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

5.Mr Kirk takes the view that the Sea Fish Order 1982, which is an access measure, discriminates on grounds of nationality and, in consequence, is incompatible with Article 2 (1) of Regulation No 101/76, the provision which applies in the fishing sector the general principles of equality laid down in Article 7 of the EEC Treaty.In particular, he maintains that the order is plainly discriminatory. It is a blatantly discriminatory measure aimed at treating nationals of some Member States, and in particular United Kingdom nationals, more favourably than Danish nationals.To exclude Danish fishermen from all United Kingdom waters from 1 January 1983 amounts to dissimilar treatment of comparable situations and places Danish fishermen at a severe competitive disadvantage.Nevertheless, differentiation can be justified and may be permissible when based on objective criteria, as the Court recognized in Case 11/74 Union des Minotiers de la Champagne ([1974] ECR 877).The justifications which the United Kingdom sought to rely on in support of its action do not however satisfy that requirement.It was submitted, in particular, before the national court that the differentiation was intended to protect coastal fishery, fishing communities and the local population dependent on fishing, objectives which are recognized in Articles 3 (d) and 39 of the EEC Treaty. Mr Kirk contests that submission and notes that the judgment of the Court in Case 287/81 (Noble Kerr, cited above) in which the contested measure was held to be valid on the ground that it was intended to protect the local population is of no binding authority in this instance for two reasons :— The Sea Fish Order 1982 is not a conservation or management measure; it is merely a measure relating to access;— It is discriminatory, like the measures in Cases 61/77 and 88/77 (cited above). Even if it had been necessary to take the measure concerned on environmental or social grounds, that fact may not be relied on to justify blanket discrimination against nationals of a Member State.Mr Kirk also disputes the argument advanced in the main proceedings, that since Denmark could not lay claim to historical fishing rights under the London Fishery Convention 1964, Danish vessels were precluded from fishing in the disputed area after 31 December 1982. That argument is not relevant and it in no way affects the principle of freedom and equality of access laid down by the EEC Treaty.Moreover it was submitted on behalf of the prosecution that the Sea Fish Order 1982 had been adopted at a time of great uncertainty. In that respect Mr Kirk notes that an order made by a Member State spurred on by a sense of unease or uncertainty cannot legalize an otherwise illegal act; nor can it constitute a justification for adopting measures contrary to Article 7 of the EEC Treaty.The United Kingdom Government is under an obligation to give priority to the interests of the Community by adopting a provisional measure, in accordance with the Commission's proposals and the principle of Article 7 of the EEC Treaty. The United Kingdom measure exceeded those proposals inasmuch as it discriminated against Danish vessels.Finally, Mr Kirk submits that, inasmuch as it was more far-reaching than was required to do what it set out to do, the Sea Fish Order 1982 constitutes a breach of the principle of proportionality, a principle which has been recognized in the consistent case-law of the Court.More specifically, Mr Kirk, draws attention to the following factors :— The extreme nature of the order and penalties which may be imposed under it;— The fact that such a drastic measure was not necessary at all;— The fact that it jeopardizes the objectives and functioning of the Community system.He maintains that the desired objective could have been attained by other methods.