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

D —Fourth question

The accused in the main proceedings submits that according to the case-law of the Court of Justice and in particular the judgment of 16 December 1981 in Case 269/80 Regina v Tymen [1981] ECR 3079, the answer to the fourth question should be:“Where criminal proceedings are brought under a national measure such as Statutory Instrument No 1994 of 1980, which is held to be contraiy to Community law, a conviction in those proceedings is also incompatible with Community law.”According to the United Kingdom, it is accepted that if the first sentence of Article 7 had no effect at the date of the offence and if the United Kingdom had no power to adopt a national measure providing for its enforcement, the conviction of the accused would be incompatible with Community law.However, according to the United Kingdom, the mere fact that it had no power to adopt Article 8 (2) of the Fishing Nets (No 2) Order 1981 would not necessarily render a conviction under Article 8 (1) unlawful, since that paragraph merely imposes sanctions for a breach of Community law. It would therefore be absurd if sanctions lawfully provided for by a Member State might not be enforced on the ground that that Member State had unlawfully added exceptions on which no reliance is placed by the accused.In any event, it is for the national court to decide whether Article 8 (1) of the national Order may be preserved in the event of the Court's declaring that Article 8 (2) is contrary to Community law. In that regard the United Kingdom considers that it is clear that if Article 8 (2) were declared to be contrary to Community law, an English court would sever Article 8(1) from Article 8 (2).The United Kingdom therefore submits that persons fishing in waters of Member States cannot defeat the object of the Community by reference to invalid exceptions on which they do not rely. Even if the United Kingdom had no power to adopt Article 8 (2), the accused is not entitled to an acquittal unless Questions (a) and (b) are answered in the negative.The Commission, in the light of its reply to the preceding questions, sees no need for the Court to reply to Question (d).