Judgment_paragraph 4. · Regina v Robert Tymen (269/80)

4.The Commission of the European Communities outlines the views which it set out in Case 804/79 (Commission v United Kingdom) and indicates the consequences which they have for this case.(a) The first question must be analysed in the light of both the judgment in Case 804/79 and the judgment of 2 June 1981 (Case 124/80, Van Dam, [1981] ECR 1447). These two judgments confirm that the Member States no longer have power to adopt fishery conservation measures unless they have been specifically authorized by the Community to adopt such measures. They also recognize that, where the Council has failed to adopt conservation measures, it is for the Commission to supervise the national measures by giving or withholding its approval of their adoption.Consequently the reply to the first question should be as follows:“Since the end of the transitional period under Article 102 of the Act of Accession Member States no longer have power of their own to adopt sea-fishery conservation measures. Where the Council has failed to act, Member States may adopt conservation measures in case of need. However such measures may only be adopted after appropriate consultation with the Commission and where the Commission has not formulated objections, reservations or conditions.”(b) The second question concerns the extent to which the national courts may protect the rights of individuals.The foundation of this question shows that the court making the reference is concerned with the direct effect of a provision of Community law. However the Commission considers that the question of direct effect does not arise, having regard to the arguments set out above in connection with the first question. A measure adopted by a Member State in excess of its powers must be without legal effect and, in particular, cannot found a criminal prosecution. That principle has been confirmed by the case-law of the Court, in particular by its judgment of 16 February 1978 (Case 88/77, Schonenberg, [1978] ECR 473). In that judgment, which in fact goes beyond the question of competence, the Court held that “... where criminal proceedings are brought by virtue of a national legislative measure which is held to be contrary to Community law, a conviction in those proceedings is also incompatible with that law” (paragraph 16 of the decision).Accordingly, the Commission suggests the following reply to the second question :“Where criminal proceedings are brought by virtue of a national legislative measure which is held to be contrary to Community law a conviction in those proceedings is also incompatible with that law.”(c) The third, fourth and fifth questions are, in the Commission's view, redundant, as they assume a positive reply to the first question to the effect that the Member States still have power to adopt conservation measures.