Judgment_paragraph 5. · Regina v Kent Kirk (63/83)

5.Mr Kirk analyses the difference between access and conservation and concludes that the United Kingdom was not entitled to bring into force the order restricting the access of Danish vessels to the 12-mile zone.He notes that a distinction is to be drawn between access and conservation and that it is clear from the case-law and Community legislation that such a distinction was intended to be drawn.Access is the right to gain entry to fishing grounds and subsequently fish there whereas conservation measures are either short-term or long-term measures taken to protect fish stocks.Mr Kirk, then considers in detail the case-law of the Court, concentrating on the characteristics of conservation measures, since the majority of fishing cases decided by the Court deal with that matter. It follows from that case-law that measures which are intended to protect the biological resources of the sea must be urgent and necessary (Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279, the Advocate General's opinion; Case 61/77 Commission v /re/W[1978] ECR 417, the Advocate General's opinion) and further, there must be “a compelling biological justification” (judgment in Case 88/77 Schonenberg [1978] ECR 473). Examples of such measures are the fixing of total allowable catches and quotas (Case 287/81 Noble Kerr [1972] ECR 4053), regulation of the number of boats, authorized fishing zones, fishing periods, and methods and tackle so that nothing is “likely to interfere with reproduction or feeding or to injure the marine ecosystem” (Case 61/77, cited above, at p. 413).It follows that access can be related to conservation but only in so far as such conservation measures may ultimately affect the individual fisherman's right to fish in certain places in a certain way. Such measures may affect access but they are not access measures.In the light of those considerations, Mr Kirk maintains that the Sea Fish Order 1982 is plainly not a conservation measures. It is an access measure.The 1972 Act of Accession also reflects the difference between conservation and access. The mandatory nature of Article 102 with the requirement that measures be taken to ensure conservation contrasts with the exhortative nature of Article 103. That contrast, emphasizes the different approach adopted. Therefore in the event of no measures being adopted by the Council, it is unthinkable that fishing stocks should remain unprotected. In such circumstances Member States can act but only as trustees of the Community interest and solely in respect of conservation measures, as the Court has held in Case 804/79 Commission v United Kingdom ([1981] ECR 1045) and Case 269/80 Tymen ([1981] ECR 3079).As regards access, on the other hand, the Court emphasized in Case 804/79 (cited above, at paragraph 29 of the decision) that Community fishermen must have equal access to the fishery stocks coming within the jurisdiction of the Member States and that the Council alone has the power to determine the detailed conditions of such access in accordance with the procedures laid down in the third subparagraph of Article 43 (2) of the Treaty and Article 102 of the Act of Accession. That legal situation cannot be modified by measures adopted unilaterally by the Member States.That is so, a fortiori, after the expiry of the derogation period on 31 December 1982. In Mr Kirk's view, there can be no doubt that any restriction upon rights of access allowed thereafter, other than by the Council, is incompatible with the regime of free and equal access which prevails in the absence of derogating measures provided for under a new common fisheries policy.In consequence, the United Kingdom Government had no legislative competence to enact or to bring into force access measures for the period from 1 January 1983 until 25 January 1983, since between those dates a regime of free and equal access applied, in pursuance of Regulation No 101/76 and Article 7 of the EEC Treaty.In the alternative, Mr Kirk submits that, even if the United Kingdom did have the power to legislate on and implement access measures as trustee of the Community interest, or even if the Sea Fish Order 1982 can be regarded as a conservation measure, the United Kingdom failed to act in accordance with that Community interest inasmuch as it adopted a measure which was discriminatory and excessively severe and therefore in breach of the principle of proportionality.