SO THAT THE MEMBER STATES WHICH CARRIED OUT SUCH FISHING BEFORE THE ENTRY INTO FORCE OF THE MEASURES WERE ALLOCATED A CATCH-QUOTA WHILST THE VESSELS OF OTHER MEMBER STATES WERE EXCLUDED FROM SUCH FISHING?
2.DID THE PROVISIONS OF ARTICLES 1 AND 2 ( 1 ) OF COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY PRECLUDE A MEMBER STATE FROM ENACTING IN 1978 NATIONAL MEASURES ON FISHERIES DIVIDING THE TOTAL ALLOWABLE CATCH OF A SPECIFIED KIND OF FISH IN A SPECIFIED , LIMITED AREA OF THE STATE ' S FISHING ZONE ON THE BASIS OF PREVIOUS FISHING OF THE SAME NATURE IN THE AREA SO THAT THE MEMBER STATES WHICH CARRIED OUT SUCH FISHING BEFORE THE ENTRY INTO FORCE OF THE MEASURES WERE ALLOCATED A CATCH-QUOTA WHILST THE VESSELS OF OTHER MEMBER STATES WERE EXCLUDED FROM SUCH FISHING?
' '
10 ARTICLE 7 OF THE TREATY PROVIDES THAT WITHIN THE SCOPE OF APPLICATION OF THE TREATY , AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN , ANY DISCRIMINATION ON GROUNDS OF NATIONALITY IS PROHIBITED .
11 ARTICLE 2 ( 1 ) OF COUNCIL REGULATION ( EEC ) NO 101/76 OF 19 JANUARY 1976 LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY ( OFFICIAL JOURNAL 1976 , L 20 , P . 19 ) PROVIDES THAT THE RULES APPLIED BY EACH MEMBER STATE IN RESPECT OF FISHING IN THE MARITIME WATERS COMING UNDER ITS SOVEREIGNTY OR WITHIN ITS JURISDICTION MUST NOT LEAD TO DIFFERENCES IN TREATMENT OF OTHER MEMBER STATES . MEMBER STATES ARE TO ENSURE IN PARTICULAR EQUAL CONDITIONS OF ACCESS TO AND USE OF THE FISHING GROUNDS SITUATED IN THE WATERS REFERRED TO FOR ALL FISHING VESSELS FLYING THE FLAG OF A MEMBER STATE AND REGISTERED IN COMMUNITY TERRITORY .
12 THE DEFENDANT , SUPPORTED BY THE UNITED KINGDOM AND BY THE GOVERNMENT OF THE NETHERLANDS , CONSIDERS THAT THE MEASURES ADOPTED BY THE KINGDOM OF DENMARK ARE IN BREACH OF THE AFORESAID PROVISIONS AND ARE THEREFORE INCOMPATIBLE WITH COMMUNITY LAW . HE DOES NOT CONTEST THAT AT THE TIME WHEN THE EVENTS IN QUESTION OCCURRED , NAMELY BEFORE THE EXPIRY OF THE PERIOD PRESCRIBED BY ARTICLE 102 OF THE ACT OF ACCESSION , A MEMBER STATE WAS ENTITLED TO ADOPT FISHERIES CONSERVATION MEASURES BUT HE CONSIDERS THAT THE ADOPTION OF MEASURES SUCH AS THOSE AT ISSUE EXCEEDS THE SCOPE OF THE POWER VESTED IN THE MEMBER STATES . IN HIS VIEW , EVEN IF THE FIXING OF A TOTAL ALLOWABLE CATCH ( TAC ) FOR CERTAIN SPECIES OF FISH CONSTITUTES A NECESSARY CONSERVATION MEASURE , THERE IS NO NEED FOR SUCH A TOTAL CATCH LIMIT TO BE APPLIED IN THE FORM OF QUOTAS IMPOSED BY THE COASTAL STATE .
13 THE UNITED KINGDOM ARGUES THAT SUCH A MEASURE IS UNLAWFUL WHEN THE ADOPTION OF MEASURES NOT GIVING RISE TO DISCRIMINATION WOULD BE SUFFICIENT TO BRING ABOUT THE SAME RESULT , NAMELY THE RESTRICTION OF TOTAL CATCHES TO A SPECIFIC FIGURE . FOR EXAMPLE , FREE FISHING FOR THE TRAWLERS OF ALL THE MEMBER STATES COULD BE ALLOWED UP TO THE TOTAL ALLOWABLE CATCH LIMIT OR A LICENSING SYSTEM OPEN TO THE FISHERMEN OF ALL THE MEMBER STATES COULD BE INTRODUCED .
14 THE NETHERLANDS GOVERNMENT CONSIDERS THAT THE ALLOCATION OF QUOTAS BY A COASTAL STATE MAY NOT BE REGARDED AS A NECESSARY PROTECTIVE MEASURE . IN ITS VIEW , IT IS A DUTY INCUMBENT ON THE MEMBER STATE OF REGISTRATION WHICH IS ALSO RESPONSIBLE FOR ENFORCING SUPERVISION OF AND COMPLIANCE WITH SUCH MEASURES .
15 ARTICLE 102 OF THE ACT OF ACCESSION OF 1972 PROVIDES THAT FROM THE SIXTH YEAR AFTER ACCESSION AT THE LATEST , THAT IS TO SAY 31 DECEMBER 1978 , THE COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION , IS TO DETERMINE CONDITIONS FOR FISHING WITH A VIEW TO ENSURING PROTECTION OF THE FISHING GROUNDS AND CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA .
16 ON 3 NOVEMBER 1976 , AT THE HAGUE , THE COUNCIL ADOPTED A RESOLUTION IN WHICH IT WAS AGREED THAT THE MEMBER STATES , BY TAKING CONCERTED ACTION , WERE TO EXTEND AS FROM 1 JANUARY 1977 THEIR FISHING ZONES TO 200 NAUTICAL MILES OFF THEIR NORTH SEA AND NORTH ATLANTIC COASTS AND THAT AS FROM THAT DATE , THE USE BY FISHING VESSELS FROM NON-MEMBER COUNTRIES OF FISHERY RESOURCES SITUATED IN THOSE ZONES WAS TO BE GOVERNED BY AGREEMENTS BETWEEN THE COMMUNITY AND THE NON-MEMBER COUNTRIES CONCERNED . IN THE LIGHT OF THAT RESOLUTION , THE KINGDOM OF DENMARK EXTENDED ITS FISHING ZONE ACCORDINGLY .
17 THE COURT HAS ON SEVERAL OCCASIONS RECOGNIZED THAT THE PURPOSE OF ARTICLE 102 OF THE ACT OF ACCESSION WAS TO INTRODUCE A NEW TRANSITIONAL PERIOD BY THE END OF WHICH THE COUNCIL WAS TO HAVE ADOPTED THE CONSERVATION MEASURES REQUIRED . DURING THAT PERIOD AND IN SO FAR AS THE COUNCIL HAD NOT EXERCISED THAT POWER , IT WAS FOR THE MEMBER STATES TO ADOPT AS REGARDS THE MARITIME WATERS WITHIN THEIR JURISDICTION THE NECESSARY CONSERVATION MEASURES IN THE COMMON INTEREST AND IN COMPLIANCE WITH THE SUBSTANTIVE AND PROCEDURAL RULES OF COMMUNITY LAW , IN PARTICULAR THOSE CONTAINED IN THE HAGUE RESOLUTION OF 3 NOVEMBER 1976 .
18 IN THAT RESOLUTION , THE COUNCIL EXPRESSED ITS AGREEMENT ( ANNEX VI TO THE RESOLUTION ) WITH A COMMISSION DECLARATION WHICH IS WORDED AS FOLLOWS :
' ' PENDING THE IMPLEMENTATION OF THE COMMUNITY MEASURES AT PRESENT IN PREPARATION RELATING TO THE CONSERVATION RESOURCES , THE MEMBER STATES WILL NOT TAKE ANY UNILATERAL MEASURES IN RESPECT OF THE CONSERVATION OF RESOURCES .
HOWEVER , IF NO AGREEMENT IS REACHED FOR 1977 WITHIN THE INTERNATIONAL FISHERIES COMMISSIONS AND IF SUBSEQUENTLY NO AUTONOMOUS COMMUNITY MEASURES COULD BE ADOPTED IMMEDIATELY , THE MEMBER STATES COULD THEN ADOPT , AS AN INTERIM MEASURE AND IN A FORM WHICH AVOIDS DISCRIMINATION , APPROPRIATE MEASURES TO ENSURE THE PROTECTION OF RESOURCES SITUATED IN THE FISHING ZONES OFF THEIR COASTS .
BEFORE ADOPTING SUCH MEASURES , THE MEMBER STATE CONCERNED WILL SEEK THE APPROVAL OF THE COMMISSION WHICH MUST BE CONSULTED AT ALL STAGES OF THE PROCEDURES .
ANY SUCH MEASURES ADOPTED SHALL NOT PREJUDICE THE GUIDELINES TO BE ADOPTED FOR THE IMPLEMENTATION OF COMMUNITY PROVISIONS ON THE CONSERVATION OF RESOURCES . ' '
19 FURTHERMORE , AT ITS MEETING ON 30 AND 31 JANUARY 1978 , THE COUNCIL MADE THE FOLLOWING DECLARATION :
' ' THE COUNCIL APPROVED THE COMMISSION COMMUNICATION ACCORDING TO WHICH , IN THE ABSENCE OF A COMMON SYSTEM , NATIONAL MEASURES COULD ONLY BE TAKEN IN AS FAR AS THEY WERE STRICTLY NECESSARY FOR THE CONSERVATION AND MANAGEMENT OF FISHERY RESOURCES , WERE NON-DISCRIMINATORY AND IN CONFORMITY WITH THE TREATY , AND IF THE APPROVAL OF THE COMMISSION HAD BEEN SOUGHT BEFOREHAND . ' '
20 THE QUESTION WHICH ARISES IN THIS CASE IS WHETHER , DURING THE TRANSITIONAL PERIOD , IN THE EXERCISE OF THEIR POWER RELATING TO ' ' CONSERVATION AND MANAGEMENT ' ' , THE MEMBER STATES WERE ENTITLED NOT ONLY TO FIX TOTAL ALLOWABLE CATCHES FOR CERTAIN SPECIES OF FISH IN THE AREAS WITHIN THEIR JURISDICTION BUT ALSO TO ALLOCATE SUCH CATCHES AMONGST THE MEMBER STATES , RESTRICTING SUCH ALLOCATION TO CERTAIN MEMBER STATES .
21 IN ITS JUDGMENT OF 14 JULY 1976 IN JOINED CASES 3 , 4 AND 6/76 KRAMER ( 1976 ) ECR 1279 , THE COURT RECOGNIZED THAT THE COMMUNITY HAS THE POWER IN ITS INTERNAL RELATIONS TO ADOPT ANY MEASURES FOR THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , INCLUDING THE FIXING OF CATCH-QUOTAS AND THEIR ALLOCATION AMONGST THE VARIOUS MEMBER STATES .
22 IT MUST ALSO BE RECOGNIZED THAT , DURING THE TRANSITIONAL PERIOD WHICH EXPIRED ON 31 DECEMBER 1978 , THE MEMBER STATES WERE SIMILARLY EMPOWERED TO FIX AND TO ALLOCATE QUOTAS , AS LONG AS THAT POWER HAD NOT BEEN EXERCISED BY THE COUNCIL . IN THE ABSENCE OF MEASURES ADOPTED ON A COMMON BASIS WHICH COULD HAVE MADE IT POSSIBLE TO LAY RESPONSIBILITY ON THE MEMBER STATE OF REGISTRATION , THE COASTAL STATE WAS IN THE BEST POSITION TO EVALUATE THE DATA ENABLING A TOTAL CATCH-QUOTA TO BE FIXED FOR THE DIFFERENT SPECIES OF FISH AND TO BE ALLOCATED AMONGST THE VARIOUS MEMBER STATES .
23 AS REGARDS THE FIXING OF THE TOTAL ALLOWABLE CATCH , IT IS NOT DISPUTED THAT THE TOTAL ALLOWABLE CATCH ACTUALLY FIXED WAS IN CONFORMITY WITH THE RECOMMENDATION MADE BY THE COMMISSION ESTABLISHED BY THE CONVENTION AND THAT IT CONSTITUTED AN APPROPRIATE CONSERVATION MEASURE .
24 AS REGARDS THE ALLOCATION OF THE TOTAL ALLOWABLE CATCH , IT MUST IN THE FIRST PLACE BE BORNE IN MIND THAT THE CATCH-QUOTA ALLOCATED TO THE FAEROE ISLANDS WAS , AS IS APPARENT FROM COUNCIL REGULATION ( EEC ) NO 1848/78 OF 25 JULY 1978 ( OFFICIAL JOURNAL 1978 , L 211 , P . 6 ) THE RESULT OF A FRAMEWORK AGREEMENT ON FISHERIES SIGNED BY THE COMMUNITY ON THE ONE HAND AND BY THE GOVERNMENT OF DENMARK AND THE LOCAL ADMINISTRATION OF THE FAEROE ISLANDS ON THE OTHER , AND OF CONSULTATIONS WHICH TOOK PLACE BETWEEN THE PARTIES .
25 THE ADVANTAGES ACCORDED TO THE FISHERMEN OF THE FAEROE ISLANDS WERE GRANTED IN RETURN FOR THE RIGHT WHICH WAS CONFERRED ON COMMUNITY FISHERMEN TO CATCH OTHER SPECIES OF FISH IN THE MARITIME WATERS WITHIN THE JURISDICTION OF THOSE ISLANDS ; THE RESULTANT QUOTAS WERE ALLOCATED BY THE COUNCIL AMONGST CERTAIN MEMBER STATES UNDER THE COMMON FISHERIES POLICY , IN PARTICULAR TO COMPENSATE FOR THE LOSS OF CATCH POTENTIAL IN THE WATERS OF NON-MEMBER COUNTRIES , AS IS CLEAR FROM COUNCIL REGULATION ( EEC ) NO 1846/78 OF 25 JULY 1978 ( OFFICIAL JOURNAL 1978 , L 211 , P . 1 ).
26 THE QUANTITY OF SHRIMPS AVAILABLE WHICH WAS INCLUDED IN THE RECOMMENDED CATCH-QUOTA WAS NOT , AFTER DEDUCTION OF THE SHARE RESERVED FOR THE FAEROE ISLANDS , SUFFICIENT TO PERMIT THE ALLOCATION TO EACH OF THE MEMBER STATES CONCERNED OF A QUOTA CAPABLE OF BEING EXPLOITED ON A PROFITABLE BASIS . IN THOSE CIRCUMSTANCES , DENMARK DECIDED TO DIVIDE THE QUOTA AVAILABLE BETWEEN ONLY TWO MEMBER STATES . ACCORDINGLY , IT ALLOCATED THE HIGHEST QUOTA ( 15 245 TONNES ) TO GREENLAND , WHERE THE LOCAL POPULATION IS PARTICULARLY DEPENDENT ON FISHING IN THE WATERS IN QUESTION , AND DIVIDED THE REST BETWEEN FRANCE ( 692 TONNES ) AND DENMARK ( 2 900 TONNES ). IT COMPLIED WITH THE PROPOSED ALLOCATION FOR 1978 WHICH THE COMMISSION OF THE EUROPEAN COMMUNITIES HAD SUBMITTED TO THE COUNCIL IN OCTOBER 1977 . DENMARK THUS ALLOCATED A CATCH-QUOTA ONLY TO MEMBER STATES WHICH HAD FISHED FOR SHRIMPS IN THE AREA IN QUESTION BEFORE THE END OF 1976 .
27 IT MUST BE OBSERVED , FINALLY , THAT THE DANISH GOVERNMENT SUBMITTED THE PROPOSED MEASURES TO THE COMMISSION IN GOOD TIME AND SOUGHT ITS APPROVAL IN ACCORDANCE WITH THE REQUIREMENTS WHICH AT THE TIME RESULTED FROM THE HAGUE RESOLUTION .
28 THE ANSWER TO THE QUESTIONS SUBMITTED BY THE OESTRE LANDSRET MUST ENABLE THAT COURT TO DECIDE WHETHER THE DANISH MEASURE , INTRODUCED IN THE AFORESAID CIRCUMSTANCES , IS COMPATIBLE WITH THE RULE PROHIBITING DISCRIMINATION LAID DOWN BY ARTICLE 7 OF THE EEC TREATY AND DEFINED BY ARTICLES 1 AND 2 ( 1 ) OF REGULATION NO 101/76 .
29 FOR THE PURPOSES OF THAT ANSWER , IT MUST BE BORNE IN MIND THAT THE DANISH GOVERNMENT WAS CONFRONTED WITH THE NEED TO ADOPT A PROTECTIVE MEASURE , WHICH WAS BOTH EFFECTIVE AND WORKABLE , IN A LIMITED ZONE OF ITS MARITIME WATERS WITHIN ITS DIRECT JURISDICTION . IN DETERMINING THAT MEASURE , IT TOOK ACCOUNT OF THE PROPOSALS MADE AT THE TIME BY THE COMMISSION FOR ALL WATERS WITHIN THE JURISDICTION OF THE MEMBER STATES AND BASED ON THE MAINTENANCE OF A COMPREHENSIVE BALANCE BETWEEN THE INTERESTS OF ALL THE FISHERMEN OF THE MEMBER STATES . IT COMPLIED WITH THE PROCEDURE FOR PRIOR CONSULTATION PROVIDED FOR BY THE HAGUE RESOLUTION .
30 EXAMINATION OF THE METHOD APPLIED DEMONSTRATES THAT THE DANISH AUTHORITIES ALLOCATED THE QUOTAS IN ACCORDANCE WITH OBJECTIVE CRITERIA , TAKING INTO ACCOUNT , IN THE FIRST PLACE , THE NEEDS OF THE COASTAL POPULATION , AND SECONDLY , THE NEED TO MAINTAIN A SITUATION TEMPORARILY CREATED IN THE REGION IN QUESTION , EVEN THOUGH THE FISHING ZONE IN QUESTION HAD ONLY RECENTLY BEEN DISCOVERED AND EXPLOITED .
31 IN THOSE CIRCUMSTANCES , REGARD BEING HAD TO THE LEGAL POSITION DURING THE TRANSITIONAL PERIOD , THE DIVISION OF THE FISHING QUOTA UNDER THE MEASURE ADOPTED BY THE DANISH AUTHORITY CANNOT BE REGARDED AS AMOUNTING TO DISCRIMINATION ON GROUNDS OF NATIONALITY CONTRARY TO ARTICLE 7 OF THE TREATY AND TO THE PROVISIONS OF ARTICLES 1 AND 2 ( 1 ) OF REGULATION NO 101/76 .
32 THE ANSWER TO THE QUESTION REFERRED TO THE COURT MUST THEREFORE BE THAT AS LONG AS THE COMMUNITY HAD NOT EXERCISED ITS POWER TO TAKE MEASURES FOR THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , A MANAGEMENT AND CONSERVATION MEASURE ADOPTED BY A MEMBER STATE DURING THE TRANSITIONAL PERIOD WHICH EXPIRED ON 31 DECEMBER 1978 AND DECIDED UPON IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR BY THE HAGUE RESOLUTION OF THE COUNCIL OF 3 NOVEMBER 1976 , WHICH HAD AS ITS PURPOSE TO FIX A TOTAL CATCH-QUOTA , ALLOCATING IT AMONGST CERTAIN MEMBER STATES , CANNOT BE REGARDED AS CONTRARY TO THE PRINCIPLE PROHIBITING DISCRIMINATION , EMBODIED IN ARTICLE 7 OF THE EEC TREATY AND IN ARTICLES 1 AND 2 ( 1 ) OF REGULATION NO 101/76 , IF IT WAS A CONSERVATION MEASURE TAKEN IN RESPONSE TO A NEED ARISING IN THE ZONE CONCERNED AND IF THE MEASURE WAS JUSTIFIED BY OBJECTIVE CONSIDERATIONS RELATING TO THE PROTECTION OF THE NEEDS OF THE COASTAL POPULATION CONCERNED AND TO THE MAINTENANCE OF A SITUATION TEMPORARILY CREATED IN THE AREA IN QUESTION .
Decision on costs
COSTS
33 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF DENMARK , THE FRENCH REPUBLIC , THE KINGDOM OF THE NETHERLANDS , 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 NATIONAL COURT , 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 OESTRE LANDSRET OF 29 OCTOBER 1981 , HEREBY RULES :
' ' AS LONG AS THE COMMUNITY HAD NOT EXERCISED ITS POWER TO TAKE MEASURES FOR THE CONSERVATION OF THE BIOLOGICAL RESOURCES OF THE SEA , A MANAGEMENT AND CONSERVATION MEASURE ADOPTED BY A MEMBER STATE DURING THE TRANSITIONAL PERIOD WHICH EXPIRED ON 31 DECEMBER 1978 AND DECIDED UPON IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR BY THE HAGUE RESOLUTION OF THE COUNCIL OF 3 NOVEMBER 1976 , WHICH HAD AS ITS PURPOSE TO FIX A TOTAL CATCH-QUOTA , ALLOCATING IT AMONGST CERTAIN MEMBER STATES , CANNOT BE REGARDED AS CONTRARY TO THE PRINCIPLE PROHIBITING DISCRIMINATION , EMBODIED IN ARTICLE 7 OF THE EEC TREATY AND IN ARTICLES 1 AND 2 ( 1 ) OF REGULATION NO 101/76 , IF IT WAS A CONSERVATION MEASURE TAKEN IN RESPONSE TO A NEED ARISING IN THE ZONE CONCERNED AND IF THE MEASURE WAS JUSTIFIED BY OBJECTIVE CONSIDERATIONS RELATING TO THE PROTECTION OF THE NEEDS OF THE COASTAL POPULATION CONCERNED AND TO THE MAINTENANCE OF A SITUATION TEMPORARILY CREATED IN THE AREA IN QUESTION . ' '
Full & Egal Universal Law Academy