61977C0061(01)
SECOND OPINION OF MR ADVOCATE-GENERAL REISCHL
DELIVERED ON 11 JULY 1977 (
1
)
Mr President,
Members of the Court,
I refer to my first opinion of 21 May 1977 for the legal evaluation of the Irish measures which are at issue in the present proceedings.
1.
In so far as the view has been put forward at the hearing today that it is possible to separate the second Irish order from the first, which contains a general prohibition on fishing in the areas in question and thus is not discriminatory when considered alone, I would like for completeness to indicate the following legal consideration. The Commission and the Irish Government agreed in the oral procedure today that a total prohibition on fishing is not necessary for the conservation of fish stocks. This total prohibition on fishing which is laid down in the first Irish order must, if considered alone, in other words without supplementary measures, be in my opinion in breach of the principle of proportionality of the means used and therefore also incompatible with the Treaty.
2.
In my opinion of 21 May 1977 I further indicated that if it is decided that an interim order is necessary, or more precisely, if serious and irreparable damage is found, it is necessary to strike a balance between the interests involved. On that occasion I reached the conclusion that the extent and gravity of the damage threatening the Netherlands and French fishing industry was still not sufficiently clear. The intervention of the Netherlands Government and the figures produced by the Commission in the meantime have provided valuable information on this point. I now consider that a reasonable probability has been established that there is a threat of very serious and indeed irreparable damage to the Nehterlands fishing fleet (42 trawlers are directly affected) and to the Netherlands fish-processing industry if the total prohibition on fishing in the waters affected by the Irish measure continues, especially in the months from July to September which are of prime importance for them. Secondly, it seems to me to be worth noting in this connexion that the extensive prohibition on fishing imposed on third countries, as the Commission has described it, has helped to relieve very greatly the pressure on fish stocks around Ireland. In view of this I now no longer have any hesitation in striking the balance between the interests involved to the effect that I now consider that it is necessary to suspend the Irish measures by way of an interim order.
3.
In its Order of 22 May 1977, the Court of Justice described such suspension as justified in principle. It considered however that it should not order the suspension of those measures immediately but should give an opportunity for negotiations between the Irish government, the other Member States concerned and the Commission on an alternative solution which is compatible with the Treaty. As a result of these efforts, all Member States concerned have submitted fishing plans on which it has however been impossible to reach agreement until now in spite of all the explanations given and amendments made at the request of the Irish government. The Commission, which considers that these fishing plans are satisfactory in principle, has requested in the alternative that the Court of Justice should prescribe that the Government of Ireland should suspend its measures and replace them by these fishing plans. I consider that in the present case such a course of action is impracticable. The fishing plans raise a wealth of detailed questions which the Court of Justice cannot settle itself and especially not in interlocutory proceedings Moreover, in the Commission's view they cannot be incorporated immediately and unamended into an alternative measure which will be in accordance with the Treaty. It cannot therefore be the task of the Court of Justice to provide this alternative solution by means of an interim order.
4.
Nevertheless the idea of replacing the Irish measures by the fishing plans should not be completely abandoned. Since the new Irish Government has been in office only six days and thus has obviously not been in a position to come to a decision on the adoption of the fishing plans as an alternative solution, I consider it justified to take this fact into account when fixing the date on which the Irish measures should be suspended. In this respect a period of between 10 and 14 days seems to me to be appropriate.
I therefore conclude that the Irish Government should be ordered by way of an interim measure to rescind the measures in dispute on a date deferred by between 10 and 14 days.
(
1
)	Translated from the German.