Report for the Hearing in Case C-258/89

I — Facts and written procedure

1. Legal framework

1. In order to ensure the protection of fish stocks, the conservation of the biological resources of the seas and their balanced exploitation on a lasting basis and in appropriate economic and social conditions, the Council adopted Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (Official Journal 1983 L 24, p. 1). Article 3 of the regulation provides, inter alia, that where, in the case of one species or a group of related species, it becomes necessary to limit the catch, the total allowable catch for each stock or group of stocks (hereinafter ‘TAC’) and the shares available to the Community are to be fixed each year. Pursuant to Article 4, the volume of catches available to the Community is to be distributed between the Member States in a manner which assures each Member State relative stability of fishing activities for each of the stocks considered (hereinafter ‘quota’). On this basis the Council fixes each year, by means of a regulation, the TACs and quotas of fish available for the Member States. The regulations define the zones in which the TACs and quotas may be fished according to the delimitation of the sub-zones and statistical divisions of fisheries in the North-East Atlantic, established by the International Council for the Exploration of the Sea (ICES), and according to the zones delimited by the Fishery Committee for the East Central Atlantic (CECAF). So far as Spain is concerned, Article 161 of the Act of Accession of Spain and Portugal to the European Communities (Official Journal 1985 L 302, p. 23) fixes the TAC share to be allocated to Spain for certain stocks in certain zones. According to Article 161(4), the fishing possibilities laid down for Spain and the resulting quotas for the other Member States are to be fixed annually, in accordance with Regulation No 170/83.

2. The system of TACs and quotas is accompanied by certain control measures. The relevant provisions were set out in Articles 6 to 9 of Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States (Official Journal 1982 L 220, p. 1). That regulation was superseded by Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (Official Journal 1987 L 207, p. 1). Article 9 in both regulations requires Member States to record all landings by fishing vessels flying the flag of, or registered in, a Member State of stocks or groups of stocks subject to a TAC or quota, and to notify the Commission of the information received. Articles 6, 7 and 8 in both regulations require the skippers of fishing vessels to submit to the State where the catch is landed and to the flag State declarations concerning landings and transhipments or quantities retained on board of stocks subject to a TAC or quota, and require both Member States to take appropriate measures to verify the accuracy of the declarations received. Article 5 of Regulation No 2241/87 requires the skippers of fishing vessels flying the flag of a Member State and fishing for a stock or group of stocks subject to a TAC or quota to keep a logbook indicating the quantities of each species caught and kept on board, the date and location of such catches by reference to the smallest rone for which a TAC or quota has been fixed and administered and the type of gear used, the Member States being responsible for verifying the accuracy of those entries. Article 11 of Regulation No 2241/87, like Article 10 of Regulation No 2057/82 before it, requires Member States provisionally to prohibit fishing vessels flying their flag from fishing for stocks subject to quota, at such time as is appropriate in order to ensure that the quota in question is not exceeded. Finally, Article 1 in both regulations requires the competent authorities of a Member State to take penal or administrative action to curb any failure to comply with the rules in force concerning conservation and control measures.

2. Background to the dispute

3. In the course of assignments carried out in Spain in 1986 and 1987, the Commission's inspectors found that during those two years the Spanish authorities failed to record catches of species subject to TACs or quotas fished in certain ICES sub-zones outside the 200-mile limit of the Community fishing zone. Furthermore, they noted that certain species had been unlawfully landed and declared as having been caught in ICES sub-zones VI and VII, but outside the 200-mile zone, even though Spain has no quota for the species concerned in those zones. However, the Spanish authorities did not take penal or administrative action in respect of those landings. Subsequently, at a meeting held between the Directorate-General responsible for fisheries and the Spanish authorities on 23 April 1987, the Spanish authorities put forward the argument that fishing remains unrestricted in international waters which are not subject to the provisions of specific international agreements and that, as a result, Community quotas do not apply in the parts of the ICES divisions which are situated beyond the limit of the Community fishing zone.

4. The Commission did not accept the Spanish authorities' argument. In its view, the regulations which fix the TACs and quotas do so, in the absence of any indication to the contrary, for the whole of the ICES divisions or sub-zones. In those circumstances, the Commission took the view that Spain had not complied with the relevant provisions of Regulations Nos 2057/82 and 2241/87. Accordingly, by letter of 28 September 1987, and in accordance with Article 169 of the Treaty, the Commission gave the Spanish Government formal notice to submit its observations. By letter of 28 October 1987, the Spanish Government replied to the letter of formal notice. It denied that it had failed to fulfil its obligations because, in its opinion, the Community's powers were capable of being exercised, except in the case of international agreements, only inside the 200-mile limits of the Member States' exclusive economic zone.

5. In the light of that reply, the Commission issued a reasoned opinion on 26 October 1988. It requested the Kingdom of Spain to take the necessary measures to comply therewith within one month of notification. On 9 December 1988 the Spanish Government forwarded to the Commission a communication in which it maintained the argument put forward in its reply to the letter of formal notice. It was in those circumstances that the Commission decided to bring the present action.

3. Written procedure

6. The Commission's application was lodged at the Court Registry on 14 August 1989. By order of 17 January 1990 the Court granted the United Kingdom leave to intervene in support of the form of order sought by the Commission. 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 — Forms of order sought by the parties

7. The Commission, the applicant, claims that the Court should: (i) declare that, by failing to apply the control measures laid down by Regulation (EEC) No 2057/82, in particular Articles 1, 6 to 9 and 10 thereof, as well as by Regulation (EEC) No 2241/87, in particular Articles 1, 5 to 9 and 11 thereof, to catches made outside the Community fishing zone of stocks or groups of stocks subject to a TAC or quota, the Kingdom of Spain has failed to fulfil its obligations under the Treaty; (ii) order the Kingdom of Spain to pay the costs. The United Kingdom, the intervener, claims that the Court should: (i) declare, in accordance with the form of order sought by the Commission, that by failing to apply the relevant control measures laid down in Regulations (EEC) Nos 2057/82 and 2241/87, the Kingdom of Spain has failed to fulfil its obligations under the Treaty; (ii) order the Kingdom of Spain to pay the costs of the United Kingdom. The Kingdom of Spain, the defendant, contends that the Court should: (i) dismiss the action brought by the Commission; (ii) order the Commission to pay the costs.

III — Pleas in law and arguments of the parties

8. First of all, the Commission points out that the arguments put forward by the Kingdom of Spain are centred on the powers of the Community to adopt provisions on the conservation of fishery resources, consisting in particular in limiting catches in maritime waters outside the Community fishing zone. In order to demonstrate the existence of such powers, the Commission engages in a detailed analysis of the provisions of the Treaty, the Court's case-law and the legislative practice of the Community. According to the Commission, it follows from that analysis that the Community does have authority to adopt independent provisions concerning the restriction of catches made on the high seas. The Commission's analysis may be summarized as follows.

9. Pursuant to Article 38(4) of the Treaty, the operation and development of the common market for fishery products must be accompanied by the establishment of a common fisheries policy. The objectives of this policy are, in particular (Article 39 of the Treaty), to ensure the rational development of fishing production and the optimum utilization of the factors of production, and to assure the availability of supplies. In order to achieve those objectives, Article 43(2) of the Treaty empowers the Council to make regulations, issue directives or take decisions. The Commission also points out that fishing constitutes a special economic activity which, by virtue of its natural mobility, is carried out in the maritime waters of various Member States and nonmember countries, as well as on the high seas. The production of fishery products is dependent upon the biological rates of stock reproduction. In order to maintain such production, it has proved necessary to set up a system for the conservation of fishery resources, which must be applied to those resources wherever they are to be found, that is both inside and outside the Community fishing zone. Accordingly, the extension of the Community's powers to fishing activities, irrespective of the area in which they take place, is a fundamental condition for the achievement of the objectives of the common fisheries policy. According to the Commission, Community powers in relation to fisheries exhibit two features: ratione materiae, they encompass the biological resources of the sea and all fishing activities in waters falling under the sovereignty or within the jurisdiction of the Member States; ratione personae, they extend to all the activities of the fishermen and fishing vessels of the Member States both inside the Community fishing zone and on the high seas, as well as inside the fishing zones of nonmember countries. In the latter two cases, the powers of the Community are to be exercised in accordance with the rules of international law.

10. With regard to the case-law, the Commission refers in the first place to the judgment in Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279, in which the Court held that: In connection with that judgment, the Commission also points out that the Court's reasoning shows that the extension of Community authority to the activities of Community fishermen and fishing vessels operating on the high seas, as authority ‘in foro interno’, is a precondition for the implicit authority of the Community to conclude international agreements, namely authority ‘in foro externo’. Moreover, according to the Commission, authority ‘in foro externo’ implies authority ‘in foro interno’. Next, the Commission refers to the judgment in Case 61/77 Commission v Ireland [1978] ECR 417, in which the Court made it clear that the Community had the power to take conservation measures both independently and in the form of contractual commitments with nonmember countries or under the auspices of international organizations. In that regard, the Commission points out, it seems difficult to argue that the power to act independently may differ as regards territorial scope from the power to act by concluding agreements. Thirdly, the Commission relies on the Court's judgment in Joined Cases 185 to 204/78 Van Dam [1979] ECR 2345, from which it infers that the Community's powers include the power to adopt independent measures the scope of which extends beyond the 200-mile zone. Finally, the Commission refers to the judgment in Joined Cases 6 and 7/88 Spain and France v Commission [1989] ECR I-3639, in which the Court, not following on this point the Opinion of the Advocate General, ruled on the scope of Regulation No 170/83 without mentioning the possibility that the scope of that regulation may be restricted to the Community fishing zone.

‘it should be made clear that, although Article 5 of Regulation No 2141/70 is applicable only to a geographically limited fishing area, it none the less follows Article 102 of the Act of Accession, from Article 1 of the said regulation and, moreover, from the very nature of things, that the rulemaking authority of the Community ratione materiae also extends — in so far as the Member States have similar authority under public international law — to fishing on the high seas’.

11. With regard to legislative practice, the Commission distinguishes three broad categories of measures. In the first place, it analyses the basic rules of the common fisheries policy, such as Council Regulation (EEC) No 2141/70 of 20 October 1970 laying down a common structural policy for the fishing industry (Official Journal, English Special Edition 1970 (III), p. 703), Council Regulation (EEC) No 2142/70 of 20 October 1970 on the common organization of the market in fishery products (Official Journal, English Special Edition 1970 (III), p. 707), Article 162 of the Act of Accession of the Kingdom of Denmark, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland, Council Regulation (EEC) No 811/76 of 6 April 1976 temporarily authorizing certain systems of catch quotas in the fisheries sector (Official Journal 1976 L 94, p. 1) and Regulation No 170/83. None of those measures is limited in scope to the Community fishing zone, at least not as regards the system of conservation and management of fishery resources. On the contrary, the scope of those measures is so widely defined that it must necessarily be understood as extending to waters outside the 200-mile zone. It is only with regard to the principle of equal access to waters and fishing grounds that their scope is restricted to the territorial waters of the Member States.

12. In the second place, the Commission refers to the numerous international agreements on fisheries to which the Community is a party. The Commission considers that the Community's exclusive authority to conclude such agreements constitutes additional proof that the authority of the Community extends beyond the Community fishing zone. If the Community has authority to adopt measures by entering into agreements, it is difficult to see on what grounds it should be denied authority to adopt such measures independently.

13. In the third place, the Commission refers to the well-established legislative practice of adopting independent measures the scope of which extends to the high seas. Those measures include the regulations adopted pursuant to the basic regulation, No 170/83, which limit catches by fixing TACs and quotas. The reasons behind such legislation are obvious. The main objective of those protective measures is the conservation of fishery resources exploited by Community fishermen. Besides, they are also adopted to implement the series of international rules on the conservation of the resources of the sea. Fishery resources represent biological stocks which move, in whole or in part, inside or outside the demarcation line of the Community fishing zone. In order to be effective, the measures limiting catches must apply to the stock as a whole, no matter where it is to be found. Furthermore, the extension of TACs and quotas to the high seas is also justified by monitoring requirements and by the need to reduce the risk of catches made in the Community zone being fraudulently declared as taken on the high seas.

14. Finally, the Commission emphasizes that the measures limiting catches are the only ones available to the Community to ensure the proper functioning of the Community system of conservation and management of fishery resources. Any other system would be unworkable.

15. The United Kingdom fully endorses the Commission's reasoning. In its observations, it lays particular emphasis on the serious practical difficulties which would arise for the common fisheries policy if the Spanish Government's argument, according to which the Community's powers relating to conservation measures are limited to the Community fishing zone, were accepted.

16. The Spanish Government first of all disputes the interpretation which the Commission puts on the judgment in Kramer. In its view, that judgment recognizes only the Community's authority to enter into international commitments regarding the conservation of the resources of the sea. It cannot be interpreted as conferring authority to regulate fishing on the high seas independently. Nor, according to the Spanish Government, does the judgment in Case 61/77 support the Commission's argument. That judgment constitutes merely a restatement of the Kramer ruling. The judgment in Joined Cases 6 and 7/88 is not relevant either. The Spanish Government takes the view that it merely lays down that catches may be restricted in two ways, namely by means of regulations and by international agreements, without however specifying in which waters, since it is clear that in Community waters restrictions will be imposed by means of regulations, while in waters coming within the jurisdiction of nonmember countries they will be imposed by means of international agreements.

17. Next, the Spanish Government submits that it does not follow from the regulations analysed by the Commission that the Community's power to lay down rules may be exercised outside Community waters. Instead, Article 5 of Regulation No 2141/70, for example, expressly refers to ‘fishing ... in the maritime waters’ of the Member States. According to the Spanish Government, the Commission draws from those provisions certain conclusions which overestimate the powers of the Community. In support of its point of view, the Spanish Government refers to the Opinion of Mr Advocate General Tesauro in Joined Cases 6 and 7/88, in which he considered, inter alia, that ‘the Community rules for conservation and management were conceived as a set of measures intended essentially to operate in Community waters, subject to any specific provisions regarding fishing rights, in particular bilateral or multilateral agreements’. In his view, the subsequent application in certain cases of the system of limiting catches in the form of TACs or quotas on the high seas does not mean that there was any departure from the initial concept, but simply that account was being taken of the results of specific bilateral and multilateral consultations.

18. As for the Commission's argument based on the power of the Community to conclude international agreements, the Spanish Government takes the view that it is irrelevant. The Spanish Government does not dispute, and never has disputed, the Community's power to conclude international agreements on fisheries.

19. With regard to the Act of Accession, the Spanish Government points out that Spain did not negotiate access to international waters, but to Community waters, as is apparent from Article 156 of the Act of Accession. In its view, therefore, the Spanish fleet has freedom of access to the high seas and to the resources thereof. Such freedom of access to the resources of the high seas may equally be inferred from Article 161 of the Act of Accession. According to the Spanish Government, that article applies only to Community waters.

20. Finally, the Spanish Government does not believe that the independent restriction of the fishing activities of Community vessels outside their fishing zone is a suitable means of achieving the objective of conserving fishery resources. If the Community imposes independent restrictions to that end, while the fleets of nonmember countries may operate freely, the objective of conserving the resources of the sea will not be promoted; instead, the fishing vessels of nonmember countries will benefit, to the detriment of the Community fleet.

P. Kapteyn

Judge-Rapporteur

1 Language of the case: Spanish.