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The Common Market fisheries policy and the law of the sea*

Published online by Cambridge University Press:  07 July 2009

Yves Van der Mensbrugghe
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Extract

Under Article 2 of the Treaty of Rome the European Economic Community “shall have as its task … to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the member States belonging to it.” These purposes are to be achieved by establishing a Common Market and by progressively approximating the economic policies of the Member States.

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Articles
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Netherlands Yearbook of International Law , Volume 6 , December 1975 , pp. 199 - 228
Copyright
Copyright © T.M.C. Asser Press 1975

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References

1. Official Journal of the European Communities (hereafter to be cited: O.J.) 862/67 [1967, p. 862]Google Scholar, The report will hereafter be cited: Report 1966. See further: Opinion of the Economic and Social Committee, O.J. 893/67; Report on behalf of the Commission for Agriculture concerning the proposals of the Commission of the European Communities to the Council (doc. 78/68) (Kriedemann Report), European Parliament Document (E.P. Doc.) 1968–1969 No. 133 (of 30 September 1968); Resolution of the European Parliament of 25 January 1968, O.J. 1968 No. C 10/57 [In the middle of 1967 the method of pagination of the O.J. was changed: the number of the specific issue of the Journal is followed by a stroke and the page-number of the issue in question. In addition, since 1968 the material published in the O.J. has been divided into two main parts: Legislation (L) and Communication (C). Either letter may precede the issue-number and the page-number].

2. O.J. 1968 No. C 91 pp. 1 et seq., 5 et seq.; Opinion of the European Parliament, O.J. 1968 No. C 116/5; Opinion of the Economic and Social Committee, O.J. 1969 No. C 76/11.

3. O.J. 1970 No. L 236/1 and 5.

4. O.J. 1972 No. L 73/1 et seq..

5. See infra pp. 208 et seq., 213 et seq. Reference works dealing with this question as a whole: Brouit, M., “Le règlement du Conseil de la CEE de 1970 sur les pêcherics”, 9 Cahiers de droit européen (1973 pp. 20–37Google Scholar; Brown, E.D., “British Fisheries and the Common Market” 25 Current Legal Problems (1972) pp. 37–73CrossRefGoogle Scholar; Druer, O., “De Saint-Malo à Tromsoe, les droits des pêcheurs riverains dans la negociation”, 15 R.M.C. (1972) pp. 7–8Google Scholar; Fleischer, C.A., “L'accès aux lieux de pêche et le traité de Rome”, 14 R.M.C. (1971) pp. 148–156Google Scholar; Gueben, P. and Noellet, M. Keller, “Aspects juridiques de la politique de la CEE en matière de pêche”, 14 R.M.C. (1971) pp. 246–258Google Scholar; Lemaitre, Ph., “Une dernière difficulté pour les problèmes d'adhésion; les questions du droit de pêche”, 14 R.M.C. (1971) pp. 313–317Google Scholar: Meyers, H.. EEG op zee– vrije vestiging voor vissers [The EEC at sea-free movement for fishermen] (Deventer, Kluwer, 1973) 60 pp.Google Scholar; Olmi, G., “Agriculture and fisheries in the treaty of Brussels of January 22, 1972”, 9 C.M.L.Rev. (1972) pp. 293–321Google Scholar; Peyroux, E., “Problèmes juridiques de la pêche dans le marché commun”, 9 R.T.D.E. (1973) pp. 46–59Google Scholar; Puissochet, J.P., L'élargissement des Communautés européennes (Paris, Ed. Techniques, 1974), pp. 347–356Google Scholar; Quintin, O., “La politique commune de la pêche depuis l'adhésion”, 17 R.M.C. (1974) pp. 68–73Google Scholar; van der Mensbrugghe, Y., “La mer et les Communautés européennes”, 5 R.B.D.I. (1969) pp. 102–113Google Scholar; Vignes, D., “La réglementation de la pèche dans le marché commun au regard du droit communautaire et du droit international”, 16 A.F.D.I. (1970) pp. 829–840Google Scholar; id., “Les Communautés européennes et le droit de la mer”, 16 R.M.C. (1973) pp. 84–94.Google Scholar

For the economic aspects of the problem, see, in addition to the Report of the Commission: Coull, J.R., The fisheries of Europe an economic geography (London, Bell, 1972), 240 pp.Google Scholar; Derouin, D., “Reflexions sur quelques aspects et problèmes des pêches norvégiennes”, 15 R.M.C. (1972) pp. 81–88Google Scholar; Garron, R., Le marché commun de la pêche maritime (Paris, Libraries Techniques, 1971), 165 pp.Google Scholar; Simonnet, R., “L'intégration européenne des pêcheries communautaires; la politique commune des pêches”, 10 R.M.C. (1967) pp. 241–249.Google Scholar

6. Art. 7: “Within the scope of application of this treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The Council may, on a proposal from the Commission and after consulting the Assembly, adopt, by a qualified majority, rules designed to prohibit such discrimination.”

Art. 42: “The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council with in the framework of Art. 43(2) and (3) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Art. 39. The Council may, in particular, authorise the granting of aid: (a) for the protection of enterprises handicapped by structural or natural conditions: (b) within the framework of economic development programmes”.

Art. 43: “(1) In order to evolve the broad lines of a common agricultural policy, the Commission shall, immediately this Treaty enters into force, convene a conference of the Member States with a view to making a comparison of their agricultural policies, in particular by producing a statement of their resources and needs. (2) Having taken into account the work of the conference provided for in para. 1, after consulting the Economic and Social Committee and within two years of the entry into force of this Treaty the Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organizations by one of the forms of common organisation provided for in Art. 40(2), and for implementing the measures specified in this Title. These proposals shall take account of the interdependence of the agricultural matters mentioned in this Title. The Council shall, on a proposal from the Commission and after consulting the Assembly, acting unanimously during the first two stages and by a qualified majority thereafter, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.”

Art. 235: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures.”

7. See the comments of Gueben and Keller Noellet, op.cit. pp. 249–250, and Vignes, op.cit. in 16 A.F.D.I. (1970) at pp. 833–835, as well as Question [asked in the European Parliament, with the reply by the Commission] No. 342/71 (Vredeling), O.J. 1972 No. C 23/1.

8. See the thesis of Fleischer, op.cit. p. 150 et seq. and the comments of Brouir, op.cit. pp. 28–32, Gueben and Keller Noellet, op.cit. pp. 248–249, Vignes, , op.cit. in 16 A.F.D.I. (1970) at pp. 832–833 and 836–839, and op.cit. in 16 R.M.C. (1973) at pp. 86–87, as well as Meyers' paper on the freedom of establishment, op.cit. passim.Google Scholar

9. Art. 227(1): “This Treaty shall apply to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland”.

10. Art. 52: “Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be abolished by progressive stages in the course of the transitional period. Such progressive abolition shall also apply to restrictions on the setting up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Art. 58, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.”

11. In addition, it would be necessary to solve the flag difficulties … If establishment were to imply an obligation to fly the flag of the host State, then the right to fish in the waters of a fellow Member State would, paradoxically, be subject to the acquisition of its nationality, which seems to be hardly compatible with Art. 7 of the Treaty. Conversely, should the vessel continue to fly the flag of its own State, how could the latter exercise its jurisdiction over this vessel which would to a large extent be subject to the laws of a foreign State?

12. Arts. 59 et seq. relating to the freedom to provide services are no longer applicable, for they refer to services provided by a national of a Member State who is established in a State of the Community other than that of the person for whom the services are intended. Now fishing activities are very largely exercised on one's own account or for a national of the same Member State.

13. Question No. 213/69 (Vredeling), O.J. 1969 No. C 141/8 on the lawfulness of boarding Dutch vessels fishing five nautical miles off the French coast with fishing gear authorised in the Netherlands, but not in France, was recognised; Gueben and Keller Noellet, op.cit. p. 250.

14. Brown, op.cit. p. 54; Gueben and Keller Noellet, op.cit. pp. 252–253.

15. Opinion of the Economic and Social Committee, O.J. 895/67; Brown, loc, cit.

16. Council Regulation (EEC) No. 802/68 of 27.6.1968 on the common definition of the concept of the origins of goods (Art. 4(f) and (g)), O.J. (1968) No. L 148/165. Stricter conditions in terms of a ship's ownership and the nationality of its captain, officers, and crew, have been established for products originating in third countries whether associated or not. It was expedient, indeed, to obtain the assurance that the vessels in question really belonged to such States and participated in their economy, in short, that the genuine link was ascertained. Failing this, the benefit of tariff reductions would in fact have been granted to products obtained by third ships operating under the theoretical flag of another State. As an example, Commission Regulation (EEC) No. 3106/74 of 5.12.1974 on the definition of the concept of originating products for purposes of the application of tariff preferences granted by the EEC in respect of certain products from developing countries (O.J. 1974 No. L 336/1).specifies that the following shall be considered as “wholly obtained” in a beneficiary country and therefore as “originating products” (Article 2): “(f) products of sea fishing and other products taken from the sea by its vessels; (g) products made on board its factory ships exclusively from the products referred to in (f)” The annexed note explains: “The term 'its vessels” shall apply only to vessels:

- which are registered or recorded in that beneficiary country,

- which shall sail under the flag of that beneficiary country,

- which are at least 50 per cent owned by nationals of that beneficiary country of by a company with its headoffice in that country, of which the manager or managers, chairman of the board of directors or of the supervisory board, and the majority of the members of such boards are nationals of that country and of which, in addition, in the case of partnerships or limited companies, at least half the capital belongs to that country or to public bodies or nationals of that country,

- of which the captain and the officers are all nationals of the beneficiary country, and

- of which at least 75 per cent of the crew are nationals of the beneficiary country.”

A slightly different wording is used for products originating in the Faroe Islands (Commission Regulation (EEC) No. 3184/74 of 6.12. 1974, O.J. 1974 No. L 344/1. There is one exception to this stricter regime, viz. in the case of Mauritania, as originating products of which are considered: “fishing products obtained in Mauritanian waters by Canarian fishermen resident in Mauritanian territory, and which have been subject to preparation (freezing, cutting or filleting) exclusively in this country.” (O.J. 1971 No. L 289/9).

For the question of origin in general, see Touret, D. “Le tarif douanier commun de la CEE et les problèmes posés par son application”, 10 Cahiers de droit européen (1974), pp. 303–354 at pp. 330, 345–346Google Scholar and J.M. Visee, “L'union douanière élargie et les Etats tiers”, ibid., pp. 541–576 at p. 547.

17. Decisions of the Commission of 5 December 1960, O.J. 29/61; of 30 July 1964, O.J. 2293/64; of 4 December 1964, O.J. 3622/64; and of 10 September 1974, O.J. 1974 No. L 259/8. See also Van der Mensbrugghe, op.cit. pp. 104–105.

Certain provisions laid down by law, regulation or administrative action may include impediments to direct unloading in ports other than those of the flag State (Question No. 88/65 (Vredeling), O.J. 392/65, relating to the unloading of fishing vessels in French ports). These impediments are not only contrary to the Treaty by virtue of Article 33(7) which provides for abolition of any measures which have an effect equivalent to quotas; they are also incompatible with Art. 2 of Regulation No. 2141/70, and they will be best eliminated within the framework of the common organisation of markets; Art. 23(2) of Regulation No. 2142/70 reads: “Without prejudice to other Community provisions, the Member States shall take the necessary steps to ensure that all fishing vessels flying the flag of one of the Member States shall enjoy equal access to ports and first-stage marketing installations together with all associated equipment and technical installations.”

See Meyers, op.cit. pp. 25–26; Questions nos. 364/71 and 538/71 (Kriedeman), O.J. 1972 Nos. C 5/10, C 105/3 and C 30/5; and Question No. 78/73 (Vredeling), O.J. 1973 No. C 68/13. on the French import documents for fishing products.

18. In an intervention addressed to the Representative of the Commission during the sitting of the European Parliament of 24 October 1968 (Debates of the European Parliament No. 107, pp. 23–24) Mr. Triboulet had expressed a wish for common conditions to be adopted by the Member States for the acquisition of nationality of vessels, in particular with regard to the composition of the crew. He had suggested that the majority of the crew should be nationals of the Community. In his reply Mr. Mansholt had referred to Art. 28 of the Proposal for a Regulation on the organisation of markets, according to which: “Are established under Art. 43(2) of the Treaty, community provisions for the approximation of laws of Member States relating to conditions for the production and marketing of products referred to in Art. 1”. The Representative of the Commission had added that “conditions for the production” was to be taken as including the whole of the costs and social charges. This text does not appear in Regulation No. 2142/70 (see the Report and Additional Report on behalf of the Commission for Agriculture by Kriedemann, E.P. Doc. 1970–1971 Nos. 44 (of 14 May 1970) and 67 (of 16 June 1970), and the resolution of the European Parliament of 9 July 1970, O.J. 1970 No. C 101/32). In fact, Art. 43 of the Treaty was considered not to provide an adequate legal basis and it was thought better to use Art. 100 instead.

19. Brouir, op.cit. pp. 23–26, Gueben and Keller Noellet, op.cit. pp. 250–252; Meyers, op.cit. p. 19, n. 2; Vignes, op.cit. in 16 A.F.D.I. (1970) at pp. 831 and 838, and op.cit in 16 R.M.C. (1973) at pp. 91–92.

20. Such is the case of Denmark, R.G.D.I.P. vol. 71 (1967) p. 759 and vol. 73 (1969) p. 452; France, 71 R.G.D.I.P. (1967) pp. 766, 843–844, which since then has extended its territorial sea to 12 nautical miles, 76 R.G.D.I.P. (1972) pp. 192–195; the United Kingdom, R.G.D.I.P. vol. 69 (1965), pp. 166–167 and vol. 70(1966) pp. 247–249, and Ireland (Maritime Jurisdiction Act 1964, in Lay, S. Houston, Churchill, R., and Nordquist, M. (eds), New Directions in the Law of the Sea, vol. 2 (1973) p. 847.Google Scholar

21. Harmonization of the national legislation with regard to boundaries could be attempted on the basis of Art. 100, Vignes, op.cit. in 16 A.F.D.I. (1970), at p. 831.

22. See e.g. the Belgian Royal Decree of 10 May 1971 (Moniteur Belge 3 August 1971) authorising fishing in the territorial waters by fishing vessels flying the flag of one of the Member States and registered in Community territory, which derogates from the Royal Decree of 15 December 1965 authorising fishing in the Belgian territorial waters by fishing vessels flying the Dutch flag (Moniteur Belge 21 June 1966).

23. E.G. the agreements concluded on 20 March 1967 between France and Spain, 71 R.G.D.I.P. (1967) pp. 839–842, and on 9 August 1969 between France and Portugal (not reported). See Montconduit, F., “L'extension des zones de pêche réservées aux pêcheurs français”, 13 A.F.D.I. (1967), pp. 685–690, at p. 688Google Scholar; Voelckel, M., “Aperçus sur l'application de la convention européene des pêches”, 15 A.F.D.I. (1969) pp. 761–773 at pp. 765–766Google Scholar. See also the Belgrade Agreement of 16 April 1969 relating to Italian fishing activities in Yugoslavian waters, text in 56 Rivistadi diritto internzaionale (1973) pp. 129–138.Google Scholar

24. The London Convention's scope is therefore considerably reduced by the regime established by the (enlarged) Community. Not only are Member States not obliged to extend, under Art.8 of the Convention, to other parties fishing rights which they grant to each other, but in addition, the adoption of a Community regime for the conservation of species would take place under Art. 5 of Regulation 2141/70 and not on the basis of Art. 5 of the Convention, with the result that the other Parties would not have the right to be consulted and to give their opinion. Likewise, application of Art. 4 of the said Regulation would entail that Member States would no longer be able to invoke Art. 11 of the Convention. See Gueben and Keller Noellct, op.cit. p. 255; Vignes, op,cit. in 16 A.F.D.I. 1970 pp. 839–840.

25. See Questions by Pedini No. 62/66 (O.J. 2667/66) and No. 86/66 (OJ. 3621/66 on fishing off the coast of Mauretania, and Question No. 57/69 (Vredeling), O.J. 1969 No. C 81/11 on fishery relations between Italy and Tunesia. Such agreements are not unusual. On 27 March 1972 Canada signed one with the United Kingdom (Churchill, R.R., “National Practice-United Kingdom”, in New Directions in the Law of the Sea vol. 3 (1973) pp. 281–301 at p. 282Google Scholar), with France (76 R.G.D.I.P. (1972) pp. 963–967) and with Denmark (76 R.G.D.I.P. (1972) pp. 813–815). See also Queneudec, J.P., “Chronique du droit de la mer”, 19 A.F.D.I. (1973) pp. 807–819, at pp. 811–812Google Scholar. France concluded agreements with Mauretania on 14 March 1973 and with Morocco on 27 December 1972 (see Bardonnet, D. and Carroz, J., “Les Etats de l'Afrique de l'ouest et le droit international des pêches maritimes”, 19 A.F.D.I. (1973) pp. 837–874, at pp. 870–872Google Scholar, and Charpentier, J., “Pratique francaise du droit international”Google Scholar, ibid. pp. 1026–1078 at pp. 1038–1039. Other agreements include those between Iceland, on the one hand, Belgium (7 September 1972), Norway (10 July 1973), Denmark (19 September 1972) and the United Kingdom (13 November 1973) on the other hand, as well as the arrangement of 18 December 1973 for the limitation of catches off the coast of the Faroe Islands (see infra).

26. Meyers, op.cit. p. 58; Vignes, op.cit. in 16 R.M.C. (1973) p. 87. There is even reason to put the question to what extent “Communitarisation” of the fishing grounds results in a limitation on a Member States freedom to conclude an agreement with a third country concerning fishing activities on its own fishing grounds. See Opinion of the Economic and Social Committee, O.J. No. C 76/13; Garron, op.cit. p 75. Note in this context the agreement of 28 September 1964 granting Norwegian vessels the right to fish certain species in specified areas of the British zone until 1984, Churchill, op.cit. in N. 25 at p. 284.

27. Question No. 86/66 (Pedini), O.J. 3621/66, and Question No. 147/68 (Armengaud), O.J. 1968 No. C 103/4.

28. Vignes, op.cit. in 16 R.M.C. (1973) p. 94.

29. O.J. 1971 No. C 66/9, and 1971 No. C 78/11.

30. Text of the Convention and Protocols in 14 I.L.M. (1975) p. 604 et seq.

31. O.J. 1968 No. C 91/2.

32. Report, op.cit. p. 865.

33. See Garron, op.cit. p. 75, and comment by Queneudec, in his review of Garron's book, 17 A.F.D.I. (1971) at p. 1174.

34. As far as we have been able to ascertain, such consultation did not take place during the adoption of the French law No. 71–1060 of 24 December 1971, Journal Officiel, 30 December 1971, p. 12899. Article 4 of this law provides: “Les dispositions de la présente loi ne portent pas atteinte à I'exercice des droit's de pèche accordés à certains navires étrangers dans les conditions prévues par les accords internationaux et le droit interne francais.” The same consideration is applicable to Italy's extension of its territorial sea to 12 nautical miles on 9 August 1974.

35. Vignes, op.cit. in 16 R.M.C. 1973 at p. 92, who points out the aspect of protection of small trade and industry in establishing exclusive zones, which puts a check on the adoption of a common attitude. See Brown, op.cit. p. 57. The French law of 5 July 1972 (Journal Officiel, 9 July 1972) has extended to 80 nautical miles the limit of French jurisdiction as regards fishing off the coast of Guyana. Community vessels have free access to this zone. See Queneudec, op.cit. in n. 25, 19 A.F.D.I. (1973) at pp. 809–810.

36. In oceanographic matters Member States retain the right to conclude agreements with third countries, but the Council has provided for co-ordination of their action. Question No. 200/68 (Vredeling), O.J. 1968 No. C 130/6; Garron, op.cit., p. 81 n. 25.

37. In conformity with the Opinion of the Economic and Social Committee, O.J. 1969 No. C 76/13.

38. Kriedemann Report, E.P. Doc. 1968–1969 No. 133 (of 30 September 1968) p. 39.

39. The special interest for conservation was stated already in Art. 6 of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas: “A coastal State has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea.”

40. United Nations Conference on the Law of the Sea, Vol. II (A/Conf. 13/38) p. 163Google Scholar. Garcia Amador, F.V., The Exploitation and Conservation of the Resources of the Sea (1959), pp. 79 et seq., 207 et seq..Google Scholar

41. Second United Nations Conference on the Law of the Sea (A/Conf.19/8) p. 187. As the principle proposal did not obtain the requisite quorum, the amendment itself was not adopted, although it had previously obtained a majority of 58 votes to 19, with 10 abstentions, See Nguyen Quoc, Dinh, “La revendication des droits préférentiels de pêche en haute mer devant les conférences des Nations Unies sur le droit de la mer de 1958 et 1960”, 6 A.F.D.I. (1960). pp. 77–110Google Scholar; Oda, S., International Control of Sea Resources (1963), p 97Google Scholar et seq.; Brown, op.cit. in n. 5, pp. 38–42.

42. Convention, Art. 11: “Subject to the approval of the other Contracting Parties, a coastal State may exclude particular areas from the full application of Articles 3 and 4 in order to give preference to the local population if it is overwhelmingly dependent upon coastal fisheries.”

43. Question No. 369/74 (Brewis), O.J. 1975 No. C 3/11.

44. Rec. XVII, p. 263; [1971] C.M.L.R. p. 335 et seq. at p. 355. Distinguishing between the Community's capacity “to establish contractual links with non-member States over the whole extent of the field of objectives defined in Part I of the Treaty” and its competence to enter into international agreements, the Court considered: “(i)n particular, each time the Community, with view to implementing a common policy envisaged by the Treaty, lays down common rules, whatever form these may take, the member-States no longer have the right, acting individually or even collectively, to contract obligations towards non-member States affecting these rules. To the extent that such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards non-member States affecting the whole sphere of application of the Community legal system.” See also infra, p. 214 et seq.

45. Kriedemann Report, E.P. Doc. 1968–1969 No. 133 (of 30 September 1968) p. 39 et seq., para. 10.

46. Case 13/63, judgment of 17 July 1963, Rec. IX p. 341; [1963] C.M.L.R. p. 289 ct seq., at p. 311–312: “The different treatment of non-comparable situations does not lead automatically to the conclusion that there is discrimination. An appearance of formal discrimination may therefore correspond in fact to an absence of material discrimination. Material discrimination would consist in treating either similar situations differently or different situations identically.”

47. Viz. measures for the conservation of the living resources which the coastal State may adopt, sometimes unilaterally, in an area of the high seas adjacent to its territorial sea.

48. Brouir, op.cit. in n. 5, p. 32. See infra the comments on Art. 102 of the Treaty of Accession.

49. See the Commission's proposal for a Council Regulation, O.J. No. C 110/64 and the Opinion of the Economic and Social Committee, O.J. No. C 116/20

50. O.J. No. 58, p. 866/67.

51. ibid. p. 876.

52. ibid. p. 881.

53. See the following Questions by Vredeling: No. 26 (1966–1967), O.J. 2276/66, on the representation of the Commission at the International Fisheries Conference in London, April 1966; No. 431/69, O.J. 1969 No. C 46/3; No. 65/70, O.J. 1970 No. C 128/1; No. 368/70, O.J. 1971 No. C 26/12; No. 462/70, O.J. 1971 No. C 38/6; No. 75/71, O.J. 1971 No. C 70/10; No. 433/71 O.J. 1972 No. C 18/8; No. 41/72, O.J. 1972 No. C 73/5; No. 634/72, O.J. 1973 No. C 52/4. Also Question No. 494/73 (Müller), O.J. 1974 No. C 12/74 on the Commission's participation in the work of the North-East Atlantic Fisheries Commission; Question No. 93/73 (Cousté), O.J. 1973 No. C 87/16 on the implementation of a common policy on international fishery questions; Questions Nos. 457/73 and 241/74 (Lord O'Hagan), O.J. 1974 Nos. C 14/16 and C 156/1 on whaling; Question No. 212/74 (Brewis), O.J. 1974 No. C 121/6 on salmon fishing; Question 369/74 (Brewis), O.J. 1975 No. C 3/11 on the control of conservation measures in the North Sea

54. O.J. 1968 No. C 91.

55. Question No. 167/69 (Vredeling), O.J. 1969 No. C 126/2 on the difficulties between Italy and Tunesia. See Gueben and Keller Noellet, op.cit. in n. 5, pp. 255–256.

56. The words “common policy” should even be interpreted in the sense of common rules. See Ganshof van der Meersch, W.J., “Les relations extérieures de la CEE dans le domaine des politiques communes ct l'arrêt de la Cour de Justice du 31 mars 1971”, 8 Cahiers de droit européen (1972), pp. 127–158, at pp. 148–153Google Scholar. See also Vignes, op.cit. in 16 R.M.C. 1973, pp. 88–89.

57. Vignes, op.cit. in 16 R.M.C. (1973) p. 88. For the various forms of pollution, see: Questions Nos. 223/70 and 224/70 (Gerlach), O.J. 1970 Nos. C140/6 and C 146/2; Question No. 59/71 (Mcmmcl), O.J. 1971 No. C 61/2 and 1972 No. C 86/1; Question No. 87/71 (Glinne), O.J. 1971 No. C 64/10 and 1972 No. C U12; Questions Nos. 295/71 and 532/71 (Vredeling), O.J. 1972 Nos. C 5/71 and C 86/4; Question No. 640/71 (Vredeling), O.J. 1972 No. C 90/2; Questions Nos. 24/73 and 53/73 (Lord O'Hagan), O.J. 1973 Nos. C 47/39 and C 67/68; Question No. 160/73 (Carettoni Romagnoli), O.J. 1973 No. 74/3; Questions Nos. 60/73 and 61/73 (Jahn), O.J. 1973 Nos. C 89/5 and C 97/4; Questions Nos. 183/73 and 405/73 (Miiller), O.J. 1973 No. C 89/20 and 1974 No. C 12/46; Question No. 68/74 (Jahn), O.J. 1974 No. C 80/'17; Question No. 193/74 (Knud Nielsen), O.J. 1974 No. C 97/23; Questions Nos. 298/74 and 447/74 (Jahn), O.J. 1974 No. C 134/15 and O.J. 1975 No. C 7/2; Question No. 798/74 (Laban), O.J. 1975 No. C 161/4 Sec also Questions Nos. 496/70, 502/71, 60/72 and 391/72 (Vredeling), O.J. 1971 No. C 38/7 and 1972 Nos. C 35/11, C 106/22 and C 138/75; Question No. 599/74 (Müller), O.J. 1975 No. C 86/1 7;and Question No. 685/74 (Jahn), O.J. 1975 No. C 122/7 on the presence of mercury in fish.

As regards protection of the environment, see the Agreement of the Representatives of the Governments of the Member States, meeting in Council, of 5 March 1973 on information for the Commission and for the Member States with a view to possible harmonization throughout the Communities of urgent measures concerning the protection of the environment (O.J. 1973 No. C9/1, and Question 80/73 (Vredeling), O.J. 1973 No. C 67/73, and the Supplementary Agreement of 15 July 1974 (O.J. 1974 No. C 86/2). See especially the declaration of the Council and the Representatives of the Governments of the Member States, meeting in Council, of 22 November 1973 concerning a programme of environmental action of the European Communities, in particular Part II, Title I, Chap. VI, Section I (O.J. 1973 No. C 112/3). Within this framework the Commission has submitted to the Council a proposal for a decision concerning the participation of the EEC in the negotiations for the conclusion of a convention for the prevention (of marine pollution from land-based sources (O.J. 1973 No. C 114/32), which has become the Paris Convention of June 1974 (O.J. 1975 No. L. 194/6). See also Opinion of the Economic and Social Committee. O.J. 1974 Nos. C 2/59 and C 127/32; Question 188/73 (Jahn), O.J. 1973 No. C 91/6, Question 151/74 (Bertrand), O.J. 1974 No. C 101/21.

For the Community's competence in environmental matters, see the following contributions made at a symposium on environmental problems in the EEC: Toulemon, M.R., “Problématique d'une politique européenne de l'environnement”, 17 R.M.C. (1974) pp. 229–234Google Scholar; Scarrascia-Mugnozza, M., “Les problemes d'environnement dans les Communautés européennes”Google Scholar. ibid. pp. 301–304; Colliard, “Rapport de synthèse”, ibid. pp. 305–311. See also Catalano, N., “Limiti delle compctenze comunitarie in materia di ecologia”, 14 Rivista di diritto Europeo (1974) pp. 61–67Google Scholar; Kiss, A.Ch., “La protection de l'environnement et les organisations europénnes”, 19 A.F.D.I., (1973), pp. 895–921Google Scholar; Touscoz, J., “L'action des communautés européennes en matière d'environnement”, 9 R.T.D.E. (1973) pp. 24–95Google Scholar, and also Gerard, A., “Les limites et les moyens juridiques de l'intervention des Communautés européennes en matière de protection de l'environnement” 11 Cahiers de droit européen (1975) pp. 14–30Google Scholar.

As regards Community's participation in UN studies of environmental problems, see the Resolution of the European Parliament of 6 July 1973, O.J. 1973 No. C 62/49; Le Tallec, G., “Quelques aspects des rapports entre la CEE et les organisations internationales”, 15 R.M.C. (1972) pp. 636–644; and Question 421/72 (Dewulf), O.J. 1973 No. C 12/5. As regards Community participation in NATO studies of environmental problems, see Question 712/72 (Vredeling) O.J. 1973 No. C 52/10.Google Scholar

58. Meyers, op.cit. in n. 5, pp. 28–31, 51.

59. Druer, op.cit., Lemaitre, op.cit., in n. 5.

60. Question 426/71 (Vredeling), O.J. 1972 No. 27/3 Brown, op.cit. pp. 60–62; Olmi, op.cit, pp. 313–317, and especially “Current informations on the negotiations for expansion of the European Communities”, C.M.L.R. vol 8 (1971) at pp. 227–228Google Scholar, 503–504, 509–510, 535. 543; vol. 9 (1972) at pp. 82, 181–185, 191–196. 206–207, 213–221.

61. O.J. 1972 No. L 73/34 (English edition as Special Edition): (Arts. 100, 101, 102, 103) Article 100: 1) Notwithstanding the provisions of Article 2 of Regulation (EEC) No. 2141/70 on the establishment of a common structural policy for the fishing industry, the Member States of the Community are authorized, until 31 December 1982, to restrict fishing in waters under their sovereignty or jurisdiction, situated within a limit of six nautical miles, calculated from the base lines of the coastal Member State, to vessels which fish traditionally in those waters and which operate from ports in that geographical coastal area; however, vessels from other regions of Denmark may continue to fish in the waters of Greenland until 31 December 1977 at the latest.

Member States may not, insofar as they avail themselves of this derogation, adopt provisions dealing with conditions for fishing in those waters which are less restrictive than those applied in practice at the time of accession. 2) The provisions laid down in the preceding paragraph and in Article 101 shall not prejudice the special fishing rights which each of the original Member States and the new Member States might have enjoyed on 31 January 1971 in regard to one or more other Member States; the Member States may exercise these rights for such time as derogations continue to apply in the areas concerned. As regards the waters of Greenland, however, the special rights shall expire on the dates laid down for these rights. 3) If a Member State extends its fishing limits in certain areas to twelve nautical miles, the existing fishing activities within twelve nautical miles must be so pursued that there is no retrograde change by comparison with the situation on 31 January 1971. 4) In order to permit a satisfactory overall balance of fishing operations to be established within the Community during the period referred to in the first paragraph, the Member States need not make full use of the opportunities presented by the provisions of the first subparagraph of paragraph 1 in certain areas of the maritime waters under their sovereignty or jurisdiction.

The Member States shall inform the Commission of the measures which they adopt for this purpose; on a report from the Commission, the Council shall examine the situation and, in the light thereof, shall, where necessary, address recommendations to the Member States.

Article 101: The limit of six nautical miles referred to in Article 100 shall be extended to twelve nautical miles for the following areas: 1) Denmark –the Faroe Islands– Greenland– the west coast, from Thyboron to Blaavandshuk. 2) France- The coasts of the départements of Manche, Ille-et-Vilaine, Côtes du Nord, Finistère and Morbihan. 3) Ireland –the north and west coasts, from Lough Foyle to Cork Harbour in the south-west– the east coast, from Carlingfor Lough to Carnsore Point, for crustaceans and molluscs (shellfish). 4) Norway- The coast between Hgersund and the frontier between Norway and the Union of Soviet Socialist Republics. 5) United Kingdom –The Shetlands and the Orkneys– The north and east of Scotland, from Cape Wrath to Berwick– The north-east of England, from the river Coquet to Flamborough Head– The southwest from Lyme Regis to Hartland Point (including twelve nautical miles around Lundy Island)– County Down.

Article 102: From the sixth year after accession at the latest, the Council, acting on a proposal from the Commission, shall determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of the biological resources of the sea.

Article 103: Before 31 December 1982, the Commission shall present a report to the Council on the economic and social development of the coastal areas of the state of stocks. On the basis of that report, and of the objectives of the common fisheries policy, the Council, acting on a proposal from the Commission, shall examine the provisions which could follow the derogations in force until 31 December 1982.

(Although Norway did not join the Community after all, the provisions relating to it are quoted in full, for they may explain the terms of the compromise).

62. Puissochet, op.cit. p. 349.

63. It will be noted that one of the original Member -States, France, benefits by the extension to 12 miles.

64. Consequently, the reserved zones where Art. 101 does not apply, arc actually accessible to all Member States, in any case between 6 and 12 miles and even within, provided that the Member State concerned does not make use of Art. 100.

65. Member States decide sovereignly on the establishment of this regime, whereas Art. 4 of Regulation 2141 reserved to the Council the right to decide on the exceptions to the rule of non-discrimination See Brouir, op.cit. in n 5, p. 35. According to Quintin, op.cit. p. 71, France and Germany, as well as the new Member States, have decided to use the possibility of derogation, whereas Italy would do so only with regard to Sicily. The Netherlands, however, wish to return to the principle of free access in order to permit a “satisfactory overall balance” of fishing operations to be established within the Community, according to Art. 100(4).

66. The Dutch text of Art. 100 only speaks of the low-waterline (laagwaterlijn) which must be based on erroneous translation. See Meyers, op.cit. pp. 20–22 and Puissochet, op.cit. p. 350, and more in general, Voelckel, M., “Les lignes de base de la Convention de Genève sur la mer territoriale” 19 A.F.D.I. (1973) pp. 820–836.Google Scholar

67. Brown, op.cit. p. 64; Meyers, op.cit. pp. 22–23, 36–37; Puissochet, op.cit. pp. 350–351.

68. Puissochet, op.cit. p. 351.

69. Puissochet, op.cit. p. 352.

70. Puissochet, op.cit. p. 352; Answer of the Belgian Minister for Foreign Affairs to Question No. 37 of Mrvan Damme, of 12 April 1972, 10 R.B.D.I. (1974) pp. 325–326.Google Scholar

71. Contra Puissochet, op.cit. p. 354.

72. Brown, op.cit. p. 73; Meyers, op.cit. pp. 32–33; Vignes, op.cit. in 46 R.M.C. (1973) pp. 88, 94.

73. Quintin, op.cit. p. 73, rightly observes that the Community as an observer participating in the work of the North-West and North-East Atlantic Fisheries Commissions, should logically accede to the Conventions of London and Washington. To the extent that these Commissions adopt a system of quotas allocated to the States Parties, these quotas ought to be negotiatiated and administered on the lines of the Community.

74. Brown, op.cit. pp. 66–67; Vignes, op.cit. in 16 R.M.C. (1973) at p. 93. Protocol No. 21 concerning the fisheries regime for Norway, which has become void because of Norway's nonaccession, explains to some extent the scope of Article 103 as far as Norway is concerned. Thus, the Contracting Parties “[a]gree to recommend the institutions of the Community to take particular account, during the examination provided for in Article 103 of the Act of Accession, of the problems facing Norway in the field of fisheries, both in the context of its general economy and for reasons stemming from the particular demographic and social structures of the country, and so to act that any provisions which may then be made are drawn up accordingly; these provisions may include among other measures, an extension of the derogations beyond 31 December 1982, to an appropriate degree and in accordance with rules to be determined.” See O.J., Special Edition, 27 March 1972, p. 176. The possibility of extension is here expressly, if cautiously, mentioned.

75. Meyers, op.cit. p. 19 n. 1; Puissochet, op.cit. pp. 355–356.

76. Brown, op.cit. pp. 67–70. According to Churchill, R.R., “National Practice Unidted Kingdom”, in New Directions in the Law of the Sea, vol. 3 pp. 281–301 at p. 286Google Scholar: “In these negotiations the United Kingdom Government tended to suffer from schizophrenia. On the one hand a powerful inshore fishing lobby was pressing for nothing less than a 12 mile limit, in other words a maintenance of the status quo, while an equally vociferous distant water fishing lobby wanted fishing zones opened up so that its members could go trawling in the rich Norwegian fishing grounds. The resulting compromise seems to have been as much a compromise between two interests as between the United Kingdom and its negotiating partners.”

77. See the elliptic answer to Question 106/73 (Vredeling), O.J. 1973 No. C 67/76.

78. Brown, op.cit. p. 71.

79. See, inter alia, Bilder, R.B., “The Anglo-Icelandic Fisheries Dispute”, 37 Wisconsin Law Review (1973) pp. 37–132Google Scholar; Brown, E.D., “Iceland's fishery limits: the legal aspects”, 29 The World Today (1973) pp. 68–80Google Scholar; Churchill, R.R., “The Fisheries Jurisdiction Cases: the Contribution of the I.C.J. to the Debate on Coastal States Fisheries Rights”, 24 I.C.L.Q. (1975) pp. 82–105CrossRefGoogle Scholar; Katz, S.R., “Issues arising in the Icelandic Fisheries Case”, 22 I.C.L.Q. (1973) pp. 83–108CrossRefGoogle Scholar. Rojahn, O., “Die Fischereigrenze Islands vom 1 September 1972 im Lichte maritimer Abgrenzungsprinzipien dcs Internationalen Gerichtshofes” [The Icelandic fishery boundaries in the light of the delimitation principles of the International Court of Justice] 16 Archive des Völkerrechts (1973) pp. 37–59Google Scholar; Vignes, D., “Les accords de 1972/73 relatifs à la pêche au large de l'lslande ct des iles Féroé”, 11 R.B.D.I. (1975) pp. 175–190.Google Scholar

80. See on this subject: Favoreu, L.. “Les ordonnances des 17 et 18 aoûut 1972 dans l'affaire de la compétence en matière de pêcheries (Royaume-Uni c/Islande, Allemagne Fédérale c/Islande)”, 18 A.F.D.I. (1972) pp. 291–322Google Scholar; id, “Les arrêts du 2 Février 1973–l'affaire de la compétence en matière de pêcheries”, 19 A.F.D.I. (1973) pp. 272–289Google Scholar; Goldsworthy, P.J., “Interim Measures of Protection in the International Court of Justice”, 68 A.J.I.L. (1974) pp. 258–277Google Scholar; Goy, R., “La nouvelle affaire des pêcheries islandaises- La procédure devant la Cour”, 101 J.D.I. (1974) pp. 279–322Google Scholar; Martin, P.M., “L'affaire de la cométence en matiere de pecheries; les arrets de la Cour Internationale de Justice du 2 Février 1973”, 78 R.G.D.I.P. (1974) pp. 435–458Google Scholar; Oerllers-Frahm, K., “Die eiestweiligen Anordnungen des Internationalen Gerichtshofs im Fisheries Jurisdiction Case”, [The Interim Measures of the International Court in the Fisheries Jurisdiction Case] 32 Z.a.ö.R.V. (1972) pp. 565–582Google Scholar; Perrin, G., “Les mesures conservatoires dans les affaires relatives à la compétence en matière de pêcheries”, 77 R.G.D.I.P. (1973) pp. 16–34Google Scholar; Wengler, W., “Die isländische Fischereivorbehaltzone vor dem Internationalen Gerichtshof” [The Icelandic Fishery Zone before the International Court], 26 Neue Juristische Wochenschrift (1973) pp. 936–940.Google Scholar

81. 11 I.L.M. (1972) pp. 941–946; Meyers, op.cit. pp. 58–59. The arrangement was renewed in early 1974. An analogous agreement was concluded with Norway on 10 July 1973, see 12 I.L.M. (1973) pp. 1313–1314. Another agreement with the Faroe Islands had been concluded on 19 September 1972 under which Farocse vessels, until furhter notice, were put on the same footing as Icelandic vessels in the 12–50 mile zone. See R.G.D.I.P. vol. 77 (1973) pp. 288 and vol. 78 (1974) pp. 343–345.

82. Vignes, op.cit. in 16 R.M.C. (1973) at p. 91.

83. Question 362/72 (Vredeling), O.J. 1973 No. C 67/15. Reference is made to the agreement of 22 July 1972, O.J. 1972 No. L 301/1.

84. O.J. 1973 No. L 98/30; O.J. 1973 No. L 181/21.

85. 12 I.L.M. (1973) pp. 1315–1318.

86. After the boarding of a German fishing vessel by the Icelandic authorities, the Federal Republic prohibited Icelandic fish from being unloaded in German ports, and invoked the Community's solidarity on this point.

87. I.C.J. Reports 1974 p. 175

88. Le Monde, 8 March 1975.

89. Ireland requested to be added to this list.

90. On 26 September 1974 the Norwegian Government announced its intention to extend its exclusive fishery zone gradually to 50 nautical miles in anticipation of an internationally authorised economic zone of 200 miles. These measures would in particular affect the catches of French, German and British fishermen. Within the framework of the agreement with Norway of 14 May 1973 (O.J. 1973 No. L 171/1) the Community had autonomously made certain concessions in respect of customs on certain fishing products originating in Norway, subject to Norway's observance of the present general competition conditions in the fishery sector. The new provisions adopted by Norway could have jeopardised the said concessions. Yet, a compromise was reached during bilateral negotiations between Norway on the one hand, and the United Kingdom, France and the German Federal Republic on the other, and in direct contacts between the Community and Norway in January 1975. The Norwegian provisions establish three zones forbidden for trawlers during certain months of the year beyond the 12 mile limit; they are strictly non-discriminatory, since they also apply to Norwegian vessels, and are aimed at the protection of the living resources of the sea. Under these circumstances the Community withdrew its reservations and no longer considered withdrawal of its tariff concessions (see Europe (Daily Bulletin issued by Agence Internationale d'Information pour la Presse) No. 1674 of 25 January 1975 and Le Monde of 22–23 December 1974 and 23 January 1975) See also Question No. 553/74 (Lord O'Hagan), O.J. 1975 Nos. C 86/8 and C 99/5.

91. On 25 May 1973 the Canadian Government announced a further extension of its exclusive fishery zone to 200 nautical miles, 78 R.G.D.I.P. (1974) p. 763

92. Europe Documents (Supplementary to Europe, cited supra n. 90) No. 761, 28 September 1973; Quintin, op.cit. p. 71.

93. The adverb “at present” would seem to mean that the Council could revise its position in the event of the Faroes extending their reserved fishery zone beyond certain limits.

94. Meanwhile, an agreement concluded on 18 December 1973 between Denmark, the Federal Republic of Germany, Belgium, France, Norway, Poland and the United Kingdom has taken account of the special situation of the Faroe Islands by organising the conservation of demersal species and by putting a limitation on catches, sometimes beyond the 12 mile limit. Art. 5 reads: “No provision of the present agreement shall be considered to affect the views of any Contracting Party on demarcation and limits, in international law, of territorial waters, adjacent zones or jurisdiction with regard to fishing.” See for the text of the agreement 78 R.G.D.I.P. (1974) pp. 1247–1250 The agreement is cited by Queneudec, J.P. in 19 A.F.D.I. (1973) at pp. 812–813.Google Scholar

95. Regulation (EEC) No. 2051/74, O.J. 1974 No. L 212/33.

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98. See van der Essen, A., “La Belgique et le droit de la mer”, 11 R.B.D.I. (1975) pp. 126–142.Google Scholar

99. A/Conf.62/C.2/L 40.