Directeur des Affaires Maritimes du Littoral du Sud-Ouest and Procureur de la République v Javier Marticorena-Otazo and Manuel Prego Parada (138/81, 139/81)

I —Facts and written procedure

II —Summary of the written observations submitted to the Court

The defendants in the main proceedings, Mr Marticorena-Otazo and Mr Prego Parada, remark first of all that the Community provisions on the mesh-size of nets, which apply without discrimination to Spanish fishermen, are not at issue in the proceedings before the Court.With regard to the interim arrangements applicable in particular to Spanish fishermen they point out that no provision of Community law referring in particular to Spanish fishermen was in force in the period between 1 February and 4 March 1981 when the facts concerned in the main actions occurred. Since it was therefore unnecessary for vessels flying the flag of Spain to hold a licence in order to fish penalties under the criminal law may not be imposed for failure to hold such a licence.The fifth recital in the preamble to Regulation No 554/81, in which it is stated that fishing by Spanish vessels in the fishing zones of the Member States was interrupted since 1 February 1981, creates the false impression that there is a general prohibition mitigated by the grant of authorizations in particular cases, under interim regulations. Such a view negates the prior rights which Spanish fishermen are acknowledged as having, in particular off the French coasts. It implies the complete abolition of such prior rights, which is also incompatible with the idea, sometimes put forward, that the system of licences imposed unilaterally on Spanish nationals merely constitutes a nondiscriminatory restriction justified by the need for a priori control of fishing by nationals of nonmember countries. Article 10 (3) of Regulation No 1569/81 of 1 June 1981, which expressly confirms the prohibition of fishing for the earlier period from 1 February to 3 March 1981, is thus unlawful, at least in so far as it is retroactive.The defendants in the main proceedings then claim that the unilateral imposition of a discriminatory regime only upon Spanish nationals is incompatible with the historical fishing rights of Spanish fishermen which are protected by the London Convention of 9 March 1964 and by the Agreement between France and Spain of 20 March 1967. In this connection they refer to Article 5 of the London Convention which prohibits in particular, in the belt between 6 and 12 miles, any discrimination in form or in fact against fishing vessels of other contracting parties fishing there in accordance with Articles 3 and 4 of that Convention. Moreover, they refer to the permanent right conferred on Spanish fishermen by Article I (b) of the Agreement between France and Spain to fish for all species in the belt between 6 and 12 miles off the French coasts.Article 11 of that Convention, which provides that under certain conditions a coastal State may exclude particular areas from the full application of Articles 3 and 4 for the benefit of the local population, constitutes the sole exception to the prohibition in principle of discrimination which is laid down by Article 5. Article 10 of the Convention, which enables a special regime to be established between the Member States of the Community, constitutes a derogation from the most-favoured-nation clause embodied in Article 8 (2) of that Convention since its sole objective is to avoid any impediment to the establishment of a common fisheries policy between the Member States and the Associated States of the Communities and thereby to provide access to the reserved zones for their nationals even though the latter had no claim to exercise historical rights for the purposes of Article 3 of the Convention. That provision may not have the affect of displacing the nationals of another contracting party, in this case Spain, from a zone to which they are guaranteed access on a equal footing with the nationals of the coastal State. In this connection the defendants in the main proceedings refer to the judgment of the Court of 16 February 1978 (Commission v Ireland Case 61/77, [1978] ECR 417) which establishes that “the rules regarding equality of treatment enshrined in Community law forbid not only overt discrimination by reason of nationality but also covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result”.They consider that the enforceability of the international instruments follows directly from Article 55 of the French Constitution and has been confirmed by a series of national implementing decrees.Furthermore, although it is true that the extension of the fishing zones of the Member States of the Community to 200 miles and the need to conserve resources have given rise to a new international custom which has been superimposed on the previous situation the international agreements in force are not thereby superseded. In addition, the agreements relied upon have not expired and they have not been denounced.That view is confirmed by the Agreement on Fisheries concluded on 15 April 1980 between the Community and Spain. According to Article 1 thereof the sole purpose of the Agreement is to govern the conditions for fishing. Only to that extent did Spain, in a declaration which it made at the time of the initialling of the Agreement, recognize that the provisions of the Agreement should be substituted for those of the previous agreements. The historical fishing rights as such and the rule of nondiscrimination laid down by the London Convention are accordingly not affected by the Agreement. In fact the measures to be applied in the reserved zones and to particular species must be the same for foreign fishermen as for fishermen subject to the domestic jurisdiction of the State in question (cf. J. L. Meseguer, “Accord de Pêche entre l'Espagne et la CEE”, Revue du Marché Commun 1980, pp. 527 to 534 and 589 to 594, at p. 594).Finally, the acts alleged against the defendants were performed during the period when the Agreement was provisionally applicable. Provisional measures which have not been ratified cannot abrogate international treaties in force.The Community régime at issue is thus incompatible with the London Convention, the Agreement between France and Spain and Article 1 of the Agreement between the EEC and Spain. It follows in particular from the general principle of the law of treaties set out in Article 40 (4) (b) of the Vienna Convention on the Law of Treaties of 1969 and adopted in Article 234 of the EEC Treaty that prior agreements take precedence. In accordance with the judgment of the Court of 14 October 1980 (Attorney General v Burgoa, Case 812/79 [1980] ECR 2787) the institutions of the Community are under a duty not to impede the performance of the prior obligations of the Member State concerned. That principle also applies to provisions of secondary law.In so far as the Community regulations may nevertheless be declared valid, the Court of Justice lacks jurisdiction to decide whether they are enforceable against Spanish nationals, since such a question involves interpretation by the Court of provisions of international law which bind Member States outside the framework of Community law (cf. judgment of 27 November 1973 in Case 130/73 Vandeweghe [1973] ECR 1329).The French Government considers that the Court may confine itself to informing the Tribunal de Grande Instance, Bayonne, that at the material times in the cases in point no Community regulation laid down measures for the conservation and management of fishery resources applicable to Spanish fishermen and leave that court to apply the ruling in the context of French municipal law.The result of the proceedings is determined by the French legislation applicable in the matter according to which fishing is prohibited to foreigners in the territorial waters extending to 12 miles from the coast unless they hold a licence granted under the Decree. Since the time when the Community exercised its powers in this field, that is, after the adoption of The Hague Resolutions of 3 November 1976, such licences have been granted only in accordance with Community law as the powers of the Community extend to all maritime waters falling under the jurisdiction of the Member States. Since no Community regulation made provision for the granting of licences for the period between 1 February and 3 March 1981 and consequently no licence was issued, the defendants have committed the offence of unauthorized fishing. The Court of Justice may not, however, substitute its own determination for that of the national court.In so far as it is necessary to clarify the state of Community law in relation to the prior international obligations relied upon the French Government observes that the London Convention and the Agreement between France and Spain were superseded at the time of the facts in question, in particular as a consequence of the signature on 15 April 1980 of the Agreement on Fisheries between the EEC and Spain. Although the Agreement on Fisheries did not in fact enter into force until 22 May 1980 nevertheless it has been provisionally applicable, pursuant to Article 12 thereof, since the date of signature and thus has bound the EEC and Spain since 15 April 1980. The French Government considers that the Agreement on Fisheries eliminates all rights of access which Spanish fishermen might enjoy under prior international instruments.Finally the validity of the Community rules concerning the mesh-size of nets, which were applicable in the Community waters at the material time, cannot be affected by the provisions of the London Convention of 1964 and the Agreement between France and Spain of 1967 which were relied upon.The Council of the European Communities recalls first of all that, in its opinion, pursuant to Article 10 of the London Convention, which confers a jus quaesitum tertio on the Community, all Community provisions on fisheries take precedence over that convention and the agreement between France and Spain which is directly connected with it. Since that has been the position since the beginning of the Community fisheries régime so far as the Spanish fishermen are concerned the Agreement on Fisheries between the Community and Spain has replaced these earlier agreements since the Community has succeeded to rights of the Member States to conclude treaties with nonmember countries concerning fishing in waters coming under the jurisdiction of such States. That interpretation is confirmed by the declaration made on 23 September 1978, when the Agreement between the Community and Spain was initialled, to the effect that “with regard to Article 1 the Spanish delegation recognizes that the provisions of the agreements relating to fisheries to which the Member States of the EEC and Spain are parties are superseded by the provisions of the Agreement [initialled on 23 September 1978]; if that agreement is denounced Spain reserves the right to invoke against the Community the provisions of the agreements on fisheries which formerly governed its relations with the Member States of the Community concerning fisheries”.The Council accordingly considers that the London Convention and the Agreement between France and Spain of 1967 have thus been frozen and have ceased to produce effects following the signature of the Agreement on 15 April 1980 and during its provisional application. Since the entry into force of the Agreement on 22 May 1981 the prior agreements were superseded although they may, perhaps, become applicable again if the Agreement of 15 April 1980 is denounced.With regard to the period between 1 February and 3 March 1981 the Council claims that the Community rules did not provide any possibility for Spanish fishermen to obtain a licence since relations concerning fishing were interrupted between the Community and Spain. That interruption nevertheless did not entail freedom to fish since French legislation expressly prohibits fishing in territorial waters and the economic zone except with an authorization granted in accordance with Community law. The Council states that because of a disagreement between the Community and Spain on the number of licences and on the volume of quotas it was impossible to determine the arrangements for 1981 either in December 1980 or in January 1981. When the consultations finally resulted in agreement on 17 February 1981 Regulation No 554/81 was quickly adopted.Having regard to the fact that, according to the judgment making the reference, the national court was by no means unaware that fishing by Spanish vessels was interrupted the Commission of the European Communities considers that the preliminary question concerns the very principle of the restriction on the access of Spanish vessels to the fishing zone of the Community and that that restriction entails as a general rule the requirement that a licence should be obtained or, exceptionally, a prohibition of all fishing, as was the case at the material time in these cases. In the opinion of the Commission the requirements that a licence should be obtained or that fishing should be suspended constitutes a means of exercising the general powers of the Community for the purposes of adopting measures to protect resources within its exclusive fishing zone.The Commission next recalls the context, following the extension to 200 miles, of the restriction on the access of Spanish fishing vessels to the fishing zones of the Member States covered by the Community rules. In this connection it emphasizes that the Community regime in fishery matters covers all of the fishing zones falling under the jurisdiction of the Member States.Pending the conclusion of the agreement on fisheries which was being negotiated the conditions of access for Spanish fishermen were first of all fixed unilaterally by the Community within the framework of a temporary system, in the operation of which Spain collaborated, for the issue of licences. Subsequently these conditions were fixed under the Agreement on Fisheries between the Community and Spain which provides arrangements for consultation on this matter. From the provisional application of the Agreement on Fisheries the Council, after consultation with the Spanish authorities in accordance with the Agreement, established the measures applicable to Spanish vessels for the whole of each year by Regulation No 1719/80 of 30 June 1980 for the year 1980 and by Regulation No 1569/81 of 1 June 1981 for the year 1981. The Commission states that the latter regulation, which authorizes the interruption of fishing for the period from 1 February to 3 March 1981, pursuant to Article 10 (3) thereof, ascribes only the catches made under the interim Regulations Nos 3305/80 and 554/81, to the quotas fixed for the year 1981.It considers that since the Spanish authorities failed to agree with the proposed conditions the Community was entitled to suspend fishing by Spanish vessels. The Commission pointed out to the Spanish delegation that it was necessary to complete the consultations on the arrangements for fishing for 1981 in good time and that when consultations were suspended by the Spanish delegation it also informed the latter that fishing by Spanish vessels would be interrupted from 31 January 1981. Spain is thus responsible for the delay which occurred in the consultations.With regard to the validity of the Community regulations in question in relation to the prior international agreements the Commission considers that the solution adopted in the judgment of 14 October 1980 in Case 812/79 (Attorney General v Burgoa) is general in scope irrespective of whether the events at issue took place within or beyond the 12-mile limit. It states that according to that judgment it is not necessary, in order to assess the validity of the interim measures adopted by the Community, to have regard to the régime applicable before the entry into force of the Community provisions. In fact those provisions are based on the new relations between Spain and the Community established following the extension of the fishing zones to 200 miles.According to the Commission, the developments in the international law of the sea which led to the establishment of those new relations concern not only the fishing zones between 12 and 200 miles but also the zones between 6 and 12 miles. In fact, as may be seen from the decision of the International Court of Justice of 25 July 1974 (United Kingdom v Iceland, ICJ Reports 1974, p. 23), the change in the international law of the sea marked by the appearance of new customary rules first became apparent with regard to the waters adjacent to the territorial sea, that is to say in the 6 to 12-mile zone.With regard to the technical measures provided for by Regulation No 2527/80 the Commission finally states that it duly informed the Mission of Spain to the European Communities that that regulation was applicable to all vessels fishing in Community waters.

III —Oral procedure

At the sitting on 29 April 1982 oral argument was presented by the following: J. Tournaire of the Bayonne Bar for the defendants in the main proceedings in both cases, Mr Marti-corena-Otazo and Mr Prego Parada; Bernard Botte, Attaché at the Ministry of Foreign Affairs, acting as Agent, for the Government of the French Republic; B. Schloh, Legal Adviser to the Council, acting as Agent, for the Council of the European Communities and by F. Lamoureux, a member of the Legal Department of the Commission, acting as Agent, for the Commission of the European Communities.The Advocate General delivered his opinion at the sitting on 27 May 1982.

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