JUDGMENT OF 28.10.1982 — JOINED CASES 137 AND 140/81 AFFAIRES MARITIMES DU LITTORAL DU SUDOUEST v CAMPANDEGUY SAGARZAZU

In Joined Cases 137 and 140/81 REFERENCES to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance [Regional Court], Bayonne, for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: F. Capotorti Registrar: A. W. H. Meij, Legal Secretary

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and written procedure

1. Mr Campandeguy Sagarzazu and Mr Echevarría Sagasti, the captains of fishing vessels registered in Spain, were prosecuted before the Tribunal de Grande Instance [Regional Court], Bayonne, for unlawfully fishing without holding the fishing licence required by the Community provisions applicable to vessels flying the flag of Spain. They were discovered fishing, Mr Campandeguy Sagarzazu on 2 February 1981 and Mr Echevarría Sagasti on 10 March 1981, off Bayonne within the French economic zone extending between 12 and 200 miles from the coast. The judgments making the references in the two cases show that the Tribunal de Grande Instance considered that the Community regulations in question, which restrict the fishing rights of Spanish nationals by prescribing various conditions, in particular that they should obtain a licence, are capable of modifying prior international obligations arising in particular from the London Fisheries Convention of 9 March 1964 the Agreement on Fisheries between France and Spain of 20 March 1967 and the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas of 29 April 1958. Furthermore, the court found that the Agreement on Fisheries between the European Economic Community and the Government of Spain signed on 15 April 1980, which provides inter alia for the grant of licences for fishing vessels, was not yet in force in February 1981. It considered that the Agreement did not appear to be provisionally applicable and that it was capable of modifying the said prior international obligations. Consequently the Tribunal de Grande Instance, by judgments of 23 April 1981 (Case 137/81) and 21 May 1981 (Case 140/81), decided to stay the proceedings until the Court of Justice delivered a preliminary ruling on' whether, having regard to prior international obligations, regulations of the Communities laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain were valid, in so far as they laid down certain conditions for fishing operations carried out by Spanish nationals, in the economic zone established by Decree No 77-130 of 11 February 1977 and whether, if valid, those regulations were enforceable against Spanish nationals.

2. The provisions of the regulations and of the international agreements involved in the two cases may be summarized as follows:

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

Pursuant to the Council 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 (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 framework agreements on fisheries between the Community and those nonmember countries.

The provisions applicable from the beginning of 1981 to vessels flying the flag of Spain were laid down initially by Council Regulation No 1719/80 of 30 June 1980 laying down for 1980 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain (Official Journal L 168, p. 27).

According to the recitals in the preamble to that regulation the Community and Spain consulted each other, under the procedure laid down in the framework agreement, namely the Agreement on Fisheries signed by the Community and Spain on 15 April 1980, on the conditions for fishing by the vessels of each of the parties in the fishing zone of the other party during 1980 and, following the consultations, the Community delegation undertook to recommend that the Community authorities adopt for that period certain measures authorizing Spanish vessels to fish in the fishing zones of the Member States covered by Community rules on fisheries.

Articles 1 and 2 of Regulation No 1719/80 are worded as follows:

“Article 1 The only catches which vessels flying the flag of Spain are authorized to make during the period 1 January to 31 December 1980 in the 200-mile fishing zone of the Member States covered by Community rules on fisheries shall be those set out in Annex I, within the quantitative limits laid down therein and caught under the conditions laid down by this regulation. Article 2 (1) Fishing shall be subject to the holding on board of a licence, issued by the Commission on behalf of the Community, and to compliance with the conservation and supervisory measures and other provisions governing fishing in the zone referred to in Article 1. (2) The number of licences which may be issued to vessels flying the flag of Spain shall be as laid down in point 3 of Annex I.”

By Council Regulation No 3305/80 of 17 December 1980 (Official Journal L 344, p. 33) the validity of fishing licences valid on 31 December 1980 in accordance with Regulation No 1719/80 for vessels flying the flag of Spain was extended until 31 January 1981.

Subsequently the Council laid down, in Regulation No 554/81 of 27 February 1981 (Official Journal L 57, p. 1), similar interim measures for the period 4 March to 31 May 1981 since it considered, on the one hand, that fishing by Spanish vessels in the fishing zones of Member States had been interrupted since 1 February 1981 (fifth recital in the preamble) and, on the other, under the terms of Article 12 of the Agreement on Fisheries signed on 15 April 1980 by the Community and Spain that Agreement was applicable from the date of signature (first recital in the preamble).

The final rules for the year 1981 are given in Council Regulation No 1569/81 of 1 June 1981 laying down for 1981 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain (Official Journal L 154, p. 1).

Article 10 (3) of that regulation reads as follows :

“No licence shall be valid for the period 1 February to 3 March 1981. All fishing by vessels flying the flag of Spain in the area referred to in Article 1 shall be prohibited during that period.”

(b) Provisions of the international agreements

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, a framework Agreement with Spain was initialled on 23 September 1978 and signed on 15 April 1980. That Agreement was approved on behalf 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, I. 204, p. 34).

It was provided in Article 12 of the Agreement that, pending its entry into force, the Agreement should apply provisionally from the date of its signature, namely 15 April 1980.

Articles 1 (1), 2, 3 and 4 of the Agreement are worded as follows:

“Article 1 (1) The puropose of this Agreement 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. ... Article 2 Each party shall grant access to the fishing zone falling under its jurisdiction to the fishing vessels of the other party under the conditions laid down by the following articles. Article 3 1. Each party shall determine each year, for the fishing zone falling under its jurisdiction, subject to adjustments necessitated by unforeseen circumstances, and on the basis of the need for rational management of the biological resources : (a) the total allowable catch for individual stocks or complexes of stocks, taking into account the most reliable scientific information available to it, the interdependence of stocks, the work of appropriate international organizations and other relevant factors; (b) after appropriate reciprocal consultations, the catch allotted to the fishing vessels of the other party and the zones in which these catches may be made. The two parties shall have as their objective the attainment of a satisfactory balance between their respective fishing possibilities in the fishing zones falling under the jurisdiction of the other party. In determining these possibilities, each party shall take into account: (i) the advantage of preserving the traditional characteristics of fishery activities in the frontier coastal areas; (ii) the need to minimize the difficulties encountered by the party whose fishing possibilities may be reduced in the course of achieving the abovementioned balance; (iii) all other relevant factors. (2) Each party shall be able to take any other measures to ensure the conservation and rational management of resources in the fishing zones falling under its jurisdiction. Such measures when taken following the annual fixing of the other party's fishing possibilities, should not be such as to compromise the effective operation of fishing. Article 4 Each party may require that in the fishing zone falling under its jurisdiction fishing by vessels of the other party shall be subject to licence. The competent authorities of each party shall communicate to the other party the name, registration number and other relevant particulars of vessels requesting. authorization to fish in the fishing zone of the other party. This provision shall also apply to any vessel intended to aid or assist a fishing vessel in carrying out tasks directly related to the latter's fishing activity. The second party shall issue licences commensurate with the possibilities for fishing granted under Article 3 (1) (b).”

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 recognizes 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 arrangements 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.”

According to its preamble, the Geneva Convention of 29 April 1958 on Fishing and Conservation of the Living Resources of the High Seas (United Nations Treaty Series, Vol. 559, No 8164) is intended to solve, by means of international cooperation, the problems involved in the conservation of the living resources of the sea, which are exposed to the danger of being overexploited. The Convention contains, in particular, the following provisions:

“Article 6 1. A coastal State has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea. ... Article 7 (1) Having regard to the provisions of paragraph 1 of Article 6, any coastal State may, with a view to the maintenance of the productivity of the living resources of the sea, adopt unilateral measures of conservation appropriate to any stock of fish or other marine resources in any area of the high seas adjacent to its territorial sea, provided that negotiations to that effect with the other States concerned have not led to an agreement within six months. (2) The measures which the coastal State adopts under the previous paragraph shall be valid as to other States only if the following requirements are fulfilled: ... (c) That such measures do not discriminate in form or in fact against foreign fishermen.”

France and Spain ratified the Convention in 1970 and 1971 respectively.

(c) French legislation

The French legislation applicable in the two cases is embodied in Decree No 77-130 of 11 February 1977, issued pursuant to Law No 76-655 of 16 July 1976. That decree creates an economic zone off the North Sea, English Channel and Atlantic coasts of the territory of the French Republic, from the Franco-Belgian frontier to the Franco-Spanish frontier, from the outside limit of the territorial waters to a line 188 nautical miles beyond that limit.

Article 2 of the decree provides :

“Subject to the provisions of the Treaty establishing the European Economic Community and instruments adopted in implementation thereof, fishing by foreign vessels in the abovementioned economic zone is prohibited, in accordance with the Law of 1 March 1888 as amended. However, notwithstanding these provisions, fishing permits may be issued to certain foreign vessels in accordance with the conditions laid down in the Treaty establishing the European Economic Community and the instruments adopted in implementation thereof, by international agreements and by internal French law.”

Article 3 lays down the applicable penalties.

3. The judgments of the Tribunal de Grande Instance, Bayonne, of 23 April 1981 and of 21 May 1981 whereby that court made the references for a preliminary ruling were received at the Registry of the Court of Justice on 5 June 1981. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were lodged by the defendant in the main proceedings in Case 137/81, Mr Campandeguy Sagarzazu, and by the defendant in the main proceedings in Case 140/81, Mr Echevarría Sagasti, represented by J. Tournaire, of the Bayonne Bar, and in both cases by the Government of the French Republic, represented by Gilbert Guillaume, Director of Legal Matters at the Ministry of Foreign Affairs, acting as Agent; by the Council of the European Communities, represented by Daniel Vignes, Director in its Legal Department, acting as Agent, assisted by Aidan Larkin, an administrator in that department, and by the Commission of the European Communities, represented by its Legal Adviser Jacques Bourgeois, assisted by François Lamoureux, a member of its Legal Department. By order of 20 January 1982 the Court decided to join Cases 137/81 and 140/81 for the purposes of the oral procedure and the judgment. By order of 20 January 1982 the Court, pursuant to Article 95 (1) and (2) of the Rules of Procedure, decided to refer the joined cases to the First Chamber. 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 defendants in the main proceedings, Mr Campandeguy Sagarzazu and Mr Echevarria Sagasti, point out first of all that no provision of Community law referring in particular to Spanish fishermen was in force in the period between 1 February and 3 March 1981 when the facts in Case 137/81 occurred. Since it was therefore unnecessary for vessels flying the flag of Spain to hold a licence in order to fish, penalties under the criminal law may not be imposed for failure to hold such a licence.

The fifth recital in the preamble to Regulation No 554/81, in which it is stated that fishing by Spanish vessels in the fishing zones of the Member States had been interrupted since 1 February 1981, creates the false impression that there is a general prohibition mitigated by the grant of authorizations in particular cases under interim regulations. Such a view negates the prior rights which Spanish fishermen are acknowledged as having, in particular off the French coasts. It implies the complete abolition of such prior rights, which is also incompatible with the idea, sometimes put forward, that the system of licences imposed unilaterally on Spanish nationals merely constitutes a nondiscriminatory restriction justified by the need for a priori control of fishing by nationals of nonmember countries. Article 10 (3) of Regulation No 1569/81 of 1 June 1981, which expressly confirms the prohibition of fishing for the earlier period from 1 February to 3 March 1981, is thus unlawful, at least in so far as it is retroactive.

The defendants in the main proceedings then claim that the unilateral imposition of a discriminatory régime only upon Spanish nationals is incompatible with the historical fishing rights of Spanish fishermen which are protected by the London Convention of 9 March 1964 and the Geneva Convention of 29 April 1958. In this respect they make particular reference to:

On the one hand, Article 7 of the Geneva Convention, which provides that a costal State may not unilaterally adopt conservation measures if they “discriminate in form or in fact against foreign fishermen”, and

on the other hand, Article 5 of the London Convention which prohibits in particular, in the belt between 6 and 12 miles, any discrimination in form or in fast against fishing vessels of other Contracting Parties fishing there in accordance with Articles 3 and 4 of that Convention. Moreover, they refer to the permanent right conferred on Spanish fishermen by Article 1 (b) of the Agreement betweenTrance and Spain of 20 March 1967 to fish for all species in the belt between 6 and 12 miles off the French coasts.

As regards the geographical scope of the international agreements to which they refer, they take the view that, having regard to their rationale, they must, if they are to be effective, apply not only to the 6 to 12-mile zone, to which they expressly refer, but also the 12 to 200-mile exclusive economic zone. Thus the French economic zone which, by virtue of Law No 76-655 of 16 July 1976 and Decree no 77-130 of 11 February 1977, extends “from the limit of the territorial waters to a line 188 miles beyond that limit” is covered by the expression “any area of the high seas adjacent to its territorial sea” contained in Article 7 of the Geneva Convention. Furthermore, the traditional fishing rights recognized by the London Convention apply to the zone extending from the 6-mile limit to the high seas and in particular to the 12 to 200-mile zone. Finally the preamble to the Franco-Spanish Agreement refers expressly to an extension of the reserved fishing areas to 12 miles, given effect in France by the Decree of 7 June 1967 In fact the 12-mile limit adopted by the Agreement does not constitute a rigid frontier, since the geographical scope of the Franco-Spanish Agreement extends from 6 miles to the present boundary of the reserved fishery zones falling under the jurisdiction of the two States.

With regard to the London Convention the defendants in the main proceedings point out that Article 11 of the Convention, in accordance with which a coastal State may exclude particular areas from the full application of Articles 3 and 4 for the benefit of the local population, constitutes the sole exception to the prohibition in principle of discrimination which is laid down by Article 5. Article 10 of the Convention, which enables a special régime to be established between the Member States of the Community, constitutes a derogation from the most-favoured-nation clause embodied in Article 8 (2) of the Convention since its sole objective is to avoid any impediment to the establishment of a common fisheries policy between the Member States and the associated States of the Communities and thereby to provide access to the reserved zones for their nationals even though the latter had no claim to exercise historical rights for the purposes of Article 3 of the Convention. That provision may not have the effect of displacing the nationals of another contracting party, in this case Spain, from a zone to which they are guaranteed access on an equal footing with the nationals of the coastal State. In this connection they refer to the judgment of the Court of 16 February 1978 (Commission v Ireland Case 61/77, [1978] ECR 417) which establishes that “the rules regarding equality of treatment enshrined in Community law forbid not only overt discrimination by reason of nationality but also covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result”.

Furthermore, although it is true that the extension of the fishing zones of the Member States of the Community to 200 miles and the need to conserve resources have given rise to a new international custom which has been superimposed in the previous situation the international agreements in force are not thereby superseded. Furthermore, the agreements relied upon have not expired and they have not been denounced.

That view is confirmed by the Agreement on Fisheries concluded on 15 April 1980 between the Community and Spain. According to Article 1 thereof the sole purpose of the Agreement is to govern the conditions for fishing. Only to that extent did Spain, in a declaration which it made at the time of the initialling of the Agreement, recognize that the provisions of the Agreement should be substituted for those of the previous agreements. The historical fishing rights as such and the rule of nondiscrimination laid down by the Geneva Convention and the London Convention are accordingly not affected by the Agreement. The measures to be applied in the reserved zones and to particular species must be the same for foreign fishermen as for fishermen subject to the domestic jurisdiction of the State in question (cf. J. L. Meseguer, “Accord de Pêche entre l'Espagne et la CEE”; Revue du Marché Commun 1980, pp. 527 to 534 and 589 to 594, at p. 594).

Finally, the acts alleged against the defendants were performed during the period when the Agreement was provisionally applicable. Provisional measures which have not been ratified cannot abrogate international treaties in force.

The Community régime at issue is thus incompatible with the Geneva Convention and the London Convention, the Agreement between France and Spain and Article 1 of the Agreement between the EEC and Spain. It follows in particular from the general principle of the law of treaties set out in Article 30 (4) (b) of the Vienna Convention on the Law of Treaties of 1969 and adopted in Article 234 of the EEC Treaty that prior arrangements take precedence.

In accordance with the judgment of the Court of 14 October 1980 (Attorney General v Burgoa, Case 812/79 [1980] ECR 2787) the institutions of the Community are under a duty not to impede the performance of the prior obligations of the Member States. That principle also applies to provisions of secondary law.

In so far as the Community regulations may nevertheless 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 bind 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 considers that with regard to Case 137/81 the Court may confine itself to informing the Tribunal de Grande Instance, Bayonne, that at the material times in the cases in point no Community regulation laid down measures for the conservation and management of fishery resources applicable to Spanish fishermen and leave that court to apply the ruling in the context of French municipal law. The result of the proceedings is determined by the French legislation applicable in the matter according to which fishing is prohibited to foreigners in the French economic zone unless they hold a licence granted in accordance with Community law. Since no Community regulation made provision for the granting of licences for the period between 1 February and 3 March 1981 and consequently no licence was issued, the defendant in Case 137/81 has committed the offence of unauthorized fishing. The Court of Justice may not, however, substitute its own determination in this respect for that of the national court.

In so far as it is necessary in Case 137/81, and more particularly with regard to the validity of Council Regulation No 554/81 of 27 February 1981, which was applicable at the time of the facts in Case 140/81, the French Government next examines the state of the provisions in question in relation to the prior international obligations relied upon.

In this connection it recalls that the Geneva Convention of 29 April 1958 has been superseded by the development of an international custom enabling coastal States to declare , an exclusive fishing zone extending 200 miles from their coasts; it was against that background that the Community created its fishing zone and adopted the regulation at issue. The same conclusion is unavoidable with regard to the London Convention of 9 March 1964 and the Franco-Spanish Agreement of 20 March 1967, which do not relate to the 12 to 200-mile zone where the events in issue in these two cases took place.

Furthermore the Agreement on Fisheries signed on 15 April 1980 by the Community and Spain has superseded the provisions of these international conventions. Although the Agreement on Fisheries only entered into force on 22 May 1980 it nevertheless applied provisionally, pursuant to Article 12, since the date of its signature and was thus binding on the EEC and Spain after 15 April 1980 in accordance with prevailing practice in the provisional application of treaties, as set forth in Article 25 of the Vienna Convention on the Law on Treaties. It is therefore sufficient for the Court, in Case 14/80, to establish that one instrument has replaced the others and to infer from that the neccessary conclusions regarding the question raised.

The French Government also adds that the Geneva Convention and the London Convention do not bind the Community and that in so far as the Agreement of 15 April 1980 is invoked against the provisions in dispute that Agreement does not give rise to rights which may be relied upon before the courts. Finally Regulation No 554/81 is in accordance with all the provisions of the conventions which have been invoked.

The Council of the European Communities recalls first of all that, in its opinion, pursuant to Article 10 of the London Convention which confers a jus quaesitum tertio on the Community, all Community provisions on fisheries take precedence over that convention and the agreement between France and Spain which is directly connected with it. With regard to the Geneva Convention the Council points out that it is not applicable to the territorial sea or to the reserved fishing zone adjacent to the territorial sea.

Since that has been the position since the beginning of the Community fisheries regime so far as the Spanish fishermen are concerned, the Agreement on Fisheries between the Community and Spain has replaced these earlier agreements since the Community has succeeded to rights of the Member States to conclude treaties with nonmember countries concerning fishing waters coming under the jurisdiction of such States. That interpretation is confirmed by the declaration made on 23 September 1978, when the Agreement between the Community and Spain was initialled, to the effect that “with regard to Article 1 the Spanish delegation recognizes that the provisions of the agreements relating to fisheries to which the Member States of the EEC and Spain are parties are superseded by the provisions of the Agreement; if that Agreement is denounced Spain reserves the right to invoke against the Community the provisions of the agreements on fisheries which formerly governed its relations with the Member States of the Community concerning fisheries”.

The Council accordingly considers that the London Convention and the Agreement between France and Spain of 1967 have thus been frozen and have ceased to produce effects following the signature of the Agreement on 15 April 1980 and during its provisional application. Since the entry into force of the Agreement on 22 May 1981 the prior agreements were superseded although they may, perhaps, become applicable again if the Agreement of 15 April 1980 is denounced.

With regard to the period between 1 February and 3 March 1981 in which the facts at issue in Case 137/81 took place the Council claims that the Community rules did not provide any possibility for Spanish fishermen to obtain a licence since relations concerning fishing were interrupted between the Community and Spain. That interruption nevertheless did not entail freedom to fish since French legislation expressly prohibits fishing in territorial waters and the economic zone except with the authorization granted in accordance with Community law. The Council states that because of a disagreement between the Community and Spain on the number of licences and on the volume of quotas it was impossible to determine the arrangements for 1981 either in December 1980 or in January 1981. When the consultations finally resulted in agreement on 17 February 1981 Regulation No 554/81 was quickly adopted.

With regard to Case 137/81 the Commission of the European Communities remarks that the judgment making the reference shows that the national court was by no means unaware that fishing by Spanish vessels was interrupted. It consequently considers that the preliminary question concerns the very principle of the restriction on the access of Spanish vessels to the fishing zone of the Community and that that restriction entails as a general rule the requirement that a licence should be obtained or, exceptionally, a prohibition of all fishing, as was the case at the material time in Case 137/81. In the opinion of the Commission the requirement that a licence should be obtained or that fishing should be suspended constitutes a means of exercising the general powers of the Community for the purposes of adopting measures to protect resources within its exclusive fishing zone.

The Commission states that as from the provisional application of the Agreement on fisheries between the Community and Spain the Council, after consultation with the Spanish authorities in accordance with the Agreement, fixed the measures applicable to Spanish vessels for the whole of each year by Regulation No 1719/80 of 30 June 1980 for the year 1980 and by Regulation No 1569/81 of 1 June 1981 for the year 1981.

It considers that since the Spanish authorities failed to agree with the proposed conditions the Community was entitled to suspend fishing by Spanish vessels. The Commission pointed out to the Spanish delegation that it was necessary to complete the consultations on the arrangements for fishing for 1981 in good time and that when consultations were suspended by the Spanish delegation it also informed the latter that fishing by Spanish vessels would be interrupted from 31 January 1981.

With regard to the validity of the Community regulations in question in relation to the prior international agreements the Commission considers that the solution adopted in the judgment of 14 October 1980 in Case 812/79 (Attorney General v Burgoa) is general in scope irrespective of whether the events at issue took place within or beyond the 12-mile limit. It states that according to that judgment, it is not necessary, in order to assess the validity of the interim measures adopted by the Community, to have regard to the régime 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.

Finally it points out that neither the Geneva Convention, the London Convention nor the Agreement between France and Spain are applicable in the zone between 12 and 200 miles which is at issue. Furthermore, the Community rules are not incompatible with the provisions of those conventions.

III — Oral procedure

At the sitting on 29 April 1982 oral argument was presented by the following: J. Tournaire, of the Bayonne Bar, for the defendants in the main proceedings in both cases, Mr Campandeguy Sagarzazu and Mr Echevarría Sagasti; Bernard Botte, Attaché at the Ministry of Foreign Affairs, acting as Agent, for the Government of the French Republic; B. Schloh, Legal Adviser to the Council, acting as Agent, for the Council of the European Communities and by F. Lamoureux, a member of the Legal Department of the Commission, acting as Agent, for the Commission of the European Communities.

The Advocate General delivered his opinion at the sitting on 27 May 1982.

Decision

1. By judgments of 23 April and 21 May 1981, which were received at the Court on 5 June 1981, the Tribunal de Grande Instance [Regional Court], Bayonne, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question as to whether, having regard to prior international obligations, regulations of the Council of the European Communities laying down certain interim measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain are valid, in so far as they have laid down certain conditions for fishing operations carried out by Spanish nationals in the economic zone established by French Decree No 77-130 of 11 February 1977 (Journal Officiel de la République Française of 12 February 1977, p. 864) and whether, if valid, those regulations are enforceable against Spanish nationals.

2. The question was raised by criminal proceedings against the masters of two fishing vessels registered in Spain, who were charged with fishing in waters within the French economic zone, without being in possession of a fishing licence.

3. Mr Campandeguy Sagarzazu, the defendant in the main proceedings in Case 137/81, was discovered fishing on 2 February 1981 in the zone between 12 and 200 nautical miles from the baselines. Mr Echevarria Sagasti, the defendant in the main proceedings in Case 140/81, fished in the same zone on 10 March 1981.

4. The national court considered that the defendants were unable to produce the licence required by Council Regulations No 1719/80, No 3305/80 and No 554/81 and that in those circumstances the fishing in which the defendants had engaged constituted an offence created and punished by French criminal legislation.

5. In both cases the defendants in the main proceedings maintain that the Community regulations are invalid or in any event inapplicable as against them, being incompatible with the rights upon which they may rely in consequence of international commitments previously entered into between France and Spain. For that purpose they rely in particular upon the Geneva Convention of 29 April 1958 on Fishing and Conservation of the Living Resources of the High Seas (United Nations Treaty Series, Vol. 559, No 8164)and upon the London Fisheries Convention of 9 March 1964 (United Nations Treaty Series, Vol. 581, No 8432) which, since it recognized fishing rights in the 6 to 12-mile zone, must be understood as meaning that, after the extension of fishery limits, the same regime extends to 200 miles.

6. Council Regulation No 1719/80 of 30 June 1980 laying down for 1980 certain measures for the conservation and management of fishery resources applicable to vessels flying the flag of Spain (Official Journal L 168, p. 27) was, according to the second paragraph of Article 12 thereof, applicable from 1 January to 31 December 1980. Council Regulation No 3305/80 of 17 December 1980 extending the period of validity of fishing licences for vessels flying the flag of Spain (Official Journal L 344, p. 33) provides that fishing licences valid on 31 December 1980 in accordance with Regulation No 1719/80 remain valid until 31 January 1981. Council Regulation No 554/81 of 27 February 1981 fixing certain interim measures for the conservation and management of fisheries resources applicable to vessels flying the flag of Spain (Official Journal L 57, p. 1), which entered into force on 4 March 1981, provides in the second paragraph of Article 11 thereof, that it is applicable until 31 May 1981.

7. The three regulations cited above form part of a series of Council regulations which, pending the entry into force of the Agreement on Fisheries between the European Economic Community and the Government of Spain of 15 April 1980 (Official Journal L 263, p. 1), established for short periods interim provisions prescribing catch quotas for Spanish fishermen.

8. The Court has already stated in its judgment of 8 December 1981 (Crujeiras Tome and Yurrita, Cases 180/80 and 266/80, [1981] ECR) 2997) that the interim regime established by the Community falls within the framework of the relations established between it and Spain in order to resolve the problems inherent in conservation measures and the extension of fishery zones and in order to ensure reciprocal access by fishermen to the waters subject to such measures and that those relations were substituted for the regime which previously applied in those zones in order to take account of the general development of international law in relation to fishing on the high seas and the increasingly urgent need to conserve the living resources of the sea.

9. It follows from the foregoing that the provisions of Regulations No 1719/80, No 3305/80 and No 554/81, in so far as they applied to the fishing zone extending from 12 to 200 miles from the baselines, were part of the progressive creation of new reciprocal relations between the Community and Spain in the field of sea-fishing which were substituted for the regime previously applicable to fishing on the high seas. In those circumstances Spanish fiserhermen may not rely on prior international commitments as 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.

10. Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Regulations No 1719/80, No 3305/80 and No 554/81. Those regulations are enforceable against Spanish nationals.

11. The defendants in the main proceedings, the French Government, the Council and the Commission have drawn the attention of the Court to the fact that at the material time in Case 137/81, namely 2 February 1981, no Community regulation concerning the system of licences was applicable to vessels flying the flag of Spain. The recitals in the preamble to Regulation No 554/81 state in this connection that the consultations between the Community and Spain which are provided for by the Agreement on Fisheries of 1980, which provisionally applied from the date of signature, were not concluded until 17 February 1981, that fishing by Spanish vessels in the fishing zones of Member States which were subject to Community fisheries regulations was authorized during the period from 1 to 31 January 1981 by Regulation No 3305/80 and that such fishing had been interrupted since 1 February 1981.

12. The defendants in the main proceedings have claimed that under the Agreement on Fisheries Spanish fishermen were entitled to fish in the fishing zones in question during the periods when no Community regulation established a system of licences for them.

13. It is nevertheless for the national court to consider the consequences of the absence of any Community regulations concerning fishing licences applicable to Spanish fishing vessels during the period from 1 February 1981 to 4 March 1981.

Costs

14. The costs incurred by the French Government 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 (First Chamber) in answer to the question submitted by the Tribunal de Grande Instance, Bayonne, by judgments of 23 April and 21 May 1981, hereby rules: