Kramer (Michael) & Company v Airways Pension Fund Trustees Ltd

• Jurisdiction: European Union
• Court: European Court of Justice
• Date: 14 July 1976

Court of Justice of the European Communities.

(Lecourt, President; Kutscher, O'Keeffe, Mertens de Wilmars, Pescatore, Sørensen and Capotorti, Judges; Trabucchi, Advocate-General)

Kramer and Others

Treaties — Power to conclude — European Economic Community — Treaty-making powers of the Community and its Member States — Community possessing power to adopt internal legislation on subject — Whether possessing parallel power to conclude international agreements — Marine conservation — Community not yet exercising powers in this area — Whether Member States retaining power to act — Whether Member States under duty not to hinder future exercise of powers by the Community

Sea — Fisheries — Conservation — North-East Atlantic Fisheries Convention, 1959 — Effect on Member States of European Community — Whether conservation of fish stock matter for the Community or the Member States — Legislation by the Netherlands to implement recommendation of North-East Atlantic Fisheries Commission — Whether compatible with Community law — The law of the European Economic Community

Summary: The facts:—In 1959 several European States, a number of which were Members of the Community, concluded the North-East Atlantic Fisheries Convention, 1959 (‘the Convention’). The purpose of the Convention was to ensure the conservation of fish stocks and the rational exploration of the fisheries of the North-East Atlantic Ocean. Article 3 of the Convention provided for the creation of the North-East Atlantic Fisheries Commission (‘the Fisheries Commission’), which was empowered to make recommendations on measures relating to the objectives and purposes of the Convention under Article 7(1).1 Article 8 of the Convention2 provided that States parties were in general obliged to give effect to the recommendations of the Fisheries Commission if such recommendations had been adopted by not less than a two-thirds majority of States parties.

In 1970 Article 7 of the Convention3 was amended (‘the Amendment’) so as to allow the Fisheries Commission to make recommendations concerning the quota of fish that might be caught in the North-East Atlantic by States parties over any given period of time. Acting pursuant to the Amendment, the Fisheries Commission issued a Recommendation (‘the Recommendation’) which (i) fixed the total catch for sole and plaice in 1975; (ii) allocated catch quotas to the various States parties; and (iii)

prohibited certain types of vessels from fishing within twelve miles of the coast of States parties.

In the same year the Council of the European Communities issued Regulations Nos 2141/70 and 2142/70. Article 1 of Regulation No 2141/70 stated that the purpose of the Regulation was to encourage ‘the rational use of the biological resources of the sea and of inland waters’. Article 5 of the Regulation authorized the Council, in cases where there was a risk of over-fishing of certain stocks in the territorial waters of Member States, to adopt the necessary conservation measures. Regulation No 2142/70 laid down rules for the common organization of the market in fishing products. In 1972, the treaty concerning the accession of the United Kingdom, Denmark and Ireland to the Community (‘the Act of Accession’) was signed. Article 102 of the Act of Accession required the Council, within six years of the accession of the new Member States, ‘to determine conditions for fishing with a view to ensuring protection of the fishing grounds and conservation of biological resources of the sea’.

In 1974, the Recommendation of the Fisheries Commission became binding pursuant to the provisions of Article 8 of the Convention and, as a result, the Netherlands, which was a party to the Convention, enacted legislation4 implementing its provisions (‘the implementing legislation’). In 1975 and 1976 criminal prosecutions were brought against various Dutch fishermen in the District Courts of Zwolle and Alkmaar for infringing the provisions of the implementing legislation. Both courts decided to stay proceedings and make a preliminary reference to the Court of Justice of the European Communities, pursuant to Article 177 of the EEC Treaty. The questions referred to the Court of Justice asked:

1. Whether the power to conclude international agreements concerning the conservation of fishing resources was now the exclusive responsibility of the Community or whether Member States were still able to act on their own account;

2. Whether national measures such as the implementing legislation were compatible with those aspects of Community law which (i) dealt with the allocation of authority as between the Community and its Member States; (ii) regulated the fishing industry; or (iii) prohibited the enactment of measures having an effect equivalent to that of a quantitative restriction in trade between Member States (‘the prohibition’);

3. Whether Articles 30, 31 and 34 of the EEC Treaty which laid down the prohibition were directly applicable in Member Sates.

Opinion of the Advocate-General:—In his submissions to the Court of Justice, the Advocate-General stated that the Court had already decided in the ERTAINTL case5 that whenever the Community, with a view to implementing a common policy envisaged by the EEC Treaty, adopted provisions laying down common rules, its Member States no longer had the right, individually or collectively, to enter into contractual obligations with non-Member States which affected those rules. Therefore, the question before the Court was whether, following the entry into force of Community legislation governing

the fishing industry, Member States who were parties to the Convention could lawfully accept limits on the exercise by them of a commercial activity in a sector which was now subject to Community rules. The Advocate-General contended that it was clear from the nature of the Community legislation concerning the fishing industry and in particular from the legislation concerning the conservation of biological resources of the sea, that action by the Community at the international level would be necessary in order fully to implement the provisions of that legislation. It therefore followed that the Community was fully empowered to enter into any relevant international agreement concerning that sphere of activity.

However, as the Community had not, to date, exercised its internal legislative power with regard to the conservation of fishing stocks and the Court had laid down in the ERTA case that the mere existence of Community legislative powers in a particular area was not sufficient to deprive Member States of the power to negotiate international commitments concerning that area, Member States were still empowered to enter into international agreements such as the Convention. This power was not, however, unfettered. First, as any action taken by Member States pursuant to the Convention or other similar agreements would have an impact on the Community's common legislation for the fishing industry any such international agreement had to be compatible with the substantive provisions of Community law governing the workings of the Common Market and in particular those provisions regulating the fishing industry. Secondly, the power of Member States was merely transitional until such time as the Community exercised its power pursuant to the provisions of Article 102 of the Act of Accession. Thirdly, in order to avoid taking any action which could impede the execution by the Community of its fishing policy, Member States were required, pursuant to the provisions of Articles 5 and 116 of the EEC Treaty, to reach prior agreement on a Community basis, in order to avoid individual decisions in the international field which may impede the definition and execution of common action on the part of the Community (pp. 222–34).

Held:—At the time when the matters before the national courts arose, the member States were still empowered to enter into international commitments, within the framework of the Convention, concerning the conservation of fish. A Member State which adopted measures limiting fishing activities with a view to conserving the resources of the sea acted in a manner which was compatible with Community law.

(1) Article 210 of the EEC Treaty, which endowed the Community with legal personality, allowed the Community, in its external relations, to enter into international commitments concerning any of the objectives enumerated in Part I of that Treaty. Such authority arose not only when expressly conferred by the EEC Treaty itself, but could flow implicitly from other provisions of the Treaty, from the Act of Accession and from measures adopted within the framework of those provisions by the Community institutions (p. 262).

(2) It followed from the duties and powers which the Community had established and assigned to its various institutions that, in so far as its internal constitution was concerned, the Community was empowered to take any measures for the conservation of the biological resources of the sea including the fixing of both quotas and their allocation between different Member States. The only way to ensure that conservation of the biological resources of the sea was carried out in an effective and equitable manner was through a system of rules that were binding on all States concerned, including non-Member countries. It followed that the Community had the authority to enter into international agreements concerning the conservation of the biological resources of the sea (p. 263).

(3) Although Regulation No 2141/70 empowered the Community to take measures similar to those to which the Member States concerned had committed themselves within the framework of the Convention, the Community had not, as yet, exercised those powers. Until such time as the Community fully exercised its powers to enact conservation measures which limited the fishing activities of Member States, any members of the Community who were parties to the Convention...