JUDGMENT OF 8. 12. 1981 — CASE 181/80 PROCUREUR GÉNÉRAL v ARBELAIZ-EMAZABEL

In Case 181/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the French Cour de Cassation [Court of Cassation] for a preliminary ruling in the proceedings pending before that court between

THE COURT, composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and procedure

The facts of the main proceedings may be summarized as follows:

On 3 November 1977 La Providencia, a Spanish vessel registered in San Sebastian under No SS I-2190, was discovered fishing in French territorial waters off Bayonne in the band of sea between 6 and 12 miles from the coast.

Since the master of the vessel, Mr Arbelaiz-Emazabel, did not hold the fishing licence required by the applicable Community rules, he was brought before the Tribunal de Grande Instance [Regional Court], Bayonne, charged with fishing illegally in French territorial waters.

The provisions of the regulations and international agreements involved may be summarized as follows:

(a) Community provisions on fishing applicable to vessels flying the flag of Spain

Pursuant to the Council Resolutions of 3 November 1976 on certain external aspects of the creation of a 200-mile fishing zone in the Community with effect from 1 January 1977 (Official Journal 1981 C 105, p. 1), the Member States of the Community extended their fishing zones with effect from 1 January 1977 to 200 miles off their North Sea and North Atlantic coasts. Since then the exploitation of fishery resources in those zones by the fishing vessels of nonmember countries has been governed by a series of interim Community measures relating to each of the countries involved. The measures were adopted pending the conclusion of outline agreements on fisheries between the Community and those nonmember countries.

The provisions applicable to vessels flying the flag of Spain were laid down initially by Council Regulation (EEC) No 373/77 of 24 February 1977 (Official Journal L 53, p. 1). The validity of those provisions was subsequently extended and certain amendments were made.

The rules applicable at the material time are contained in Council Regulation (EEC) No 2160/77 of 30 September 1977 laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain (Official Journal 1977 L 250, p. 17). Articles 1, 2 and 3 of that regulation provide as follows:

“Article 1 The only catches of species of fish other than tunny which Spain is authorized to make from 1 October to 31 December 1977 in the 200-nautical mile fishing zones of the Member States situated off the North Sea and Atlantic coasts and covered by Community rules on fisheries, and the places where such catches may be made, are laid down in Annex I. Article 2 The fishing quotas shall be granted subject to compliance with the conservation measures and supervisory measures and other provisions governing fishing in the zones referred to in Article 1. Article 3 1. Fishing within the zones referred to in Article 1 by vessels flying the flag of Spain shall be subject to the granting of a licence on behalf of the Community by the Commission and to observance of the conditions set out in the licence. 2. Each licence shall be valid for one vessel only for a period not extending beyond 31 December 1977 and for the species of fish indicated in the licence within the quantitative and geographical limits referred to in Article 1. 3. The maximum number of vessels permitted to fish in a given geographical zone and the maximum number of vessels authorized to fish there simultaneously are laid down in Annex II.”

(b) International agreements

The London Fisheries Convention of 9 March 1964 (United Nations Treaty Series Vol. 581, No 8432) defines the common aspects of a fisheries regime for the 6-mile zone measured from the baseline and for the zone between 6 and 12 miles from that line.

Each of the contracting parties recognize the right of the other contracting parties to establish the fishery regime described in the Convention (Article 1 (1)). Articles 2, 3 and 5 of the Convention provide as follows :

“Article 2 The coastal State has the exclusive right to fish and exclusive jurisdiction in matters of fisheries within the belt of 6 miles measured from the baseline of its territorial sea. Article 3 Within the belt between 6 and 12 miles measured from the baseline of the territorial sea, the right to fish shall be exercised only by the coastal State and by such other Contracting Parties, the fishing vessels of which have habitually fished in that belt between 1 January 1953 and 31 December 1962. Article 5 1. Within the belt mentioned in Article 3 the coastal State has the power to regulate the fisheries and to enforce such regulations, including regulations to give effect to internationally agreed measures of conservation, provided that there shall be no discrimination in form or in fact against fishing vessels of other Contracting Parties fishing in conformity with Articles 3 and 4. 2. Before issuing regulations, the coastal State shall inform the other Contracting Parties concerned and consult those Contracting Parties, if they so wish.”

Article 10 provides that nothing in the Convention is to prevent the maintenance or establishment of a special regime in matters of fisheries between inter alia the Member States of the European Economic Community.

France and Spain ratified the Convention in 1965.

Within the framework of the voisinage arangements provided for in Article 9 (2) of the London Convention, France and Spain, by an exchange of notes of 20 March 1967, concluded a general agreement on fishing. With regard to the rights of Spanish fishermen to fish in the waters under French jurisdiction, Article 1 (b) of the Agreement provides as follows:

“In the 6 to 12-mile zone off the French coasts, Spanish nationals shall have a permanent right to fish: for all species on the Atlantic coast from the mouth of Bidassoa as far as the parallel which passes through the northernmost point of Belle-Ile.”

Following the extension by the Member States of the Community of their fishing limits to 200 miles on 1 January 1977, the Commission of the European Communities embarked upon a series of negotiations on fisheries agreements to be concluded between the Community and nonmember countries, including Spain. Thus, an agreement with Spain was initialled on 23 September 1978 and signed on 15 April 1980. That Agreement was approved on hehalf of the Community by Council Regulation (EEC) No 3062/80 of 25 November 1980 on the conclusion of the Agreement on Fisheries between the European Economic Community and the Government of Spain (Official Journal 1980 L 322, p. 3). On completion of the ratification procedure in Spain, the Agreement entered into force on 22 May 1981 (Official Journal 1981 L 204, p. 34).

(c) French legislation

The French legislation applicable to this case is embodied in the Law of 1 March 1888 prohibiting foreigners from fishing in French territorial waters, as amended by Decree No 67-451 of 7 June 1967 and by Law No 67-1086 of 15 December 1967.

Following the entry into force of the London Fisheries Convention of 9 March 1964, a reserved fishing zone was created by virtue of the fact that Decree No 67-451 of 7 June 1967 abovementioned extended the prohibition to 12 nautical miles measured from the baselines of the French territorial sea. The same decree provides that pursuant to the London Convention exceptions to that prohibition are to be laid down by decree. Law No 67-1086 of 15 December 1967 prescribes the penal sanctions to be applied.

Decree No 68-209 of 23 February 1968 lays down the conditions on which Spanish fishing vessels are allowed to engage in fishing within the reserved 6 to 12-mile zone and, for a transitional period, in the 3 to 6-mile zone, in accordance with the London Convention and the Agreement between France and Spain of 20 March 1967.

By Law No 71-1060 of 24 December 1971 the limit of French territorial waters was extended to 12 miles, but “without prejudice to the exercise of fishing rights granted to certain foreign vessels on terms laid down by international agreements and French domestic law”.

By judgment of 1 December 1977, the Tribunal de Grande Instance, Bayonne, acquitted the defendant.

By judgment of 27 June 1978, the Cour d'Appel, Pau, upheld the judgment of the Bayonne court. In so doing, it took the view that the decree of 22 September 1967 publishing the exchange of notes constituting the General Agreement on Fishing between France and Spain and authorizing both French and Spanish vessels to fish within the 6 to 12-mile zone off the French and Spanish coasts, and the decree of 23 February 1968 laying down the conditions for fishing by Spanish vessels within the French reserved zone, had not been denounced or abrogated.

The Cour d'Appel also referred to a Note Verbale of 14 July 1977 from the Commission of the European Communities to the Spanish Ministry of Foreign Affairs, in which the Commission stated that Spanish vessels were not permitted to fish inside the 12-mile coastal zones, with the exception of the zone referred to in the Franco-Spanish Agreement of 20 March 1967. The court concluded therefrom that the Community provisions were not therefore enforceable against Spanish fishermen in the zone between 6 and 12 miles.

Finally, the Cour d'Appel considered that the regulation which the defendant was accused of having infringed had not been notified to Spain before being adopted, and that it very severely restricted the fishing rights of Spanish vessels and created discrimination against them, contrary to the London Convention of 9 March 1964, in view of the fact that the vessels of Community countries were not required to hold a licence.

The Cour de Cassation, to which the Procureur Général at the Cour d'Appel, Pau, had referred the matter, considered that although the disputed Community regulations, which have become part of the law of the Member States, had the effect, as contended by the Procureur Général, of repealing by implication the provisions of the decree of 23 February 1968 laying down conditions for fishing by Spanish vessels, serious doubt arose on the question:

“Whether, having regard to prior international obligations, Regulations No 353/77 of 24 February 1977, No 746/77 of 5 April 1977, No 1416/77 of 28 June 1977, No 1709/77 of 26 July 1977 and No 2160/77 of 30 September 1977 are valid, in so far as they lay down new detailed rules for fishing operations carried out by Spanish vessels in the reserved fishing zone from 6 to 12 nautical miles, and whether, if valid, those regulations are enforceable against Spanish nationals.”

By judgment of 7 July 1980, the Cour de Cassation referred that question to the Court of Justice under Article 177 of the Treaty.

The judgment of the Cour de Cassation of 7 July 1980 was received at the Court Registry on 25 August 1980.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the following: the defendant in the main proceedings, Mr Arbelaiz-Emazabel, represented by J. Tournaire, of the Bayonne Bar; the Government of the French Republic, represented by Gilbert Guillaume, Director of Legal Matters at the Ministry of Foreign Affairs, acting as Agent: the Government of the United Kingdom, represented by R. D. Munrow, of the Treasury Solicitor's Department, acting as Agent; the Council of the European Communities, represented by Daniel Vignes, Director of its Legal Department, acting as Agent, assisted by Aidan Larkin, an Administrator in that department; and the Commission of the European Communities, represented by its Legal Adviser, Jacques Bourgeois, acting as Agent, assisted by François Lamoureux, a member of its Legal Department.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Summary of the written observations submitted to the Court

The defendant in the main proceedings, Mr Arbelaiz-Emazabel, refers in the first place to the conflict which, in his opinion, exists between, on the one hand, the Community regulations laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain and, on the other hand, certain provisions of the London Fisheries Convention of 9 March 1964 and of the Franco-Spanish Agreement of 20 March 1967.

By unilaterally imposing a restrictive regime only upon Spanish nationals, the Community regulations in question are in breach of the principle of nondiscrimination laid down in the London Convention and contrary to the freedom to fish embodied in the Franco-Spanish Agreement. In this respect, Mr Arbelaiz-Emazabel refers to Article 5 of the London Convention, which prohibits, with regard to the 6 to 12-mile zone, all discrimination in form or in fact against fishing vessels of other contracting parties fishing in conformity with Articles 3 and 4 of the Convention. He also draws attention to the permanent right to fish for all species throughout the French coastal zone between 6 and 12 miles granted to Spanish fishermen by Article 1 (b) of the Franco-Spanish Agreement.

He considers that the conflict between those provisions should be resolved in accordance with the general principle laid down in Article 30 (4) (b) of the 1969 Vienna Convention on the Law of Treaties and adopted in Article 234 of the EEC Treaty in the following terms :

“The rights and obligations arising from agreements concluded before the entry into force of this Treaty between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.”

According to the judgment of the Court of 14 October 1980 (Case 812/79 Attorney General v Burgoa [1980] ECR 2787), the Community institutions are under a duty not to impede a Member State in the performance of its prior obligations. As may be seen in particular from a memorandum from the Legal Department of the Council of the European Communities of 15 July 1977, to which the attention of the Cour de Cassation was drawn, the same principle applies to the rules of secondary legislation. The Convention of 9 March 1964 and the Agreement of 20 March 1967 antedate the entry into force of the Community regulations at issue and cannot therefore be affected by them. Mr Arbelaiz-Emazabel adds that in his opinion the method resorted to in the interim rules unilaterally imposed on Spanish nationals is not the proper way to resolve the conflict between the provisions referred to. The only way to obviate that conflict is for negotiations to take place between France and Spain.

As regards the nature of the restrictions imposed on Spanish fishermen, the defendant in the main proceedings states in the first place that the Community regulations adopted since 1977 make fishing by Spanish vessels, not only in the 12 to 200-mile zone but also in the 6 to 12-mile zone, subject to the requirement of a temporary licence for each vessel, which is granted restrictively and unilaterally by the Commission for a limited area. In addition strict and complex quotas are imposed. Thus the Community rules are incompatible with the right granted by the Franco-Spanish Agreement to Spanish fishermen to fish freely, on a permanent basis, for all species in the area defined in the Agreement. In this respect he also points out that, in a Note Verbale of 4 July 1977 addressed to the Spanish Mission to the European Communities, the Commission of the European Communities stated that the permission to fish granted to Spanish vessels under the interim provisions laid down in Regulation No 746/77 was limited to the waters beyond the 12-mile coastal zones, without prejudice to the rights conferred by the Franco-Spanish Agreement of 20 March 1967. Thus the Commission expressly acknowledged that the Community regime cannot relate to the 6 to 12-mile zone referred to in that Agreement and at issue in these proceedings.

Mr Arbelaiz-Emazabel goes on to observe that the Community regime is contrary to the principle of nondiscrimination embodied in Article 5 of the London Convention inasmuch as it applies only to Spanish nationals. The quota system imposed on Spanish fishermen is not applied to French vessels and certainly not in the same way. Furthermore, advance control by means of a licensing system does not extend to every person fishing in the same zone, but is applied only to Spanish fishermen. Subsequent control by means of checking catches taken by the vessels of Member States was not introduced in the Community until the adoption of Council Regulation (EEC) No 753/80 of 26 March 1980 laying down detailed rules for the recording and transmission of information concerning catches taken by fishing vessels of the Member States (Official Journal 1980 L 84, p. 33). Finally, the various procedures for implementing the licensing system impose on Spanish fishermen constraints to which French fishermen are not subject, even when checks are carried out after catches are landed.

Thus identical situations are treated differently, contrary to the London Convention. In fact Article 11 of the Convention, which provides that in certain circumstances a coastal State may exclude particular areas from the full application of Articles 3 and 4 in order to give preference to the local population, constitutes the only exception to the principle of nondiscrimination embodied in Article 5. Article 10 of the Convention, which provides for the possibility of a special regime as between Member States of the Community, is not intended to authorize the coastal State or any party exercising the rights conferred on it to oust vessels protected by the Convention from their habitual fishing grounds, but merely to allow access to the area in question for vessels of Member States of the Community which cannot claim to exercise the longstanding rights referred to in Article 3 of the Convention.

As regards the obligation of consultation laid down in Article 5 (2) of the London Convention, Mr Arbelaiz-Emazabel, in additional observations lodged at the Court Registry on 14 November 1980, drew the Court's attention to an exchange of notes between the Spanish Mission to the European Communities and the Commission's Directorate-General for External Relations. It appears from that exchange that Spain was informed of Council Regulation (EEC) No 746/77 of 5 April 1977 (Official Journal 1977 L 90, p. 8) only after the adoption thereof, namely by a Note Verbale from the Commission of 6 April 1977. On that occasion the Spanish Government expressed its grave concern about the content and the consequences of the measures adopted by the Community and reserved its position with respect thereto.

As regards the duration of the international agreements referred to, the defendant in the main proceedings emphasizes that they have not expired and have not been abrogated or denounced. Although undeniably the situation has evolved since 1958 the changes which have taken place do not justify recourse to the rebus sic stantibus rule and certainly cannot affect the principles of nondiscrimination and consultation laid down in those agreements.

He also points out that the provisions of French criminal law applicable in this case do not allow the imposition of penalties for the contravention of Community provisions in the zone of territorial waters extending 12 miles from the baseline. In fact the decree of 11 February 1977 refers only to the socalled economic zone, extending from the 12-mile limit of the territorial waters to a point 188 nautical miles beyond that limit. The area from 6 to 12 miles which is at issue in this case, is therefore excluded.

In the light of the foregoing considerations, Mr Arbelaiz-Emazabel considers that the Community regulations laying down interim fishery measures are invalid and in any case are not applicable to Spanish fishermen in the 6 and 12-mile zone.

He adds that, in so far as the regulations may be declared valid, the Court of Justice lacks jurisdiction to decide whether they are enforceable against Spanish nationals, since such a question involves interpretation by the Court of provisions of international law which binds Member States outside the framework of Community law (cf. judgment of 27 November 1973 in Case 130/73 Vandeweghe [1973] ECR 1329).

The French Government points out in the first place that despite the distinction drawn in the order for reference between the “validity” and the “enforceability” of the Community regulations involved, the question is essentially one of determining whether, having regard to the rights of the parties concerned under the relevant treaties, the regulations were valid and might therefore serve as a basis for criminal proceedings.

Then, with regard to the agreements in question, it states inter alia that considerable time was necessary to perfect a common fisheries policy and that, in the intervening period, it was permissible for the Member States to continue to enter into fisheries agreements with nonmember countries. It was against that background that the London Convention and the Franco-Spanish Agreement were concluded.

The French Government then examines to what extent the Court may assess the validity of the regulations at issue in the light of the conventions relied upon. Pursuant to Article 177 of the Treaty, the Court does in fact have jurisdiction to interpret provisions of international law, provided first that they bind the Community as such and secondly that they are of such a nature as to confer on individuals the right to rely thereon in legal proceedings (cf. Joined Cases 21 to 24/72 International Fruit Company [1972] ECR 1219). Conversely the Court has no jurisdiction under Article 177 to rule on the interpretation of provisions of international law which bind the Member States outside the framework of Community law (cf. Case 130/73 Vendeweghe, cited above).

As has already been shown in the Opinion of Mr Advocate General Capotorti in Case 812/79 (Attorney General v Burgoa [1980] ECR 2809), the Community is not bound by the London Convention, or, as a result, by the Franco-Spanish Agreement concluded to implement it. On this point, the French Government also states that Luxembourg is not a party to the London Convention. Furthermore, it is irrelevant that, by contrast with Burgoo, the events in this case took place in the band of sea between 6 and 12 miles and that for France the London Convention is a treaty entered into after the EEC Treaty.

Consequently, the London Convention and the Franco-Spanish Agreement cannot affect the validity of the regulations at issue.

The French Government recognizes that the reasoning expounded by the Court in Burgoa may also be followed in this case. In fact, from 1977 the Spanish authorities collaborated closely with the Commission to ensure the implementation of the interim measures prior to conclusion of the outline agreement of 15 April 1980 between Spain and the Community. Since Spain consented to the interim measures, which, moreover, make no distinction between the 6 to 12-mile zone and the 12 to 200-mile zone, there is no need to examine whether it is consonant with an earlier situation which is no longer relevant.

Strictly in the alternative, the French Government affirms that the Community regulations are compatible with the Convention and the Agreement in question. In that respect, it points out that the interim measures, which were adopted with a view to conserving fishery resources, clearly fall within the scope of Articles 5 and 10 of the London Convention. Moreover, the licensing system, as opposed to the system of checks carried out when catches are landed which is applied to nationals of Community countries, is the only practical way of ensuring uniform observance of the Community rules by fishing vessels of nonmember countries. There are no grounds therefore for regarding it as discriminatory treatment.

The Government of the United Kingdom states in essence that the London Convention does not confer rights on which an individual may rely in legal proceedings. According to the judgment of the Court of 12 December 1972 in Joined Cases 21 to 24/72 (International Fruit Company [1972] ECR 1219), it therefore cannot be relied upon in proceedings before the Court to test the validity of Community provisions.

In fact, the Convention is addressed to the contracting parties in fairly general terms. In particular, Article 5 confers on coastal States a wide discretionary power for the implementation of the necessary conservation measures. Where a contracting party fails properly to fulfil its obligations under the Convention, thus infringing the rights granted to the other contracting parties, the Convention itself lays down an arbitration procedure in Article 13 and Annex II (cf. Joined Cases 21 to 24/72, cited above).

Moreover, the Government of the United Kingdom is of the opinion that the Community provisions in question are consistent with the terms of Articles 5 and 10 of the Convention.

Consequently, even though in this case the events took place in the 6 to 12-mile zone referred to in the Convention, the latter cannot affect the validity of the applicable Community provisions.

The Council of the European Communities points out that the international conventions referred to in these proceedings were concluded during a transitional period after the entry into force of the EEC Treaty but before the establishment of the common fisheries policy. According to a consistent line of decisions of the Court, the Member States were able to enter into international commitments during that period, provided that such commitments were of a transitional nature (cf. judgment of 14 July 1976 in Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279, at p. 1310).

The Council is of the opinion that as far as the London Convention is concerned that condition is fulfilled by Article 10 thereof. That article provides that: “Nothing in the present Convention shall prevent the ... establishment of a special regime in matters of fisheries: (a) as between States, Members ... of the European Economic Community”. In fact the Member States signed the London Convention subject to the condition that it was not to prevent the establishment of the common fisheries policy. Consequently, although the London Convention is not binding upon the Community as such, Article 10 thereof constitutes a “stipulation on behalf of others” upon which the Community is entitled to rely. On that point, the Council refers to Article 36 of the Vienna Convention of 23 May 1969 on the Law of Treaties, according to which: “A right arises for a third State from a provision of a Treaty if the parties to the Treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs ... and the third State assents thereto.”

Moreover, the Council takes the view that the Community provisions do not undermine the London Convention or the Franco-Spanish Agreement closely associated with it. In fact, for the 6 to 12-mile zone involved in this case, the Convention does not provide for freedom of fishing but confers specific rights, defined in Article 3, which are subject to the provisions of Articles 4 and 5. The rights flowing from the London Convention are not repudidated by the Community provisions but are merely made subject to a system of quotas and licences as a conservation measure within the meaning of Article 5 of the Convention. Moreover, although the Franco-Spanish Agreement describes the rights of Spanish fishermen in the 6 to 12-mile zone as “permanent” rights, that term must be construed in opposition to the “transitional” rights envisaged for the 3 to 6-mile zone.

The Council then points out that, as in the case of the classic exception made to the most-favoured-nation clause for the sake of customs unions, Article 10 of the London Convention purports to allow departures from the rule of nondiscrimination contained in Article 5 for the benefit of the special Community regime. Although Article 10 does not allow such a regime to result in total negation of the rights deriving from Article 3, it does enable the conservation measures provided for in Article 5 to be applied differently depending on whether or not the persons concerned have the benefit of the special regime. In that regard, the Council notes that there are certain parallels between the measures taken regarding Spanish fishermen and the special regime which has been developed for Community fishermen since the agreements entered into at The Hague in November 1976.

Finally, the Council observes that the obligation to inform and consult the other contracting parties prescribed in Article 5 (2) of the Convention was complied with, in particular in connection with negotiation of the outline agreements between the Commission and the Spanish delegation in Brussels.

The Commission of the European Communities considers that the solution adopted in the judgment of 14 October 1980 in Case 812/79 (Attorney General v Burgoa) is general in scope regarding the validity of the Community regulations in question, irrespective of whether the events at issue took place within or beyond the 12-mile limit. It emphasizes that according to that judgment it was not necessary, in order to assess the validity of the interim measures adopted by the Community, to have regard to the regime applicable before the entry into force of the Community provisions. In fact, those provisions are based on the new relations between Spain and the Community established following the extension of the fishing zones to 200 miles.

According to the Commission, the developments in the international law of the sea which led to the establishment of those new relations concern not only the fishing zones between 12 and 200 miles but also the zones between 6 and 12 miles. In fact, as may be seen from the decision of the International Court of Justice of 25 July 1974 (United Kingdom v Iceland, ICJ Reports 1974, p. 23), the change in the international law of the sea marked by the appearance of new customary rules first became apparent with regard to the waters adjacent to the territorial sea, that is to say in the 6 to 12-mile zone.

In the alternative, the Commission maintains that the Community regulations are compatible with the provisions of the London Convention.

In that respect it states in essence that the Community licensing system constitutes an appropriate method of supervising the enforcement of conservation measures in accordance with Article 5 of the London Convention; in particular it ensures observance of catch quotas by the vessels of nonmember countries which, as a rule, return to their ports of origin to land their catches. In that respect, the Commission also refers to Article 10 of the London Convention.

As regards enforceability of the Community regulations against Spanish fishermen, the Commission refers in particular to the prior consultations between the Community and Spain, which were the subject of dispute before the national courts.

Those consultations in fact took place at the time of the negotiations on the outline agreement on fisheries between the Community and Spain, which commenced in December 1976. Thus, in accordance with Article 5 (2) of the London Convention, the prior consultation on the licensing system — the most contested aspect of the Community provisions — took place well before the introduction of that system by Council Regulation No 746/77 of 5 April 1977. The Commission further points out that the term “consult” does not imply that a prior agreement must be reached.

Furthermore, it admits that during the negotiations Spain claimed in particular that the rights of its vessels to fish in the 6 to 12-mile zone should be maintained. However, in a declaration made when the outline agreement was initialled on 23 September 1978, Spain finally recognized that “the provisions of the Agreement are to be substituted for the provisions of the agreements concerning relations in respect of fisheries to which the Member States of the EEC and Spain are parties”.

In this regard, the Commission states that the exception regarding the 6 to 12-mile zone, which was dealt with in its Note Verbale to the Spanish Mission of 4 July 1977 — referred to by the accused in the main proceedings — could only relate to the frontier zone mentioned in paragraph III of the Franco-Spanish Agreement. That is clear from a Note Verbale of 29 July 1977 regarding the extension of the interim measures by Council Regulation (EEC) No 1709/77 of 26 July 1977, in which the Commission stated that “the new regulation, like the previous regulations, applies to all the fishing zones under the jurisdiction or sovereignty of the Member States of the Community, including the zone referred to in paragraph I of the exchange of letters constituting the Franco-Spanish Agreement of 20 March 1967, excluding the coastal fishing zone referred to in paragraph III of the said exchange of letters”.

Finally, the Commission mentions the cooperation of the Spanish authorities — which commenced before the events in issue took place — for the implementation of the interim provisions, particularly with regard to the issue of fishing licences which is carried out through the Spanish Mission to the Communities.

Ill — Oral procedure

At the sitting on 24 June 1981, oral argument was presented by the following: for Mr Arbelaiz-Emazabel, the defendant in the main proceedings, J. Tournaire of the Bayonne Bar; for the Government of the French Republic, Gilbert Guillaume, Director of Legal Affairs at the Ministry of Foreign Affairs, acting as Agent; for the Council of the European Communities, Daniel Vignes, Director of its Legal Department, acting as Agent; and for the Commission of the European Communities, François Lamoureux, a member of its Legal Department, acting as Agent.

The Advocate General delivered his opinion at the sitting on 15 September 1981.

Decision

1. By judgment of 7 July 1980, received at the Court on 25 August 1980, the French Court de Cassation [Court of Cassation] referred a question to the Court of Justice under Article 177 of the EEC Treaty concerning the validity, and the enforceability against Spanish nationals, of certain Council regulations, in particular Council Regulation (EEC) No 2160/77 of 30 September 1977 laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain (Official Journal 1977 L 250, p. 17).

2. The question was raised in criminal proceedings against the master of a fishing vessel flying the flag of Spain, who was charged with fishing on 3 November 1977 in French territorial waters off Bayonne in the area between 6 and 12 nautical miles from the coast, without being in possession of the fishing licence required by Article 3 of Regulation No 2160/77.

3. The Tribunal de Grande Instance [Regional Court], Bayonne, acquitted the accused and its judgment was upheld by the Cour d'Appel [Court of Appeal], Pau. The latter found that the accused had indeed been discovered fishing without a licence in the 6 to 12 mile-zone, but considered that he was authorized to fish there by the General Agreement on Fishing concluded between France and Spain by an exchange of notes on 20 March 1967 (Journal Officiel de la République Française of 4 August 1967, p. 7807), which was still in force at the material time.

4. Under that Agreement Spanish nationals “enjoy a permanent right to fish” for all species in the area between 6 and 12 miles off the Atlantic coast of France, from the mouth of the Bidassoa to the parallel which passes through the northernmost part of Belle-Ile. Paragraph V of the Agreement states that it was concluded within the framework of the voisinage arrangements provided for in the London Fisheries Convention of 9 March 1964 (United Nations Treaty Series, Vol. 581, No 8432), to which France and Spain are parties.

5. The Cour d'Appel rejected the argument that Regulation No 2160/77 was not contrary to the Franco-Spanish Agreement inasmuch as it did not prohibit fishing by Spanish vessels but merely regulated it. The Cour d'Appel held that, contrary to the provisions of the London Convention, notice had not been given to Spain of the above regulation before it was adopted, and that it very severely restricted Spanish vessels' fishing rights and discriminated against them since vessels of Community countries were not required to hold a licence.

6. In his application to the Court de Cassation, the Procureur Général [Public Prosecutor] at the Cour d'Appel, Pau, contended that under the provisions of the London Convention and the Franco-Spanish Agreement France was entitled to regulate fishing by Spanish vessels in the 6 to 12-mile zone and that provisions for that purpose had been adopted by the French Decree of 23 February 1968 (Journal Officiel de la République Française of 3 March 1968, p. 2327). According to the Procureur Général, that decree, which imposed no limit on catches, had been repealed by implication by the Community regulations concerning the conservation and management of fishery resources applicable to Spanish vessels. Those regulations, which had been incorporated into the law of the Member States, established new provisions governing fishing, which restricted, but did not abolish, the rights of Spanish fishing vessels, by fixing quotas and requiring licences to be obtained.

7. The Cour de Cassation considered that there was a serious difference of views as to whether, having regard to the abovementioned prior international commitments, the Community regulations were valid and whether, if valid, they were enforceable against Spanish nationals, in so far as they laid down new detailed rules for fishing operations by Spanish vessels in the fishing zone between 6 and 12 nautical miles. It asked the Court to give a preliminary ruling on that question.

8. It should first be observed that, as the Court has already stated in earlier cases, for example in its judgment of 14 July 1976 (Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279), it is clear from the corpus of Community law applicable to fishing that the Community has, at internal level, the power to take any measures for the conservation of the living resources of the sea, including measures fixing catch quotas, and that, accordingly, it is also competent to enter into international commitments pursuing that objective.

9. However, in the abovementioned judgment the Court added that, in the period before the Community fully exercised its functions in this field, the Member States had the power to assume certain international commitments relating to the conservation of the living resources of the sea and that they were entitled to ensure fulfilment of those commitments within the area of their jurisdiction. In the same judgment the Court made clear that the Member States' powers in that respect were purely transitional in character and lapsed upon expiry of the period of 6 years stipulated in Article 102 of the Act of Accession of 1972, that is to say on 31 December 1978. During that period, the Community institutions had in fact to determine the conditions subject to which fishing might be carried on with a view to ensuring protection of stocks and conservation of the living resources of the sea.

10. The London Convention was ratified by France on 5 July 1965, that is to say at a time when the Community had not yet adopted any regulations on sea fishing. Therefore, from the point of view of Community law, France could validly sign that Convention and also the bilateral Agreement of 1967 with Spain which, according to paragraph V thereof and according to the French Government, was concluded in implementation of the Convention.

11. In that context, the question raised by the national court seeks therefore to determine whether the international commitments thus assumed by France affect the validity, and enforceability against Spanish nationals, of the Community regulations which laid down interim measures for the conservation of fishery resources as from February 1977 and which amended the detailed rules governing fishing operations carried on by Spanish vessels in the 6 to 12-mile zone.

12. It should be observed in the first place that Article 10 of the London Convention prescribes that no provision thereof is to prevent the establishment of a special regime in matters of fisheries as between Member States of the Community, whilst Article 5 allows coastal States, in certain circumstances, to enforce conservation measures within the 6 to 12-mile zone.

13. It thus appears that the parties to the London Convention were aware of the existence of mutual commitments with regard to fisheries assumed within the framework of the Community by its Member States and that they had approved the principle of conservation measures and recognized the need to adopt appropriate rules to enforce them in the zone referred to in the Convention. Consequently the parties must have known that as from a particular time the power to adopt conservation measures under Article 5 of the Convention would, as far as the Member States of the Community were concerned, be exercised by the Community institutions.

14. It is appropriate next to consider in what circumstances the Community was induced to adopt measures for the conservation of fishery resources and to envisage the consequences of such measures for Spanish fishermen.

15. The scheme for the conservation of the resources of the sea was established by the Community at a time when international law in relation to fishing was undergoing profound changes. It was in order to take into account the general development of international law at that time that the Member States decided, by concerted action agreed upon within the Council, to extend their fishing limits to 200 miles from the baselines. By a resolution of 3 November 1976 on certain external aspects of the creation of a 200-mile fishing zone in the Community with effect from 1 January 1977 (published in Official Journal 1981 C 105, p. 1), the Council, having stressed the need for immediate action by the Community to protect its legitimate interests in the sea areas most threatened as a result of the extension of fishing limits by nonmember countries, decided that as from 1 January 1977 the exploitation of fishery resources in those areas by fishing vessels of nonmember countries was to be governed by agreements between the Community and the nonmember countries concerned.

16. In the same resolution, the Council instructed the Commission to start negotiations immediately with the nonmember countries affected by the Community conservation measures, with a view to reconciling the needs of conservation with the interests of fishermen traditionally operating in the waters in question. Negotiations between the Commission and Spain were commenced on 3 December 1976. They led to the Agreement on Fisheries between the European Economic Community and the Government of Spain, which was initialled on 23 September 1978 and signed on 15 April 1980 (Official Journal 1980 C 263, p. 1).

17. Pending the outcome of those negotiations, and to meet an urgent need, the Community, as soon as it had defined its conservation policy, adopted a number of interim provisions, applicable for short periods, extending the Community system of catch quotas to all fishermen of nonmember countries, including the Spanish.

18. The information provided by the Commission shows that during the negotiations which led to the Agreement the Spanish Government initially claimed that the rights of its fishing vessels in the 6 to 12-mile zone should be maintained, but abandoned that position during the negotiations; when the Agreement was initialled, it declared that “the provisions of the Agreement are to be substituted for the provisions of the agreements concerning relations in respect of fisheries to which the Member States of the EEC and Spain are parties”.

19. Pursuant to Article 228 of the EEC Treaty, the Agreement was approved on behalf of the Community by the adoption of Council Regulation (EEC) No 3062/80 of 25 November 1980 (Official Journal 1980 L 322, p. 3). The Agreement entered into force on 22 May 1981 (Official Journal 1981 L 204, p. 34); it was applied provisionally, pursuant to Article 12 thereof, by the Community and Spain as from the date of signature.

20. According to Article 1 (1) of the Agreement, its purpose is to establish the principles and rules which will govern, in all respects, the fishing activities of vessels of either party “within the fishing zones falling under the jurisdiction of the other party”. The only exception to that definition of the territorial scope of the Agreement is to be found in Article 1 (2), which provides that the Agreement is not to affect the reciprocal fishing arrangements of fishermen “in the Bidassoa waters and in the Bay of Figuer” as defined by the Agreement of 14 July 1959 between Spain and France.

21. The Agreement allows each of the parties to adopt, within the fishing zones falling under its jurisdiction, the measures necessary to ensure rational management of the living resources of the sea, including measures fixing catch quotas and requiring that fishing be subject to licence.

22. All the events which occurred after the adoption of the Council Resolution of 3 November 1976, pending the definitive entry into force of the Agreement, must be taken into account in any assessment of the legal situation existing during that period, in particular in an assessment of the validity of the various Community regulations affecting the operations of Spanish vessels in the fishing zones of the Member States.

23. It should be emphasized in this regard that the first of those regulations, Council Regulation (EEC) No 373/77 of 24 February 1977 laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of certain nonmember countries (Official Journal 1977 L 53, p. 1), was adopted, as indicated in the sixth recital in the preamble thereto, “pending the conclusion of the fishing agreements currently being negotiated with these countries”.

24. That regulation was confined to the fixing of quotas and the licensing system was not introduced until the adoption of Council Regulation (EEC) No 746/77 of 5 April 1977 extending the application for Spain, Finland and Portugal of certain provisions of Regulation (EEC) No 373/77 (Official Journal 1977 L 90, p. 8). That occurred several months after the commencement of negotiations between the Community and Spain on the same matter.

25. It should be emphasized that a licensing system of this kind is merely a necessary means of ensuring the effectiveness of the system of catch quotas introduced by the Community, it being clear that the catches taken by fishing vessels of nonmember countries cannot be checked in the neighbouring coastal ports since the vessels normally return to their ports of origin to land their catches. Therefore the introduction of a licensing system by Regulation No 746/77 was not per se likely to accord less favourable treatment to Spanish fishermen than to the fishermen of Community countries, to whom the catch quotas also applied.

26. The subsequent regulations concerning interim conservation measures applicable to Spanish vessels, including Regulation No 2160/77 which was applicable at the material time, maintained, apart from certain differences of detail, the system of catch quotas in conjunction with the licensing system throughout the period of negotiations leading to the Agreement on Fisheries between the Community and Spain and even during the period from 15 April 1980 when that Agreement was applied provisionally.

27. Throughout the period during which the interim measures adopted by the Community were applied, the Spanish authorities collaborated in their implementation. They were involved in the issue of the Community licences — granted for geographical zones determined without distinction as between the 6 to 12-mile zone and the 12 to 200-mile zone — and took part in discussions on the procedures for the application of the interim measures, including rules governing the substitution of vessels and the equivalence of licences.

28. As regards the application of Regulation No 2160/77, it appears from the documents before the Court that the Spanish Mission to the European Communities passed the list of licence applications to the Commission and that the licences granted were distributed by the Spanish authorities.

29. From the foregoing considerations it follows that the interim regime which the Community set up under its own rules falls within the framework of the relations established between the Community and Spain in order to resolve the problems inherent in conservation measures and the extension of fishery limits and in order to ensure reciprocal access by fishermen to the waters subject to such measures.

30. Those relations, which were confirmed by the Agreement on Fisheries concluded between the Community and Spain and were progressively developed with the concurrence of the Spanish authorities following the decisions which the Community and the Member States thereof adopted in 1976 in order to deal with the increasingly urgent need to conserve the living resources of the sea and to take into account the general evolution of international law in the field of sea fishing, replaced the prior international obligations existing between certain Member States, such as France, and Spain.

31. Accordingly, Spanish fishermen may not rely on prior international agreements between France and Spain in order to prevent the application of the interim regulations adopted by the Community in the event of any incompatibility between the two categories of provisions.

32. It follows from the foregoing that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Regulation No 2160/77 and that the provisions of that regulation are enforceable against Spanish nationals.

Costs

33. The costs incurred by the French and British Governments and by the Council 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.

On those grounds, THE COURT, in answer to the question submitted to it by the French Cour de Cassation, by judgment of 7 July 1980, hereby rules: