In Joined Cases C-251/90 C-252/90,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Sheriff Court of Grampian, Highland and Islands at Elgin (Scotland) for a preliminary ruling in the proceedings pending before that court between
Procurator Fiscal, Elgin
and
Kenneth Gordon Wood,
and between
Procurator Fiscal, Elgin
and
James Cowie,
on the interpretation of Article 7 of the EEC Treaty and of Articles 2 and 3 of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19),
THE COURT (Sixth Chamber),
composed of: F.A. Schockweiler, President of the Chamber, G.F. Mancini, C.N. Kakouris, M. Diez de Velasco and J.L. Murray, Judges,
Advocate General: G. Tesauro,
Registrar: H.A. Ruehl, Principal Administrator,
after considering the written observations submitted on behalf of:
° the United Kingdom, by J.E. Collins, Treasury Solicitor, acting as Agent, assisted by Ronald D. Mackay QC, and Christopher Vajda, Barrister,
° the Commission of the European Communities, by Robert Fischer, Legal Adviser, and Christopher Docksey, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Kenneth Wood and James Cowie, represented by D.N. Yule, Solicitor, and on behalf of the United Kingdom and the Commission at the hearing on 29 November 1991,
after hearing the Opinion of the Advocate General at the sitting on 23 January 1992,
gives the following
Judgment
1 By two orders of 26 January 1990 and two orders of 12 November 1990, which were received at the Court of Justice on 20 August 1990 and 15 November 1990 respectively, the Sheriff Court of Grampian, Highland and Islands at Elgin (Scotland) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions concerning the interpretation of Article 7 of the EEC Treaty and of Articles 2 and 3 of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (OJ 1976 L 20, p. 19).
2 The questions arose in the course of criminal proceedings brought by the Procurator Fiscal at Elgin against Kenneth Gordon Wood, the master of the British fishing vessel "Scarlet Thread II" (Case C-251/90), and James Cowie, the master of the British fishing vessel "Crystal River" (Case C-252/90), both of whom are British nationals resident in Buckie, Banffshire.
3 They are being prosecuted for having, between 7 and 9 April 1989 in Mr Wood' s case and on 31 March 1989 in Mr Cowie' s case, crossed in their vessels the line of longitude 4 west which separates ICES Areas IV (North Sea) and VI (Rockall and West of Scotland) without first reporting that movement to the Department of Agriculture and Fisheries for Scotland, thus breaching a condition of their licences.
4 It appears from documents before the Court that since March 1989 that condition has been inserted in licences granted to operators of British vessels fishing for certain species subject to catch restrictions (fishing quotas) in accordance with the Community rules in force. The condition enables the United Kingdom authorities to monitor the quota system more effectively by preventing fish caught in one of those two areas from being declared against the British quota for the other area. Failure to comply with the condition constitutes an offence punishable by a fine.
5 At their trials the accused contended, first, that the licence condition was discriminatory and therefore contrary to Article 7 of the EEC Treaty and to Article 2 of Regulation No 101/76, cited above, since it applied only to vessels registered in the United Kingdom and not to vessels of other Member States fishing for the same species in the same areas, and, secondly, that the condition was also contrary to Article 3 of Regulation No 101/76 because its adoption had not been notified to the other Member States and to the Commission, although it constituted an alteration to the fishery rules applied until then.
6 It was in those circumstances that on 26 January 1990 the Sheriff Court of Grampian, Highland and Islands at Elgin referred the following questions to the Court, which were identical in each case:
"1. Where, in respect of fish the catching of which is subject to the Community system of total allowable catches, a Member State prohibits its registered fishing vessels from fishing unless in possession of a licence, do either
(a) Article 7 of the EEC Treaty
or
(b) Article 2 of Council Regulation No 101/76 of 19 January 1976 (OJ 1976 L 20, p. 19)
prevent the competent authorities of that Member State in the circumstances described from including among the conditions upon which such licences are granted a condition requiring the master of the vessel to report by radio to the authorities his intention to cross from one ICES Area to another ICES Area?
2. Where a Member State intends to introduce a licence condition such as that described in the preceding question is that Member State required by Article 3 of Council Regulation No 101/76 to notify other Member States and the Commission of that intention?"
7 The accused subsequently learned, and brought to the attention of the national court, that the United Kingdom had, by letter of 21 December 1989, notified the condition in question to the Commission of the European Communities and that the latter, in its reply, had not raised any objection to its application by the United Kingdom since March 1989. On 12 November 1990 the national court therefore referred a supplementary question to the Court, which was identical in each case. It was worded as follows:
"If notification of the introduction of the licence condition in question is required to be given to the Commission, or to the Commission and the Member States, does failure to give such notification result in the condition being invalid and, if so, can such invalidity be made good retrospectively by the Member State' s giving subsequent, late notification?"
8 By an order of 20 September 1990 the Court decided to join the two cases for the purposes of the written and oral procedure and the judgment.
9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
The first question
10 By this question the national court is essentially seeking to ascertain whether Article 7 of the EEC Treaty or Article 2 of Council Regulation No 101/76, cited above, is to be interpreted as precluding a Member State, which makes access to its fishing quotas subject to the grant of a licence, from including in such a licence a provision requiring the master of a vessel flying the flag of that State to report by radio his intention to cross from one ICES area to another, even though that condition does not apply to vessels flying the flag of other Member States fishing for the same species in the same areas.
11 In order to reply to that question it must be examined in the context of the provisions of the Community rules concerning fishing.
12 Regulation No 101/76 introduced a system designed to coordinate the structural policies of the Member States concerning the fishing industry. Article 2(1) of that regulation establishes the principle that all the fishing vessels flying the flag of one of the Member States and registered in Community territory should enjoy equal conditions of access to and use of the fishing grounds situated in the waters coming under the sovereignty or within the jurisdiction of any other Member State.
13 However, a derogation from that principle was made by Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources (OJ 1983 L 24, p. 1), which entailed inter alia a system of national fishing quotas (see Articles 3 and 4 of Regulation No 170/83 and the judgments in Case C-3/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Agegate [1989] ECR 4459, at paragraph 16, and Case C-216/87 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Jaderow [1989] ECR 4509, at paragraphs 17 and 24). Pursuant to that system, only the vessels flying the flag of a Member State are authorized to fish against the fishing quotas of that State.
14 Under Article 5(2) of Regulation No 170/83, the Member States are empowered to determine, in accordance with the applicable Community provisions, the detailed rules for the utilization of the quotas allocated to them.
15 In the exercise of the powers thus ascribed to them the Member States may make access to their fishing quotas by their vessels subject to a licensing system, as is indicated in Article 11a of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (OJ 1987 L 207, p. 1), inserted into that regulation by Article 1(2) of Council Regulation (EEC) No 3483/88 of 7 November 1988 (OJ 1988 L 306, p. 2) (see also the judgment in Case C-9/89 Spain v Council [1990] ECR I-1383, paragraph 16). They may attach certain conditions to those licences until such time as those conditions are governed exclusively by Community law and provided that they are suitable and necessary for attaining the aim of the quotas (see the judgment in Case C-216/87 Jaderow, cited above, at paragraphs 19 and 25).
16 As regards more particularly the question whether such conditions may relate to the monitoring of the fishing of stocks subject to quotas, regard must be had to Regulation No 2241/87, cited above, which defines the control measures for fishing activities and the corresponding obligations of the Member States. According to the first paragraph of Article 15, the regulation is to apply "without prejudice to any national control measures which go beyond any of its minimum requirements, provided that they comply with Community law and are in conformity with the common fisheries policy". That provision covers any additional control measures which a Member State might decide to adopt for the purpose of conserving its quotas.
17 Those measures, which form part of the more general category of measures which a Member State is authorized to adopt pursuant to Article 5(2) of Regulation No 170/83, concern only vessels flying the flag of that State. Article 15 of Regulation No 2241/87, which refers specifically to national control measures, does not require the Member States to extend the application of those measures to the vessels of the other Member States.
18 In view of the foregoing, it must be held that the Community rules concerning the conservation of fishery resources do not preclude a condition such as that referred to by the national court since it is intended to ensure that fishing activities subject to quotas can be monitored and to facilitate the prevention of fraud in this area without being disproportionate to the objective pursued. Such a condition cannot therefore be regarded as contrary to Article 2(1) of Council Regulation No 101/76 because it applies solely to vessels flying the flag of the Member State imposing the condition.
19 As regards Article 7 of the Treaty, which prohibits any discrimination on grounds of nationality, it must be observed that the condition in question affects only fishing vessels flying the flag of the Member State which imposed the condition and not vessels flying the flag of other Member States and fishing for the same species in the same ICES areas. Since the catches of those vessels are counted against the quotas of the Member State whose flag they fly, they are subject to the control measures adopted by that State. According to the case-law of the Court, Article 7 of the Treaty does not apply to any disparities in treatment or distortions which may result for persons and undertakings subject to the jurisdiction of the Community from the application by a Member State of measures that are stricter than those applied in the same sphere by other Member States (see in this connection the judgment in Joined Cases 185/78 to 204/78 van Dam [1979] ECR 2345, at paragraph 10).
20 The answer to the first question must therefore be that Article 7 of the EEC Treaty and Article 2(1) of Council Regulation (EEC) No 101/76 is to be interpreted as meaning that a Member State which makes access to its fishing quotas subject to the grant of a licence is not precluded from including in such a licence a provision requiring the master of a vessel flying the flag of that State to report by radio his intention to cross from one ICES area to another, even though that condition does not apply to vessels flying the flag of other Member States fishing for the same species in the same areas.
The second question
21 This question refers to Article 3 of Council Regulation No 101/76, which imposes a general requirement that Member States should notify other Member States and the Commission of any alterations which they intend to make to their fishery rules.
22 However, as far as the particular case of national control measures going beyond the minimum requirements laid down by Regulation No 2241/87 is concerned, it should be noted that under the second paragraph of Article 15 of that regulation those measures are to "be communicated to the Commission in accordance with Article 2(2) of Council Regulation (EEC) No 101/76 ...".
23 Article 2(2) of Regulation No 101/76 provides that the Member States are to notify other Member States and the Commission of the "existing" provisions concerning fishing in the maritime waters coming under their sovereignty or within their jurisdiction and not provisions which they "intend" to adopt, as the same regulation requires in the case of the provisions referred to in Article 3.
24 It must therefore be held that the national measures must be notified to the Commission, but not necessarily prior to their adoption.
25 The answer to the second question must therefore be that under Article 15 of Council Regulation (EEC) No 2241/87 Member States are required to notify to the Commission a condition such as that described above which they put in licences which they grant to vessels flying their flag authorizing such vessels to fish against their quotas.
The supplementary question
26 There are two parts to this question. The first seeks to determine whether failure to notify a national control measure, such as the condition described above, affects its validity even though it may in substance be compatible with Community law. The second part of the national court' s question is designed to ascertain whether subsequent notification to the Commission can cure the invalidity of the measure in question should the first part of the question be answered in the affirmative.
27 As far as the first part of the question is concerned, it should be noted that the second paragraph of Article 15 of Regulation No 2241/87 makes no mention of the consequences of a failure to notify a national control measure.
28 However, in view of the fact that the adoption of such a national measure is not made conditional on its prior notification to the Commission, the notification requirement in question must be regarded as having been laid down for the purposes of information only. Consequently, the absence of such notification does not affect the validity of a measure which satisfies the criteria mentioned in the first paragraph of Article 15.
29 That interpretation is supported by the fact that Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (OJ 1986 L 288, p. 1) introduced a more detailed notification procedure for national technical measures and Article 14(2) of that regulation allows the Commission to delay or prevent the entry into force of measures notified to it.
30 The answer to the first part of the supplementary question must therefore be that failure to notify a national control measure such as the condition described above does not affect its validity under Community law.
31 In view of the reply to the first part of the question, there is no need to reply to the second part.
Costs
32 The costs incurred by the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the the Sheriff Court of Grampian, Highland and Islands at Elgin (Scotland), by orders of 26 January 1990 and 12 November 1990, hereby rules:
1. Article 7 of the EEC Treaty and Article 2(1) of Council Regulation (EEC) No 101/76 is to be interpreted as meaning that a Member State which makes access to its fishing quotas subject to the grant of a licence is not precluded from including in such a licence a provision requiring the master of a vessel flying the flag of that State to report by radio his intention to cross from one ICES area to another, even though that condition does not apply to vessels flying the flag of other Member States fishing for the same species in the same areas.
2. Under Article 15 of Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities, Member States are required to notify to the Commission a condition such as that described above which they put in licences which they grant to vessels flying their flag authorizing such vessels to fish against their quotas.
3. Failure to notify a national control measure such as the condition described above does not affect its validity under Community law.
