Judgment_paragraph 1. · Regina v Kent Kirk (63/83)

1.The Commission maintains that the fundamental rule governing access to fishing within the maritime waters of a Member State for vessels registered in another Member State is that laid down in Article 2 (1) of Regulation No 101/76. The Commission takes the view that the provisions of Regulation No 101/76 are “supplemented” but not repealed by Regulation No 170/83, which, according to the first recital in its preamble, was adopted by the Council on 25 January 1983 in the light of the extension of fishing zones and the “overfishing of stocks of the main species”.According to the Commission, Article 6 of that regulation authorized with retroactive effect and for 10 years Member States to retain the arrangements defined in Article 100 of the 1972 Act of Accession and to generalize up to 12 nautical miles for all their waters the limit of six miles.The Commission considers that the derogations from the principle of equal conditions of access after 1 January 1983 are compatible with the Community law applicable provided that:(a) Article 6 of Regulation No 170/83 authorized those derogations retroactively;(b) Such a retroactive authorization is lawful; and(c) A measure such as the Sea Fish Order 1982 constitutes a proper exercise of the authorization.As regards (a), the Commission considers that Article 6 is to be interpreted as having retroactive effect to 1 January 1983. That conclusion is based on the clear and unambiguous wording of the article in question which provides that the authorization applies “as from 1 January 1983”. The date of 1 January 1983 is consistent with the use of the word “retain” in Article 6 (1) which demonstrates the continuity in the arrangements defined under Article 100 of the 1972 Act of Accession. The date is also consistent with Article 103 of the 1972 Act of Accession which provides for arrangements “following” or succeeding those provided for up to 31 December 1982, as is made clear in the eighth recital of the preamble to that regulation.The date is also consistent with the provisional TAC (total allowable catch) and quota arrangements for 1983 which are stated to apply as from 1 January 1983 (Regulation No 198/83, Article 2) and with the new system of “control measures” which was adopted on 29 June 1982 but which was to apply from a date not later than 1 January 1983 (Regulation No 2057/82, Article 16).In the Commission's view, any other solution would have interrupted, for a short period of three weeks and for no good reason, the continuity of the management of Community fishery resources, at least as regards the preexisting access derogations.The Commission then expresses the view that the retroactive effect of the regulation in question is justified and lawful in the circumstances.According to the case-law of the Court, Community measures may exceptionally have retroactive effect where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (judgments of 25.1.1979 in Case 98/78 Racke [1979] ECR 69 and Case 99/78 Decker [1979] ECR 101).As regards the objective pursued, the Commission considers that the abovementioned principle has been applied by the Court, in circumstances similar to those of this case, when it confirmed the validity of the retroactive effect for a period of three weeks of a Council regulation reestablishing a system introducing the European Currency Unit for the purposes of the common agricultural policy (judgment of 19.5.1982 in Case 84/81 Staple Dairy Products [1982] ECR 1763). Still more recently, the Court applied the principle in the isoglucose cases (judgments of 30.9.1982 in Case 108/81, Amylum, Case 110/81, Roquette, and Case 114/81, Tunnel Refineries, [1982] ECR 3107 et seq.). In those judgments, the Court confirmed the principles to be applied in examining the validity of retroactive Community measures and, in particular, clarified the first condition to be applied regarding the purpose or objective to be achieved. Clearly that objective must be pursued “in the general interest” or be an objective of “public interest”.In the Commission's view, the general interest is protected by Article 6 of Regulation No 170/83 which gives effect to the second paragraph of Article 1 of the same regulation which provides that the Community system for the conservation and management of fishery resources will consist, in particular, of “special provisions for coastal fishing”. Coastal fishing preferences have thus been recognized by Community law (see also Article 4 of Regulation No 2141/70 and Anieles 100 and 101 of the 1972 Act of Accession) and by international law (see Article 11 of the 1964 London Fisheries Convention). They therefore represent a legitimate objective of a common policy for the management of fishery resources which is in the general interest.The Commission considers, moreover, that, in the circumstances, that objective made it necessary for the measures adopted to ensure the orderly and uninterrupted conduct of fishing activities and at least indirectly the conservation of maritime resources to be given retroactive effect.As regards legitimate expectations, the Commission maintains that the situation at the time gave the fishermen concerned no cause to expect that the 12-mile coastal preference zones would be abolished at the end of 1982. On the contrary, those zones set up under Articles 100 and 101 of the 1972 Act of Accession had become a well-established feature of the system of conservation and management which operated during the period up to 1983. The Commission's proposals for their extension and generalization had been before the Council since March 1981. Those proposals were widely publicized and had appeared in the Official Journal. Moreover Community fishermen would have been aware on 6 January 1983 of the Commission Decision of 5 January 1983, which had been given wide coverage by radio stations and from which it coud be concluded that the Commission was maintaining its proposals concerning access. The fishermen therefore had every reason to expect that, if the Council succeeded in reaching agreement at its next meeting the measures it adopted would have retroactive effect to 1 January.The Commission's observations on the question whether the Sea Fish Order 1982 constitutes a proper exercise of the authorization granted under Article 6 of Regulation No 170/83 are set out below under B.l.The Commission maintains that at the material time the Community provision governing the question of access was Article 6 (1) of Regulation No 170/83, which, by virtue of its retroactive effect, had continued without interruption the system of derogation from the principle of free access established by the 1972 Act of Accession.In the alternative and should the Court not accept its argument, the Commission then considers the question in the absence of any Community rules.It maintains that after the end of 1978 the power to adopt measures for the conservation and management of fishery resources belonged fully and definitively to the Community, pursuant to Regulation No 101/76 and Article 102 of the Act of Accession. Member States are therefore no longer entitled to exercise any power of their own in those matters. However, so long as the Community failed to exercise that exclusive competence, it was still possible for Member States to take measures of limited scope provided that they complied with certain rules of substance and procedure. If circumstances required, Member States were even under an obligation to take such measures.As regards the substance, the measures must be nondiscriminatory and necessary for the purpose of conservation. The requirements as to procedure derive from the Member State's duty to “cooperate” and to facilitate the achievement of the Community's tasks.Member States are therefore acting merely as “trustees” of the common interest and are under an obligation to undertake detailed consultations with the Commission and to seek its approval for their measures in good faith.