Lieutenant Commander A.G. Rogers v H.B.L. Darthenay (87/82)

C —Third question

The accused in the main proceedings notes by way of preliminary that Article 8 (1) of the United Kingdom Order in question prohibits the carrying of a net with an attachment having the effect of obstructing the mesh, whereas Article 7 of Regulation No 2527/80 prohibits the using of such a net. In his submission, the United Kingdom Order thus creates “a quite different and much wider” criminal offence than that which is envisaged by the Council regulation. Similarly, Article 8 (2) of the United Kingdom Order purports to create a single and strictly-defined exception to the total prohibition laid down in paragraph (1); the scope of that exception is limited, whereas no such limited exception may be found in Article 7 of Regulation No 2527/80. Finally, the accused in the main proceedings submits that the exception laid down by the United Kingdom was not adopted in accordance with the “Management Committee” procedure.According to the accused in the main proceedings, the wording of Article 7 prohibits the use of any method other than the “Management Committee” procedure for the adoption of detailed implementing rules on devices by means of which the mesh in any part of a fishing net is obstructed or otherwise effectively diminished.Consequently, he submits first that “ the adoption of a national measure such as this United Kingdom Order is in breach of the binding procedure laid down in Regulation No 2527/80 and thus incompatible with Community law.”Secondly, the accused in the main proceedings submits that, in the event of the Court's nevertheless deciding that Regulation No 2527/80 does not prohibit a national measure such as the United Kingdom Order in question, implementation by internal legislation jeopardizes the simultaneous and uniform application of the regulation throughout the Community. Moreover the Court of Justice has already upheld that view, in particular in its judgments of 7 February 1973 in Case 39/73 Commission v Italy [1973] ECR 101, and of 10 October 1973 in Case 34/73 Variola v Amministrazione Italiana delle Finanze [1973] ECR 891.The accused in the main proceedings next sets out the dangers inherent in national implementing measures of that kind :(i) The entry into force of Article 7 of Regulation No 2527/80 would be earlier in the United Kingdom than in the other Member States, which were awaiting the outcome of the “Management Committee” procedure.(ii) The interpretation of Article 7 of Regulation No 2527/80 contained in the United Kingdom Order might be different from any exceptions specified by the proper Community procedure.(iii) The Community nature of the conservation measure is obscured by a national measure purporting to implement a Council regulation but also limiting its scope.(iv) The jurisdiction of the Court of Justice may be restricted because Article 177 of the Treaty does not provide for a reference to the Court in order to obtain an interpretation of the provisions of national legislation.Thirdly, the accused in the main proceedings submits that, if that second argument should also be rejected by the Court, national implementing measures may not alter the scope of a Community regulation. That principle was laid down by the Court of Justice in its judgment of 18 February 1970 in Case 40/69 Hauptzollamt Hamburg v Bollmann [1969] ECR 69, and reaffirmed in several later judgments. According to the accused in the main proceedings, the national provision in question is in breach of that prohibition in two vital respects: in creating a different and much wider criminal offence than is envisaged by the Council and in providing for only a single and strictly-defined exception.Consequently:(a) in view of the express prohibition laid down in Article 7 of Regulation No 2527/80,(b) in view of the settled principles of the case-law of the Court of Justice prohibiting national implementing measures,(c) in view of the content of the United Kingdom measure which differs markedly from that of the Council regulation,the accused in the main proceedings proposes that the answer to Question (c) should be:“Even if Article 7 does have some effect, the United Kingdom had no power to define the exceptions to the prohibition in such a way as that in which' they were defined in Statutory Instrument No 1994 of 1980.”The United Kingdom submits that it is unnecessary to answer Question (c), since the accused in the main proceedings does not rely upon the exception laid down in Article 8 (2) of the national provision in question; indeed, his Counsel admitted before the Divisional Court that his defence rested upon the proposition that Article 7 of the Council regulation had not yet been implemented at the time of his alleged offence.However, in the alternative, the United Kingdom submits that if that question must be answered, it should be answered in the affirmative. Indeed, although it is accepted that from 1 January 1979 Member States were no longer entitled to exercise powers of their own in relation to conservation of the resources of the sea, they nevertheless had a right -and a duty to act as trustees of the common interest in the absence of appropriate action on the part of the Council.As the Community had not defined any exceptions to Article 7, the United Kingdom was entitled to create the exception laid down in Article 8 (2) of the Fishing Nets (No 2) Order 1980 provided that it was consistent with Community policy as expressed in Regulation No 2527/80 and the United Kingdom had sought and obtained approval of that measure. The United Kingdom submits that since those two conditions were fulfilled, Question (c) should be answered in the affirmative.The Commission shares the United Kingdom's view. In its opinion, since the accused in the main proceedings does not claim that the device used by him falls within the exceptions to the prohibition on net attachments contained in Article 8 (2) of the Fishing Nets (No 2) Order 1980, and the only other relevant exception clause, that is to say Article 9 of the 1980 Order, is not relevant, Question (c) does not relate to any point at issue in this case; consequently, the Commission suggests that the Court decline to answer that question.However, the Commission wishes to state that the wording of the second sentence of Article 7 of the Community regulations makes it clear that exceptions to the prohibition laid down in the first sentence may be adopted only by the Management Committee procedure. It is true that the minutes of the meeting of the Council contain a declaration in which the Commission and the Council agree, pending the adoption of measures provided for in the second sentence of Article 7, to continue to apply the procedures and criteria set out in the Hague Resolution, and it is also true that the Commission approved the United Kingdom measures in question. Nevertheless, according to the Commission it is impossible to reconcile those two points with Article 7 of the regulation, since it provides that exceptions may be laid down only according to the Management Committee procedure, and the Commission adds that in any event the provisions of the regulation must take precedence over the other documents.