Commission of the European Communities (supported by France, intervener) v United Kingdom (Case C-146/89)
| Jurisdiction | European Union |
| Date | 09 July 1991 |
| Court | European Court of Justice |
(Due, President; Mancini, Moitinho de Almeida, Rodríguez Iglesias, Díez de Velasco, Presidents of Chambers; Sir Gordon Slynn, Kakouris, Joliet, Schockweiler, Grévisse and Zuleeg, Judges; Lenz, Advocate-General)
Sea — Territorial sea — Fisheries — Baselines — Low-tide elevations within territorial waters — Use as base points — European Economic Community fisheries policy — Council Regulation EEC 170/83 — Rights of fishermen from other Member States in waters off the United Kingdom — Belt of water between six and twelve miles from United Kingdom baselines — Regulation adopted at time United Kingdom claimed three mile territorial sea — Territorial Sea Act 1987 — Extension of United Kingdom territorial waters to twelve miles — Certain low-tide elevations brought within territorial waters — Use as base points — New baselines further out to sea — Whether new baselines applicable to fishery zones under Regulations 170/83 — Whether new baselines compatible with international law — Whether required by international law — Whether opposable to other Member States for purposes of Regulation 170/83
Treaties — Effect — EEC Treaty, 1957 — EEC Treaty creating new legal order — Relationship between Community law and international law — Fisheries — Regulation providing for rights of fishermen from one Member State off the coast of another — Regulation referring to waters between six and twelve miles from baselines — Whether reference to baselines as determined by coastal State from time to time in accordance with international law — Whether reference to baselines as they existed at date of adoption of Regulation — The law of the European Economic Community
Summary: The facts:—The Commission of the European Communities brought an action against the United Kingdom seeking a declaration that the United Kingdom had violated its obligations under the Treaty establishing the European Economic Community, 1957 (‘the EEC Treaty’), by applying new baselines for the purpose of determining which parts of the waters around the coast of the United Kingdom were subject to certain fishery arrangements laid down in European Community law.
Under the London Fisheries Convention, 1964, which governed fishery relations between the United Kingdom and the Member States of the Community prior to the accession of the United Kingdom to the Community, the right to fish in the waters within a six mile belt measured from the baseline of the United Kingdom territorial sea was reserved to the United Kingdom. Fishing in the belt between six and twelve miles from the baselines was restricted to vessels from States which had traditionally fished in those waters. Council Regulation 2141/70 EEC created a common structural policy for the fishing industry within the Community, providing that the rules applied by each Member State in respect of fishing within its waters were not to lead to different treatment for vessels flying the flag of other Member States. When the United Kingdom joined the Community on 1 January 1973 it became subject to Regulation 2141/70 but Article 100 of the Act of Accession of the United Kingdom permitted derogation from the Regulation until 31 December 1982. Council Regulation 170/83 EEC authorized Member States to retain until 31 December 1992 the arrangements defined in Article 100 of the Act of Accession. Article 6 and Annex I of Regulation 170/83 prescribed the waters within which those arrangements could be applied. As far as the United Kingdom was concerned, Annex I listed a series of areas lying between the lines six miles and twelve miles from the United Kingdom baselines.
At the time of its accession to the Community the United Kingdom claimed a three mile territorial sea and a twelve mile exclusive fishery zone, subject to protection of traditional rights under the London Convention in the zone between six and twelve miles from the territorial sea baselines. The breadth of the United Kingdom territorial sea was extended to twelve miles by the Territorial Sea Act 1987. In October 1987 the United Kingdom Government announced that, following the extension of the territorial sea, certain low-tide elevations situated within the twelve mile limit would henceforth constitute base points for the drawing of the baselines of the territorial sea. The effect of this change was that the position of the baselines was further from the coast than it had been when Regulation 170/83 was adopted. The United Kingdom maintained that, since the fishery limits were measured from the same baselines as the territorial sea, those limits had also been moved further out to sea.
The Commission, supported by France, argued that the zones defined in Annex I to Regulation 170/83 had to be measured from the baselines which were in force on the date that Regulation was adopted. They contended that, as a matter of Community law, a State was not entitled, by unilateral measure, to alter the location of those zones even by effecting a change in its baselines which was compatible with international law. The effect of applying the new baselines to fisheries was to exclude fishermen from other Community States from waters in which they had hitherto fished. The new baselines were not, therefore, to be applied for the purpose of determining the limits of the fisheries zones under Annex I.
The United Kingdom maintained that Regulation 170/83 had to be interpreted in accordance with international law. The zones in Annex I were defined by reference to the baselines for the territorial sea. Since Community law contained no rules for determining the location of baselines or the extent of waters under national sovereignty, it was for each State to determine, in accordance with international law, the location of its baselines. Those lines were not, therefore, fixed once and for all and Regulation 170/83 should be taken as referring to the baselines in force at any given time, so long as those baselines were in accordance with international law.
Opinion of the Advocate-General:—The Court should uphold the Commission's application.
(1) Although it was to be assumed that most Community legislation which made provision for coastal zones referred to the baselines fixed from time to time by the Member States in accordance with international law, that was not the case with Regulation 170/83, which established a special regime for specific waters, the purpose of which would be defeated if a State could, by unilateral action, alter the limits of those waters (pp. 140–2).
(2) It was not to be assumed that merely because Community instruments made use of international law concepts or because of the connection between the 1964 London Convention and the relevant provisions of Community law that Community law had simply incorporated international law on these points. Community law constituted a new legal order of internatioanl law which, in the relations between the Member States, had clear precedence over obligations arising under international law. In the present case, the relevant Community rules were based on the principle of equal access to fishing resources, in contrast to the rules of international law which started from the premiss that the coastal State had exclusive rights (pp. 142–3).
(3) Even if a certain connection between the two regimes could not be denied, it was nevertheless plain that the Community rules were not merely a continuation of the rules of international law. Differences in the wording of each betrayed differences in the scope of their application (p. 143).
(4) A number of other considerations confirmed this conclusion. In particular, the change which the United Kingdom sought to bring about in the areas within which fishermen from other Member States enjoyed fishing rights would undermine the basis of Regulation 170/83. Moreover, the existence of express provision for the amendment by the Council of the European Communities of Annex I of Regulation 170/83 implied that the zones defined in that Annex were not to be varied by unilateral action. It was also significant that there was no conflict between Community law and international law, since even if it should be considered imperative under international law to alter the outer limits of fisheries jurisdiction to take account of a change in baselines, that did not affect fishing rights established under Community law inside the twelve mile limit (pp. 144–8).
Held:—By applying the new baselines for the purposes of the fisheries arrangements laid down in Regulation 170/83 the United Kingdom had failed to fulfil its obligations under the EEC Treaty.
(1) Regulation 170/83 represented a carefully achieved balance between the system of exclusive access to coastal waters for national fishermen and the protection of certain activities of fishermen from other Member States within specified areas. The limits of those areas could not, therefore, be altered by unilateral action (pp. 154–5).
(2) International law merely authorized States to extend their territorial sea to twelve nautical miles and, in certain circumstances, to draw the baselines used to measure the breadth of the territorial sea to and from low-tide elevations which are situated within that territorial sea. It did not require a State to act in this way. The decision of the United Kingdom to make use of the option accorded to it by international law was thus a unilateral act (p. 155).
(3) The effect of the United Kingdom measures was to exclude fishermen from certain other Member States from waters in which they had hitherto fished. This was incompatible with the objectives of Regulation 170/83 (pp. 155–6).
(4) There was nothing in the combined provisions of Article 6 and Annex I of Regulation 170/83 to prevent the concepts of six-mile and twelve-mile limits mentioned therein from being understood as referring to limits measured from baselines as...
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