Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . FISHERIES - CONSERVATION OF THE RESOURCES OF THE SEA - EXCLUSIVE POWER OF THE COMMUNITY - FAILURE TO EXERCISE IT - IMPLEMENTATION OF NATIONAL CONSERVATION MEASURES - CONDITIONS - DUTY TO CONSULT THE COMMISSION AND TO ADHERE TO ITS VIEWPOINT
( ACT OF ACCESSION , ART . 102 )
2 . COMMUNITY LAW - CONFLICTING NATIONAL LEGISLATIVE MEASURE - CRIMINAL CONVICTION - INCOMPATIBILITY WITH COMMUNITY LAW - NATIONAL RULES IN CONFORMITY WITH COMMUNITY OBLIGATIONS - PERMISSIBLE PENALTY
3 . MEASURES ADOPTED BY THE INSTITUTIONS - APPLICATION RATIONE TEMPORIS - RETROACTIVITY OF A RULE OF SUBSTANTIVE LAW - CONDITIONS
4 . FISHERIES - CONSERVATION OF RESOURCES OF THE SEA - TECHNICAL CONSERVATION MEASURES - REGULATION NO 2527/80 AND SUBSEQUENT REGULATIONS EXTENDING ITS VALIDITY - RETROACTIVITY - ABSENCE THEREOF
( COUNCIL REGULATION ( EEC ) NO 2527/80 )

1 . THE POWER TO ADOPT , AS PART OF THE COMMON FISHERIES POLICY , MEASURES RELATING TO THE CONSERVATION OF THE RESOURCES OF THE SEA HAS BELONGED FULLY AND DEFINITIVELY TO THE COMMUNITIES SINCE THE EXPIRATION ON 1 JANUARY 1979 OF THE TRANSITIONAL PERIOD LAID DOWN BY ARTICLE 102 OF THE ACT OF ACCESSION SO THAT AFTER THAT DATE THE MEMBER STATES ARE NO LONGER ENTITLED TO EXERCISE ANY POWER OF THEIR OWN IN THIS MATTER AND MAY HENCEFORTH ONLY ACT AS TRUSTEES OF THE COMMON INTEREST , IN THE ABSENCE OF APPROPRIATE ACTION ON THE PART OF THE COUNCIL . IN A SITUATION CHARACTERIZED BY THE INACTION OF THE COUNCIL AND BY THE MAINTENANCE , IN PRINCIPLE , OF THE CONSERVATION MEASURES IN FORCE THE MEMBER STATES HAVE AN OBLIGATION TO UNDERTAKE DETAILED CONSULTATIONS WITH THE COMMISSION AND TO SEEK ITS APPROVAL IN GOOD TIME AND ALSO A DUTY NOT TO LAY DOWN NATIONAL CONSERVATION MEASURES IN SPITE OF OBJECTIONS , RESERVATIONS OR CONDITIONS WHICH MAY BE FORMULATED BY THE COMMISSION .

2 . WHERE CRIMINAL PROCEEDINGS ARE BROUGHT BY VIRTUE OF A NATIONAL MEASURE WHICH IS HELD TO BE CONTRARY TO COMMUNITY LAW , A CONVICTION IN THOSE PROCEEDINGS IS LIKEWISE INCOMPATIBLE WITH COMMUNITY LAW . ON THE CONTRARY , IT IS FOR THE MEMBER STATES TO ENFORCE COMPLIANCE IN THE ZONE COMING WITHIN ITS JURISDICTION WITH THOSE MEASURES ADOPTED BY IT IN CONFORMITY WITH ITS COMMUNITY OBLIGATIONS .

3 . SUBSTANTIVE RULES OF COMMUNITY LAW MUST BE INTERPRETED , IN ORDER TO ENSURE RESPECT FOR THE PRINCIPLES OF LEGAL CERTAINTY AND THE PROTECTION OF LEGITIMATE EXPECTATION , AS APPLYING TO SITUATIONS EXISTING BEFORE THEIR ENTRY INTO FORCE ONLY IN SO FAR AS IT CLEARLY FOLLOWS FROM THEIR TERMS , OBJECTIVES OR GENERAL SCHEME THAT SUCH AN EFFECT MUST BE GIVEN TO THEM .

4 . NEITHER COUNCIL REGULATION ( EEC ) NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES NOR ANY SUBSEQUENT REGULATIONS EXTENDING ITS VALIDITY HAVE RETROACTIVE EFFECT .

IN CASE 21/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY , BY THE RECHTBANK VAN EERSTE AANLEG ( COURT OF FIRST INSTANCE ), BRUGES , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
OPENBAAR MINISTERIE ( PUBLIC PROSECUTOR ),
AND
1 . DANIEL BOUT ,
2 . BVI BOUT EN ZONEN , KORTGENE , NETHERLANDS ,

ON THE INTERPRETATION OF COUNCIL REGULATION ( EEC ) NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES ( OFFICIAL JOURNAL 1980 L 258 , P . 1 ) AND AS TO THE COMPATIBILITY WITH COMMUNITY LAW OF MEASURES ADOPTED BY THE BELGIAN ROYAL DECREE OF 23 APRIL 1979 LAYING DOWN MEASURES FOR THE PROTECTION OF RESOURCES IN FISH , CRUSTACEANS AND MOLLUSCS IN THE BELGIAN FISHING ZONE , AS AMENDED BY THE ROYAL DECREE OF 20 DECEMBER 1979 LAYING DOWN SIMILAR TEMPORARY MEASURES IN RESPECT OF THE NORTH SEA ,

1 BY JUDGMENT OF 19 JANUARY 1981 , RECEIVED AT THE COURT ON 5 FEBRUARY 1981 , THE RECHTBANK VAN EERSTE AANLEG ( COURT OF FIRST INSTANCE ), BRUGES , REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING TWO QUESTIONS RELATING TO THE INTERPRETATION , IN THE LIGHT OF THE BELGIAN MEASURES RELATING TO FISHERIES , OF ARTICLE 102 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES OF 22 JANUARY 1972 AND OF COUNCIL REGULATION ( EEC ) NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES ( OFFICIAL JOURNAL 1980 L 258 , P . 1 ).

2 THOSE QUESTIONS WERE RAISED IN THE COURSE OF CRIMINAL PROCEEDINGS BROUGHT AGAINST DANIEL BOUT , THE CAPTAIN OF THE NETHERLANDS FISHING VESSEL CHRISTINA , FOR OFFENCES AGAINST , INTER ALIA , THE BELGIAN KONINKLIJKE BESLUIT ( ROYAL DECREE ) OF 23 APRIL 1979 ADOPTING MEASURES FOR THE PROTECTION OF RESOURCES OF FISH , CRUSTACEANS AND MOLLUSCS IN THE BELGIAN FISHING ZONE ( BELGISCH STAATSBLAD ( BELGIAN GAZETTE ) OF 15 MAY 1979 AT P . 5791 ), AS AMENDED BY THE ROYAL DECREE OF 20 DECEMBER 1979 ADOPTING SIMILAR TEMPORARY MEASURES IN RESPECT OF THE NORTH SEA ( BELGISCH STAATSBLAD ( BELGIAN GAZETTE ) OF 29 FEBRUARY 1980 AT P . 2566 ). THE FORMER DECREE PROHIBITED , INTER ALIA , FISHING FOR SOLE AND PLAICE IN BELGIAN COASTAL WATERS WITH A VESSEL HAVING A GROSS REGISTERED TONNAGE ( GRT ) OF MORE THAN 50 REGISTERED TONNES , AS WELL AS THE USE OF DOUBLE-TWINE NETS WITH AN AVERAGE MESH-SIZE SMALLER THAN 75 MM . THE LATTER DECREE , OF 20 DECEMBER 1979 , RAISED THE MINIMUM MESH-SIZE FROM 75 TO 80 MM .

3 ON 7 MAY 1980 THE FISHING VESSEL CHRISTINA , HAVING A TONNAGE OF 67 GRT , FISHED FOR SOLE AND PLAICE IN BELGIAN COASTAL WATERS USING A DOUBLE-TWINE NET HAVING A MESH-SIZE OF MORE THAN 75 MM BUT LESS THAN 80 MM .

4 IN THE COURSE OF THE CRIMINAL PROCEEDINGS , THE ACCUSED CLAIMED THAT THE AFOREMENTIONED COUNCIL REGULATION ( EEC ) NO 2527/80 OF 30 SEPTEMBER 1980 , WHICH ENTERED INTO FORCE ON 1 OCTOBER 1980 , CONTAINED PROVISIONS MORE FAVOURABLE TO HIM INASMUCH AS IT RAISED THE TONNAGE LIMIT TO 70 GRT AND FIXED THE MINIMUM MESH-SIZE FOR DOUBLE-TWINE NETS AT 75 MM . CONSIDERING THAT A RULING OF THE COURT OF JUSTICE WAS NECESSARY NOT MERELY FOR THE PURPOSE OF ADJUDICATING UPON THAT SUBMISSION BUT ALSO AND ABOVE ALL OF JUDGING WHETHER THE BELGIAN MEASURES MENTIONED ABOVE WERE COMPATIBLE WITH COMMUNITY LAW , THE RECHTBANK VAN EERSTE AANLEG REQUESTED THE COURT TO GIVE A PRELIMINARY RULING ON THE FOLLOWING QUESTIONS :
' ' 1 . DID THE MEMBER STATES AT THE TIME OF THE OCCURRENCES SUBMITTED FOR JUDGMENT TO THIS COURT REMAIN COMPETENT TO ENACT PROVISIONS FOR THE LIMITATION OF FISHING SUCH AS THOSE EMBODIED IN THE ROYAL DECREE OF 23 APRIL 1979 LAYING DOWN MEASURES FOR THE PROTECTION OF RESOURCES IN FISH , CRUSTACEANS AND MULLOSCS IN THE BELGIAN FISHING ZONE ( BELGISCH STAATSBLAD ( BELGIAN GAZETTE ) OF 15 MAY 1979 ) AND WERE THEY ENTITLED TO ENFORCE COMPLIANCE WITH SUCH PROVISIONS WITHIN THE ZONE COMING WITHIN THEIR JURISDICTION HAVING REGARD TO ARTICLES 30 , 34 , 38 TO 47 OF THE EEC TREATY OF 25 MARCH 1957 , ARTICLE 102 OF THE ACT OF ACCESSION AND OF REGULATIONS ( EEC ) NOS 100/76 AND 101/76 ON THE COMMON ORGANIZATION OF THE MARKET IN FISHERY PRODUCTS AND LAYING DOWN A COMMON STRUCTURAL POLICY FOR THE FISHING INDUSTRY RESPECTIVELY ( OFFICIAL JOURNAL 1976 , L 20)?

2.MAY RETROACTIVE EFFECT BE CONFERRED UPON COUNCIL REGULATION ( EEC ) NO 2527/80 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES OR ANY SUBSEQUENT REGULATIONS GOVERNING THE SAME MATTERS?
' '
THE FIRST QUESTION
5 THE FIRST QUESTION INQUIRES WHETHER THE MEMBER STATES STILL RETAINED POWER AFTER 31 DECEMBER 1978 TO ADOPT CONSERVATION MEASURES OF THE KIND CONTAINED IN THE BELGIAN ROYAL DECREES IN QUESTION .

6 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 5 MAY 1981 IN CASE 804/79 COMMISSION V UNITED KINGDOM ( 1981 ) ECR 1045 , THE POWER TO ADOPT , AS PART OF THE COMMON FISHERIES POLICY , MEASURES RELATING TO THE CONSERVATION OF THE RESOURCES OF THE SEA HAS BELONGED FULLY AND DEFINITIVELY TO THE COMMUNITIES SINCE THE EXPIRATION ON 1 JANUARY 1979 OF THE TRANSITIONAL PERIOD LAID DOWN BY ARTICLE 102 OF THE ACT OF ACCESSION SO THAT AFTER THAT DATE THE MEMBER STATES ARE NO LONGER ENTITLED TO EXERCISE ANY POWER OF THEIR OWN IN THIS MATTER AND MAY HENCEFORTH ONLY ACT AS TRUSTEES OF THE COMMON INTEREST , IN THE ABSENCE OF APPROPRIATE ACTION ON THE PART OF THE COUNCIL .

7 THE COURT CONSEQUENTLY HELD THAT , IN A SITUATION CHARACTERIZED BY THE INACTION OF THE COUNCIL AND BY THE MAINTENANCE , IN PRINCIPLE , OF THE CONSERVATION MEASURES IN FORCE THE MEMBER STATES HAVE AN OBLIGATION TO UNDERTAKE DETAILED CONSULTATIONS WITH THE COMMISSION AND TO SEEK ITS APPROVAL IN GOOD FAITH AND ALSO A DUTY NOT TO LAY DOWN NATIONAL CONSERVATION MEASURES IN SPITE OF OBJECTIONS , RESERVATIONS OR CONDITIONS WHICH MAY BE FORMULATED BY THE COMMISSION .

8 AS REGARDS THE BELGIAN ROYAL DECREE OF 23 APRIL 1979 , IT IS APPARENT FROM THE COMMUNICATION FROM THE COMMISSION , PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 4 JUNE 1980 , ( C 133 , P . 2 ), THAT THE COMMISSION WAS CONSULTED CONCERNING THAT DECREE ON 12 JANUARY AND 6 APRIL 1979 AND THAT IT WAS APPROVED BY THE COMMISSION ON 12 JULY 1979 . IT FOLLOWS THEREFORE THAT THE DECREE WAS ADOPTED IN CONFORMITY WITH THOSE OBLIGATIONS OF THE MEMBER STATES AS DESCRIBED ABOVE .

9 HOWEVER , IT IS CLEAR FROM THE INFORMATION GIVEN BY THE COMMISSION THAT THE ROYAL DECREE OF 20 DECEMBER 1979 WAS NOT THE SUBJECT OF CONSULTATION . A NATIONAL MEASURE ADOPTED UNDER THOSE CONDITIONS DOES NOT COMPLY WITH THE ABOVE-MENTIONED OBLIGATIONS .

10 THE NATIONAL COURT ALSO ASKS WHETHER THE MEMBER STATES ARE ENTITLED TO ENFORCE COMPLIANCE WITH SUCH NATIONAL PROVISIONS IN THE ZONE COMING WITHIN THEIR JURISDICTION .

11 IN THAT RESPECT THE COURT HAS ALREADY HELD , MOST RECENTLY IN ITS JUDGMENT OF 16 DECEMBER 1981 IN CASE 269/80 ROBERT TYMEN ( 1981 ) ECR ( NON-PUBLISHED ), THAT WHERE CRIMINAL PROCEEDINGS ARE BROUGHT BY VIRTUE OF A NATIONAL MEASURE WHICH IS HELD TO BE CONTRARY TO COMMUNITY LAW , A CONVICTION IN THOSE PROCEEDINGS IS LIKEWISE INCOMPATIBLE WITH COMMUNITY LAW . ON THE CONTRARY , IT IS FOR THE MEMBER STATE TO ENFORCE COMPLIANCE IN THE ZONE COMING WITHIN ITS JURISDICTION WITH THOSE MEASURES ADOPTED BY IT IN CONFORMITY WITH ITS COMMUNITY OBLIGATIONS .

12 THE REPLY TO THE FIRST QUESTION MUST ACCORDINGLY BE THAT , AFTER THE EXPIRY OF THE PERIOD REFERRED TO IN ARTICLE 102 OF THE ACT OF ACCESSION , A MEMBER STATE DOES NOT HAVE POWER TO ADOPT AND BRING INTO FORCE , WITHOUT APPROPRIATE PRIOR CONSULTATION WITH THE COMMISSION AND IN SPITE OF OBJECTIONS , RESERVATIONS OR CONDITIONS FORMULATED BY THE COMMISSION , FISHERY CONSERVATION MEASURES OF THE KIND CONTAINED IN THE BELGIAN ROYAL DECREES OF 23 APRIL AND 20 DECEMBER 1979 ADOPTING MEASURES FOR THE PROTECTION OF RESOURCES IN FISH , CRUSTACEANS AND MOLLUSCS , AND THAT THE MEMBER STATE IS NOT ENTITLED TO ENFORCE COMPLIANCE WITH SUCH MEASURES IN THE ZONE COMING WITHIN ITS JURISDICTION , IF THE MEASURES HAVE NOT BEEN ADOPTED IN CONFORMITY WITH THE ABOVE-MENTIONED OBLIGATIONS .

THE SECOND QUESTION
13 THE SECOND QUESTION RAISES THE ISSUE WHETHER REGULATION ( EEC ) NO 2527/80 MENTIONED ABOVE MUST BE INTERPRETED AS HAVING RETROACTIVE EFFECT . IN THAT RESPECT IT SHOULD BE NOTED THAT , ACCORDING TO WELL-ESTABLISHED CASE-LAW OF THE COURT , CONFIRMED MOST RECENTLY IN THE COURT ' S JUDGMENT OF 12 NOVEMBER 1981 IN JOINED CASES 212 AND 217/80 SALUMI AND OTHERS ( 1981 ) ECR ( NON-PUBLISHED ), SUBSTANTIVE RULES OF COMMUNITY LAW MUST BE INTERPRETED , IN ORDER TO ENSURE RESPECT FOR THE PRINCIPLES OF LEGAL CERTAINTY AND THE PROTECTION OF LEGITIMATE EXPECTATION , AS APPLYING TO SITUATIONS EXISTING BEFORE THEIR ENTRY INTO FORCE ONLY IN SO FAR AS IT CLEARLY FOLLOWS FROM THEIR TERMS , OBJECTIVES OR GENERAL SCHEME THAT SUCH AN EFFECT MUST BE GIVEN TO THEM .

14 BY VIRTUE OF ARTICLE 22 OF REGULATION ( EEC ) NO 2527/80 , THAT REGULATION ENTERED INTO FORCE ON 1 OCTOBER 1980 . THERE IS NOTHING IN THE REGULATION , OR IN SUBSEQUENT REGULATIONS EXTENDING ITS VALIDITY , TO JUSTIFY THE CONCLUSION THAT IT IS INTENDED TO APPLY TO SITUATIONS EXISTING PRIOR TO THAT DATE .

15 THE REPLY TO THE SECOND QUESTION MUST ACCORDINGLY BE THAT NEITHER COUNCIL REGULATION ( EEC ) NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES NOR ANY SUBSEQUENT REGULATIONS EXTENDING ITS VALIDITY HAVE RETROACTIVE EFFECT .

COSTS
16 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE RECHTBANK VAN EERSTE AANLEG , BRUGES , BY JUDGMENT OF 19 JANUARY 1981 , HEREBY RULES :
1 . AFTER THE EXPIRY OF THE PERIOD PROVIDED FOR IN ARTICLE 102 OF THE ACT OF ACCESSION , A MEMBER STATE DOES NOT HAVE POWER TO ADOPT , WITHOUT APPROPRIATE PRIOR CONSULTATION WITH THE COMMISSION AND IN SPITE OF OBJECTIONS , RESERVATIONS OR CONDITIONS FORMULATED BY THE COMMISSION , FISHERY CONSERVATION MEASURES SUCH AS THOSE CONTAINED IN THE BELGIAN ROYAL DECREES OF 23 APRIL AND 20 DECEMBER 1979 LAYING DOWN MEASURES FOR THE PROTECTION OF RESOURCES IN FISH , CRUSTACEANS AND MULLUSCS ; NOR DOES A MEMBER STATE HAVE THE RIGHT TO ENFORCE COMPLIANCE WITH SUCH MEASURES IN THE ZONE COMING WITHIN ITS JURISDICTION IF THE MEASURES HAVE NOT BEEN ADOPTED IN CONFORMITY WITH THE ABOVE-MENTIONED OBLIGATIONS .

2.NEITHER COUNCIL REGULATION ( EEC ) NO 2527/80 OF 30 SEPTEMBER 1980 LAYING DOWN TECHNICAL MEASURES FOR THE CONSERVATION OF FISHERY RESOURCES NOR ANY SUBSEQUENT REGULATIONS EXTENDING ITS VALIDITY HAVE RETROACTIVE EFFECT .