Regulation 2141/70, the basis of the Common Fisheries Policy was adopted by October 1970 though, apparently, the FCO remained unaware of this or, possibly, insisted that it was unaware. The text we have linked to is in French as it was not published in English at the time, there being no English speaking country in the EEC. One imagines a translation was provided for the FCO eventually and for the negotiators. It was also published in Dutch, Italian and German.
A cursory glance through the Regulation shows that it establishes a common policy for the fisheries and the concept of commonly held waters or, in other words, equal access for all member states. In this Report the Food and Agriculture Organization of the United Nations stated in Section 4.1:
Community control over fisheries is derived from explicit mention in the Treaty itself 2/, as enacted by the Council of Ministers through regulations in 1970 3/. They were consolidated in 1976 4/, with derogations provided for by the Treaty of Accession in respect of Denmark, Ireland and the United Kingdom. Regulation 2141/70/EEC, established a common structural policy for the fishing industry and in particular aimed to ensure equal access to the fishing grounds of each member State "coming under its sovereignty or within its jurisdiction". 5/
2/ Article 38 - para. 1, and Articles 39-46, read in conjunction with Annex II which brings fisheries within the overall common agricultural policy
3/ O.J. 1970 L 236/1 and 5 - Council Regulations 2141 and 2142/70/EEC
4/ O.J. 1976 L 20/1 and 19 - Council Regulations 100 and 101/76/EEC
5/ Article 2 of Regulation 2141/70 and restated in Article 2 of Regulation 101/76
Actually, the references are not exactly accurate (we shall deal with later developments in other postings) because the Regulation does not mention Article 38, merely, Articles 7, 42, 43 and 235.
Article 38 of the Treaty of Rome states:
1. The common market shall extend to agriculture and trade in agricultural products. “Agricultural products” means the products of the soil, of stock-farming and of fisheries and products of first-stage processing directly related to these products.
2. Save as otherwise provided in Articles 39 to 46, the rules laid down for the establishment of the common market shall apply to agricultural products.
3. The products subject to the provisions of Articles 39 to 46 are listed in Annex II to this Treaty. Within two years of the entry into force of this Treaty, however, the Council shall, acting by a qualified majority on a proposal from the Commission, decide what products are to be added to this list.
4. The operation and development of the common market for agricultural products must be accompanied by the establishment of a common agricultural policy among the Member States.
The reason Article 38 is quoted erroneously is because it is the only one that actually mentions fisheries or, to be quite precise, the products of fisheries and the establishment of a common market in them all.
The Articles that are actually quoted as the basis for the infamous Regulation do not refer to the subject as was stated by Service Juridique of the Council of Ministers in its Opinion of 18/05/1970. The Opinion discarded Article 38 as it did not cover fisheries themselves, only their products; it discarded Articles 39 - 43 as these did not even mention fisheries; and it discarded Article 7 as it did not furnish a sufficient base for the Regulation.
That left Article 235, a catch-all one, so familiar to those of us who have had the misfortune to deal with EEC/EC/EU legislation.
If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of they 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 [European Parliament], take the appropriate measures.
Even so, fisheries are not mentioned so the argument that Article 235 is a sound enough legal basis remains doubtful.
In the end none of it mattered. Breaking its own legal structures, not for the last time, the EEC's Council of Ministers passed the Regulation. The British government denied as long as it could its existence, then trumpeted as a great achievement that a derogation for the 6 mile zone was agreed and even that was under Community rules. The 6 - 12 mile zone was to be under limited control but all of this was merely a 10 year derogation.
In its negotiations, the British government accepted the basic premiss of the fisheries being a common resource and that, inevitably, meant equal access to the waters allowing for temporary derogations.