2.1 Introduction

The EC is not only a customs union, as mentioned above, but also constitutes an internal market.¹² The latter is defined by Article 14(2) EC as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’. In the same vein, Article 3 EC, which sets out a list of the ‘activities of the Community’, describes an internal market as ‘characterised by the (p. 463 ) abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital’. It follows from those provisions that there is in principle complete freedom of trade in goods between EC Member States (although when new Member States accede to the EC, there may be some temporary restrictions on free trade between those Member States and the old Member States), which is governed by the provisions of the EC Treaty dealing with free movement of goods, as interpreted and applied by the Court. The term ‘goods’ is, surprisingly (given its importance), nowhere defined in the EC Treaty or secondary legislation. That omission has been cured by the Court, which has defined ‘goods’ as ‘products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’.¹³ Clearly fishery products fall within that definition. This means that trade in fishery products between EC Member States is governed by the provisions of the EC Treaty dealing with the free movement of goods.¹⁴ By trade in fishery products between EC Member States is meant where such products are imported by one Member State from another Member State (or, from the perspective of the latter Member State, where goods are exported from that Member State to the importing Member State). A fishery product is imported where it originates in one Member State (a concept whose meaning is explained below) and enters another Member State, either by being landed at a port in that Member State or by entering the territory of that Member State by road, rail, air or some other form of transport. The Treaty provisions on free movement of goods, in broad outline, prohibit, in intra-EC trade, customs duties and charges having equivalent effect, discriminatory taxation, and quantitative restrictions and measures having equivalent effect. Before exploring how those three sets of prohibitions apply to trade in fishery products, it is necessary to consider more precisely the circumstances in which the EC Treaty's provisions on free movement of goods are applicable.

Article 23(2) EC states that the provisions of the Treaty on free movement of goods apply to ‘products originating in Member States’ and to ‘products coming from third countries which are in free circulation in Member States’. As regards the latter, according to Article 24 EC, ‘products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State’. That category of (fishery) product is therefore relatively straightforward. The position is less clear-cut in relation to ‘products originating in Member States’, particularly in relation to fishery products. That is because many fishery products originate from fish caught at sea: in the latter situation it may be questioned whether they do, in fact, originate in a Member State.

(p. 464 ) Rather curiously, perhaps, neither the EC Treaty nor secondary legislation directly defines the phrase ‘products originating in Member States’. That origin of goods is defined for the purposes of trade between the EC and third States by the Community Customs Code,¹⁵ and that definition may be applied by analogy to intra-EC trade, as was implicitly done by the Advocate General in Pansard. ¹⁶ Article 23(1) of the Code provides that goods originate in a country if they are ‘wholly obtained in that country’. Article 23(2) goes on to provide that the expression ‘goods wholly obtained in a country’ includes, inter alia, ‘(e) products of hunting or fishing carried on therein’ and ‘(f) products of sea-fishing and other products taken from the sea outside a country's territorial sea by vessels registered or recorded in the country concerned and flying the flag of that country’. Article 23(3) provides that for the purposes of Article 23(2) ‘country’ includes ‘that country's territorial sea’. There is a degree of ambiguity about the first use of the word ‘country’ in Article 23(2)(f). Does ‘a country's territorial sea’ refer to the territorial sea of any country or only to the territorial sea of the country where the vessel is registered and whose flag it flies?

In Pansard, which concerned a request for a preliminary ruling from a French court as to whether scallops caught by a French vessel in the territorial sea of Jersey (one of the Channel Islands) and landed in France were to be regarded as imports from another Member State,¹⁷ the French government (supported by the Dutch government) argued that ‘a country’ in the phrase ‘a country's territorial sea’ in Article 23(2)(f) referred to the country where the vessel concerned was registered. The Advocate General disagreed. In his view ‘a country’ referred to any country.¹⁸ The Court found that it was not necessary to consider this question. If the Advocate General's view is correct, fish originate in a Member State for the purposes of the free movement of goods if they are caught within the territorial sea of that Member State, if they are caught by a vessel registered in that Member State in the exclusive economic zone (EEZ) or exclusive fishing zone (EFZ) of another Member State or a third State, or if they are caught on the high seas, but not if they are caught within the territorial sea of another Member State or of a third State. That interpretation of Article 23(2)(f) produces some rather odd consequences. Take the situation where a vessel registered in Member State A takes part of its catch in Member State B's EEZ and part in Member State B's territorial sea (p. 465 ) (something that is quite possible under EC rules on access to fishing grounds, discussed in Chapter 4) and then lands its catch in Member State A. That part of the catch taken in State B's EEZ will not be an import into State A because it originates in State A. However, that part of the catch taken in State B's territorial sea will be an import into State A from another Member State and therefore subject to EC rules on the free movement of goods. Likewise, where a vessel registered in an EC Member State takes part of its catch in a third State's EEZ and part in that State's territorial sea (something that is possible in practice under at least one of the EC's agreements on the access of Community vessels to the waters of third States, discussed in Chapter 5) and then lands its catch in its home Member State, that part of the catch taken in the third State's EEZ will not be an import, whereas that part taken in the territorial sea will be an import and subject to Community rules on trade with third States. It is doubtful whether in practice the national authorities at the port of landing distinguish catches in that way or whether indeed it is practicable for them to do so. The position just described would be avoided if the French government's interpretation of Article 23(2)(f) were adopted, an interpretation that seems a more natural reading of at least the English version of Article 23, whereby the term ‘the country concerned’ in Article 23(2)(f) would refer back to ‘a country’ earlier in the sentence. That interpretation also accords with the way that the original version of the Community Customs Code was drafted.¹⁹ It is also supported by the Commission Regulation implementing Regulation 2913/92, namely Regulation 2454/93.²⁰ The latter contains two provisions that govern the origin of goods for the purposes of certain trade regimes. Article 68(1) provides that ‘[t]he following shall be considered as wholly obtained in a beneficiary country or in the Community … (f) products of sea fishing and other products taken from the sea outside its territorial waters by its vessels’ (emphasis added). The natural reading of this provision is that, as regards the Community, ‘its’ refers to the territorial waters of, and vessels registered in, EC Member States. Article 99(1) is identically worded except that in subparagraph (f) the phrase ‘the territorial waters’ appears, rather than ‘its territorial waters’ (emphasis added). The phrase ‘the territorial waters’ in Article 99(1)(f) is ambiguous and could be taken as referring to the territorial waters of any State, with the consequence that Article 99(1)(f) would not cover fish caught in the territorial sea of a third State. However, ‘the territorial waters’ appears to be a drafting error, as the Danish, French, German, and Italian versions of Article 99(1)(f) are identical to Article 68(1)(f), although, compared with the English version, all use ‘their’ rather than ‘its’ (‘their territorial waters’, ‘their vessels’): other language versions have not been consulted.

(p. 466 ) The Advocate General in Pansard supports his view by reference to the purpose of the Code, which is to raise income for the EC in the form of customs duties. He presumably considers that such income would be reduced if fish caught in the territorial sea of a third State by Community vessels were not considered to be imports. That overlooks the fact that under Article 188 of the Code customs duties are not levied on such fish (see further subsection 3.2 below). The Advocate General also appears to overlook the practical difficulties of determining the origin of fish according to the maritime zone in which the catch was taken. Those difficulties would be avoided if the origin of the catch were determined by the nationality of the vessel making the catch rather than its location, which would follow from the French government's interpretation. Nevertheless, whatever problems there may be with the Advocate General's interpretation of Article 23 of the Customs Code, that interpretation is supported by Article 188 of the Code, which, as mentioned, exempts fish caught by a Community vessel in a third State's territorial sea from customs duties: that provision must presuppose that such fish would otherwise be subject to duties, ie that they do not originate in a Member State. The Advocate General's interpretation is also supported by the rules of origin applying to exports from third States to the EC (discussed in subsection 3.2 below) and Article 325 of Commission Regulation 2454/93, which lays down a system of documentation for fish to be considered as originating in the EC: that system applies to ‘the products of sea-fishing caught by a Community fishing vessel, in waters other than the territorial waters of a country or territory outside the customs territory of the Community’. The Advocate General's position also reflects the fact that under international law the territorial sea is considered to be part of the territory of a State,²¹ as is indeed implicitly recognized in Article 23(3) of the Customs Code (referred to above).

As mentioned above, Regulation 2913/92 is gradually being replaced by Regulation 450/2008. The provision of Regulation 450/2008 that is said by the latter to correspond to Article 23 of Regulation 2913/92 is Article 36.²² The latter only corresponds to Article 23(1) of Regulation 2913/92, however. There is nothing in Article 36 (or elsewhere in Regulation 450/2008) that corresponds to Article 23(2) and (3) of Regulation 2913/92. Article 4(18) of Regulation 450/2008 defines ‘Community goods’ as ‘goods wholly obtained in the customs territory of the Community’, and the latter territory includes, according to Article 3(1), the territorial sea of that territory. Article 133 of Regulation 450/2008 corresponds to Article 188 of Regulation 2913/92 (dealing with fish caught by Community vessels in the territorial sea of third States). Thus, there is no provision in Regulation 450/2008 that deals with the customs status of fish caught by Community vessels outside the territorial sea of a Member State or of a third State. In its proposal for what became Regulation 450/2008, the Commission explained that (p. 467 ) no provisions on rules of origin were included in the draft regulation because international harmonization work under the World Trade Organization (WTO) Agreement on Rules of Origin had not been completed at that time: such provisions would subsequently be included in legislation implementing Regulation 450/2008.²³ Until such legislation is adopted, Regulation 2454/93 will govern the situation, in particular Articles 68, 99, and 325 (discussed above).

The question as to the origin of fish for trade purposes has also arisen in the context of the, presumably rather unusual, situation where fish are caught by a vessel registered in a third State and the nets with the catch still in them are then transferred to a Community vessel. In Commission v United Kingdom the Court held that in such circumstances the catch does not originate in a Member State but in the third State concerned.²⁴ The same reasoning would appear to be applicable to the rather more common situation of transhipment, a matter that is not addressed by the Community Customs Code and its implementing legislation. If so, fish caught by a vessel registered in a third State and transhipped to a Community vessel would not be of Community origin. That would be so regardless of where the transhipment took place; otherwise by transhipping to a Community vessel in the territorial sea or port of a Member State, a third State vessel would easily be able to avoid the custom duties that would otherwise be payable. While the Community Customs Code does not deal with the issue of transhipment, it does cover the situation where catches are transferred from the vessel making the catch to another vessel for processing. Article 23(2)(g) of Regulation 2913/92 (and Articles 68(1)(g) and 99(1)(g) of Regulation 2454/93) provide that where goods are produced on board a factory ship registered in a Member State from fish caught by a Community vessel, they will be of Community origin: if either the factory ship or the catching vessel is not registered in a Member State, the processed goods will not be of Community origin.

To sum up: fishery products will ‘originate’ in a Member State for the purposes of EC law on the free movement of goods, if: (a) they are wholly produced on the territory of that Member State (for example, from aquaculture, inland fishing, or the processing of fish either originating in that Member State or, if imported from a third State, in free circulation in that Member State); (b) they are caught by Community fishing vessels registered in that Member State in (i) the internal waters or territorial sea of that Member State, (ii) the EEZ or EFZ of that or any other Member State, (iii) on the high seas or (iv) the EEZ or EFZ of a third State; or (c) they are produced on board a factory ship registered in that Member State from fish caught by a Community fishing vessel registered in the same Member State. Fishery products will not originate in a Member State if transhipped to a vessel registered in that Member State from a vessel registered in another Member (p. 468 ) State or a third State. There is uncertainty as to the status of origin of fish caught by Community fishing vessels registered in a Member State in the territorial sea of another Member State or a third State.

2.2 Customs duties and charges of equivalent effect

As mentioned above, the free movement of goods provisions of the EC Treaty contain three sets of prohibitions designed to achieve free trade between Member States. First, Article 25 EC prohibits customs duties on imports and exports between Member States and ‘charges having equivalent effect’. While the concept of customs duties is well known and straightforward, that of ‘charges having equivalent effect’ is much less so. There are a number of significant terms relating to the free movement of goods used in the EC Treaty (including ‘charges having equivalent effect’) for which no definition is provided either in the Treaty or secondary legislation. In all those cases the Court has provided definitions that it has applied consistently over many years. In the case of ‘charges having equivalent effect’, the term has been defined by the Court to mean ‘any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic goods by virtue of the fact that they cross a frontier, and which is not a customs duty in the strict sense … even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with the domestic product’.²⁵ There are, however, two types of charge that may be levied by a Member State on imports or exports that will not be regarded as ‘charges having equivalent effect’ to customs duties and so will not fall foul of Article 25. The first is a charge for a service that is of direct benefit to the trader and that represents no more than the cost of that service.²⁶ The second is a charge for the inspection of goods crossing a frontier that is required by EC law, provided that the fee for such an inspection does not exceed its actual cost, that the inspection is mandatory and uniform for all the products concerned in the EC and is prescribed by EC law in the general interest, and that such inspection promotes the free movement of goods, in particular by neutralizing obstacles to trade that could arise from unilateral inspections.²⁷ As far as fishery products are concerned, there is EC legislation that requires the inspection of some such products.²⁸

(p. 469 ) Only two cases concerning Article 25 EC that relate to fishery products appear to have come before the Court. In United Foods ²⁹ the Court considered that Belgian legislation imposing a levy to cover the cost of health checks on imported fish was contrary to Article 25 because that levy lacked ‘objective justification, in accordance with particular criteria concerning the nature or condition of the goods, which [were] not comparable to the criteria used in fixing pecuniary charges on domestic products of the same kind’.³⁰ In Koornstra ³¹ a Dutch regulation imposed a levy on Dutch vessels transporting shrimp in order to finance the purchase and operation by the Fish Marketing Board of shrimp sieves and peelers. The levy was payable whether the shrimp were landed in the Netherlands or another Member State. In a request for a preliminary ruling the Court was asked whether the levy constituted either a charge of equivalent effect to a customs duty, contrary to Article 25 EC, or discriminatory taxation, contrary to Article 90 EC (discussed in subsection 2.3 below). Having noted that the levy imposed a heavier burden on vessels landing shrimp in another Member State (ie for export) than in the Netherlands because they received no benefit from the equipment financed by the levy, the Court held that it was for the national court to determine whether the levy fell within Article 25 or Article 90 in the light of all the circumstances. If ‘the advantages stemming from the use of the revenue’ from the levy ‘fully offset the burden borne’ by vessels landing shrimp in the Netherlands (the ‘advantages’ to which the Court refers are presumably the benefits to such vessels of the equipment purchased out of the levy), the levy would be a charge equivalent to a duty on exports, contrary to Article 25 EC. If, on the other hand, the advantages referred to ‘offset only partially the burden borne’ by vessels landing shrimp in the Netherlands, the levy would constitute discriminatory taxation contrary to Article 90 EC (presumably because while both those landing shrimp in the Netherlands and those landing elsewhere would bear a financial burden, that burden would fall less heavily on those landing shrimp in the Netherlands).³²

2.3 Discriminatory taxation

The second set of prohibitions designed to ensure free movement of goods is that concerned with discriminatory taxation. If imported goods are taxed more heavily than domestic goods, the latter will gain a competitive advantage, thus undermining the idea of the EC as a single market. Article 90 EC aims to prevent that. Article 90(1) provides that ‘no Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess (p. 470 ) of that imposed directly or indirectly on similar domestic products’. That provision thus prohibits both directly and indirectly discriminatory taxation. There is direct discrimination if a tax is levied only on imported goods and not on ‘similar domestic products’. According to the Court, products are similar if they have similar characteristics and meet the same needs of consumers;³³ or, put another way, if they can be substituted interchangeably. There is indirect discrimination if a tax, although applicable to all goods of a particular kind, falls in practice more heavily on imported goods than domestic products. However, indirectly discriminatory tax will not be contrary to Article 90(1) if based on objective criteria that are designed to achieve economic policy objectives that are compatible with EC law and applied so as to avoid discrimination.³⁴ Article 90(2) prohibits the taxation of imported goods which, even if not ‘similar’ to domestic goods, are in some degree of competition with them, if such a tax is of ‘such a nature as to afford indirect protection’ to domestic goods.³⁵ The only case concerning Article 90 and fishery products appears to be Koornstra (discussed above).

2.4 Quantitative restrictions and measures of equivalent effect

The final set of provisions of the EC Treaty designed to ensure free movement of goods between Member States deals with quantitative restrictions and measures of equivalent effect. Article 28 provides that ‘[q]uantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’, while Article 29 contains a similar prohibition in respect of exports. The Court has defined quantitative restrictions as ‘measures which amount to a total or partial restraint of … imports, exports or goods in transit’.³⁶ ‘Measures having equivalent effect’ to quantitative restrictions have been defined by the Court, in what is known as the Dassonville formula, as ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’.³⁷ That formula is extremely wide and is capable of catching a large number of national measures relating to trade, production, and marketing. It includes not only overtly protective measures or measures that apply solely to imports or exports (which are known as distinctly applicable measures), but also measures that apply equally to imported (or exported) and domestic products alike, often for apparently beneficial purposes (such as regulating (p. 471 ) the quality of goods), but which may nevertheless have a restraining effect on intra-Community trade. The latter kinds of measures are known as indistinctly applicable measures.³⁸

There are two exceptions to the prohibition in Article 28. The first, which also applies to Article 29, is contained in Article 30, and reads as follows:

The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

The Court has added that for a measure to be justified under Article 30 it must be necessary to achieve the objective desired (in terms of the grounds listed in Article 30) and it must not be possible to achieve that objective by means that are less restrictive of intra-EC trade (the principle of proportionality).³⁹ Furthermore, the matter with which the national measure is concerned must not be governed by specific EC legislation intended to harmonize the area in question, at least where harmonization is total.⁴⁰

Of the various grounds listed in Article 30, the one that in practice is likely to be most relevant to trade in fishery products is the protection of the health and life of humans and animals. However, as indicated, that ground cannot be invoked if EC legislation totally harmonizing national laws in that field already exists. In the case of fishery products, there is, in fact, a considerable body of legislation on public health. (There is some discussion of that legislation in subsection 3.2 below, but it is beyond the scope of this book to attempt a comprehensive discussion.) Where there is no comprehensive EC legislation in existence, a Member State may invoke the public health exception in Article 30, but the Court has held that to do so, the Member State must be able to produce convincing scientific evidence of the threat to health that the measure in question seeks to counter and to demonstrate that the measure meets a real need.⁴¹

The second exception to the prohibition on measures having equivalent effect to quantitative restrictions on imports is the so-called ‘rule of reason’ developed by (p. 472 ) the Court in the Cassis de Dijon case, so known because of the eponymous liqueur at the centre of the case. The Court held that:

In the absence of common rules … [o]bstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.⁴²

Thus, for a trading measure to satisfy the rule of reason it must relate to a ‘mandatory requirement’, be ‘necessary’, and not relate to a matter covered by a Community harmonization measure (‘the absence of common rules’). A national measure that satisfies those requirements will not contravene Article 28, even though it appears to fall within the Dassonville formula. The Court has added to the (non-exhaustive) list of mandatory requirements set out in Cassis de Dijon in a number of later cases, notably by including protection of the environment.⁴³

At first sight there appears to be a substantial degree of overlap between Article 30 and the rule of reason. One of the most frequently invoked grounds under Article 30 (protection of public health) is the same as one of the mandatory requirements of the rule of reason, and both Article 30 and the rule of reason require national trading measures to be necessary and not relate to a matter totally covered by an EC measure. However, in practice the two serve different purposes. Article 30 is used in practice by the Court to test the lawfulness of a distinctly applicable measure (ie a measure applying solely to imports or exports) that falls within the Dassonville formula of being equivalent to a quantitative restriction, whereas the rule of reason is used by the Court to judge the lawfulness of an indistinctly applicable measure (ie one applying equally to imported and domestic products alike): if such a measure satisfies the rule of reason it will not contravene Article 28.⁴⁴

About a dozen cases concerning fishery products and the prohibition on quantitative restrictions and measures of equivalent effect have come before the Court. Three cases concern catch quotas. In those cases it was argued that such quotas breach Article 29 by restricting the amount of fish that may be exported. The Court has consistently rejected such arguments, taking the view that catch quotas introduced for reasons of fisheries conservation fall outside the scope of Article 29 because they are concerned with production, whereas the prohibition on quantitative restrictions and equivalent measures is concerned with a different stage of the economic process, namely marketing: in any case, quotas are designed to increase supplies to consumers by restricting production in the short term in (p. 473 ) order to lead to a sustainable optimum yield in the long run.⁴⁵ The Court's consistent approach in those cases is obviously to be welcomed.

The remaining cases all involve what were fairly obviously breaches of Article 28, with the question in most of the cases being whether those breaches were saved by the exception in Article 30. A first group concerns bans or restrictions on the landing of catches. In Commission v Ireland the Court found a complete prohibition imposed by Ireland on the landing in Ireland of catches by British vessels unless 75 per cent of the crew were EC nationals and ordinarily resident in the UK (which was designed to address the problem of quota hopping, discussed in Chapter 4) was contrary to Article 28.⁴⁶ Ireland did not attempt to justify the measure under Article 30. Pansard (discussed above) concerned a prohibition on the landing of scallops in France (wherever caught) that was designed to reinforce a ban on scallop fishing in France's territorial sea during the summer months. Pansard was prosecuted for landing scallops caught in Jersey's territorial sea during the prohibited period but argued in her defence that the landing ban was contrary to EC law. While the Court discussed the issue purely in terms of the scope of the competence of the Member States to adopt fisheries conservation measures (see Chapter 4), the Advocate General also discussed the matter from the point of view of free movement of goods. He concluded that the prohibition on landings breached Article 28. Although the prohibition was for the protection of the health and life of animals within the meaning of Article 30, it was not justified by that Article because it was disproportionate as it applied to scallops wherever caught, whereas the ban on catching scallops applied only to France's territorial sea.⁴⁷ The third case of the group concerned with landing bans is Commission v United Kingdom .⁴⁸ That case related to the validity in EC law of a number of national measures adopted by the UK, one of which was a restriction on the number of ports at which Irish fishermen could land herring caught in British waters. The Commission argued that that restriction was a breach of Article 28. The Court did not find it necessary to discuss that point, but the Advocate General appeared to favour the Commission's argument.⁴⁹ The question of whether a Member State may restrict the number of ports at which catches may be landed for the purpose of facilitating the enforcement of fisheries conservation measures (which was the motive for the UK's measure at issue in Commission v United Kingdom ) has since been clarified by the Community legislature. Regulation 2847/93 (hereafter, ‘the Control Regulation’) (discussed extensively in Chapter 4) recognizes that as part of its powers to (p. 474 ) adopt national measures going beyond the requirements of that Regulation, a Member State may designate (and hence restrict the number of) ports at which catches must be landed, subject to the right of the Commission to adopt limited and temporary exceptions.⁵⁰

A second group of fisheries cases where there was clearly a breach of Article 28 all concerned bans imposed on imported fish for health reasons, and turned on whether such bans were justified under Article 30. In Hahn, a preliminary ruling, the Court held that a ban by Austria on imports of smoked salmon from Denmark because such imports contained listeria was saved by Article 30 because it was scientifically justified and proportionate.⁵¹ On the other hand, in Commission v Italy the Court held that a ban on the import of fish with dead or devitalized nematode larvae as a result of prior treatment was not justified under Article 30 because Italy had failed to prove that the fish were a threat to health.⁵² In Commission v Germany a prohibition imposed by Germany on imported live crayfish (except where licensed) because of the risk of spreading disease to native crayfish, of which hardly any were left in the wild, was found to be disproportionate, and therefore not justified by Article 30, because the same objective (to prevent the spread of disease) could have been achieved with less restrictive measures.⁵³ In Motte, a preliminary ruling, the Court left it to the national court to determine whether Belgian legislation prohibiting the addition of colourants to potted roe met the requirements of Article 30 in terms of scientific justification and proportionality.⁵⁴

A final group of cases concerns inspections of imported fish on health grounds. Such inspections breach Article 28 unless authorized under EC legislation, but are in principle justifiable under Article 30. In United Foods (one aspect of which was discussed above), the Court, in response to a request for a preliminary ruling, considered that Belgian inspections of imported fish for health control purposes appeared to constitute a disguised restriction on trade, contrary to Article 30, because of the length of notice that the importer had to give of import, the fact that inspections could take place only at certain locations and times, and the fact that the fish had to undergo inspection even if they had already been inspected in their State of origin. A definitive determination was, however, a matter for the national court.⁵⁵ In the other case in this group, Commission v Italy , the Italian authorities prohibited imports of fish from other Member States that contained nematode larvae (as mentioned above) and inspected consignments of fish to reinforce that prohibition. The Court found that such inspections were in principle permitted (p. 475 ) under Article 30, but insofar as Italy had carried out systematic checks on imported fish that were accompanied by a health certificate from the exporting State to the effect that the fish were free of nematode larvae, its actions were not justified under Article 30. Such systematic checks were disproportionate; spot checks would have been sufficient.⁵⁶

Finally, it is worth moving briefly from decided cases to the realms of speculation. If a Member State were to seek to ban imports of fish from another Member State on the ground that such fish had been taken in contravention of applicable EC measures to conserve fish stocks or, pursuant to Article 6 EC, to minimize the impact of fishing on the wider marine environment (hereafter, in this subsection, ‘EC measures’), would that be contrary to EC law? The Court has held that measures adopted for reasons of fisheries conservation (whether at national level or at EC level) do not constitute measures having an effect equivalent to quantitative restrictions because such measures aim to ensure a sustainable yield from fishing in the long term (see case law cited at footnote 45). It is arguable that the same should be said of actions, including import bans, intended to enforce fisheries conservation measures. That said, any import ban adopted at the national level for that purpose would presumably have a greater degree of protection from a challenge based on trade restriction arguments if it were to have been adopted pursuant to a power or duty established by EC legislation. Therefore, the following analysis will consider briefly EC legislation adopted under the CFP that requires or allows import bans on fishery products in the context of intra-EC trade.

A Member State is not explicitly authorized by EC legislation as currently applicable to ban the landing in its ports of catches taken by the vessels of another Member State. However, it is implicitly authorized to do so by the Control Regulation. Under Articles 31(1)–(3) and 32(1) of that Regulation a Member State must take ‘appropriate’ measures, including by administrative action or criminal proceedings, where the rules of the CFP have not been ‘respected’: the sanctions ‘arising from [such] proceedings’ may include the seizure of prohibited catches. (Those provisions also apply in respect of the importing Member State's own vessels, so what is being considered here is in fact an indistinctly applicable measure.) It would seem to follow from Articles 31 and 32 of the Control Regulation that a Member State may temporarily hold a catch that the vessel of another Member State wishes to land where the first Member State (the port Member State) suspects that the catch has been taken in breach of EC measures (for example, because some of the fish are undersized or of a species for which the flag Member State does not hold a quota) until the port Member State's suspicions are confirmed in administrative or criminal proceedings or proceedings are transferred to the flag Member State. Where the port Member State's suspicions are confirmed, the catch may be confiscated. There will be some reinforcement of the above provisions of the Control Regulation from the beginning of 2010, when (p. 476 ) Regulation 1005/2008 (hereafter, ‘the IUU Regulation’), which is aimed at combating illegal, unreported, and unregulated (IUU) fishing, takes effect.⁵⁷ Under Article 37(5) of that Regulation a Community vessel on the Community IUU vessel list may not enter the port of another Member State except for reasons of force majeure or distress; and if it does so, its catch must be confiscated. Alternatively a Member State may authorize the entry of such a vessel into its ports on the condition that catches on board are confiscated. Under Article 43(1), where a Member State suspects a natural person of having committed, or finds her/him in the act of committing, a ‘serious infringement’ (defined as including, inter alia, activities that constitute IUU fishing within the meaning of Article 3 of the Regulation⁵⁸), or suspects a legal person of being liable for such an infringement, that State must start a full investigation of the infringement and take immediate enforcement measures such as seizure of the catch and fishery products. Articles 37(5) and 43(1) require (or in the case of Article 43(1), at least allows) a Member State, in effect, to ban the landing of catches by vessels of another Member State in the circumstances there specified.

The previous paragraph has considered EC legislation adopted under the CFP that requires or allows, explicitly or otherwise, a Member State to ban the landing in its ports of catches taken by the vessels of another Member State. It is also necessary to consider the situation whereby fishery products from one Member State are imported into another Member State by some means other than being landed in the latter's ports (eg by air, rail or road). There is currently no EC law that authorizes a Member State to refuse such imports where the fish from which they have been produced have been caught in contravention of EC rules. The IUU Regulation, when it comes into operation, will not in principle change that position, since, aside from the landing of catches in port, it will regulate ‘importation’, a term defined in Article 2(11) of the Regulation as meaning ‘the introduction of fishery products into the territory of the Community’. The authors take this phrase to refer to the introduction of fishery products from outside the EC, as opposed to products that originate in the EC. It may be recalled from the discussion in subsection 2.1 above that, broadly speaking, fishery products originate in the EC if they have been caught by a Community fishing vessel anywhere, with the possible exception of the territorial sea of third States. Consequently ‘importation’ covers only products from third States (including products caught by third State vessels and landed directly in a Member State port) and possibly the relatively small amount of fishery products caught by Community vessels in the territorial sea of third States.

Despite the exclusion from the scope of the IUU Regulation of imports from Member States (other than in the form of catches landed by a vessel registered in (p. 477 ) one Member State in the ports of another), there are two provisions of the IUU Regulation that somewhat obliquely, and in certain circumstances, might permit a Member State to prohibit imports from another Member State. The first is Article 39, which provides that nationals of Member States shall not ‘support’ IUU fishing and that Member States must take ‘appropriate action’ with regard to such nationals. One could argue that ‘supporting’ IUU fishing could include exporting the products of IUU fishing, and that ‘appropriate action’ could include banning the import of such products. However, the examples of ‘support’ given in Article 39(1) suggest that that term is not intended to cover support in the form of selling and trading fishery products. The second provision that might permit a Member State to prohibit imports from another Member State is Article 43(1), which, as noted above, requires a Member State to take immediate enforcement measures (which may include seizure of the catch) in cases of the suspected or actual commission of a ‘serious infringement’. The latter term includes, inter alia, ‘the conduct of business directly connected to IUU fishing, including the trade in/or the importation of fishery products’.⁵⁹ It is not altogether clear that the reference to ‘trade’ includes intra-EC trade, since as seen, ‘importation’ has, at best, very limited application to imports from Member States.

It is difficult to see how, in practice, a Member State could prohibit imports of fishery products derived from fish caught in breach of EC rules from other Member States (other than when landed by Community fishing vessels in its ports) without some form of catch documentation scheme. However, any attempt by a Member State unilaterally to introduce such a scheme for imports from other Member States is likely to be condemned by the Court as disproportionate (since under the Control Regulation the Member State of export should have prevented the landing in its ports of catches taken in breach of EC rules⁶⁰) and perhaps also as amounting to arbitrary discrimination and a disguised restriction on trade. Given that fishing that breaches EC rules falls within the definition of IUU fishing in the IUU Regulation⁶¹ and that recital (5) of the Regulation states that the EC ‘should substantially enhance its action against IUU fishing and adopt new regulatory measures designed to cover all facets of the phenomenon’ (emphasis added), it is perhaps a matter of regret that the catch certification scheme that the IUU Regulation introduces for imports from third States into the EC (discussed in subsection 3.2 below) does not apply to intra-EC trade. Recital (9) justifies that position by pointing out that the provisions of the Control Regulation, especially on the monitoring of catches, establish a ‘comprehensive system designed to monitor the legality of catches from Community fishing vessels’. That justification would have (p. 478 ) some force if the Control Regulation was strictly applied by all Member States, but, as was seen in Chapter 4, that appears still to be some way from being the case.

So far the discussion has concerned the possibility for one Member State to ban imports of fishery products from another Member State where such products have been taken in breach of EC measures. Under Articles 8 and 9 of the Basic Regulation a Member State may, in certain circumstances, adopt national measures applicable to the vessels of other Member States (on which, see Chapter 4). These measures may apply to conservation of fish stocks or protection of the wider environment from fishing activities. May a Member State ban imports of fishery products from another Member State where such products have been taken in breach of national measures adopted by the first Member State? Arguably, the points made above in the context of EC measures—about the scope for applying the case law cited at footnote 45 to enforcement actions—are equally applicable in the context of national measures (cf the Advocate General’s approach in Pansard—see above). Where the imports took the form of fishery products being landed directly in port, it is arguable that the points made above regarding Article 31(1)–(3) of the Control Regulation in the context of EC measures should apply likewise to national measures adopted under the CFP. However, where the act of import was by another means, the same kind of considerations would apply as in the case of a Member State attempting to prohibit imports of fishery products taken in breach of EC measures, as discussed above.

3.1 Introduction

The legal framework regulating trade in fishery products between the EC and third States has a number of components. First, there is the basic Regulation on the common organization of the markets in fishery products (hereafter, ‘the Markets Regulation’)⁶² and measures adopted thereunder. As was explained in Chapter 6, there has been a succession of such Regulations since 1970. Each has contained a title dealing with trade with third States (Title V in the current Regulation). Over time the provisions in that title have gradually decreased in number and become less complex. That development is largely due to the need to comply with various agreements concluded in 1974 within the framework of the WTO (of which the EC and all its Member States are members). Article 40 of the Markets Regulation provides that it is to be applied so that it takes account at the same time of the objectives both of the CFP and of the common commercial policy (the objectives (p. 479 ) of the latter being set out in Article 131 EC). The second component of the legal framework regulating trade in fishery products between the EC and third States is the general body of EC trade law, particularly that concerned with customs duties, dumping, and subsidies, which applies as much to trade in fishery products as any other kinds of goods. The third component is a number of trade and commercial agreements between the EC and individual third States or groupings of third States (such as the African, Caribbean, and Pacific (ACP) States) that contain provisions on trade in fishery products. The fourth component is the general body of international trade law, particularly that stemming from the WTO, which provides an overarching framework within which EC trade with third States must operate. For the reasons explained in Chapter 5, trade and commercial agreements with third States and agreements concluded within the framework of the WTO are part of EC law. However, as also explained in Chapter 5, the provisions of those agreements cannot be invoked by natural or legal persons in proceedings before national courts to challenge the validity of acts of the EC institutions. A further component of the legal framework regulating trade in fishery products between the EC and third States is the Convention on International Trade in Endangered Species of Wild Fauna and Flora,⁶³ which regulates trade in, inter alia, a number of commercially exploited aquatic species. That Convention and its implementation by the EC are discussed in Chapter 5, and therefore are not considered further in this chapter.

The law regulating the import of fishery products from third States into the EC is quite different from that regulating the export of such products from the EC to third States. Each is therefore considered separately.

3.2 The regulation of imports

3.3 The regulation of exports

At the time of writing there was very little applicable EC law relating specifically to the export of fishery products. The only such law was legislation implementing RFMO catch documentation schemes (referred to above) and legislation implementing the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES, discussed in Chapter 5; and see further subsection 3.1 above). That position will change at the beginning of 2010 when the IUU Regulation, and the EC's catch certification scheme that it establishes, takes effect. The Regulation contains a number of provisions dealing with the export and re-export of fishery products. Article 15 of the Regulation will make the ‘exportation’ of catches made by ‘fishing vessels flying the flag of a Member State’ subject to having a catch certificate validated by the flag Member State, but only if that is required within the framework of cooperation under Article 20(4) between the EC and third States relating to catch certification (referred to in subsection 3.2 above). ‘Exportation’ is defined as ‘any movement to a third country of fishery products harvested by fishing vessels flying the flag of a Member State, including from the territory of the Community, from third countries or from fishing grounds’.¹⁸⁹ Article 21 of the IUU Regulation deals with ‘re-exportation’. It provides that where fishery products are to be re-exported from the EC following their import into the EC accompanied by a catch certificate, the EC Member State from which re-exportation is to take place must validate the appropriate section of the certificate. ‘Re-exportation’ is defined as ‘any movement from the territory of (p. 502 ) the Community of fishery products which had been previously imported into the territory of the Community’.¹⁹⁰ The IUU Regulation also contains a separate stricter provision on export and re-export of products from fishing vessels included in the Community IUU vessel list. Export and re-export of such products ‘for processing’, specifically, is prohibited.¹⁹¹ This wording implies that the prohibition does not apply where fish is exported for a purpose other than processing (for example, for direct human consumption).

Where the export of fishery products is not subject to the provisions of the IUU Regulation, Regulations implementing RFMO trade-related measures or Regulations implementing the CITES, general EC law relating to the export of goods applies. In principle, such export is free of restrictions.¹⁹² There are two exceptions to this principle that appear to be potentially relevant to fishery products. First, under Article 6 of Regulation 2603/69, ‘in order to prevent a critical situation from arising on account of a shortage of essential products, or to remedy such a situation, and where Community interests call for immediate intervention’, the Commission, acting at the request of a Member State or on its own initiative, and taking account of the nature of the products and of the other particular features of the transactions in question, may make the export of a product subject to the production of an export authorization. Conditions for the granting of such authorizations are to be laid down by the Commission. As far as the authors are aware, the Commission has never made use of its powers under Article 6 in respect of fishery products. The second potential exception is Article 11 of Regulation 2603/69. This provision allows individual Member States to restrict exports on grounds similar to those in Article 30 EC (on intra-Community trade; see subsection 2.4 above). Article 11 would therefore allow a Member State to ban exports of fishery products from its territory to a third State that it believed to be a threat to human health. It might also allow a Member State to prohibit the export of illegally caught fish that was not covered by the IUU Regulation on the ground of public policy or the protection of the health and life of animals. The authors are not aware to what degree, if any, Member States have used their powers under Article 11 in respect of fishery products.

Exports of fishery products from the EC to a third State may well have to face customs duties imposed by that third State. However, some of the agreements referred to in subsection 3.2 above under which the EC has reduced or abolished customs duties on imports of fishery products from third States also provide that the third State concerned shall take more or less similar action in respect of exports from the EC. Such agreements include the EEA Agreement¹⁹³ and the EC's Agreements with Algeria,¹⁹⁴ the CARIFORUM States,¹⁹⁵ Chile,¹⁹⁶ the Faroe (p. 503 ) Islands,¹⁹⁷ and South Africa.¹⁹⁸ Otherwise, where EC exports are to States that, like the EC, are members of the WTO, they will enjoy most-favoured-nation treatment and national treatment under Articles I and III of the GATT.

EC exporters obviously have to comply with any relevant laws of third States relating to imports of fishery products (for example, health and quality standards). If the EC considers that any such national laws violate the WTO obligations of the State concerned, it may initiate proceedings against that State under the WTO's Dispute Settlement Understanding. So far this has been done on only one occasion. In 2000 the EC commenced proceedings against Chile in respect of a Chilean law that prohibited the unloading in Chile's ports of swordfish caught by Community vessels on the high seas of the south-east Pacific. The EC claimed that that law violated Articles V and XI of the GATT (which prohibit restrictions on trade in transit and quantitative restrictions on imports and exports, respectively). A panel was constituted to hear the dispute, but proceedings were suspended in March 2001 when the EC and Chile announced that they had come to a provisional arrangement concerning the dispute: proceedings have remained suspended ever since then.¹⁹⁹ The dispute is linked to the Chile/EC Swordfish case before the International Tribunal for the Law of the Sea (discussed briefly in Chapter 5), proceedings in which are also currently suspended.