Opinion of the Advocate-General
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My Lords,
1 . In these proceedings under Article 169 of the EEC Treaty, the Commission contends that the French Republic failed in 1985 to take the necessary measures to ensure that quotas for certain fish stocks were respected .
2 . Council Regulation ( EEC ) No 170/83 establishing a Community system for the conservation and management of fishery resources ( Official Journal 1983, L 24, p . 1 ) provides for the fixing, on an annual basis, of total allowable catches (" TACs ") for stocks or groups of stocks for which a limitation of fishing is required, and for the distribution of the volume of catches available to the Community between the Member States ( Articles 3 and 4 ). Under Article 5(1 ), Member States may exchange all or part of the quotas allocated to them in respect of a species or group of species . Article 5(2 ) provides that Member States shall determine, in accordance with the applicable Community provisions, the detailed rules for the utilization of the quotas allocated to them .
3 . Council Regulation ( EEC ) No 2057/82 established certain control measures for fishing activities by vessels of the Member States ( Official Journal 1982, L 220, p . 1 ). Under Article 1(1 ) and ( 2 ), Member States are required to inspect fishing vessels in order to ensure compliance with conservation and control measures and to take penal or administrative action against the skippers where, as a result of an inspection, it appears that a vessel does not comply with the relevant rules . Articles 6 to 9 impose a number of obligations on Member States and on the skippers of fishing vessels concerning the regulation of catches . Thus Article 6(2 ) requires Member States to take appropriate measures to verify the accuracy of declarations made by skippers concerning the quantities landed and the location of catches for each stock or group of stocks subject to a TAC . Articles 7 and 8 require the skipper of a vessel who tranships quantities of catches of a stock or group of stocks subject to a TAC, or who lands such catches outside the Community, to inform the Member State whose flag his vessel is flying of the quantities involved and of the location of the catches . Under Article 9, Member States must ensure that all landings of stocks or groups of stocks subject to TACs are recorded ( paragraph 1 ) and must notify the Commission, before the 15th day of each month, of the quantities of such stocks landed in the preceding month, indicating the location of the catches ( paragraph 2 ).
4 . According to Article 10(1 ) of Regulation No 2057/82, all catches of a stock or group of stocks subject to quota made by fishing vessels flying the flag of a Member State or registered in a Member State shall be charged against the quota applicable to that State for the stock or group of stocks in question, irrespective of the place of landing . Under Article 10(2 ):
"Each Member State shall determine the date from which the catches of a stock or group of stocks subject to quota made by the fishing vessels flying its flag or registered in that Member State shall be deemed to have exhausted the quota applicable to it for that stock or group of stocks . As from that date, it shall provisionally prohibit fishing for that stock or group of stocks by such vessels ..."
The Member State is required to notify the Commission of the provisional prohibition, and under Article 10(3 ) the Commission, following notification or on its own initiative, is to fix definitively, on the basis of the information available, the date on which the quota is deemed to have been exhausted . On the date on which the quota is deemed to have been exhausted, the vessels of the Member State in question must cease fishing in respect of the relevant stock or stocks .
5 . Council Regulation ( EEC ) No 2241/87 ( Official Journal 1987, L 207, p . 1 ), which repealed and replaced Regulation No 2057/82 with effect from 30 July 1987, contains provisions similar to those set out above .
6 . Council Regulation ( EEC ) No 6/85 ( Official Journal 1985, L 1, p . 62 ) allocated for 1985 catch quotas between Member States for vessels fishing in Faeroese waters, i.e . the waters falling within the fisheries jurisdiction of the Faeroe Islands, which are an autonomous territory forming an integral part of the Kingdom of Denmark and to which the EEC Treaty, in accordance with Article 227(5)(a ), does not apply . Regulation No 6/85 was enacted pursuant to arrangements made between the Community and the Faeroe Islands under the agreement on fisheries made between the Community, of the one part, and the Government of Denmark and the Home Government of the Faeroe Islands, of the other part, which is annexed to Council Regulation ( EEC ) No 2211/80 ( Official Journal 1980, L 226, p . 11 ).
7 . Article 1 of Regulation No 6/85 provided that catches should be limited to the quotas set out in the annex and Article 2 required Member States and skippers of vessels to comply, as far as fishing in the relevant waters was concerned, with Articles 3 to 9 of Regulation No 2057/82 . The annex to Regulation No 6/85 allocated to France a quota of 450 tonnes for redfish and 160 tonnes for flatfish . The validity of the regulation, which initially applied only until 20 January 1985, was extended to 31 December 1985 by Council Regulation ( EEC ) No 97/85 ( Official Journal 1985, L 13, p . 5 ).
8 . The French quota for redfish was raised to 970 tonnes by means of exchanges completed in November 1985, but French vessels caught a total of 984.7 tonnes in Faeroese waters in 1985 . As for flatfish, total catches by French vessels in Faeroese waters amounted to 708.4 tonnes .
9 . From a table of landings sent to the Commission by the French State Secretariat for the Sea under cover of a letter of 6 February 1986, and annexed to the application in these proceedings, it appears that the initial quota for redfish was exhausted by 7 July 1985, and that the increased quota was already exhausted by the beginning of October 1985 . From the same table, it appears that the flatfish quota was exhausted by 21 June 1985 .
10 . On 8 November the French authorities issued a recommendation to the French fleet to cease fishing for redfish and flatfish in Faeroese waters . By Regulation No 3220/85, which came into force on 16 November 1985, the Commission, acting on its own initiative under Article 10(3 ) of Regulation No 2057/82, prohibited further fishing for redfish by French vessels ( Official Journal 1985, L 303, p . 43 ). By Regulation ( EEC ) No 3448/85, which came into force on 7 December 1985, the Commission, again acting on its own initiative, ordered a halt to fishing for flatfish ( Official Journal 1985, L 328, p . 20 ).
11 . In its application in these proceedings, the Commission seeks a declaration that, by failing to ensure respect for the quotas allocated to it for 1985 for catches of redfish and flatfish in Faeroese waters, the French Republic has failed to fulfil its obligations under Article 5(2 ) of Regulation No 170/83 and under Article 1(1 ) and ( 2 ), Articles 6 to 9 and Article 10(1 ) and ( 2 ) of Regulation No 2057/82, in conjunction with Article 1 of Regulation No 6/85 .
12 . The main emphasis of the Commission' s action rests on the alleged failure of the French Republic provisionally to halt fishing for the relevant stocks as soon as the exhaustion of the quotas appeared imminent, as required by Article 10(2 ) of Regulation No 2057/82 .
13 . In that regard, the Commission argues that Article 10(2 ) requires a Member State, on the basis of information available to it regarding the level of catches, to fix the likely date of the exhaustion of the quota and to take prompt and adequate steps to prohibit fishing from that date . In the Commission' s view, the recommendation of 8 November 1985 was plainly inadequate in that it was issued some four months after the relevant quotas were exhausted and in any event had no binding force .
14 . Before considering France' s defence to this allegation, I would point out that while Article 2 of Regulation No 6/85 expressly refers to Articles 3 to 9 of Regulation No 2057/82, no mention is made of Article 10 . It has however been assumed in these proceedings that Article 10 did apply in respect of the quotas allocated under Regulation No 6/85, and I consider that that assumption is correct . Where the Community concludes agreements with third countries concerning access and the conservation of fishery resources, under which catch limits for Community fishermen in third-country waters are established, and where in consequence quotas are fixed for Member States, it follows that the relevant rules designed to ensure observance of quotas must apply even in the absence of an express reference in the regulation allocating the quotas . I would add that in its judgment of 14 November 1989 in Case 6/88 Spain v Commission and in Case 7/88 France v Commission, the Court accepted, in the context of third-country waters, that certain agreements between the Community and third States providing for reciprocal fishing rights and management of common biological resources are implemented by means of Regulation No 170/83 and consequently by Regulation No 2241/87, the successor to Regulation No 2057/82 ( see paragraph 20 of the judgment ).
15 . I turn now to France' s defence to the allegation that it breached Article 10(2 ) of Regulation No 2057/82 . France advances four arguments .
16 . First, it asserts that it did act promptly and adequately to prevent the exhaustion of the quotas, in particular by arranging a substantial increase in the redfish quota by means of exchanges . It also argues that the recommendation must be seen as effective, since no further landings of the stocks in question were made after 30 October, well before the adoption of the two Commission regulations .
17 . Secondly, France argues that the Commission' s strict view of Member States' obligations under Article 10(2 ) takes no account of the substantial practical difficulties involved in predicting the imminent exhaustion of a quota, in particular because of the lack of reliable information at the relevant time as to the level of catches . It points out that in 1985 the Community conservation legislation was still new and untried, and that Commission Regulation ( EEC ) No 2807/83 ( Official Journal 1983, L 276, p . 1 ), which provides for standardized log-books to be used by skippers of vessels to record catches, did not apply until 1 April 1985 . Erratic catch levels were also a complicating factor, particularly where, as in the case of flatfish, the quota was small . In that regard, France argues that a sudden surge in the volume of flatfish landed in June and July 1985, following the previous low levels of catches, had made it impossible in practice to predict the exhaustion of the quota .
18 . Thirdly, France argues that there is uncertainty as to the extent to which the two quotas were exceeded or indeed as to whether they were exceeded at all . In that regard, France points to the lack of harmonization at the Community level of the conversion coefficient applied by Member States to the quantities of gutted fish landed in order to calculate the live-weight tonnage of such fish . France accepts that the margin of uncertainty was likely to be small, but argues that it could be sufficient to account for the minor exceeding of the enlarged redfish quota . France also argues that a substantial quantity of redfish catches, and most of the flatfish catches, were made in waters in respect of which there is a dispute as to jurisdiction between the United Kingdom and the Faeroe Islands : there is therefore doubt as to whether these catches were made in Faeroese waters at all .
19 . Finally, France points out that in any event in 1985 the overall Community quotas for the relevant stocks in Faeroese waters were not exhausted .
20 . In my view, those arguments cannot be accepted . It is plain from the wording of Article 10(2 ) of Regulation No 2057/82 and from the scheme and objectives of the Community legislation that Member States are required to anticipate the exhaustion of the quota and to act to prohibit fishing provisionally before the quota is exhausted . That the exhaustion of the quota must be anticipated is indicated by the requirement in Article 10(2 ) that each Member State shall determine the date from which its vessels "shall be deemed to have exhausted the quota ..." ( emphasis added ). The use of the word "prohibit" in Article 10(2 ) and the mandatory wording of the second subparagraph of Article 10(3 ) (" Fishing vessels ... shall cease fishing ...") indicate that the measures taken to halt fishing provisionally must be of a binding nature . It is moreover apparent from the scheme of the legislation that the obligation imposed on Member States by Article 10(2 ) is of crucial importance for ensuring respect for quotas : the obligation must therefore be construed strictly . An interpretation of Article 10(2 ) which would permit Member States to wait until after the quota was exhausted before taking action, or to adopt measures of a non-binding nature, would be inconsistent with the binding character of the quotas . It would also undermine the underlying objective of quotas, i.e . the conservation of scarce fishing resources .
21 . The recommendation to the French fleet of 8 November 1985 manifestly came too late to prevent the exceeding of the quotas and was in any event not of a binding character . Moreover, as the Commission indicates, Member States cannot rely on the uncertain prospect of quota exchanges in order to justify failure to act under Article 10(2 ). Since the exchange may not in the event take place, a Member State which delays in acting provisionally to prohibit fishing pending the outcome of negotiations on exchanges runs the risk of irremediably exceeding the relevant quota, an outcome which is again incompatible with the binding nature of quotas and the objectives of the quota system . It follows that any agreement with another Member State with a view to increasing a quota must take place either before the initial quota is exhausted or after a provisional prohibition on fishing has been issued .
22 . Nor is it open to France to rely on the alleged novelty or inadequacies of the quota system to justify its failure to act . Regulation No 170/83 came into force on 27 January 1983, well before the disputed events took place and Regulation No 2057/82, containing the relevant control measures, on 1 August 1982 . As the Commission points out, the control measures in Regulation No 2057/82, notably Articles 6 to 9, if properly observed and enforced, should have provided the French authorities with enough information to enable them to predict the exhaustion of the quotas and to act accordingly . While log-books are undoubtedly an important means of monitoring catches, Regulation No 2807/83 merely prescribed a standard form for the log-book to be kept by skippers of vessels; the obligation to keep a log-book, indicating the quantities of species caught, as well as the date and location of catches, is already laid down in Article 3 of Regulation No 2057/82 . Moreover, as counsel for the Commission pointed out at the hearing, while it is true that the 90-day period allowed under Regulation No 2807/83 for skippers of vessels to familiarize themselves with the standardized log-book did not expire until 1 April 1985, it is clear from the table of landings referred to at paragraph 9 above, that French vessels did not land any redfish or flatfish before 14 May 1985 .
23 . In any event, a Member State cannot rely on practical difficulties in order to justify failure to implement adequate control measures . Rather, it is for the Member States, who are required to implement Community rules in the framework of the common organization of the market in the sector of fish products, to overcome those practical difficulties by the adoption of appropriate measures ( see judgment of 2 February 1989 in Case 262/87 The Netherlands v Commission (( 1989 )) ECR 225, paragraph 15 ).
24 . As for the allegedly erratic level of catches of flatfish in May to July 1985, reference to the table of landings referred to at paragraph 9 above shows that while the total quantity landed in June 1985 ( 280.5 tonnes ) and July 1985 ( 264.7 tonnes ) was indeed substantially higher than in May 1985 ( 8.2 tonnes ) the landings in June were regular both as regards the timing of the landings and the quantities landed . It should therefore have been possible for the French authorities to predict the exhaustion of the quota on or about 21 June 1985 .
25 . Even where the control and monitoring measures prescribed by the Community legislation and supplementary national provisions are fully and effectively applied, it could still exceptionally occur that a sudden surge in the catches of a particular stock in practice makes it impossible for a Member State to anticipate the exhaustion of a quota . However, in such a situation the Member State in question must in any event take immediate action to prohibit further fishing as soon as it appears that the quota has been exhausted .
26 . With regard to the alleged uncertainty as to whether the quotas were in fact exceeded, it appears to me that any minor element of uncertainty arising from the uncoordinated application of conversion factors cannot justify a failure to act under Article 10(2 ). In any event, such a factor cannot account for the large-scale overfishing of the flatfish quota .
27 . As regards the alleged dispute as to jurisdiction, the preamble to the agreement on fisheries between the Community and the Government of Denmark and the Home Government of the Faeroe Islands, referred to at paragraph 6 above, records that it has been decided to establish around the Faeroe Islands, with effect from 1 January 1977, a fishery zone extending to 200 nautical miles off the coast within which the Faeroe Islands will exercise sovereign rights for the purpose of exploring, exploiting, conserving and managing the living resources thereof . Under Article 2(b ) of the agreement, the Faeroese authorities determine annually the allotments for Community fishing vessels and the areas within their jurisdiction in which those allotments may be fished . The list of allotments and fishing areas is sent to the Commission and that information serves as a basis for the allocation of Member State quotas . There is nothing in the agreement to indicate that there is a dispute as to jurisdiction between the United Kingdom and Denmark, and France has not produced any evidence showing that, prior to these proceedings, the fishing areas communicated by the Faeroese authorities have been challenged or queried by any Member State . In the circumstances, it is plainly not open to France to rely on this argument to justify its failure to respect the quotas .
28 . Finally, the fact that the Community quotas for the relevant stocks in Faeroese waters were not exceeded in 1985 is, in my view, quite irrelevant, since the fundamental obligation resting on a Member State under the Community legislation is to ensure respect for its national quotas .
29 . I conclude that the Commission has succeeded in establishing a failure by the French Republic to fulfil its obligations under Article 10(2 ) of Regulation No 2057/82 .
30 . In its application, the Commission also argues that the exceeding of the quotas may have resulted from a failure to fulfil the obligations to control and register catches laid down in Articles 6 to 9 of Regulation No 2057/82, the inspection and enforcement obligations in Article 1(1 ) and ( 2 ) of that regulation, or from a failure to charge all catches made by French vessels against the quota, as is required by Article 10(1 ) of the same regulation . In addition, the Commission argues that the overfishing of the quotas may have resulted from a failure by the French authorities to adopt the necessary detailed rules for the utilization of the quotas, as required by Article 5(2 ) of Regulation No 170/83 . Accordingly, the declaration sought by the Commission in the application also refers to a failure to fulfil these additional obligations .
31 . However, the declaration sought by the Commission at the end of its reply is significantly narrower in scope, referring only to the alleged breach of Article 10(2 ) of Regulation No 2057/82 in conjunction with Article 1 of Regulation No 6/85 . It therefore appears that the Commission has decided not to maintain its additional allegations, and that the Court is not required to consider those allegations .
32 . Should the Court none the less take the view that those allegations continue to form part of the declaration sought, then I would take the view that they must be dismissed .
33 . The Commission gives no details in its pleadings of the alleged breaches . Nor has it sought to indicate what measures France might have taken to improve the effectiveness of its system for control and monitoring of catches . Instead, it relies on the assertion that the mere fact that the quotas were exceeded demonstrates a failure to comply with the relevant provisions . According to the established case-law of the Court, recently confirmed in its judgment of 5 October 1989 in Case 290/87 Commission v The Netherlands, in proceedings under Article 169 of the Treaty the Commission cannot rely on a presumption of any kind in order to establish a breach by a Member State of its obligations .
34 . Irrespective of the view taken as to the subsidiary allegations, I am of the opinion that since the Commission has succeeded on the main part of the action, it is entitled to its costs .
35 . Accordingly, I conclude that the Court should :
( 1 ) declare that the French Republic has failed to fulfil its obligations under Article 10(2 ) of Council Regulation No 2057/82 in conjunction with Article 1 of Council Regulation No 6/85 in that in 1985 it did not take prompt and adequate measures provisionally to prohibit fishing by vessels flying the flag of France or registered in France for redfish and flatfish in Faeroese waters;
( 2 ) order the French Republic to bear the costs .
(*) Original language : English .
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