DELIVERED ON 12 FEBRUARY 1981 (*1)

Mr President,

Members of the Court,

Following Cases 141/78 (French Republic v United Kingdom of Great Britain and Northern Ireland, judgment of 4 October 1979, [1979] ECR 2923) and 32/79 (Commission of the European Communities v United Kingdom, judgment of 10 July 1980), this is the third time the Court of Justice has had to deal with the charge that the United Kingdom, by enacting unilateral sea-fisheries measures, has failed to fulfil its obligations under the EEC Treaty.

Since the relevant provisions of Community law upon which the common fisheries policy is based have set out in detail both in those cases and in Joined Cases 3, 4 and 6/76 (Cornells Kramer and Others, judgment of 14 July 1976 [1976] ECR 1279) and in Case 61/77 (Commission v Ireland, judgment of 16 February 1978, [1978] ECR 417) I can take acquaintance with these provisions for granted and refer to the facts in these cases for the details.

The only way in which the legal position forming the basis of this case differs from the previous cases is that, as the Court of Justice ruled in its judgment in Joined Cases 185 to 204/78 (Criminal proceedings against Firma J. Van Dam & Zonen and Others, judgment of 3 July 1979, [1979] ECR 2345), the period referred to in Article 102 of the Act of 22 January 1972 concerning the Conditions of Accession and the Adjustments to the Treaties (hereinafter referred to as “the Act of Accession”) expired on 31 December 1978.

Since, as the Court is aware, the Council was unable within that period to establish the conditions for the conduct of fishing in relation to the conservation of fishery resources and the maintenance of the living resources of the sea, it enacted, on 19 December 1978, interim measures “under the Treaties, concerning fishery activities in waters under the sovereignty or jurisdiction of Member States, taken on a temporary basis pending the adoption of permanent Community measures” which applied from 1 January to 31 March 1979. After the expiry of that period similar interim measures, the essential passages of which have the same wording, were adopted in the form of the Council Decisions 79/383 of 9 April 1979 (Official Journal 1979, L 93, p. 40), 79/590 of 25 June 1979 (Official Journal 1979, L 161 of 29 June 1979, p. 46) and 79/905 of 29 October 1979 (Official Journal 1979, L 277 of 6 November 1979, p. 10).

The provisions of the interim measures adopted on 25 June 1979 which are relevant to this case are as follows:

“The Council intends to reach an agreement as early as possible in 1979 on Community measures for the conservation and management of fishery resources and related matters. Pending its decision in the matter and in view both of Article 102 of the Act of Accession and of the need to protect the biological resources and to maintain suitable relations with third countries in fisheries matters, the Council, on 19 December 1978 and 9 April 1979, adopted interim measures which were in force from 1 January to 31 March 1979 and from 1 April to 30 June 1979 respectively. Following on from these measures, the Council has decided on the following interim measures which will apply from 1 July 1979 until the Council has reached a definitive agreement or until 31 October 1979, whichever is the earlier.

1.Member States shall conduct their fishery in such a way that the catches of their vessels during the interim period shall take into account total allowable catches submitted by the Commission to the Council in their communications of 23 November 1978 and 16 February 1979 and the part of the total allowable catches made available to third countries under agreements or arrangements made with them by the Community. The catches taken in the interim period will be offset against the allocations eventually decided upon by the Council for 1979.

2.As regards technical measures for the conservation and surveillance of fishery resources, Member States shall apply the same measures as they applied on 3 November 1976, and other measures taken in accordance with the procedures and criteria of Annex VI to the Council Resolution of 3 November 1976.”

Even before that decision was adopted the Government of the United Kingdom informed the Commission in a letter dated 21 March 1979, that in the absence of a measure by the Community the United Kingdom intended to adopt various national measures relating to sea fisheries with effect from 1 June of that year. Essentially it was envisaged that in certain fishing areas the mesh size for white fish and nephrops fishing would be increased, a minimum landing size for certain species of fish would be fixed and a maximum proportion of by-catches in nephrops fishing would be specified.

Ultimately, after extensive correspondence and various consultations, the Government of the United Kingdom officially submitted to the Commission on 19 June 1979 five draft statutory instruments containing measures concerning sea fisheries which it intended to bring into force on 1 July 1979 despite the objections of the Commission. The statutory instruments comprised the following orders, for details of which I refer to the report for the hearing:

1.The Fishing Nets (North-East Atlantic) (Variation) Order 1979, Statutory Instrument No 744,

2.The Immature Sea Fish Order 1979, Statutory Instrument No 741,

3.The Immature Nephrops Order 1979, Statutory Instrument No 742,

4.The Nephrops Tails (Restrictions on Landing) Order 1979, Statutory Instrument No 743 and

5.The Sea Fish (Minimum Size) Order (Northern Ireland) 1979, which was replaced by the Sea Fish (Minimum Size) (Amendment) Order (Northern Ireland) 1979, Statutory Rules of Northern Ireland No 235, which was notified to the Commission on 29 June 1979.

Furthermore, the Commission was officially notified of difficulties arising from the issue of licences and other measures concerning herring fisheries in the waters round the Isle of Man and in the northern part of the Irish Sea. These measures are based on the Herring (Irish Sea) Licensing Order 1977, Statutory Instrument No 1388, and on the Herring (Isle of Man) Licensing Order 1977, Statutory Instrument No 1389, which were the subject of the proceedings in Case 32/79.

After a further exchange of letters and more consultations the Commission, by a letter dated 6 July 1979, initiated against the United Kingdom the procedure laid down in Article 169 of the EEC Treaty and stated that the United Kingdom had failed to fulfil its obligations under the Treaty in that, without the approval of the Commission and without cooperation with or consulting it, it had enacted the said fisheries measures, the content of which was furthermore incompatible with Community law. That charge was rejected by the Government of the United Kingdom in a letter dated 31 July 1979. The Commission responded by delivering, on 3 August 1979, a reasoned opinion pursuant to the first paragraph of Article 169 of the EEC Treaty, calling on the Government of the United Kingdom to take within 45 days the necessary steps to put an end to the said infringement of Community law. At the same time the Commission reserved the right shortly to take a final position concerning the management of the herring fisheries in the waters round the Isle of Man and the northern part of the Irish Sea. After further negotiations such a second reasoned opinion was delivered on 2 October 1979; in that opinion the Government of the United Kingdom was requested to put an end to the interference, contrary to Community law, with the herring fisheries in the waters round the Isle of Man and in the northern part of the Irish Sea.

When the United Kingdom failed to comply with those requests the Commission, on 13 November 1979, brought the matter before the Court of Justice under the second paragraph of Article 169 of the EEC Treaty and sought a ruling that the United Kingdom, by enacting the said measures in 1979 or by applying them, had failed to fulfil its obligations under the EEC Treaty and the Hague Resolution. In addition the Commission asked that the United Kingdom be ordered to pay the costs of the proceedings.

I shall now present my views on this case, in which the French Republic and Ireland have intervened on behalf of the Commission:

All the parties to the proceedings consider that the United Kingdom has in many respects failed to fulfil its obligations under the Treaty.

1.The Commission first of all takes the view that after the end of the transitional period laid down in Article 102 of the Act of Accession, that after 1 January 1979, the United Kingdom no longer had any independent competence to enact national conservation measures concerning sea fisheries in the waters under its jurisdiction and that accordingly such measures might be enacted only if they had previously been authorized by the Community authorities. Even if it were assumed that, after the expiry of the said period, the Member States retained power to enact appropriate conservation measures because the Community has not exercised its powers, the Government of the United Kingdom could only exercise that power for the purposes of Article 5 of the EEC Treaty, that is in close cooperation with the Community authorities and with their approval. Should the Court not agree with these considerations, the Commission would also wish it to find that the measures enacted by the United Kingdom were also incompatible with the procedural requirements of Community law and, albeit to a lesser extent, its substantive requirements.

2.In the view of the Government of the French Republic, after the expiry of the said transitional period the Member States under no circumstances continue to be competent to enact unilateral measures for the conservation of fisheries. If the Court of Justice were not to concur in that view of the law it should at least find that the measures adopted by the United Kingdom which brought about an increase in the mesh size of the nets for nephrops fishing were premature, unnecessary, excessive and discriminatory.

3.The Government of Ireland points out that the enactment of the measures in question was not in accordance with the obligations of the Member States arising from the Hague Resolution and that the administration of the fisheries measures in the waters round the Isle of Man and in the northern part of the Irish Sea entail particular discrimination against Ireland.

4.On the other hand the Government of the United Kingdom essentially takes the view that, so long as the Community has not exercised its powers, the Member States remain entitled, even after the transitional period laid down in Article 102 of the Act of Accession, to enact national measures in the fisheries sector and such measures accordingly do not require the approval of the Commission. Last but not least, the measures in question were enacted in accordance with the relevant provisions of Community law.

II —

It emerges clearly from these submissions that the first question to be considered is whether and, as the case may be, on what conditions the United Kingdom was entitled, even after the expiry of the transitional period mentioned in Article 102 of the Act of Accession, to take the measures at issue.

In considering this question it is impossible to disregard the fact that, as the Commission and the French Government have rightly indicated, it is plainly to be inferred from the previous decisions of the Court of Justice on the question of a common fisheries policy, that after the expiry of the transitional period mentioned in Article 102 of the Act of Accession it is in principle the Community alone which is competent to enact conservation measures regarding sea fisheries. This finding is furthermore not invalidated by the circumstance that at the time when the facts which gave rise to those decisions occurred the transitional period had not yet expired.

Thus the Court of Justice has consistently pointed out that the common fisheries policy is based upon Article 3 (d) and Article 38 et seq. on agriculture together with Annex II to the Treaty which brings fishing within the common agricultural policy. In the decisions mentioned above, and particularly in those in the cases of <span class="italic">Kramer</span> (Joined Cases 3, 4 and 6/76), <span class="italic">French Republic</span> v <span class="italic">United Kingdom</span> (Case 141/78) and <span class="italic">Commission</span> v <span class="italic">United Kingdom</span> (Case 32/79), it further stated that on the basis of the obligations flowing both from the EEC Treaty and from the Act of Accession the Community is competent to enact conservation measures concerning fisheries in the waters under the jurisdiction of the Member States.

After the accession of the new Member States Article 102 of the Act of Accession, as the previous decisions of the Court, and in particular its judgments in Joined Cases 3, 4 and 6/76, <span class="italic">Kramer,</span> and Joined Cases 185 to 204/78, <span class="italic">Van Dam,</span> show, expressly <span class="italic">confirmed</span> that conservation measures come under the jurisdiction of the Community. That this is not a provision which establishes jurisdiction — a point on which all the parties to the proceedings are plainly agreed — is also clear from the recently-delivered judgment in Case 32/79, <span class="italic">Commission</span> v <span class="italic">United Kingdom,</span> in which Court of Justice found that “Article 102 of the Act of Accession recognized that the protection of the fishing grounds and conservation of the biological resources of the sea formed part of that policy [the common fisheries policy] by instructing the Council to adopt, within a specific period and on a proposal from the Commission, appropriate measures for this purpose”. The purpose of that article is, “after the considerable increase in the area of the seas following the expansion of the Community, to <span class="italic">start a new transitional period running</span> within which the Council must take the necessary conservation measures”. As was stated in the <span class="italic">Kramer</span> judgment, the said provision was intended to attain a comprehensive solution to the problem of protection of the fishing grounds and of conservation of the biological resources of the sea through the participation of the new Member States which, by reason of their geographical situation, have a major interest in the fishing industry.

On the basis of these considerations the Court of Justice has frequently gone on to point out that, in so far as the Community has exercised its powers, the provisions adopted by it preclude any conflicting provisions by the Member States. On the other hand <span class="italic">“so long as the transitional period laid down in Article 102 of the Act of Accession has not expired</span> and the Community has not yet fully exercised its power in the matter, the Member States are entitled, within their own jurisdiction, to take appropriate conservation measures without prejudice, however, to the obligation to cooperate imposed upon them by the Treaty, in particular Article 5 thereof” (cf. the judgment of 10 July 1980 in Case 32/79, paragraph 10).

That the authority, thus circumscribed and concurrent, of the Community and the Member States for the enactment of conservation measures regarding sea fisheries was only intended to apply during the transitional period mentioned in Article 102 of the Act of Accession, is also clear beyond doubt from the judgment of the Court of Justice in the <span class="italic">Kramer</span> case, in which it is expressly pointed out that this <span class="italic">authority</span> of the Member States was only of a <span class="italic">transitional nature,</span> which meant that it must come to an end from the sixth year following accession at the latest. On the basis of these considerations the Court of Justice also ruled in Joined Cases 185 to 204/78, <span class="italic">Van Dam,</span> where the main action concerned the compatibility of national conservation measures with Community law, that measures such as those covered by the provisions of the national regulations mentioned by the court making the reference were, <span class="italic">at the time in question,</span> within the powers of the Member States.

These examples show that the objective of Article 102 of the Act of Accession is not only, as the Government of the United Kingdom considers, to place the Council under a duty to act but in addition has as its purpose the definitive termination, after the expiry of the transitional period, of the powers temporarily conferred, under the conditions described above, on the Member States.

Furthermore, it is also stated in the resolution adopted by the Council on 3 November 1976 on the proposal of the Commission in view of the difficulties presented by the introduction within the prescribed period of a common policy on the conservation of fishery resources, which is known as “Annex VI to the Hague Resolution”, that the power of the Member States was only conferred as an exception and until 31 December 1978. In that Resolution the Council, after noting that pending the implementation of the Community measures the Member States would not take any unilateral conservation measures, as it is stated in the judgment of the Court in Case 61/77, <span class="italic">Commission</span> v <span class="italic">Ireland, permitted</span> such measures to be taken as interim measures if Community measures could not be taken in good time.

The further question now arises whether the Member States, in the period after 31 December 1978, were entirely precluded from taking protective measures after the Council's failure, for lack of unanimity, to comply with the obligation imposed upon it by Article 102 of the Act of Accession.

The Council, on the correct supposition that the effect of Annex VI to the Hague Resolution was limited to the transitional period, did not adopt a decision until 19 December 1978, with effect from 1 January 1979, which was extended on a number of occasions and provided in Article 2 that “as regards technical measures for the conservation and surveillance of fishery resources, Member States shall apply the same measures as they applied on 3 November 1976, and other measures taken in accordance with the procedures and criteria of Annex VI to the Council Resolution of 3 November 1976”.

Whether or not the United Kingdom was within its rights in enacting the contested measures after the expiry of the transitional period laid down in Article 102 of the Act of Accession depends upon the interpretation of these provisions.

The British Government, which wishes to interpret Article 102 of the Act of Accession as constituting only an obligation on the Council to take action as regards the conservation of the biological resources of the seas, considers that even after the expiry of the period mentioned in that provision the Member States continue to retain their powers regarding conservation measures in this sphere. It accordingly takes the view that the transitional decisions of the Council merely constitute a reference to Annex VI to the Hague Resolution and the resolution of the Council of 31 January 1978. On that view, so long as the Council did not act the Member States continued, even after the expiry of the period mentioned in Article 102 of the Act of Accession, to have power to enact unilateral measures for the conservation of fishery resources and in the enactment of such measures were merely required to have regard to the criteria laid down in these resolutions. From the point of view of procedural law it was accordingly only necessary for the Member States to endeavour to obtain the approval of the Commission, which must still be consulted.

However, the spirit and objective themselves of Article 102 of the Act of Accession, which were, as has been stated, to concede to the Member States power to enact measures regarding fisheries only for a precisely-limited transitional period, run contrary to that view. As the Commission and the French Government rightly observe, after the expiry of this transitional period the Member States have at any rate lost their power to enact such measures regardless of whether or not the Community has exercised its power after the expiry of the transitional period.

On the basis of these considerations, the French Government, having refused to consider the transitional decisions as a retransfer of powers from the Community to the Member States, accordingly comes to the conclusion that the sole objective which these decisions could have had was to prescribe the conservation measures enacted <span class="italic">before</span> the expiry of the transitional period in order to avoid a legal vacuum. This is clear from the fact that it is expressly stated to be the duty of the Member States after 1 January 1979 to apply only such measures as were in force on 3 November 1976, the date of Annex VI to the Hague Resolution, or which were taken in accordance with that annex. The latter measures can thus only be those which were enacted before 31 December 1978 since on the one hand the provision expressly refers to “measures taken”, that is measures already existing in the past, and on the other Annex VI ceased to be in any way applicable after the expiry of the transitional period.

In appraising that argument it is my view that the French Government's opinion should be espoused, inasmuch as it is impossible to discover in the decisions in question any <span class="italic">complete</span> retransfer of Community powers to the Member States in the sense that the latter thereby regained an <span class="italic">independent</span> power in the field of fisheries policy. It should instead be noted in principle that, as the Court of Justice held in Case <a href="http://eur-lex.europa.eu/query.html?DN=61971??0007&amp;locale=EN" onclick="target='CourtTab';">7/71, <span class="italic">Commission</span> v <span class="italic">French Republic,</span> judgment of 14 December 1971, [1971] ECR 1003</a>, sovereign rights flowing from the limitation of the powers of the Member States or from their transfer to the Community may only be withdrawn by virtue of an <span class="italic">express provision of the Treaty</span> and restored to the exclusive power of the Member States.

In addition, as the Court of Justice held in Joined Cases <a href="http://eur-lex.europa.eu/query.html?DN=61977??0080&amp;locale=EN" onclick="target='CourtTab';">80 and 81/77 <span class="italic">(Société Les Commissionnaires Réunis</span> v <span class="italic">Receveur des Douanes</span> and <span class="italic">Sàrl Les Fils de Henri Ramel</span> v <span class="italic">Receveur des Douanes,</span> judgment of 20 April 1978, [1978] ECR 927)</a>, any exception from a fundamental principle of the common market must be clearly provided for. As the French Government rightly remarks, it would be difficult for the transitional decisions in question to comply with that condition.

If, however, one wishes to regard the decisions in question as constituting only a <span class="italic">partial</span> restoration of powers and consider this to be permissible in principle it is necessary, as the Court has decided on a number of occasions (cf. in this connexion Joined Cases <a href="http://eur-lex.europa.eu/query.html?DN=61977??0080&amp;locale=EN" onclick="target='CourtTab';">80 and 81/77, <span class="italic">Ramel,</span> [1978] ECR 927</a>; Case <a href="http://eur-lex.europa.eu/query.html?DN=61976??0052&amp;locale=EN" onclick="target='CourtTab';">52/76 <span class="italic">Luigi Benedetti</span> v <span class="italic">Munari,</span> judgment of 3 February 1977, [1977] ECR 163</a>; Case <a href="http://eur-lex.europa.eu/query.html?DN=61975??0060&amp;locale=EN" onclick="target='CourtTab';">60/75 <span class="italic">Carmine Antonio Russo</span> v <span class="italic">Azienda di Stato gli Interventi sul Mercato Agricolo,</span> judgment of 22 January 1976, [1976] ECR 45</a>; Case <a href="http://eur-lex.europa.eu/query.html?DN=61975??0065&amp;locale=EN" onclick="target='CourtTab';">65/75 <span class="italic">Riccardo Tasca,</span> judgment of 26 February 1976 [1976] ECR 291</a>) at least to ensure that the basic rules of the Treaty are not infringed. One of these rules, however, is that in the agricultural sector, and in particular the fisheries sector, the Commission must be brought into the Community legislative procedure after the end of the transitional period laid down in Article 102 of the Act of Accession. It follows that the Council, if it is to be recognized as possessing a power of partial delegation, may not deprive the Commission of its right to participate in the legislative procedure. But that participation, which promotes the Community interest, would only be ensured if the redelegation proceeded on the basis of a proposal of the Commission which, as the Court is aware, was not the case or if the Commission had been brought into the legislative process of the Member States.

Since the Commission possesses no power, in relation to the Member States, to initiate legislation, it can participate effectively only by means of the requirement of its approval. The interim decisions, in so far as they are to be regarded as a partial transfer of powers, would not infringe Community law only if they were construed as meaning that the powers of the Member States to act were made dependent on the approval of the Commission.

If the grounds set out above should provide a further reason for not regarding the interim decisions in question as effecting a transfer of powers, it follows, as the Commission rightly points out, although the French Government takes a different view, that after the expiry of the transitional period the Member States no longer had any power at all to issue new conservation measures concerning sea fisheries.

Although it is true that, whilst the solution proposed by the French Government, a simple continuation after the end of the transitional period of the measures enacted during that period, does not produce a legal vacuum, which is to be avoided, that contention, however, suffers in general from the disadvantage that it prolongs a static state of affairs, and, so long as the Council does not act, does not permit the measures taken to be adapted to actual requirements.

In addition it appears possible on other grounds to avoid the conclusion that the decisions in question were merely intended to prolong the measures taken during the transitional period. Thus a semantic interpretation of the words “measures taken” does not unequivocally indicate that what is meant must be measures enacted in the past. Furthermore, the argument that Annex VI to the Hague Resolution lost all effect at the latest by 31 December 1978 and that accordingly the interim decisions could only relate to measures taken during that time, is not convincing, since reference is made to measures taken “in accordance with the <span class="italic">procedures and criteria</span> of Annex VI”.

However, the case-law of the Court of Justice runs contrary to the view that after the expiry of the transitional period, if the Community fails to act, the Member States are likewise precluded from adopting measures regarding the conservation of the biological resources of the sea and that accordingly the interim decisions were merely intended to prolong the measures taken before 31 December 1978. Thus as early as the <span class="italic">Van Dam</span> cases (Joined Cases 185 to 204/78) it was held, with regard to the national protective measures enacted during the transitional period, that in order to avoid a legal vacuum “during the year 1978 the Member States had the right and the duty to adopt, within their respective spheres of jurisdiction, any measures compatible with Community law to protect the biological resources of the sea... ”. It is stated clearly in Case 32/79, <span class="italic">Commission</span> v <span class="italic">United Kingdom,</span>

which in this respect is similar to the present case, that such a legal vacuum should be avoided if the Community, which is competent by itself, is prevented from adopting further protective measures. The Council had already in 1977 exercised its powers with regard to the sea zones in question and was merely unable to reach a decision to extend those measures to the remainder of the transitional period. However, as the Court of Justice emphasized in its judgment, this did not result in depriving the Community of its powers in this respect and thus restoring to the Member States freedom to act at will in the field in question. The Court of Justice, proceeding on the basis that the Community in principle has jurisdiction which only the above-mentioned reasons prevented from being exercised, decided that “in such a situation it [was] for the Member States, as regards the maritime zones coming within their jurisdiction, to take the necessary conservation measures in the common interest and in accordance with the substantive and procedural rules arising from Community law”. As is further made plain in the said judgment, it emerges from the totality of the measures in force up to 31 December 1978, from the objectives of those measures, and from the general duties laid down in Article 5 of the Treaty that there exists such a duty to take, in the interests of the Community, measures which meet established conservation needs if such measures cannot be introduced in good time on a Community basis. In this connexion express mention was in fact made of Annex VI to the Hague Resolution which, as the Court of Justice emphasized in Case 141/78, French Republic v United Kingdom, “in the specific field to which it applies, makes specific the duties of cooperation which the Member States assumed under Article 5 of the EEC Treaty when they acceded to the Community”. The significance of these duties, arising under Article 5 of the Treaty, of cooperating in the interests of the Community were emphasized in the same judgment when the Court of Justice stated that “performance of these duties is particularly necessary in a situation in which it has appeared impossible, by reason of divergences of interest which it has not yet been possible to resolve, to establish a common policy and in a field such as that of the conservation of the biological resources of the sea in which worthwhile results can only be attained thanks to the cooperation of all the Member States”.

It is unnecessary to provide further grounds for the existence of such a duty on the Member States under Article 5 of the Treaty when the Council remains unable to take the appropriate conservation measures and, as I explained in some detail in my opinion of 21 May 1980 in Case 32/79, Commission v United Kingdom, with further references to case-law, that duty must apply to the period after 31 December 1978.

Although during the transitional period, when both the Community and Member States had concurrent powers to enact conservation measures, it was sufficient that the Member States in question should endeavour to obtain the Commission's approval before enacting the measure — this follows from Annex VI to the Hague Resolution — the legal situation after the end of the transitional period differs in that, as we have seen, the Community has now exclusive power to enact such measures. In my opinion it is, however, a necessary consequence of that power that the Community interest can only be upheld if the measures enacted by the Member States as representatives of the Community are adopted, which was not so in the previous legal situation, with the approval of the Community. Furthermore, this is probably the explanation for the fact that in the interim decisions, which, like Annex VI to the Hague Resolution, merely give specific expression to the duty of cooperation which the Member States accepted in accordance with Article 5 of the EEC Treaty on becoming members of the Community, reference is merely made to measures adopted in accordance with the procedures and criteria of Annex VI to the Council resolution.

The final question is which Community institution must approve the measures enacted by the Member States.

The Government of the United Kingdom maintains that it certainly cannot be the Commission since, if this were so, a right of veto would in fact be conferred upon the Commission in relation to measures which the Member States are entitled to enact under the interim decisions. Furthermore, it argued that Article 155 of the EEC Treaty may not be interpreted as allowing the Commission to permit a Member State to adopt a measure which in theory the latter is not empowered to take.

However, these arguments can in the first place be met by the quite general point that, in cases where the Member States are obliged, through the inability of the Council to act, to take measures as the representatives of the Community, it is scarcely possible to require that the Council must approve such measures. This would in fact mean either that, if unanimous approval could not be reached within the Council, it would be impossible for the conservation measures to be adopted, or, if the Council approved the measures, that the Council, without the participation of the Commission, had in fact delegated powers to the Member States, which, as I have pointed out above, is not permissible.

On the contrary, we have seen that the Member States' duty of cooperation under Article 5 of the EEC Treaty constitutes a real obligation under the Treaty which was simply given specific form through the interim decisions of the Council. It follows directly from this that, under Article 155 of the EEC Treaty, in accordance with which inter alia the Commission is required to ensure that the provisions of that Treaty and the measures taken by the institutions pursuant thereto are applied in order to ensure the proper functioning and development of the common market, in the enactment of the conservation measures in question the Commission must participate in that legislative procedure as guardian of the Community's interest.

A further indication that this argument is correct is provided on the one hand by Annex VI to the Hague Resolution in accordance with which Member States which intend to adopt unilateral measures for the conservation of fishery resources must seek the approval of the Commission, and on the other by a measure which was enacted in the meantime, Council Regulation (EEC) No 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources (Official Journal L 258, p. 1). In the second recital in the preamble to that regulation it is stated that “... in cases of strictly local stocks, Member States should, subject to Community examination, be permitted to take conservation measures under certain conditions”. It is accordingly provided in Article 18 (1) and (2) of that regulation that:

“(1) In the case of strictly local stocks of interest to the fishermen of one Member State only, that Member State may take measures for the conservation and management of those stocks not referred to in the Community regulations, provided such measures do not conflict with Community provisions.

(2) The other Member States and the Commission shall be notified of these measures.”

It is further provided in the fourth recital in the preamble that where conservation is seriously threatened, Member States should be permitted to take appropriate provisional measures. Article 19 of the regulation accordingly provides that:

“(1) Where the conservation of fish stocks calls for immediate action, the Commission may, by way of derogation from this regulation, adopt any measures necessary in accordance with the procedure laid down in Articles 31 (2) and 32 of Regulation (EEC) No 100/76. This includes measures to this end which not been specifically provided for in this regulation.

(2) Where the conservation of certain species or fishing grounds is seriously threatened and where any delay would result in damage which would be difficult to repair, the coastal State may take appropriate non-discriminatory conservation measures in respect of the waters under its jurisdiction.

(4) Within 10 calendar days of receipt of such notification, the Commission shall confirm, cancel or amend the measures. The Commission's decision shall be immediately notified to the Member States.”

Further support for the result at which we have arrived is to be found in the judgment of the Court of Justice in Case 41/76, Suzanne Criel née Donckerwolcke and Henri Schou v Procureur de la République au Tribunal de Grande Instance, Lille, and Director General of Customs, Paris, judgment of 15 December 1976 [1976] ECR 1921. In these proceedings for a preliminary ruling the Cour d'Appel [Court of Appeal], Douai, asked inter alia whether certain national rules concerning checks on the origin of goods in free circulation in the Member States were in accordance with the Treaty after the expiry of the transitional period prescribed for the establishment of a common commercial policy although the State in question was empowered under the first and second paragraphs of Article 115 of the EEC Treaty to derogate from the provisions on the free movement of goods within the Community. There is a parallel between that case and the present one in that, at the time when the supervisory measures in question were taken, competence with regard to the commercial policy had been entirely transferred to the Community under Article 113 (1) of the EEC Treaty, although the common commercial policy, as the Court of Justice found, had not been fully established by the end of the transitional period.

In the above-mentioned judgment the Court of Justice emphasized that in that situation, which resembles to a certain extent that in the present case, “measures of commercial policy of a national character are only permissible after the end of the transitional period by virtue of specific authorization” by the Commission. For the reasons which have been set out this must apply with even greater force to measures in the field of fisheries policy.

It remains to be remarked, by way of conclusion, that the approval of the Commission of conservation measures adopted by the Member States regarding sea fisheries may be conferred not only expressly but also tacitly. It may be inferred from the interim decisions themselves, which refer to measures “taken in accordance with the procedures and criteria of Annex VI” to the Hague Resolution, that even tacit approval is sufficient. However, as the Court is aware, that resolution merely prescribes with regard to procedure that the Commission must be consulted at all stages, that is, that the Member States must cooperate closely with the Commission in order to coordinate national measures, in particular with regard to working out a common policy, which has yet to be achieved, on relations with non-member countries. If such consultation takes place and the Commission does not expressly oppose the introduction of such measures, this may be considered as tacit approval, without harming the interest of the Community.

Accordingly it is also impossible to conclude, as does the Government of the United Kingdom, from the fact that the Commission in other cases has not always expressly approved of the measures of other Member States before their entry into force, that such approval is unnecessary.

However, even if such measures might in fact have been adopted in other cases without any approval from the Commission — this is to be remarked in relation to the further arguments of the British Government — it is impossible to conclude from this that such procedures are permissible.

Since it is not contested that all the measures for the conservation of the biological resources of the seas mentioned at the beginning were enacted without obtaining in advance from the Commission any approval whatever it must accordingly be found that the United Kingdom has thereby failed to fulfil its obligations under the EEC Treaty.

This applies in particular to the fisheries measures adopted concerning the Irish Sea and the waters round the Isle of Man in relation to the Herring (Irish Sea) Licensing Order 1977 and the Herring (Isle of Man) Licensing Order 1977. As we know from Case 32/79 Commission v United Kingdom, the subject-matter of both orders concerns the prohibition of herring catches in the sea zones in question. An exception is made in the case of fishermen holding a licence for the Irish Sea from the Government of the United Kingdom and for the waters round the Isle of Man by the Board of Agriculture and Fisheries of that island. The two orders, which were still in force in 1979, do not contain any other indications as to the conditions in which those licences are issued, the rights which they confer and the duties linked to their issue. They thus leave complete discretion to the competent authorities as regards the issue of the licences and their scope. In connexion with the complaints submitted by the Commission in that case to the effect that the Commission and the Member States concerned were not duly informed, either in 1977 or in 1978, of the true extent of the system of restriction and management of fishing resulting from the application of the licensing system, the Court of Justice found in its judgment of 10 July 1980 inter alia that the United Kingdom had failed to fulfil its obligations under the Treaty in that, in 1977, on the basis of these orders, it applied a system of fishing licences which had not formed the subject-matter of an appropriate consultation and the detailed rules for the implementation of which were reserved wholly to the United Kingdom authorities, without its being possible for the Community authorities, and the other Member States and those concerned to be certain how that system would actually apply in law. There was a further breach of the Treaty in that in 1978 too that state of uncertainty had been maintained, to the detriment of the fishermen of other Member States.

In the same judgment the Court of Justice found it unnecessary, with regard to the question whether the provisions governing a common fisheries policy were also applicable to the waters within a 12-mile zone round the Isle of Man, to consider the constitutional position of the Isle of Man and the relationship of that territory to the Community. Instead it merely found that it was clear from the wording of the Herring (Isle of Man) Licensing Order 1977 that it was adopted under the legislation of the United Kingdom by the British Government so that the United Kingdom must take responsibility for that measure vis-à-vis the Community.

It follows from this that the application of the said orders after the expiry of the transitional period stipulated in Article 102 of the Act of Accession and the agreements based on these orders between the Government of the United Kingdom and the Isle of Man for the year 1979 concerning the conditions for herring fisheries in the waters in question would also have required the prior authorization of the Commission which, unquestionably, was not given.

III — Since this result appears to me to establish beyond doubt that the United Kingdom, by adopting the said conservation measures and applying them, has exceeded its powers — regardless of whether the Court agrees with my views or prefers the solution proposed by the French Government — there is no longer any need to go into the other procedural and substantive objections raised by the Commission and the parties to the proceedings, the more so as the Commission gave an express assurance that, if it were found that the United Kingdom did not have the powers in question, it would not wish any further consideration of the objections.

IV — I accordingly submit that the Court should find that the United Kingdom has failed to fulfil its obligations under the EEC Treaty by issuing and applying in 1979, without the approval of the Commission, the Fishing Nets (North-East Atlantic) (Variation) Order 1979, the Immature Sea Fish Order 1979, the Immature Nephrops Order 1979, the Nephrops Tails (Restriction on Landing) Order 1979 together with the Sea Fish (Minimum Size) Order (Northern Ireland) 1979 and, on the basis of the Herring (Irish Sea) Licensing Order 1977, SI 1977 No 1388 and the Herring (Isle of Man) Licensing Order 1977, SI 1977 No 1389, established a system of fishing licences or general conditions for herring fisheries in the water of the Irish Sea and round the Isle of Man.

Since the application is successful the United Kingdom should also be ordered to pay the costs, including those of the interveners.

(1) Translated from the German.