Report for the Hearing in Case C-405/92
I — The relevant provisions, facts and procedure
(a) The relevant Community provisions
1. In order to ensure the protection of fishing grounds, the conservation of the biological resources of the sea 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 (OJ 1983 L 24, p. 1). The first recital in the preamble to that regulation states that ‘in view of the over-fishing of stocks of the main species, it is essential that the Community, in the interests of both fishermen and consumers, ensure by an appropriate policy for the protection of fishing grounds that stocks are conserved and reconstituted’ and that ‘it is therefore desirable ... [to establish] a Community system for the conservation and management of fishery resources that will ensure balanced exploitation’. The second recital in the preamble to the regulation adds that ‘this system should in particular include conservation measures which may involve, by appropriate means, limitations of the fishing effort, rules for the use of resources, special provisions for inshore fishing and supervisory measures’.
2. On the basis of Article 11 of Regulation No 170/83, the Council adopted Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources (OJ 1983 L 24, p. 14). Those measures relate inter alia, to mesh sizes, by-catch rates, fish sizes and the limitation of fishing within certain areas and periods and with certain gear.
3. Regulation No 171/83 was repealed and replaced by Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (OJ 1986 L 288, p. 1).
4. Council Regulation (EEC) No 345/92 of 27 January 1992 (OJ 1992 L 42, p. 15) amended Regulation No 3094/86 for the 11th time.
5. Article 1(8) of Regulation No 345/92 inserted a new Article 9a into Regulation No 3094/86, establishing the principle that a certain type of driftnet was prohibited, subject to a temporary derogation. Article 9a reads as follows:
‘1. No vessel may keep on board, or use for fishing, one or more driftnets whose individual or total length is more than 2.5 kilometres.
2. A derogation shall be granted until 31 December 1993 to vessels that have fished for long finned albacorc tuna with driftnets in the North-East Atlantic during at least the two years immediately preceding the entry into force of this Regulation. These vessels shall be entered in a Community register and may use driftnets whose length may attain 2.5 kilometres, but whose total resulting length may not exceed five kilometres. The headline shall be submerged at a minimum depth of two metres. This derogation shall expire on the abovementioned date, unless the Council, acting by a qualified majority on a proposal from the Commission, decides to extend it in the light of scientific evidence showing the absence of any ecological risk linked thereto.
3. Throughout the fishing referred to in paragraph 1, the net must, if it is longer than one kilometre, remain attached to the vessel. However, within the 12 mile coastal band, a vessel may detach itself from the net, provided it keeps it under constant observation.
4. Notwithstanding Article 1(1), this Article shall apply in all waters, with the exception of the Baltic Sea, the Belts and the Sound, under the sovereignty or jurisdiction of the Member States and, outside those waters, to all fishing vessels flying the flag of a Member State or registered in a Member State.’
6. The reasons for this new provision are set out in the 14th to 22nd recitals of the preamble to Regulation No 345/92, which read as follows:
‘Whereas on 22 December 1989 the General Assembly of the United Nations adopted Resolution 44/225 on large-scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas;
Whereas the use of such nets has been the subject of discussions and resolutions in various international fora;
Whereas by Decision 82/72/EEC the Council approved the Convention on the conservation of European wildlife and natural habitats (Berne Convention);
Whereas the Community has signed the United Nations Convention on the Law of the Sea which requires all the members of the international community to cooperate in the conservation and management of the living resources of the high seas;
Whereas the uncontrolled expansion and growth of driftnetting may entail serious disadvantages in terms of increased fishing effort and increased by-catches of species other than the target species; whereas it is therefore desirable to regulate fishing with driftnets;
Considering the interest aroused at international level and the concern expressed by ecological organizations and many fishermen, including those of the Community, with regard to the use of driftnets;
Whereas provision should be made for phases of adjustment for fishermen who are economically dependent on the use of driftnets, whilst limiting and analysing the ecological impact of corresponding fishing;
Whereas decisions relating to driftnets should be capable of adjustment, where effective conservation and management measures are adopted on the basis of reliable statistical analyses;
Whereas management measures concerning fishing in the Baltic Sea should be adopted within the International Baltic Sea Fishery Commission.’
(b) Facts of the case and procedure before the national court
1. On 1 August 1991, Armement Islais SARL, of L'Ile d'Yeu (France), (hereinafter ‘Armement Islais’), placed an order with Établissements Armand Mondiet SA, of Gujan Mestras (France), (hereinafter ‘Mondiet’) for 200 driftnets for tuna fishing for a sum of FF 330000. The goods were to be delivered to L'Ile d'Yeu on 15 January 1992.
2. By letter of 25 November 1991, Armement Islais cancelled that order in view of the adoption by the Council of the European Communities of Regulation No 345/92, limiting the length of driftnets to 2.5 km (except for a derogation allowing the use of nets five km long until 31 December 1993). Armement Islais had hitherto been using driftnets approximately seven km long to fish for tuna in the North-East Atlantic.
3. On 5 August 1992, Mondiet brought an action against Armement Islais, before the Tribunal de Commerce (Commercial Court), La Roche-sur-Yon, for payment of the sum of FF 330000 in settlement of its order of 1 August 1991.
4. The Tribunal de Commerce, La Roche-sur-Yon, considered that Regulation No 345/92 was capable of constituting fait du prince (an act of a public authority), which would have the characteristics of force majeure and would release Armement Islais from its obligation if it was not unlawful.
5. Considering that the validity of Regulation No 345/92 would therefore have to be examined in connection with the case, the Tribunal de Commerce, La Roche-sur-Yon, decided by judgment of 24 November 1992 to stay the proceedings, pursuant to Article 177 of the EEC Treaty, pending a preliminary ruling by the Court of Justice on the following questions:
‘1.1. May Council Regulation No 345/92 of 27 January 1992, as an amendment of the regulation implementing Regulation No 170/83, lay down for EEC nationals a limitation on the right to fish on the high seas?
1.2. If not, may that regulation prohibit in the areas within the jurisdiction of the Member States (exclusive economic zone and territorial waters) having on board driftnets of a certain length, thus making it impossible to fish using driftnets, which is practised essentially on the high seas?
2.1. Is it therefore possible for that regulation arbitrarily to ignore the only scientific advice available, namely: the report of the Standing Committee for Research and Statistics of the International Commission for the Conservation of Atlantic Tunas; and above all the IFREMER/IEO report, even though it was commissioned by the Commission, which stated that there was no problem relating to tuna resources or to damage to other species of animal?
2.2. Is it not the case that the regulation ought, on the contrary, to accord with that available scientific advice?
2.3. Can that regulation therefore have been validly adopted for symbolic reasons?
2.4. May the regulation limit to five km until 31 December 1993 the derogation from the prohibition?
2.5. May the regulation also provide, as regards any derogation for a limited period, that that derogation will be extended only “in the light of scientific evidence showing the absence of any ecological risk”? Does that not constitute a reversal of the burden of proof? Does this not constitute arbitrary action rendering the regulation void as regards the limitation of the permitted derogation to vessels that have fished with driftnets in the North-East Atlantic during the two years preceding the entry into force of the regulation at issue?
3. Is it not the case that the limit to the derogation, which is apparently without foundation, is also contrary to the principle of relative stability and to the objectives of the common policy, especially since French vessels fishing for long-finned albacore tuna with driftnets seem to be the only vessels to have been fishing during at least the two years preceding the entry into force of the regulation and hence to fall within that derogation?
4.1. Is it not the case that the regulation at issue is unlawful, since its basis is ecological although it is a regulation “amending for the 11th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources” which itself is the implementing regulation for the basic regulation, Regulation No 170/83 “establishing a Community system for the conservation and management of fishery resources”?
4.2. May the regulation also have been validly adopted, even on ecological bases, without any scientific foundation, but as a result apparently of the pressures of certain ecological multinational groups which have large financial resources and take part in extensive lobbying, as Mr Marin, member of the Commission of the European Communities responsible for fisheries, has pointed out, whereas it has not been shown at all that their action is more or less based on reason and whereas other ecological associations defend fishermen who have been seeking a limitation to five nautical miles?
5. Consequently, can the regulation have been validly adopted on the basis of “the concern expressed by ecological organizations and many fishermen, including those of the Community ...”? Is this not an arbitrary decision which penalizes the weaker for the benefit of the stronger?
6. Is it not the case that there is discrimination between fishermen considering that the regulation applies everywhere, including the Atlantic, which is within the jurisdiction of the International Commission for the Conservation of Atlantic Tunas, and not in the Baltic Sea, the Belts and the Sound, which are within the jurisdiction of the International Baltic Sea Fishery Commission? Are these not comparable situations which have to be dealt with in an identical manner?
7.1. Is there not an inconsistency between the 14th recital, referring to the United Nations resolution, which, moreover, is not binding, and the prohibition?
7.2. May the Convention on the conservation of European wildlife and natural habitats (Berne Convention) constitute a reason for the regulation at issue, when it seems to prohibit solely deliberate capture or the use of nets where they are used to capture or kill, massively or non-selectively, certain protected species, including dolphins, the mammals referred to by the ecologists? Is this not therefore a further instance of the 16th recital in the preamble to the regulation at issue being inconsistent with the body of the regulation?
7.3. Is the regulation entitled to reduce fishing activities when it claims that it is necessary only to avoid “uncontrolled expansion and growth” (18th recital)?’
(c) Procedure before the Court
1. The judgment of the Tribunal de Commerce, La Roche-sur-Yon, was received at the Court Registry on 3 December 1992.
2. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted, on 8 March 1993 by the Council of the European Communities, represented by Jean Paul Jacque, Director of the Legal Service, and John Carbery, a Legal Adviser in that Service, acting as Agents, on 11 March 1993 by the Commission of the European Communities, represented by Gérard Rozet, Legal Adviser, acting as Agent, and on 15 March 1993 by Armement Islais, represented by Béatrice Ghelber, of the Paris Bar.
3. 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.
4. By decision of 24 May 1993, pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court assigned the case to the Sixth Chamber.
II — Written observations submitted to the Court
(a) The Community's competence to regulate conservation of the biological resources of the high seas (Questions 1.1. and 1.2.)
1. Armement Islais, the defendant in the main proceedings, claims that neither Regulation No 170/83 nor Regulation No 171/83 confer on the Community authorities the power to modify technical measures for the conservation of fishery resources in maritime waters that are not under the sovereignty or jurisdiction of the Member States. Moreover, the defendant points out that the third recital in the preamble to Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19) refers expressly to ‘maritime waters coming under the sovereignty or within the jurisdiction of Member States’. Armement Islais adds that a prohibition on having on board driftnets used to fish on the high seas in the areas within the jurisdiction of the Member States is tantamount to a prohibition on fishing with such nets on the high seas, since Community vessels have to pass through those waters to reach the high seas. In these circumstances, it claims that the answer to Questions 1.1. and 1.2. should be in the negative.
2. The Council contends that the Community was justified, under both international and Community law, in adopting Regulation No 345/92. It points out that Article 117 of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982 and signed by the Community on 7 December 1984, provides that ‘States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources on the high seas’. And it adds that the Court has held that the rulemaking authority of the Community ratione matériáé also extends — in so far as the Member States have similar authority under public international law — to fishing on the high seas (Joined Cases 3/76, 4/76 and 6/76 Kramer [1976] ECR 1279, paragraph 31) and has recognized that the Community may legislate for the purpose of conserving the resources of the high seas (Case C-258/89 Commission v Spain [1991] ECR I-3977). In these circumstances, the Council contends that it is entitled to supervise fishing on the high seas by vessels flying the flag of a Member State, for the purpose of conserving the resources of the sea, and there is therefore no longer any need to consider more specifically whether the Community may prohibit having driftnets in the areas within the jurisdiction of the Member States. The Council adds that, contrary to the assertion made in Question 1.2., it is by no means established that it is impossible to fish with driftnets on the high seas, using nets 2.5 km long authorized under Regulation No 345/92.
3. The Commission considers that, to achieve the objectives of the common fisheries policy laid down in Article 39 of the Treaty, the system for the conservation of fishery resources must apply both within the Community fishing zone and outside it. Thus, it contends that the Community's competence in this matter extends, ratione materiae, to the biological resources of the sea and to all fishing in waters under the sovereignty or jurisdiction of the Member States and, ratione personae, to all fishing by fishermen and vessels of the Member States, whether within the Community fishing zone, on the high seas, or within the fishing zones of third countries, in accordance with the rules of international law. The Commission adds that the Court has consistently confirmed that the Community has competence to adopt provisions on the conservation of the fishery resources of the high seas (Joined Cases 3/76, 4/76 and 6/76 Kramer, already cited; Case 61/77 Commission v Ireland [1978] ECR 417, paragraph 63; Joined Cases 185 to 204/78 van Dam [1979] ECR 2345, paragraph 6 et seq.; Case C-258/89 Commission v Spain, already cited; Case C-286/90 Poulsen [1992] ECR I-6019, paragraphs 14-16). The Commission therefore concludes that there is no reason to doubt the validity of Regulation No 345/92 with respect to the Community's competence to lay down for nationals of the Member States a limitation on freedom to fish on the high seas. Thus the Commission considers that the answer to Question 1.1. should be in the affirmative and that Question 1.2. is thereby rendered redundant, though it points out that the Court has already ruled that neither Article 7 or Article 40(3) of the Treaty nor the fundamental principles of Community law prevent a Member State from prohibiting the carriage of a particular type of net on all vessels registered in that State while they are in waters adjacent to its coast (Case C-370/88 Marshall [1990] ECR I-4071, paragraph 29).
(b) The adoption of the prohibition in the light of the available scientific advice (Questions 2.1., 2.2. and 2.3.)
1. Armement Islais claims that Regulation No 345/92 does not refer to any scientific data or to any scientific report and that neither the prohibition of driftnets more than 2.5 km long nor the temporary derogation were adopted in the light of the available scientific advice. Thus, it appears that there is a scientific report drawn up by IFREMER which is not consistent with the regulation. According to the report, there is apparently no threat to the biological resources of albacore tuna in the North-East Atlantic and the driftnet is the most selective appliance for fishing, leading to only minimal by-catches. It also appears that the scientific report of the Standing Committee for Research and Statistics of the International Commission for the Conservation of Atlantic Tunas confirms that albacore tuna are under-fished in the North-Atlantic and no management measure is required. Armement Islais therefore suggests that the Court should answer Questions 2.1. and 2.3. in the negative and Question 2.2. in the affirmative.
2. The Council, while denying that it adopted Regulation No 345/92 without taking the advice of the Scientific and Technical Committee for Fisheries, contends that the phrase ‘in the light of the available scientific advice’ in Article 2(1) of Regulation No 170/83 means that, on the one hand, the conservation measures adopted by the Community need not be completely consistent with such advice and, on the other, the absence of such advice or the fact that it is inconclusive cannot, without altering the institutional balance sought by the Treaty, prevent the Council from taking such measures as it deems necessary to implement the common fisheries policy. The Council adds that in the present case the available scientific data confirmed the harmful effects, for the conservation of the resources of the sea, of using large-scale driftnets and that it could not disregard the scientific considerations that had led many countries and international organizations to prohibit such nets or to recommend that they be prohibited. According to the Council, the IFREMER report mentioned by the national court is principally concerned with the interaction of different fishing appliances and the capture of marine mammals is a secondary consideration. On the question of the Council's duty to take scientific factors into account, it points out that the Court has ruled that judicial review must, having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion (Case C-331/88 Fedesa [1990] ECR I-4023, paragraph 8), which it contends is not the case here. On Question 2.3., the Council observes that the reasons for taking the contested measures arise from the preamble to Regulation No 345/92. Thus, the prohibition of large-scale driftnets is based on the risk of increasing the fishing effort, the nonselective nature of this type of net and the substantial damage they cause as a result of the number of by-catches. It adds that the North-West Atlantic Fisheries Organization, the International Whaling Commission, the International Commission for the Conservation of Atlantic Tunas and the International Union for the Conservation of Nature have adopted resolutions supporting the resolutions of the General Assembly of the United Nations condemning fishing with such nets. In these circumstances, the Council contends that the prohibition is justified for the purpose of conserving resources.
3. According to the Commission, the Scientific and Technical Committee for Fisheries is a purely advisory body and the Community legislature has not delegated any of its powers with respect to the conservation of fishery resources to the scientific community or made the exercise of its powers subject to strict observance of the available scientific advice. It points out, moreover, that some of the objectives of conservation measures, such as the balanced exploitation of the biological resources of the sea on a lasting basis and in appropriate economic and social conditions, are not examined or are only partly examined in the scientific advice. The Commission adds that the Court has consistently held that a regulation meets the requirements of Article 190 of the Treaty if the reasons on which the measures are based are stated in general terms and that the legislature is not required to give full details of the measures or provide complex technical explanations. In the present case, the reasons for the prohibition are broadly given in the 14th to 22nd recitals of the preamble to the regulation at issue and the Community legislature's objective is defined, in particular, in the 18th recital. Moreover, the Community has signed the United Nations Convention on the Law of the Sea which established the duty to cooperate in the conservation and management of the living resources of the high seas.
(c) The limitation of the derogation from the prohibition (Questions 2.4. and 2.5.)
1. Armement lslais claims that the sole purpose of the regulation at issue is to combat ‘the uncontrolled expansion and growth of driftnetting’ and that it would therefore have been sufficient to provide a derogation for vessels fishing in that way, without, however, restricting the length of the net and setting a time limit on the exemption. Armement Islais therefore suggests that Question 2.4. and the first part of Question 2.5. should be answered in the negative and the second part of Question 2.5. in the affirmative.
2. The Council and the Commission take the view that the Community legislature has the power to waive the application of a measure to certain persons for a limited period provided that it is acting for legitimate reasons and that it complies with the Treaty and the general principles of law. They contend that it follows from the 20th recital in the preamble to Regulation No 345/92 that the derogation at issue must be temporary. Moreover, as the fishermen concerned have agreed to limit the length of nets to five nautical miles, the limit of five km, far from being arbitrary, represents a first step towards the ultimate objective of 2.5 km. Nor, they contend, has the Council exceeded the limits of the discretion which it has in regulating complex economic situations, in providing that the derogation may be extended in the light of scientific analyses showing the absence of any ecological risk.
(d) The compatibility of Regulation No 345/92 with the prinaple of relative stability and the objectives of the common fisheries policy (Question 3.)
1. Armement Islais considers that the regulation at issue is not compatible either with the objectives of the common agricultural policy, as set out in Article 39 (l)(a) and (b) of the Treaty, or with the principle of relative stability, which can be challenged only on very precise scientific grounds. The answer to Question 3. should therefore be in the negative.
2. The Council and the Commission contend that the principle of relative stability applies only to the distribution of total catches among the Member States and has nothing to do with technical fishery measures. The principle docs not preclude the conservation measures at issue, since vessels could continue to fish for tuna with means that are less destructive of other species of marine animal. As regards the allegation that the regulation at issue is incompatible with the objectives of the common agricultural policy, the Commission points out that the Court has ruled that in pursuing the various objectives of that policy set out in Article 39 of the Treaty, the Community institutions must secure the permanent harmonization made necessary by any conflicts between those objectives taken individually and, where necessary, allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions arc made (Case 29/77 Roquette [1977] ECR 1835, paragraph 30).
(e) The basis of Regulation No 345/92 (questions 4.1., 4.2. and 5.)
1. Armement Islais claims that Regulation No 345/92 is invalid because it was adopted not in order to preserve resources but for ecological reasons and the decision to adopt it should therefore have been taken unanimously on the basis of Articles 13 Or and 130s of the Treaty. The only people who are pleased with the regulation are Spanish tuna fishermen, who are prohibited from using driftnets and do not intend to allow other Community fishermen to fish with this type of net. Question 4.1. should therefore, it claims, be answered in the affirmative and Questions 4.2. and 5. in the negative.
2. The Council contends that it is clear from the 18th recital in the preamble to Regulation No 345/92 that this is a measure designed to conserve the biological resources of the sea. While ecological organizations may have shown an interest in the problem of the conservation of species, that is not a sufficient reason for deciding that Article 130s is the correct legal basis for the regulation. The reference in the 19th recital to the ‘concern expressed by ecological organizations and many fishermen, including those of the Community’ was, it claims, merely intended to show that there was wide agreement in the international community concerning the prohibition of driftnets. Moreover, the regulation cannot be covered by Article 130s merely because it also pursues objectives of environmental protection (Case C-300/89 Commission v Council (‘titanium dioxide’) [1991] ECR I-2867, paragraph 22), since pursuant to the second sentence of Article 130r(2), ‘environmental protection requirements shall be a component of the Community's other policies’.
3. According to the Commission, while the Community legislature may have been impelled by ecological considerations, among others, when it adopted the regulation, it does not necessarily follow that the measures it provides cannot be adopted under the common fisheries policy alone. Thus, the Court held in Case C-62/88 Greece v Council [1990] ECR I-1527, paragraph 19, that Articles 130r and 130s are intended to confer powers on the Community to undertake specific action on environmental matters. However, those articles leave intact the powers held by the Community under other provisions of the Treaty, even if the measures to be taken under the latter provisions pursue at the same time one of the objectives of environmental protection. The Commission adds that there is nothing arbitrary about taking environmental requirements into account in a regulation on the conservation of the biological resources of the sea, in view of the duties imposed on the Community as a result of its accession to the United Nations Convention on the Law of the Sea.
(f) Discrimination between fishermen (Question 6.)
1. According to Armement Islais, the fact that the prohibition of large-scale driftnets does not extend to the Baltic Sea means that there is discrimination between fishermen in the North-East Atlantic and those in the Baltic, who may use nets up to 21 km long. In these circumstances, it claims that the answer to Question 6 should be in the affirmative.
2. The Council and the Commission contend that the provision at issue docs not apply to the Baltic because of that area's special legal status, as stated in the 22nd recital. They point out that the International Baltic Sea Fishery Commission has jurisdiction over all species occurring in that sea and the Community, as a party to the Baltic Convention, is required to recognize that Commission's jurisdiction. The same considerations do not apply to the North-Atlantic, since the Community is not yet a party to the Convention for the Conservation of Atlantic Tunas. Moreover, the scope of Regulation No 345/92 is wider than that of that convention, in that it prohibits the use of large-scale driftnets irrespective of the species of fish. Thus, the situations are not comparable and there can therefore be no discrimination.
(g) The inconsistency of the 14th, 16th and 18th reatais (Questions 7.1., 7.2. and 7.3.)
1. Armement Islais claims, first, that Résolu tion 44/225 adopted by the General Assembly of the United Nations on 22 December 1989 cannot validly be cited in support of the regulation at issue, since that resolution relates only to large-scale pelagic driftnets whose length can reach or exceed 50 km, whereas Community fishermen have agreed to limit the length of nets to five nautical miles and the nets they use are in fact no more than seven km long. Armement Islais also points out that the Berne Convention on the conservation of European wildlife and natural habitats is not relevant, since it appears from the IFREMER report that the use of driftnets does not result in substantial by-catches of marine mammals, such as dolphins. Lastly, Armement Islais considers that the objective of avoiding the uncontrolled growth of driftnetting ought not to imply a reduction in the fishing activities of vessels that have already used such nets. Armement Islais therefore suggests that the Court should answer Questions 7.1., 7.2. and 7.3. in the negative.
2. On Question 7.1., the Council and the Commission contend that UN Resolution 44/225 expresses the international community's attitude towards the use of large-scale driftnets and that, although the resolution refers to nets that can be more than 50 km long, that does not mean that it docs not also cover nets more than 2.5 km long. As to the Berne Convention, it is concerned in particular with prohibiting indiscriminate means of capturing marine mammals and the Council and the Commission contend that driftnets do result in substantial by-catches. As regards the 18th recital, they contend that the reasons stated are not at all inconsistent and the Community legislature could not have restricted the prohibition on access to driftnetting exclusively to newcomers, without causing permanent discrimination. In short, the Council and the Commission contend that consideration of the various questions referred by the Tribunal de Commerce, La Roche-sur-Yon, has revealed nothing capable of calling into question the validity of Regulation No 345/92.
E A. Schockweiler
Judge-Rapporteur
1 Language of the case: French.