Administrateur des Affaires Maritimes, Bayonne and Procureur de la République v José Dorca Marina and others (50/82, 51/82, 52/82, 53/82, 54/82, 55/82, 56/82, 57/82, 58/82)

I —Facts and written procedure

II —Summary of the written observations submitted to the Court

The defendants in the main proceedings state first of all that the judgments of the Tribunal de Grande Instance, Bayonne, making the references to the Court antedated the judgments of the Court of 8 December 1981 (Cmjeiras Tome and Yurrita, Joined Cases 180 and 266/81 and Arbelaiz Emazabel, Case 181/80 [1981] ECR 2997 and 2961) in which it was held that the new relations established by the Community regulations concerning Spanish fishermen replaced the prior international treaties and that the evidence submitted at that time to the Court was not of such a nature as to affect the validity of those regulations.Nevertheless they claim that Regulation No 1669/81, which is at issue in Cases 51 to 58/82, is invalid, or at any rate inapplicable, for two reasons. First, the penalties provided for in Article 13 of that regulation for breach of the conditions on which licences are granted, namely withdrawal of the licence and the non-renewal thereof for a period of from 2 to 4 months, do not provide sufficient guarantees that the right to a hearing will be respected, as is required by Community law. In this connection the defendants in the main proceedings refer to the judgment of the Court of 27 October 1977 (Moli, Case 121/76 [1977] ECR 1971) in which it was stated that “when any administrative body adopts a measure which is liable gravely to prejudice the interests of an individual it is bound to put him in a position to express his point of view”.Secondly the Agreement on Fisheries of 15 April 1980 between the EEC and Spain merely authorizes the two parties to allocate equitably, in a spirit of nondiscrimination and of equality, such restrictions on fishing as may be required, if necessary by means of licences. In so far as the restrictions are applied exclusively to Spanish fishermen, they entail a serious breach of their right to work and their right to freedom from discrimination on grounds of nationality, which are protected in particular by Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, by Article 26 of the International Covenant on Civil and Political Rights concluded in New York on 19 December 1966 and by Articles 2 (2) and 6 of the International Covenant of New York of even date on Economic, Social and Cultural Rights.The French Government, the Council and the Commission suggest that the judgment of 8 December 1981 in Joined Cases 180 and 266/80 (Crtijeiras Totne and Yiirrita [1981] ECR 2997), which concerns a problem in every way the same as the one raised by the present cases, should be confirmed.In this connection they explain that the facts in Case 50/82 fall within the period when the Agreement on Fisheries between the EEC and Spain was provisionally applicable and that the facts in Cases 51 to 58/82 occurred after the entry into force of the Agreement.With regard to the Community regulations concerning the mesh-size of nets which have led to the convictions in the actual judgments making the references to the Court in Cases 50 and 51/82 but regarding which the Tribunal de Grande Instance has not expressly requested an answer from the Court, the Council and the Commission point out that they apply to all fishermen in the exclusive economic zone and that the Spanish authorities were made aware of this.

III —Oral procedure

At the sitting on 16 September 1982 oral argument was presented by the following: J. Tournaire of the Bayonne Bar, for the defendants in the main proceedings; Bernard Botte, Attaché at the Ministry of Foreign Affairs, acting as Agent, for the French Government; Daniel Vignes, a Director in the Legal Department of the Council, acting as Agent, for the Council of the European Communities; and F. Lamoureux, member of the Legal Department of the Commission, acting as Agent, for the Commission of the European Communities.In the course of the hearing the defendants in the main proceedings reiterated in particular that they did not have opportunity to make known their point of view at the time when the penalties of withdrawal and non-renewal of their licences, which are provided for by Article 13 of Regulation No 1569/81, were imposed. The application of these penalties by the Commission on the sole basis of information furnished by the national authorities which found that the conditions of fishing had been infringed is thus contrary to the audi alteram partem principle.In this connection the French Government referred to Article 7 of the Agreement on Fisheries between the EEC and Spain in accordance with which “within the fishing zone falling under its jurisdiction, each party may, in conformity with international law, take such measures as may be necessary to ensure that vessels of the other party comply with the provisions of this agreement”. In its view that provision was well within the framework of the wide powers as to policing which Article 73 of the Draft Convention on the Law of the Sea attributed to coastal States. The right to withdraw the licence appeared necessary precisely in order to prevent fish stocks from being excessively exploited. Furthermore it was doubtful whether the principle which had been invoked and which had been developed in the context of litigation concerning the European civil service was applicable to a problem concerning fishery protection.The Commission added on this point that the question of administrative penalties under Community law was not raised by the court making the reference which was concerned with penalties for criminal offences laid down by national legislation.The Advocte General delivered his opinion at the sitting on 6 October 1982.

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