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22.1.2.  Free access to fishing zones in the EU

    The implementation of the rule of the United Nations of a 200 mile fishery conservation zone provided a striking illustration of the need for a common conservation policy for these new European Community resources. The principle of free access to the fishing zones of Member States was incorporated into the Regulation establishing the fisheries structural policy, adopted as far back as 1970, the year in which accession negotiations were opened with four countries - the United Kingdom, Ireland, Denmark and Norway - all major fishing nations, the total catch of which amounted to double that of the six founding Member States.

    The principle of equal access to fishing zones therefore formed part of the "acquis communautaire" (existing European legislation) which applicants had to accept. Although they attempted to abolish the rule of equal access during accession negotiations, they only succeeded in postponing its full application. Articles 100 to 103 of the Act of Accession granted a temporary derogation to the 1970 Community Regulation, authorising the Member States to maintain until December 31, 1982 exclusive fishing rights for their vessels in waters up to six nautical miles from their coasts (stretched to twelve miles for certain regions of the acceding States and of France), provided that the historic fishing rights of vessels from other Member States were respected in these waters. Despite this temporary derogation, the principle of equal access to economic zones was one of the main causes for the negative votes of the Norwegian people on European Community membership, in 1973 as in 1994 [see section 1.2].

    The Commission felt that the total allowable catch should be shared out in accordance with the golden rule of the common market, namely freedom from all form of discrimination [see sections 5.1 and 6.1]. This amounted to equality of access for the vessels of the Member States to European waters. However, the very uneven spread of fishery resources between the waters of the Member States and the fact that fishermen consider it their exclusive right to fish in the strip of coastal water under the jurisdiction of their State and to continue to fish in areas where they have traditionally fished, even if these areas are no longer covered by open access but fall into the economic zone of another Member State, give a measure of the difficulties faced by a European policy of fishery resources management and conservation.

    The Accession Act further stipulated that at the latest six years after accession, the European Community would set fishing conditions in such a manner as to guarantee the protection of fishing grounds and the conservation of the sea's biological resources. But fishing conditions were turned on their head in September 1976 by the adoption of the 200-mile limit by the United Nations Conference. In October 1976, the Commission put forward proposals for the establishment of a European system for the management and conservation of fishery resources. This system was based upon three main ideas: selective conservation measures, catch quotas and fishing licences. Selective conservation measures include, for example, measures to stop or restrict fishing at certain periods, to define types of fishing vessels, to set norms for the mesh sizes of fishing nets or to define the minimum size and weight for each species fished. Catch quotas represent the sharing out between the Member States of the Total Allowable Catch (TAC). Fishing licences are the manner in which national quotas are shared out at national level, with the registration and the granting of a licence to each fishing vessel and/or skipper.

    There could be grounds for viewing these quotas as measures having equivalent effect to quantitative restrictions, forbidden by Articles 28 et seq. of the EC Treaty (ex-Art. 30 et seq.). This point was made at the Court of Justice, which rejected this argument, concluding that catch quotas were applicable at production stage, whereas Articles 28 et seq. concern distribution. The Court further declared that although the quotas sought to restrict short-term production, their aim was to avoid the depletion of fishery resources which would jeopardise consumer supply in the long term [Joined Cases 3, 4 and 6/76]. The main significance, however, of this judgment was that it acted as a forerunner to the European decision-making process by clarifying the Community's competences in the fisheries sector. The Court noted that in the internal framework, the Community had the power to take all measures concerning the conservation of fishery resources and that on the external front, the Community had the power to enter into international stock conservation commitments. The Court ruled that the powers of the Member States in the area of the conservation of fishery resources were of a temporary nature and, in accordance with the provisions of Article 102 of the Act of Accession, should cease at the latest from the sixth year after accession.

    In another judgment the Court confirmed that, in matters concerning the high seas which fall under its jurisdiction, the Community has the same legislative powers as are enjoyed under international law by the flag State, namely the power to introduce measures for the conservation of marine stocks applying to vessels flying the flag of a Member State or registered in a Member State [Case C-405/92].

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